Full text
RLF1 28027841v.1
EXHIBIT A
Application
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 1 of 90
RLF1 28018300v.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
APPLICATION OF DEBTORS FOR
ENTRY OF ORDER AUTHORIZING EMPLOYMENT AND
RETENTION OF ALIXPARTNERS, LLP AS FINANCIAL
ADVISOR TO THE DEBTORS 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” and, together with
their non-Debtor affiliates, the “Company”), respectfully state and represent as follows in support
of this application (the “Application”):
2
Relief Requested
1.
By this Application, pursuant to sections 327(a), 330 and 1107(b) 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 2016-1 of the Local
Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the District
of Delaware (the “Local Rules”), the Debtors request entry of an order authorizing 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 The facts and circumstances supporting the relief requested herein are set forth in the First Day Declaration (as
defined below) filed contemporaneously herewith. Capitalized terms used but not defined herein shall have the
respective meanings ascribed to such terms in the First Day Declaration (as defined below).
Docket No. 16
Date Filed: 10/4/22
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 2 of 90
2
RLF1 28018300v.1
employment and retention of AlixPartners, LLP (“AlixPartners”) as financial advisor for the
Debtors in connection with their Chapter 11 Cases (as defined below), effective as of the Petition
Date, in accordance with the terms and conditions set forth in that certain engagement letter entered
by and among the Debtors and AlixPartners, dated as of April 25, 2022 (the “Initial Engagement
Letter”) and the subsequent engagement letter providing for the continuation of AlixPartners’
services to the Debtors, dated as of September 28, 2022 (the “September Engagement Letter”
and together with the Initial Engagement Letter, the “Engagement Letter”).
2.
A proposed form of order granting the relief requested herein is annexed
hereto as Exhibit A (the “Proposed Order”). A copy of the Engagement Letter is annexed hereto
as Exhibit B.
3.
In support of this Application, the Debtors submit the declaration of
Deborah Rieger-Paganis, a Managing Director of AlixPartners (the “Rieger-Paganis
Declaration”), annexed hereto as Exhibit C.
Jurisdiction and Venue
4.
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 if 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.
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 3 of 90
3
RLF1 28018300v.1
Background
5.
On the date hereof (the “Petition Date”), the Debtors commenced with the
Court voluntary cases 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.
6.
Contemporaneously herewith, the Debtors have filed a motion requesting
joint administration of their Chapter 11 Cases pursuant to Bankruptcy Rule 1015(b).
7.
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 (the “First Day Declaration”), filed contemporaneously herewith.
AlixPartners’ Qualifications
8.
AlixPartners is an internationally recognized restructuring and turnaround
firm with substantial experience in providing financial advisory services and has an excellent
reputation for services it has rendered in large and complex chapter 11 cases on behalf of debtors
and creditors throughout the United States. In light of the size and complexity of these Chapter
11 Cases, the Debtors require a qualified and experienced financial advisor with the resources,
capabilities, and experience of AlixPartners to assist them in pursuing the transaction(s) that are
crucial to the success of the Debtors’ Chapter 11 Cases. AlixPartners performs critical services
that complement the services provided by the Debtors’ other professionals.
9.
AlixPartners has assisted, advised, and provided strategic advice to debtors,
creditors, bondholders, investors, and other entities in numerous chapter 11 cases of similar size
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 4 of 90
4
RLF1 28018300v.1
and complexity to these Chapter 11 Cases. AlixPartners professionals have provided restructuring
or crisis management services in numerous large cases, including recent filings in this district. See,
e.g., In re MD Helicopters, Inc., No. 22-10263 (KBO) (Bankr. D. Del. Apr. 25, 2022); In re Alto
Maipo Delaware LLC, No. 21-11507 (KBO) (Bankr. D. Del. Dec. 16, 2021); In re Riverbed Tech.,
Inc., No. 21-11503 (CTG) (Bankr. D. Del. Dec. 8, 2021); In re Alpha Latam Mgmt., LLC, No. 21-
11109 (JKS) (Bankr. D. Del. Sept. 15, 2021); In re Nine Point Energy, LLC, No. 21-10570 (MFW)
(Bankr. D. Del. Apr. 20, 2021); In re HighPoint Res. Corp., No. 21-10565 (CSS) (Bankr. D. Del.
Apr. 13, 2021); In re Mallinckrodt plc, No. 20-12522 (JTD) (Bankr. D. Del. Nov. 19, 2020); In re
RGN-Grp. Holdings, LLC, No. 20-11961 (BLS) (Bankr. D. Del. Sept. 15, 2020); In re Skillsoft
Corp., No. 20-11532 (MFW) (Bankr. D. Del. July 23, 2020); In re Celadon Grp., Inc., No. 19-
12606 (KBO) (Bankr. D. Del. Jan. 3, 2020); In re Bumble Bee Parent, Inc., No. 19-12505 (LSS)
(Bankr. D. Del. Dec. 26, 2019); In re Hexion Holdings LLC, No. 19-10684 (KG) (Bankr. D. Del.
May 1, 2019; In re David’s Bridal, No. 18-12635 (LSS) (Bankr, D. Del. Dec. 18, 2018); In re
Mattress Firm, Inc., No. 18-12241 (CSS) (Bankr. D. Del. Nov. 7, 2018); In re Am. Tire Distribs.,
No. 18-12221 (KJC) (Bankr. D. Del. Nov. 1, 2018); In re The Bon-Ton Stores, Inc., No. 18-10248
(MFW) (Bankr. D. Del. Mar. 6, 2018; In re Charming Charlie Holdings, Inc., No. 17-12906 (CSS)
(Bankr. D. Del. Jan. 20, 2018); and In re Prospector Offshore Drilling S.à r.l., No. 17-11572 (CSS)
(Bankr. D. Del. Oct. 2, 2017).
10.
The Debtors have selected AlixPartners as their financial advisor because
of AlixPartners’ experience and reputation for providing financial advisory services in large,
complex chapter 11 cases such as those listed above. Furthermore, since April, 2022, AlixPartners
has performed significant prepetition work for the Debtors, and as a result has acquired significant
knowledge of the Debtors and their businesses, and familiarity with the Debtors’ financial affairs,
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 5 of 90
5
RLF1 28018300v.1
debt structure, operations, and related matters. Likewise, in providing prepetition services to the
Debtors, AlixPartners’ professionals have worked closely with the Debtors’ management and their
other advisors. Accordingly, AlixPartners has experience, expertise, and specifically relevant
knowledge regarding the Debtors that will assist it in providing effective and efficient services in
these Chapter 11 Cases. The Debtors submit that the retention of AlixPartners on the terms and
conditions set forth herein are necessary and appropriate, in the best of the Debtors’ estates,
creditors, and all other parties in interest, and should be granted in all respects.
11.
If this Application is approved, AlixPartners’ personnel, all with substantial
expertise in the areas discussed above, will continue to provide services to the Debtors. Such
personnel will work closely with the Debtors’ management and other professionals throughout the
restructuring process. By virtue of the expertise of its restructuring personnel and the significant
prepetition work that AlixPartners performed for the Debtors during its prepetition representation
of the Debtors, AlixPartners is well-qualified to provide services to and represent the Debtors’
interests in these Chapter 11 Cases.
Services to be Provided
12.
Prior to the Petition Date, the Debtors and AlixPartners entered into the
Engagement Letter, which governs the relationship between them. The terms and conditions of
the Engagement Letter were negotiated between the Debtors and AlixPartners and reflect the
parties’ mutual agreement as to the substantial efforts that will be required in this engagement.
Under the Engagement Letter, AlixPartners has assisted, and it is expected that AlixPartners will
continue to assist, the Debtors in matters throughout the course of these Chapter 11 Cases,
including, but not limited to, the following:
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 6 of 90
6
RLF1 28018300v.1
Restructuring
Work with the Debtors and their team to further identify and implement both short-term
and long-term liquidity-generating and cost-reduction initiatives.
Assist the Debtors in developing a global wind-down plan and a detailed work plan
identifying key milestones and in setting appropriate priorities.
Assist Debtors’ management and their professionals specifically assigned to sourcing,
negotiating and implementing any financing in conjunction with the Chapter 11 Plan and
the overall restructuring, as applicable.
Assist Debtors’ management in the design and implementation of a restructuring strategy
designed to maximize value, taking into account the unique interests of all constituencies.
Work with senior management to negotiate and implement restructuring initiatives and
evaluate strategic alternatives.
Communication with Outsiders
Assist in negotiations with stakeholders and their representatives regarding the
restructuring.
Assist in negotiations with potential acquirers of the Debtors’ assets.
Assist in communication and/or negotiate and implement restructuring initiatives and
evaluate strategic alternatives.
Bankruptcy Case Management
Assist in managing the “working group” professionals who are assisting the Debtors in the
wind down process or who are working for the Debtors’ various stakeholders to improve
coordination of their efforts and individual work product to be consistent with the Debtors’
overall restructuring goals.
Assist in obtaining and presenting information required by parties in interest in the Debtors’
bankruptcy process, including official committees appointed by the Court and the Court
itself.
Assist the Debtors in other business and financial aspects of a Chapter 11 proceeding,
including, but not limited to, development of a disclosure statement, Chapter 11 Plan, first
day motions and petitions.
Assist with the preparation of the statement of affairs, schedules and other regular reports
required by the Court, as well as provide assistance in areas such as testimony before the
Court on matters that are within AlixPartners’ areas of expertise.
Assist as requested in supporting any litigation that may be brought against the Debtors in
the Court.
Assist as requested in analyzing preferences and other avoidance actions.
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 7 of 90
7
RLF1 28018300v.1
Manage the claims reconciliation processes.
Assist the Debtors with electronic data collection.
Finance and Cash Management
Assist the Debtors with providing financial leadership and support.
Assist the Debtors and their 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 Debtors.
Assist the Debtors in developing an actual to forecast variance reporting mechanism
including written explanations of key differences.
Miscellaneous
Assist with such other matters as may be requested that fall with AlixPartners’ expertise
and that are mutually agreeable.
13.
Such financial advisory services are necessary to the Debtors’ restructuring
efforts and in the ongoing operation and management of the Debtors’ businesses while subject to
chapter 11 of the Bankruptcy Code.
14.
When necessary, the individuals working on this matter (the “AlixPartners
Personnel”) will be assisted by or replaced by various professionals at various levels.
No Duplication of Services
15.
AlixPartners understands that the Debtors may retain additional
professionals during the term of its engagement and will work cooperatively with such
professionals to integrate any respective work conducted by the professionals on behalf of the
Debtors. The financial advisory services provided by AlixPartners will complement, and not
duplicate, the services rendered by any other professional retained in these Chapter 11 Cases.
Professional Compensation and Expense Reimbursement
16.
AlixPartners’ decision to accept this engagement to advise and assist the
Debtors is conditioned upon its ability to be retained in accordance with its customary terms and
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 8 of 90
8
RLF1 28018300v.1
conditions of employment, compensated for its services, and reimbursed for the out-of-pocket
expenses it incurs in accordance with its customary billing practices, as set forth in Schedule 1 of
the Engagement Letter (the “Fee and Expense Structure”).
17.
AlixPartners’ current standard hourly rates for 2022, subject to periodic
adjustments, are as follows:
Title
Hourly Rate
Managing Director
$1,060 – $1,335
Director
$840 – $990
Senior Vice President
$700 – $795
Vice President
$510 – $685
Consultant
$190 – $505
Paraprofessional
$320 – $340
18.
AlixPartners reviews and revises its billing rates on a semi-annual basis.
Changes in applicable hourly rates will be noted on the invoices for the first time period in which
the revised rates become effective.
19.
To the extent the Debtors request services related to electronic discovery
and data collection, certain monthly hosting fees and consulting fees will apply, as further detailed
and outlined in the Engagement Letter.
20.
In addition to compensation for professional services rendered by
AlixPartners Personnel, AlixPartners will seek reimbursement for reasonable and necessary
expenses incurred in connection with these Chapter 11 Cases, including but not limited to
transportation costs, lodging, and meals.
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 9 of 90
9
RLF1 28018300v.1
21.
To the extent that AlixPartners requires services of its international
divisions or personnel from specialized practices, the standard hourly rates for that international
division or specialized practice will apply.
22.
To the extent AlixPartners uses the services of independent contractors (the
“Contractors”) in these Chapter 11 Cases, AlixPartners shall: (a) pass through the cost of such
Contractors to the Debtors at the same rate that AlixPartners pays the Contractors; (b) seek
reimbursement for actual costs only; (c) ensure that the Contractors are subject to the same conflict
checks as required for AlixPartners; and (d) file with the Court such disclosures required by
Bankruptcy Rule 2014.
23.
AlixPartners intends to apply for compensation for professional services
rendered and reimbursement of expenses incurred in connection with these Chapter 11 Cases
consistent with the Fee and Expense Structure, subject to this Court’s approval and in compliance
with applicable provisions of the Bankruptcy Code, including sections 330 and 331, the
Bankruptcy Rules, the Local Rules, and any other applicable procedures and orders of this Court.
24.
AlixPartners will maintain records in support of any fees (in 1/10th of an
hour increments), costs, and expenses incurred in connection with services rendered in these
Chapter 11 Cases. Records will be arranged by category and nature of the services rendered and
will include reasonably detailed descriptions of those services provided on behalf of the Debtors.
AlixPartners’ applications for compensation of fees and reimbursement of expenses will be paid
by the Debtors pursuant to the terms of the Engagement Letter and any procedures established by
the Court, pursuant to a compensation order or otherwise.
25.
AlixPartners often provides services for compensation that includes hourly-
based fees and performance-based, contingent-incentive compensation earned upon achieving
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 10 of 90
10
RLF1 28018300v.1
meaningful results. AlixPartners does not seek a success fee in connection with these Chapter 11
Cases.
26.
The Fee and Expense Structure is consistent with and typical of
compensation arrangements entered into by AlixPartners and other comparable firms that render
similar services under similar circumstances. The Debtors believe that the Fee and Expense
Structure is reasonable, market-based, and designed to compensate AlixPartners fairly for its work
and to cover fixed and routine overhead expenses.
27.
Prior to the Petition Date, AlixPartners received a retainer in the amount of
$500,000 from the Debtors (the “Retainer”). According to AlixPartners’ books and records,
during the 90-day period prior to the Petition Date, the Debtors paid AlixPartners $2,653,545.74
in the aggregate for professional services performed and expenses incurred, including advanced
payments and excluding the Retainer.
28.
The Debtors propose that the remainder of the Retainer paid to AlixPartners
and not expended for prepetition services and disbursements be treated as an evergreen retainer to
be held by AlixPartners as security throughout these Chapter 11 Cases until AlixPartners’ fees and
expenses are awarded by final order of this Court and payable to AlixPartners.
29.
An evergreen retainer is appropriate in these Chapter 11 Cases. First,
evergreen retainer agreements are standard business practice in the marketplace. See In re Insilco
Techs., Inc., 291 B.R. 628, 634 (Bankr. D. Del. 2003) (“[I]t is not disputed that the taking of
evergreen retainers is a practice now common in the marketplace …. [T]he practice in this district
has been engaged in since at least the early 1990’s ….”). Second, AlixPartners and the Debtors
are sophisticated business entities that have negotiated the Retainer at arm’s length. As such, the
Debtors respectfully request that approval of the proposed evergreen retainer is warranted.
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 11 of 90
11
RLF1 28018300v.1
30.
Due to the ordinary course and unavoidable reconciliation of fees and
submission of expenses immediately prior, and subsequent to, the Petition Date, AlixPartners may
have incurred fees and reimbursable expenses that relate to the prepetition period which remain
unpaid. Approval is sought from this Court for AlixPartners to apply the Retainer and advanced
payments to these unpaid amounts. Upon entry of an order approving the relief requested herein,
the Debtors will not owe AlixPartners any sums for prepetition services.
The Fee and Expense Structure Is Appropriate and Reasonable and
Should Be Approved Under Section 327(a) of the Bankruptcy Code
31.
The Debtors believe that the Fee and Expense Structure is comparable to
those generally charged by financial advisors of similar stature to AlixPartners for comparable
engagements, both in and out of bankruptcy proceedings. The Engagement Letter was negotiated
at arm’s-length and in good faith. AlixPartners and the Debtors believe that the Fee and Expense
Structure is both reasonable and market-based.
32.
Without the relief requested herein the Debtors would be deprived of the
assistance of qualified financial advisors, which would disadvantage the Debtors and all parties-
in-interest. If the Debtors are forced to engage new financial advisors, the Debtors’ restructuring
efforts would be slowed as any such new advisor is provided with the necessary background to
provide adequate services. Moreover, comparable financial advisors would likely require similar
compensation.
33.
In light of the foregoing and given the numerous issues that AlixPartners
may be required to address in the performance of its services hereunder, and the market prices for
AlixPartners’ services for engagements of this nature in both in and out-of-court contexts, the
Debtors believe that the Fee and Expense Structure is in line with market compensation for similar
services and is fair and reasonable.
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 12 of 90
12
RLF1 28018300v.1
AlixPartners’ Disinterestedness
34.
To the best of the Debtors’ knowledge, and except as disclosed herein and
in the Rieger-Paganis Declaration, AlixPartners: (a) 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 supplemented by section 1107(b) of the Bankruptcy Code; (b) does not hold or represent any
interest materially adverse to the Debtors’ estates; and (c) has no connection to the Debtors, their
creditors or other parties-in-interest in these Chapter 11 Cases, or the attorneys or accountants of
the foregoing, or the U.S. Trustee or any person employed in the Office of the U.S. Trustee.
35.
As set forth in further detail in the Rieger-Paganis Declaration, AlixPartners
has certain connections with creditors, equity security holders and other parties-in-interest in these
Chapter 11 Cases. All of these matters, however, are unrelated to these Chapter 11 Cases.
AlixPartners does not believe that any of these matters represent an interest materially adverse to
the Debtors’ estates or otherwise create a conflict of interest regarding the Debtors or these Chapter
11 Cases.
36.
To the extent that any new relevant facts or relationships bearing on the
matters described herein during the period of AlixPartners’ retention are discovered or arise,
AlixPartners will use reasonable efforts to promptly file a supplemental declaration.
Indemnification
37.
The Engagement Letter contains standard indemnification language with
respect to AlixPartners’ services including, without limitation, an agreement by the Debtors to
indemnify AlixPartners and its affiliates, partners, directors, officers, employees and agents (each,
an “AlixPartners Party” and collectively, the “AlixPartners Parties”) from and against all
claims, liabilities, losses, expenses and damages arising out of or in connection with the
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 13 of 90
13
RLF1 28018300v.1
engagement of AlixPartners that is the subject of the Engagement Letter, except to the extent
caused by gross negligence, willful misconduct, or fraud of any AlixPartners Party.
38.
The Debtors and AlixPartners believe that the indemnification provisions
contained in the Engagement Letter, as may be amended in the Proposed Order, are customary and
reasonable for AlixPartners and comparable firms providing financial advisory services, and as
would be modified pursuant to the foregoing limitations, reflect the qualifications and limitations
on indemnification provisions that are customary in this district and others. See, e.g., In re TNT
Crane & Rigging, Inc., No. 20-11982 (BLS) (Bankr. D. Del. Sept. 18, 2020) (approving similar
modified indemnification provisions for the retention and employment of FTI Consulting, Inc.);
In re VIVUS, Inc., No. 20-11779 (LSS) (Bankr. D. Del. Aug. 24, 2020) (approving similar modified
indemnification provisions for the retention and employment of Ernst & Young LLP); In re Lucky
Brand Dungarees, LLC, No. 20-11768 (CSS) (Bankr. D. Del. July 29, 2020) (approving similar
modified indemnification provisions for the retention and employment of Houlihan Lokey Capital,
Inc.); In re Paddock Enters., LLC, No. 20-10028 (LSS) (Bankr. D. Del. June 24, 2020) (approving
similar modified indemnification provisions for the retention and employment of Alvarez &
Marsal North America, LLC); In re Longview Power, LLC, No. 20-10951 (BLS) (Bankr. D. Del.
May 18, 2020) (approving similar modified indemnification provisions for the retention and
employment of Houlihan Lokey Capital, Inc.); In re Fred’s Inc., No. 19-11984 (CSS) (Bankr. D.
Del. Oct. 30, 2019) (approving similar modified indemnification provisions for the retention and
employment of Alvarez & Marsal North America, LLC).
39.
Moreover, the terms and conditions of the indemnification provisions were
negotiated by the Debtors and AlixPartners at arm’s length and in good faith. The provisions
contained in the Engagement Letter, viewed in conjunction with the other terms of AlixPartners’
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 14 of 90
14
RLF1 28018300v.1
proposed retention, are reasonable and in the best interest of the Debtors, their estates, and all
parties in interest in light of the fact that the Debtors require AlixPartners’ services to successfully
restructure. Accordingly, as part of this Application, the Debtors request that this Court approve
the indemnification provisions as set forth in the Engagement Letter, as may be amended by the
Proposed Order (setting forth the foregoing limitations).
Basis for Relief
40.
Section 327(a) of the Bankruptcy Code provides that a debtor, subject to
court approval:
[M]ay 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).
41.
Section 1107(b) of the Bankruptcy Code elaborates upon sections 101(14)
and 327(a) of the Bankruptcy Code in cases under chapter 11 of the Bankruptcy Code and provides
that “a person is not disqualified for employment under section 327 of [the Bankruptcy Code] by
a debtor in possession solely because of such person’s employment by or representation of the
debtor before the commencement of the case.” 11 U.S.C. § 1107(b).
42.
Bankruptcy Rule 2014 requires that an application for retention include:
[S]pecific 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.
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 15 of 90
15
RLF1 28018300v.1
43.
The Debtors respectfully submit that section 327 of the Bankruptcy Code
permits them to hire a professional firm like AlixPartners to undertake an advisory role in these
Chapter 11 Cases. Furthermore, the requirements set forth by Bankruptcy Rule 2014 are satisfied
by this Application. The retention of AlixPartners as financial advisor in these Chapter 11 Cases
is in the best interests of the Debtors’ estates, creditors, and all other parties in interest.
44.
The Debtors seek approval of the Fee and Expense Structure and the
Engagement Letter (including the Indemnification Provisions) pursuant to section 327(a) of the
Bankruptcy Code.
45.
The Debtors believe that the Fee and Expense Structure in the Engagement
Letter sets forth reasonable terms and conditions of employment and should be approved under
section 327(a) of the Bankruptcy Code. The Fee and Expense Structure adequately reflects: (i) the
nature of the services to be provided by AlixPartners; and (ii) fee and expense structures and
indemnification provisions typically utilized by AlixPartners and other leading financial advisory
and consulting firms. In addition, as noted above, AlixPartners is “disinterested” and all of its fees
and expenses are subject to approval of the Court in accordance with the Bankruptcy Code, the
Bankruptcy Rules, the Local Rules, and further orders of the Court.
46.
Accordingly, the Debtors submit that the relief requested in the Application
is in the best interests of their estates, creditors, and all parties in interest to these Chapter 11 Cases
and the Court should approve the retention and employment of AlixPartners pursuant to the terms
set forth in the Engagement Letter.
Notice
47.
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 30 largest unsecured claims
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 16 of 90
16
RLF1 28018300v.1
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; (l) the Banks; and (m) any party that is entitled to notice pursuant to Local Rule 9013-
1(m) (collectively, the “Notice Parties”). As this Application is seeking “first-day” relief, the
Debtors will serve copies of this Application and any order entered in respect of this Application
as required by Local Rule 9013-1(m). The Debtors believe that no further notice is required.
No Prior Request
48.
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 49-1 Filed 10/05/22 Page 17 of 90
RLF1 28018300v.1
Exhibit A
Proposed Order
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 18 of 90
RLF1 28018300v.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 AUTHORIZING DEBTORS TO EMPLOY AND RETAIN
ALIXPARTNERS, LLP AS FINANCIAL ADVISOR
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 (i) authorizing the employment and retention of AlixPartners
as financial advisor to the Debtors, in accordance with the terms and conditions set forth in the
Engagement Letter effective as of the Petition Date, pursuant to sections 327(a) and 330 of the
Bankruptcy Code, Bankruptcy Rule 2014, and Local Rule 2014-1, all as more fully set forth in the
Application; and upon consideration of the Rieger-Paganis Declaration; and the Court having
found that AlixPartners is a “disinterested person” as such term is defined under section 101(14)
of the Bankruptcy Code, as supplemented by section 1107(b) of the Bankruptcy Code; and this
court having found the terms and conditions of AlixPartners’ employment, including but not
limited to the Fee and Expense Structure set forth in the Engagement Letter and Application, are
1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification
number, as applicable are: Kabbage, Inc. d/b/a KServicing (3937); Kabbage Canada Holdings, LLC (N/A); Kabbage
Asset Securitization LLC (N/A); Kabbage Asset Funding 2017-A LLC (4803); Kabbage Asset Funding 2019-A LLC
(8973); and Kabbage Diameter, LLC (N/A). Kabbage is a trademark of American Express used under license;
Kabbage, Inc. d/b/a KServicing is not affiliated with American Express. The Debtors’ mailing and service address is
925B Peachtree Street NE, Suite 383, Atlanta, GA 30309.
2 Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Application.
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 19 of 90
2
RLF1 28018300v.1
reasonable under section 330 of the Bankruptcy Code; and the Court having jurisdiction to
consider the Application and the relief requested therein pursuant to 28 U.S.C. §§ 157(a)–(b) and
1334(b), and the Amended Standing Order of Reference from the United States District Court for
the District of Delaware, dated February 29, 2012; and consideration of the Application and the
requested relief being a core proceeding pursuant to 28 U.S.C. § 157(b); and due and proper notice
of the Application having been provided; and such notice having been adequate and appropriate
under the circumstances; and it appearing that no other or further notice need be provided; and this
Court having reviewed the Application; and this Court having held a hearing on the Application
(the “Hearing”); and this Court having determined that the legal and factual bases set forth in the
Application establish just cause for the relief granted herein; and after due deliberation and
sufficient cause appearing therefor,
IT IS HEREBY ORDERED THAT:
1.
The Application is approved as set forth in this Order.
2.
Pursuant to sections 327(a) and 1107(b) of the Bankruptcy Code,
Bankruptcy Rules 2014(a) and 2016 and Local Rules 2014-1 and 2016-1, the Debtors are hereby
authorized to employ and retain AlixPartners as their financial advisor in these Chapter 11 Cases,
effective as of the Petition Date, and in accordance with the terms and conditions set forth in the
Engagement Letter annexed to the Application as Exhibit B.
3.
The terms of the Engagement Letter, including without limitation, the
Indemnification Provisions and the Fee and Expense Structure, are reasonable terms and
conditions of employment and are approved in all respects, as modified by this Order.
4.
AlixPartners is authorized to apply the Retainer and advanced payments to
unpaid amounts to satisfy any unbilled or other remaining prepetition fees and expenses that
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 20 of 90
3
RLF1 28018300v.1
AlixPartners becomes aware of during its ordinary course billing review and reconciliation. The
balance of the Retainer shall be treated as an evergreen retainer and held by AlixPartners as
security throughout the Chapter 11 Cases.
5.
AlixPartners shall file monthly, interim, and final fee requests for allowance
of compensation and reimbursement of expenses pursuant to the procedures set forth in sections
330 and 331 of the Bankruptcy Code, applicable Bankruptcy Rules and the Local Rules, the U.S.
Trustee Guidelines and any other such procedures as may be fixed by order of this Court. For
billing purposes, AlixPartners shall keep its time in one-tenth (1/10) hour increments in accordance
with the U.S. Trustee Guidelines.
6.
All of AlixPartners’ compensation set forth in the Engagement Letter,
including, without limitation, the Fee and Expense Structure, is approved pursuant to section 327
of the Bankruptcy Code and AlixPartners shall be compensated and reimbursed pursuant to section
327 of the Bankruptcy Code in accordance with the terms of the Engagement Letter, subject to the
procedures set forth in the Bankruptcy Code, the Bankruptcy Rules, the Local Rules and any other
applicable orders of this Court.
7.
The Fee and Expense Structure is approved, and the Debtors will reimburse
AlixPartners for reasonable expenses incurred in connection with the performance of its
engagement under the Engagement Letter including, without limitation, fees, disbursements and
other charges by AlixPartners’ counsel to the extent provided for in the Engagement Letter as
modified by this order (including, without limitation, pursuant to the Indemnification Provisions
as modified by this Order), which counsel shall not be required to be retained pursuant to section
327 of the Bankruptcy Code or otherwise; provided, further, that in the event that AlixPartners
seeks reimbursement from the Debtors for attorneys’ fees and expenses consistent with the terms
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 21 of 90
4
RLF1 28018300v.1
of this Order, the invoices and supporting time records from such attorneys shall be included in
AlixPartners’ own applications, both interim and final, and they shall be subject to the U.S. Trustee
Fee Guidelines and the approval of the Bankruptcy Court pursuant to sections 330 and 331 of the
Bankruptcy Code.
8.
The indemnification provisions included in the Engagement Letter are
approved, subject to the following:
a)
No Indemnified Agent (as that term is defined in the Engagement
Letter) shall be entitled to indemnification, contribution or
reimbursement pursuant to the Engagement Letter for services,
unless such services and the indemnification, contribution or
reimbursement therefore are approved by this Court.
b)
The Debtors shall have no obligation to indemnify any Indemnified
Agent, or provide contribution or reimbursement to any Indemnified
Agent, for any claim or expense to the extent it is either: (i)
judicially determined (the determination having become final and
no longer subject to appeal) to have arisen from the Indemnified
Agent’s gross negligence, willful misconduct or bad faith; (ii) for a
contractual dispute in which the Debtors allege breach of an
Indemnified Agent’s contractual obligations, unless this Court
determines that indemnification, contribution or reimbursement
would be permissible pursuant to In re United Artists Theatre
Company, 315 F.3d 217 (3d Cir. 2003); or (iii) settled prior to a
judicial determination as to the exclusions set forth in clauses (i) and
(ii) above, but determined by this Court, after notice and a hearing
pursuant to subparagraph (c) hereof to be a claim or expense for
which the Indemnified Agent should not receive indemnity,
contribution or reimbursement under the terms of the Agreement, as
modified by this Order.
c)
If, before the earlier of (i) the entry of an order confirming a chapter
11 plan in these Chapter 11 Cases (that order having become a final
order no longer subject to appeal) and (ii) the entry of an order
closing these Chapter 11 Cases, an Indemnified Agent believes that
it is entitled to the payment of any amounts by the Debtors on
account of the Debtors’ indemnification, contribution and/or
reimbursement obligations under the Agreement (as modified by
this Order), including without limitation, the advancement of
defense costs, the Indemnified Agent must file an application
therefor in this Court, and the Debtors may not pay any such
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 22 of 90
5
RLF1 28018300v.1
amounts to the Indemnified Agent before the entry of an order by
this Court approving the payment. This subparagraph (c) is
intended only to specify the period of time under which this Court
shall have jurisdiction over any request for fees and expenses by any
Indemnified Agent for indemnification, contribution and/or
reimbursement, and not a provision limiting the duration of the
Debtors’ obligation to indemnify, or make contributions or
reimbursements to, the Indemnified Agents. All parties in interest
shall retain the right to object to any demand by any Indemnified
Agent for indemnification, contribution and/or reimbursement.
10.
Any limitation of liability pursuant to the terms and conditions set forth in
the Engagement Letter, or otherwise, are hereby eliminated for the duration of these Chapter 11
Cases.
11.
The relief granted herein shall be binding upon any chapter 11 trustee
appointed in these Chapter 11 Cases, or upon any chapter 7 trustee appointed in the event of a
subsequent conversion of these Chapter 11 Cases to cases under chapter 7.
12.
To the extent there is any inconsistency between the terms of the
Engagement Letter, the Application, and this Order, the terms of this Order shall govern.
13.
AlixPartners shall use its reasonable efforts to avoid any unnecessary
duplication of services provided by any retained professionals in these Chapter 11 Cases.
14.
Under the circumstances of these Chapter 11 Cases, notice of the
Application is adequate under Bankruptcy Rule 6004(a).
15.
Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this
Order shall be immediately effective and enforceable upon its entry.
16.
The Debtors are authorized to take all actions necessary to effectuate the
relief granted in this Order in accordance with the Application.
17.
This Court shall retain jurisdiction to hear and determine all matters arising
from or related to the implementation, interpretation, or enforcement of this Order.
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 23 of 90
RLF1 28018300v.1
Exhibit B
Engagement Letter
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 24 of 90
AlixPartners | 909 Third Avenue, 30th Floor | New York, NY 10022 | 212.490.2500 | alixpartners.com
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.
DocuSign Envelope ID: EF3EA5CF-8D56-4726-A20D-90868C854706
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 25 of 90
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.
* * *
DocuSign Envelope ID: EF3EA5CF-8D56-4726-A20D-90868C854706
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 26 of 90
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:
Its:
Dated:
Acknowledged and Agreed to:
KServicing
By:
Its:
Dated:
DocuSign Envelope ID: EF3EA5CF-8D56-4726-A20D-90868C854706
Candace Arthur
4/28/2022 | 11:50 AM EDT
Partner
Holly Loiseau
4/28/2022 | 12:01 PM EDT
General Counsel
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 27 of 90
Page 4 of 10
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:
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.
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
DocuSign Envelope ID: EF3EA5CF-8D56-4726-A20D-90868C854706
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 28 of 90
Page 5 of 10
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.
DocuSign Envelope ID: EF3EA5CF-8D56-4726-A20D-90868C854706
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 29 of 90
AlixPartners, LLP
General Terms and Conditions
Page 6 of 10
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
The Company will undertake responsibilities as set forth
below:
1. Provide reliable and accurate detailed information,
materials, documentation and
2. Make decisions and take future actions, as the
Company determines in its sole discretion, on any
recommendations made by AlixPartners in connection
with this Agreement.
AlixPartners’ delivery of the services and the fees
charged are dependent on (i) the Company’s timely and
effective completion of its responsibilities; and (ii)
timely decisions and approvals made by the Company’s
management.
Section 2. Retainer, Billing, Payments and Taxes
Retainer. Upon execution of the Agreement, the
Company shall promptly pay AlixPartners the agreed-
upon advance retainer as set forth on Schedule 1.
Invoices shall be offset against the retainer. Payments
of invoices will be used to replenish the retainer to the
agreed-upon amount. Any unearned portion of the
retainer will be applied against the final invoice or
returned to the Company at the end of the
engagement.
Billing and Payments. All payments to be made to
AlixPartners shall be due and payable upon delivery of
invoice via check or wire transfer to AlixPartners’ bank
account, as shown on the invoice. All amounts invoiced
are based on services rendered and expenses incurred
to date, and are not contingent upon future services or
Work Product (as defined below), or the outcome of any
case or matter. “Fees,” as used in this Agreement, shall
include all amounts payable by the Company to
AlixPartners in accordance with Schedule 1, including
any
success
fee
or
break
fee,
but
excluding
reimbursable expenses.
Under no circumstances shall the Firm be liable for any
Fees or any other amounts payable under this
Agreement.
Taxes. AlixPartners’ fees are exclusive of taxes or
similar charges, which shall be the responsibility of the
Company (other than taxes imposed on AlixPartners’
income generally). If AlixPartners’ fees are subject to
any taxes, such as State sales tax, Goods and Services
Tax/Harmonized Sales Tax or Value Added Tax, then
AlixPartners will include such taxes on its invoices as
separate line items.
Section 3. Relationship of the Parties
AlixPartners acknowledges that the Work Product (as
defined below) produced by AlixPartners pursuant to
this Agreement is intended for the purpose of
facilitating services by the Firm of legal services to the
Company and constitutes attorney work product and
that any communication to the Firm (including any
correspondence,
analyses,
reports,
and
related
materials that AlixPartners prepares) is intended to
constitute confidential and privileged communications.
The parties intend that an independent contractor
relationship will be created by the Agreement. As an
independent
contractor,
AlixPartners
will
have
complete and exclusive charge of the management and
operation of its business, including hiring and paying
the wages and other compensation of all its employees
and agents, and paying all bills, expenses and other
charges incurred or payable with respect to the
operation of its business. Employees of AlixPartners will
not be entitled to receive from the Company of the Firm
any vacation pay, sick leave, retirement, pension or
social
security
benefits,
workers’
compensation,
disability, unemployment insurance benefits or any
other
employee
benefits.
AlixPartners
will
be
responsible for all employment, withholding, income
and other taxes incurred in connection with the
operation and conduct of its business. Nothing in this
Agreement is intended to create, nor shall be deemed
or construed to create a fiduciary or agency relationship
between AlixPartners, the Company, or the Firm
AlixPartners is providing advisory and consulting
services only, and will not make management decisions
for the Company. While AlixPartners may from time to
time suggest options that may be available to the
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
matters.
AlixPartners is not an accounting firm and does not give
accounting advice or guidance. While AlixPartners’
work may involve analysis of accounting, business and
other related records, this engagement does not
constitute an audit in accordance with either generally
accepted auditing standards or the standards of the
Public Company Accounting Oversight Board or any
other similar governing body.
AlixPartners is not authorized to practice law or provide
legal advice. No services provided under this
Agreement are intended to be, nor should be construed
to be, legal services.
Section 4. Confidentiality
Each party shall use reasonable efforts, but in no event
less effort than it would use to protect its own
confidential information, to keep confidential all non-
public confidential or proprietary information obtained
from the other party during the performance of
AlixPartners’ services hereunder (the “Confidential
Information”), and neither party will disclose any
Confidential Information to any other person or entity.
“Confidential Information” includes the terms of this
DocuSign Envelope ID: EF3EA5CF-8D56-4726-A20D-90868C854706
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 30 of 90
AlixPartners, LLP
General Terms and Conditions
Page 7 of 10
Agreement, non-public confidential and proprietary
data, plans, reports, schedules, drawings, accounts,
records, calculations, specifications, flow sheets,
computer programs, source or object codes, results,
models or any work product relating to the business of
either party, its subsidiaries, distributors, affiliates,
vendors, customers, employees, contractors and
consultants.
The foregoing is not intended to prohibit, nor shall it be
construed as prohibiting, AlixPartners from making
such disclosures of Confidential Information that
AlixPartners reasonably believes are required by law or
any regulatory requirement or authority to clear client
conflicts. AlixPartners may also disclose Confidential
Information
to
its
partners,
directors,
officers,
employees, independent contractors and agents who
have a need to know the Confidential Information as it
relates to the services being provided under this
Agreement, provided AlixPartners is responsible for any
breach of these confidentiality obligations by any such
parties. AlixPartners may make reasonable disclosures
of Confidential Information to third parties, such as the
Company’s suppliers and/or vendors, in connection
with the performance of AlixPartners’ obligations and
assignments
hereunder,
provided
AlixPartners
reasonably believes that such third party is bound by
confidentiality obligations. In addition, AlixPartners will
have the right to disclose to any person that it provided
services to the Company or its affiliates and a general
description of such services, but shall not provide any
other information about its involvement with the
Company. The obligations of the parties under this
Section 4 shall survive the end of any engagement
between the parties for a period of three (3) years.
Work Product (as defined in Section 5) may contain
AlixPartners
proprietary
information
or
other
information that is deemed to be Confidential
Information for purposes of this Agreement, and the
parties may not want to make public. Therefore, the
parties acknowledge and agree that (i) all information
(written or oral), including advice and Work Product (as
defined in Section 5), generated by AlixPartners in
connection with this engagement is intended solely for
the benefit and use of the Company in connection with
this Agreement, and (ii) no such information shall be
used for any other purpose or disseminated to any third
parties, or, quoted or referred to with or without
attribution to AlixPartners at any time in any manner or
for any purpose without AlixPartners’ prior approval
(not to be unreasonably withheld or delayed), except
as required by law. The Company may not rely on any
draft or interim Work Product.
Section 5. Intellectual Property
All analyses, final reports, presentation materials, and
other work product (other than any Engagement Tools,
as defined below) that AlixPartners creates or develops
specifically for the Company and delivers to the
Company as part of this engagement (collectively
known as “Work Product”) shall be owned by the
Company and shall constitute Company Confidential
Information as defined above. AlixPartners may retain
copies of the Work Product and any Confidential
Information necessary to support the Work Product
subject to its confidentiality obligations in this
Agreement.
All
methodologies, processes,
techniques,
ideas,
concepts, know-how, procedures, software, tools,
templates, models, utilities and other intellectual
property that AlixPartners has created, acquired or
developed
or
will
create,
acquire
or
develop
(collectively, “Engagement Tools”), are, and shall be,
the sole and exclusive property of AlixPartners. The
Company shall not acquire any interest in the
Engagement Tools other than a limited worldwide,
perpetual,
non-transferable
license
to
use
the
Engagement Tools to the extent they are contained in
the Work Product.
The Company acknowledges and agrees, except as
otherwise set forth in this Agreement, that any
Engagement Tools provided to the Company are
provided “as is” and without any warranty or condition
of any kind, express, implied or otherwise, including,
implied warranties of merchantability or fitness for a
particular purpose.
Section 6. Framework of the Engagement
The Company acknowledges that AlixPartners is being
retained by the Firm solely to assist and advise as
described in the Agreement. This engagement shall not
constitute an audit, review or compilation, or any other
type of financial statement reporting engagement.
Section 7. Indemnification and Other Matters
The Company shall indemnify, hold harmless and
defend AlixPartners and its affiliates and its and their
partners, directors, officers, employees and agents
(collectively, the “AlixPartners Parties”) from and
against all claims, liabilities, losses, expenses and
damages arising out of or in connection with the
engagement of AlixPartners that is the subject of the
Agreement. The Company shall pay damages and
expenses as incurred, including reasonable legal fees
and disbursements of counsel. If, in the opinion of
counsel, representing both parties in the matter
covered by this indemnification creates a potential
conflict of interest, the AlixPartners Parties may engage
separate counsel to represent them at the Company’s
expense.
The Company’s indemnification obligations in this
Section 7 shall be primary to, and without allocation
against, any similar indemnification obligations that
AlixPartners may offer to its personnel generally.
AlixPartners is not responsible for any third-party
products or services separately procured by the
Company. The Company’s sole and exclusive rights and
remedies with respect to any such third party products
or services are against the third-party vendor and not
against AlixPartners, whether or not AlixPartners is
instrumental in procuring such third-party product or
service.
DocuSign Envelope ID: EF3EA5CF-8D56-4726-A20D-90868C854706
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 31 of 90
AlixPartners, LLP
General Terms and Conditions
Page 8 of 10
AlixPartners and the Company acknowledge that the
Firm
shall
have
no
indemnification
obligations
hereunder.
Section 8. Governing Law and Arbitration
The Agreement is governed by and shall be construed
in accordance with the laws of the State of New York
with respect to contracts made and to be performed
entirely therein and without regard to choice of law or
principles thereof.
Any controversy or claim arising out of or relating to
the Agreement, or the breach thereof, shall be settled
by arbitration. Each party shall appoint one non-neutral
arbitrator. The two party arbitrators shall select a third
arbitrator. If within 30 days after their appointment the
two party arbitrators do not select a third arbitrator,
the third arbitrator shall be selected by the American
Arbitration Association (AAA). The arbitration shall be
conducted in New York, New York under the AAA’s
Commercial Arbitration Rules, and the arbitrators shall
issue a reasoned award. The arbitrators may award
costs and attorneys’ fees to the prevailing party.
Judgment on the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof.
Notwithstanding the foregoing, any party may proceed
directly to a court of competent jurisdiction to enforce
the terms of this Agreement for any claim in connection
with (i) the non-payment of Fees or expenses due
under this Agreement, or (ii) the non-performance of
obligations under Section 7.
In any court proceeding arising out of this Agreement,
the parties hereby waive any right to trial by jury.
Section 9. Termination and Survival
The Agreement may be terminated at any time by
written notice by one party to the other, or by the Firm
(on behalf of the Company); provided, however, that
notwithstanding such termination AlixPartners will be
entitled to any Fees and expenses due under the
provisions
of
the
Agreement
(for
fixed
fee
engagements, fees will be pro rata based on the
amount of time completed). Such payment obligation
shall inure to the benefit of any successor or assignee
of AlixPartners.
Additionally, unless the Agreement is terminated by the
Company due to AlixPartners’ material breach (and
such material breach continues after 30 days’ written
notice thereof and opportunity to cure) AlixPartners
shall remain entitled to the success fee(s), if any, that
otherwise would be payable during the 12 months after
the date of termination of the Agreement.
Sections 2, 4, 5, 7, 8, 9, 10, 11, 12, 13 and 14 of these
Terms, the provisions of Schedule 1 and the obligation
to pay accrued fees and expenses shall survive the
expiration or termination of the Agreement.
Section 10. Non-Solicitation of Employees
The
Company
acknowledges
and
agrees
that
AlixPartners
has
made
a
significant
monetary
investment recruiting, hiring and training its personnel.
During the term of this Agreement and for a period of
two years after the final invoice is rendered by
AlixPartners with respect to this engagement (the
“Restrictive Period”), the Company and its affiliates
agree not to directly or indirectly hire, contract with, or
solicit the employment of any of AlixPartners’ Managing
Directors,
Directors,
or
other
employees/
contractors the
Company
or
its
affiliates
had
interactions with or gained knowledge about as a result
of the services provided under this Agreement.
If during the Restrictive Period the Company or its
affiliates directly or indirectly hires or contracts with
any of AlixPartners’ Managing Directors, Directors, or
other
employees/contractors
in
violation
of
the
preceding paragraph, the Company agrees to pay to
AlixPartners as liquidated damages and not as a penalty
the sum total of: (i) for a Managing Director,
$1,000,000; (ii) for a Director, $500,000; and (iii) for
any
other
employee/contractor,
$250,000.
The
Company acknowledges and agrees that liquidated
damages in such amounts are (x) fair, reasonable and
necessary under the circumstances to reimburse
AlixPartners for the costs of recruiting, hiring and
training its employees as well as the lost profits and
opportunity costs related to such personnel, and to
protect the significant investment that AlixPartners has
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
that investment.
The provisions of this Section shall apply except to the
extent the provisions conflict with applicable law.
Section 11. Limitation of Liability
THE ALIXPARTNERS PARTIES SHALL NOT BE LIABLE
TO THE COMPANY, OR ANY PARTY ASSERTING CLAIMS
ON BEHALF OF THE COMPANY, EXCEPT FOR DIRECT
DAMAGES FOUND IN A FINAL DETERMINATION TO BE
THE DIRECT RESULT OF THE GROSS NEGLIGENCE,
BAD
FAITH,
SELF-DEALING
OR
INTENTIONAL
MISCONDUCT OF ALIXPARTNERS. THE ALIXPARTNERS
PARTIES SHALL NOT BE LIABLE FOR INCIDENTAL,
CONSEQUENTIAL
OR
SPECIAL
DAMAGES,
LOST
PROFITS, LOST DATA, REPUTATIONAL DAMAGES,
PUNITIVE
DAMAGES
OR
ANY
OTHER
SIMILAR
DAMAGES UNDER ANY CIRCUMSTANCES, EVEN IF
THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF
SUCH
DAMAGES.
THE
ALIXPARTNERS
PARTIES’
AGGREGATE
LIABILITY,
WHETHER
IN
TORT,
CONTRACT, OR OTHERWISE, IS LIMITED TO THE
AMOUNT OF FEES PAID TO ALIXPARTNERS FOR
SERVICES UNDER THIS AGREEMENT (OR IF THE CLAIM
ARISES FROM AN ADDENDUM TO THIS AGREEMENT,
UNDER THE APPLICABLE ADDENDUM) (THE “LIABILITY
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
DocuSign Envelope ID: EF3EA5CF-8D56-4726-A20D-90868C854706
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 32 of 90
AlixPartners, LLP
General Terms and Conditions
Page 9 of 10
other parties hereto, and to any others making claims
relating to the work performed by AlixPartners
pursuant to this Agreement. Any such claimants shall
allocate any amounts payable by the AlixPartners
Parties among themselves as appropriate, but if they
cannot agree on the allocation it will not affect the
enforceability
of
the
Liability
Cap.
Under
no
circumstances
shall
the
aggregate
of
all
such
allocations or other claims against the AlixPartners
Parties pursuant to this Agreement exceed the Liability
Cap.
Section 12. General
Equitable Remedies. Each party acknowledges and
agrees that money damages alone may not be an
adequate remedy for a breach of the Agreement. Each
party agrees that the non-breaching party shall have
the right to seek a restraining order and/or an
injunction for any breach of the Agreement. If any
provision of the Agreement is found to be invalid or
unenforceable, then it shall be deemed modified or
restricted to the extent and in the manner necessary to
render the same valid and enforceable.
Severability. If any portion of the Agreement shall be
determined to be invalid or unenforceable, the
remainder shall be valid and enforceable to the
maximum extent possible.
Entire Agreement. This Agreement, including the
letter, the Terms and the schedule(s), contains the
entire understanding of the parties relating to the
services to be rendered by AlixPartners and supersedes
any
other
communications,
agreements,
understandings, representations, or estimates among
the parties (relating to the subject matter hereof) with
respect to such services. The Agreement, including the
letter, the Terms and the schedule(s), may not be
amended or modified in any respect except in a writing
signed by the parties. AlixPartners is not responsible for
performing any services not specifically described
herein or in a subsequent writing signed by the parties.
Related Matters. If an AlixPartners Party is required
by applicable law, legal process or government action
to produce information or testimony as a witness with
respect to this Agreement, the Company shall
reimburse AlixPartners for any professional time and
expenses (including reasonable external and internal
legal costs and e-discovery costs) incurred to respond
to the request, except in cases where an AlixPartners
Party is a party to the proceeding or the subject of the
investigation.
Joint and Several. If more than one party signs this
Agreement, the liability of each party shall be joint and
several. In addition, in the event more than one entity
is included in the definition of Company under this
Agreement, the Company shall cause each other entity
which is included in the definition of Company to be
jointly and severally liable for the Company’s liabilities
and obligations set forth in this Agreement. The Firm
shall not have any liability, whether joint or several,
with respect to liabilities arising out of this Agreement,
unless otherwise specified herein.
Third-Party Beneficiaries. The AlixPartners Parties
shall be third-party beneficiaries with respect to Section
7 hereof.
Notices. All notices required or permitted to be
delivered under the Agreement shall be sent, if to
AlixPartners, to:
AlixPartners, LLP
2000 Town Center, Suite 2400
Southfield, MI 48075
Attention: General Counsel
and if to the Company, to the address set forth in the
Agreement, to the attention of the Company’s General
Counsel, or to such other name or address as may be
given in writing to AlixPartners. All notices under the
Agreement shall be sufficient only if delivered by
overnight mail. Any notice shall be deemed to be given
only upon actual receipt.
Section 13. Bankruptcy Related Matters
Notwithstanding any to the contrary in these Terms, in
the event the Company files for protection under the
U.S. Bankruptcy Code, the following provisions will
prevail:
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
if the Company becomes a debtor under the U.S.
Bankruptcy Code unless AlixPartners’ retention under
the terms of the Agreement is approved by a final order
of the Bankruptcy Court reasonably acceptable to
AlixPartners. The Company shall assist, or cause its
counsel to assist, with filing, serving and noticing of
papers related to AlixPartners’ fee and expense
matters.
The Company and AlixPartners agree that the
Bankruptcy Court shall have exclusive jurisdiction over
any and all matters arising under or in connection with
this Agreement.
AlixPartners will have the right to obtain independent
legal counsel to obtain advice with respect to its
services under this engagement. The Company will
reimburse AlixPartners’ for the reasonable fees and
expenses of such independent legal counsel.
AlixPartners acknowledges that, during the pendency of
any
Bankruptcy
Court
approved
retention,
the
indemnification provisions and Liability Cap set forth
above may be subject to modification as stated within
the Bankruptcy Court’s retention order.
Due
to
the
ordinary
course
and
unavoidable
reconciliation of fees and submission of expenses
immediately prior to, and subsequent to, the date of
filing, AlixPartners may have incurred but not billed
DocuSign Envelope ID: EF3EA5CF-8D56-4726-A20D-90868C854706
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 33 of 90
AlixPartners, LLP
General Terms and Conditions
Page 10 of 10
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.
DocuSign Envelope ID: EF3EA5CF-8D56-4726-A20D-90868C854706
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 34 of 90
AlixPartners | 909 Third Avenue, 30th Floor | New York, NY 10022 | 212.490.2500 | alixpartners.com
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.
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 35 of 90
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 49-1 Filed 10/05/22 Page 36 of 90
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 49-1 Filed 10/05/22 Page 37 of 90
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 38 of 90
Page 5 of 10
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:
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.
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
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 39 of 90
Page 6 of 10
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.
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 40 of 90
AlixPartners, LLP
General Terms and Conditions
Page 7 of 10
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
The Company will undertake responsibilities as set forth
below:
1.
Provide reliable and accurate detailed information,
materials, documentation and
2.
Make decisions and take future actions, as the
Company determines in its sole discretion, on any
recommendations made by AlixPartners in connection
with this Agreement.
AlixPartners’ delivery of the services and the fees
charged are dependent on (i) the Company’s timely and
effective completion of its responsibilities; and (ii)
timely decisions and approvals made by the Company’s
management.
Section 2. Retainer, Billing, Payments and Taxes
Retainer. If the Company becomes a debtor under the
Bankruptcy Code, due to the ordinary course and
unavoidable reconciliation of fees and submission of
expenses immediately prior to, and subsequent to, the
date of filing, AlixPartners may have incurred but not
billed fees and reimbursable expenses which relate to
the prepetition period. AlixPartners will seek Court
approval to apply the retainer and any advance
payments to these amounts.
Billing and Payments. All payments to be made to
AlixPartners shall be due and payable upon delivery of
invoice via check or wire transfer to AlixPartners’ bank
account, as shown on the invoice. All amounts invoiced
are based on services rendered and expenses incurred
to date, and are not contingent upon future services or
Work Product (as defined below), or the outcome of any
case or matter. “Fees,” as used in this Agreement, shall
include all amounts payable by the Company to
AlixPartners in accordance with Schedule 1, including
any
success
fee
or
break
fee,
but
excluding
reimbursable expenses.
Taxes. AlixPartners’ fees are exclusive of taxes or
similar charges, which shall be the responsibility of the
Company (other than taxes imposed on AlixPartners’
income generally). If AlixPartners’ fees are subject to
any taxes, such as State sales tax, Goods and Services
Tax/Harmonized Sales Tax or Value Added Tax, then
AlixPartners will include such taxes on its invoices as
separate line items.
Section 3. Relationship of the Parties
The parties intend that an independent contractor
relationship will be created by the Agreement. As an
independent
contractor,
AlixPartners
will
have
complete and exclusive charge of the management and
operation of its business, including hiring and paying
the wages and other compensation of all its employees
and agents, and paying all bills, expenses and other
charges incurred or payable with respect to the
operation of its business. Employees of AlixPartners will
not be entitled to receive from the Company any
vacation pay, sick leave, retirement, pension or social
security benefits, workers’ compensation, disability,
unemployment
insurance benefits or
any other
employee benefits. AlixPartners will be responsible for
all employment, withholding, income and other taxes
incurred in connection with the operation and conduct
of its business. Nothing in this Agreement is intended
to create, nor shall be deemed or construed to create a
fiduciary or agency relationship between AlixPartners
and the Company.
AlixPartners is providing advisory and consulting
services only, and will not make management decisions
for the Company. While AlixPartners may from time to
time suggest options that may be available to the
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
matters.
AlixPartners is not an accounting firm and does not give
accounting advice or guidance.
While AlixPartners’
work may involve analysis of accounting, business and
other related records, this engagement does not
constitute an audit in accordance with either generally
accepted auditing standards or the standards of the
Public Company Accounting Oversight Board or any
other similar governing body.
AlixPartners is not authorized to practice law or provide
legal advice.
No services provided under this
Agreement are intended to be, nor should be construed
to be, legal services.
Section 4. Confidentiality
Each party shall use reasonable efforts, but in no event
less effort than it would use to protect its own
confidential information, to keep confidential all non-
public confidential or proprietary information obtained
from the other party during the performance of
AlixPartners’ services hereunder (the “Confidential
Information”), and neither party will disclose any
Confidential Information to any other person or entity.
“Confidential Information” includes the terms of this
Agreement, non-public confidential and proprietary
data, plans, reports, schedules, drawings, accounts,
records, calculations, specifications, flow sheets,
computer programs, source or object codes, results,
models or any work product relating to the business of
either party, its subsidiaries, distributors, affiliates,
vendors, customers, employees, contractors and
consultants.
The foregoing is not intended to prohibit, nor shall it be
construed as prohibiting, AlixPartners from making
such disclosures of Confidential Information that
AlixPartners reasonably believes are required by law or
any regulatory requirement or authority to clear client
conflicts. AlixPartners may also disclose Confidential
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 41 of 90
AlixPartners, LLP
General Terms and Conditions
Page 8 of 10
Information
to
its
partners,
directors,
officers,
employees, independent contractors and agents who
have a need to know the Confidential Information as it
relates to the services being provided under this
Agreement, provided AlixPartners is responsible for any
breach of these confidentiality obligations by any such
parties. AlixPartners may make reasonable disclosures
of Confidential Information to third parties, such as the
Company’s suppliers and/or vendors, in connection
with the performance of AlixPartners’ obligations and
assignments
hereunder,
provided
AlixPartners
reasonably believes that such third party is bound by
confidentiality obligations. In addition, AlixPartners will
have the right to disclose to any person that it provided
services to the Company or its affiliates and a general
description of such services, but shall not provide any
other information about its involvement with the
Company. The obligations of the parties under this
Section 4 shall survive the end of any engagement
between the parties for a period of three (3) years.
Work Product (as defined in Section 5) may contain
AlixPartners
proprietary
information
or
other
information
that is deemed to be Confidential
Information for purposes of this Agreement, and the
parties may not want to make public. Therefore, the
parties acknowledge and agree that (i) all information
(written or oral), including advice and Work Product (as
defined in Section 5), generated by AlixPartners in
connection with this engagement is intended solely for
the benefit and use of the Company in connection with
this Agreement, and (ii) no such information shall be
used for any other purpose or disseminated to any third
parties, or, quoted or referred to with or without
attribution to AlixPartners at any time in any manner or
for any purpose without AlixPartners’ prior approval
(not to be unreasonably withheld or delayed), except
as required by law. The Company may not rely on any
draft or interim Work Product.
Section 5. Intellectual Property
All analyses, final reports, presentation materials, and
other work product (other than any Engagement Tools,
as defined below) that AlixPartners creates or develops
specifically for the Company and delivers to the
Company as part of this engagement (collectively
known as “Work Product”) shall be owned by the
Company and shall constitute Company Confidential
Information as defined above. AlixPartners may retain
copies of the Work Product and any Confidential
Information necessary to support the Work Product
subject to its confidentiality obligations in this
Agreement.
All
methodologies, processes,
techniques,
ideas,
concepts, know-how, procedures, software, tools,
templates, models, utilities and other intellectual
property that AlixPartners has created, acquired or
developed
or
will
create,
acquire
or
develop
(collectively, “Engagement Tools”), are, and shall be,
the sole and exclusive property of AlixPartners. The
Company shall not acquire any interest in the
Engagement Tools other than a limited worldwide,
perpetual,
non-transferable
license
to
use
the
Engagement Tools to the extent they are contained in
the Work Product.
The Company acknowledges and agrees, except as
otherwise set forth in this Agreement, that any
Engagement Tools provided to the Company are
provided “as is” and without any warranty or condition
of any kind, express, implied or otherwise, including,
implied warranties of merchantability or fitness for a
particular purpose.
Section 6. Framework of the Engagement
The Company acknowledges that it is retaining
AlixPartners solely to assist and advise the Company as
described in the Agreement. This engagement shall not
constitute an audit, review or compilation, or any other
type of financial statement reporting engagement.
Section 7. Indemnification and Other Matters
The Company shall indemnify, hold harmless and
defend AlixPartners and its affiliates and its and their
partners, directors, officers, employees and agents
(collectively, the “AlixPartners Parties”) from and
against all claims, liabilities, losses, expenses and
damages arising out of or in connection with the
engagement of AlixPartners that is the subject of the
Agreement. The Company shall pay damages and
expenses as incurred, including reasonable legal fees
and disbursements of counsel. If, in the opinion of
counsel, representing both parties in the matter
covered by this indemnification creates a potential
conflict of interest, the AlixPartners Parties may engage
separate counsel to represent them at the Company’s
expense.
The Company’s indemnification obligations in this
Section 7 shall be primary to, and without allocation
against, any similar indemnification obligations that
AlixPartners may offer to its personnel generally.
AlixPartners is not responsible for any third-party
products or services separately procured by the
Company. The Company’s sole and exclusive rights and
remedies with respect to any such third party products
or services are against the third-party vendor and not
against AlixPartners, whether or not AlixPartners is
instrumental in procuring such third-party product or
service.
Section 8. Governing Law and Arbitration
The Agreement is governed by and shall be construed
in accordance with the laws of the State of New York
with respect to contracts made and to be performed
entirely therein and without regard to choice of law or
principles thereof.
Any controversy or claim arising out of or relating to
the Agreement, or the breach thereof, shall be settled
by arbitration. Each party shall appoint one non-neutral
arbitrator. The two party arbitrators shall select a third
arbitrator. If within 30 days after their appointment the
two party arbitrators do not select a third arbitrator,
the third arbitrator shall be selected by the American
Arbitration Association (AAA). The arbitration shall be
conducted in New York, New York under the AAA’s
Commercial Arbitration Rules, and the arbitrators shall
issue a reasoned award. The arbitrators may award
costs and attorneys’ fees to the prevailing party.
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 42 of 90
AlixPartners, LLP
General Terms and Conditions
Page 9 of 10
Judgment on the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof.
Notwithstanding the foregoing, any party may proceed
directly to a court of competent jurisdiction to enforce
the terms of this Agreement for any claim in connection
with (i) the non-payment of Fees or expenses due
under this Agreement, or (ii) the non-performance of
obligations under Section 7.
In any court proceeding arising out of this Agreement,
the parties hereby waive any right to trial by jury.
Section 9. Termination and Survival
The Agreement may be terminated at any time by
written notice by one party to the other; provided,
however,
that
notwithstanding
such
termination
AlixPartners will be entitled to any Fees and expenses
due under the provisions of the Agreement (for fixed
fee engagements, fees will be pro rata based on the
amount of time completed). Such payment obligation
shall inure to the benefit of any successor or assignee
of AlixPartners.
Additionally, unless the Agreement is terminated by the
Company due to AlixPartners’ material breach (and
such material breach continues after 30 days’ written
notice thereof and opportunity to cure) AlixPartners
shall remain entitled to the success fee(s), if any, that
otherwise would be payable during the 12 months after
the date of termination of the Agreement.
Sections 2, 4, 5, 7, 8, 9, 10, 11, 12, 13 and 14 of these
Terms, the provisions of Schedule 1 and the obligation
to pay accrued fees and expenses shall survive the
expiration or termination of the Agreement.
Section 10. Non-Solicitation of Employees
The
Company
acknowledges
and
agrees
that
AlixPartners
has
made
a
significant
monetary
investment recruiting, hiring and training its personnel.
During the term of this Agreement and for a period of
two years after the final invoice is rendered by
AlixPartners with respect to this engagement (the
“Restrictive Period”), the Company and its affiliates
agree not to directly or indirectly hire, contract with, or
solicit the employment of any of AlixPartners’ Managing
Directors,
Directors,
or
other
employees/
contractors the
Company
or
its
affiliates
had
interactions with or gained knowledge about as a result
of the services provided under this Agreement.
If during the Restrictive Period the Company or its
affiliates directly or indirectly hires or contracts with
any of AlixPartners’ Managing Directors, Directors, or
other
employees/contractors
in
violation
of
the
preceding paragraph, the Company agrees to pay to
AlixPartners as liquidated damages and not as a penalty
the sum total of: (i) for a Managing Director,
$1,000,000; (ii) for a Director, $500,000; and (iii) for
any
other
employee/contractor,
$250,000.
The
Company acknowledges and agrees that liquidated
damages in such amounts are (x) fair, reasonable and
necessary under the circumstances to reimburse
AlixPartners for the costs of recruiting, hiring and
training its employees as well as the lost profits and
opportunity costs related to such personnel, and to
protect the significant investment that AlixPartners has
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
that investment.
The provisions of this Section shall apply except to the
extent the provisions conflict with applicable law.
Section 11. Limitation of Liability
THE ALIXPARTNERS PARTIES SHALL NOT BE LIABLE TO
THE COMPANY, OR ANY PARTY ASSERTING CLAIMS ON
BEHALF OF THE COMPANY, EXCEPT FOR DIRECT
DAMAGES FOUND IN A FINAL DETERMINATION TO BE
THE DIRECT RESULT OF THE GROSS NEGLIGENCE,
BAD
FAITH,
SELF-DEALING
OR
INTENTIONAL
MISCONDUCT OF ALIXPARTNERS. THE ALIXPARTNERS
PARTIES SHALL NOT BE LIABLE FOR INCIDENTAL,
CONSEQUENTIAL
OR
SPECIAL
DAMAGES,
LOST
PROFITS, LOST DATA, REPUTATIONAL DAMAGES,
PUNITIVE
DAMAGES
OR
ANY
OTHER
SIMILAR
DAMAGES UNDER ANY CIRCUMSTANCES, EVEN IF
THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF
SUCH
DAMAGES.
THE
ALIXPARTNERS
PARTIES’
AGGREGATE
LIABILITY,
WHETHER
IN
TORT,
CONTRACT, OR OTHERWISE, IS LIMITED TO THE
AMOUNT OF FEES PAID TO ALIXPARTNERS FOR
SERVICES UNDER THIS AGREEMENT (OR IF THE CLAIM
ARISES FROM AN ADDENDUM TO THIS AGREEMENT,
UNDER THE APPLICABLE ADDENDUM) (THE “LIABILITY
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
other parties hereto, and to any others making claims
relating to the work performed by AlixPartners
pursuant to this Agreement. Any such claimants shall
allocate any amounts payable by the AlixPartners
Parties among themselves as appropriate, but if they
cannot agree on the allocation it will not affect the
enforceability
of
the
Liability
Cap.
Under
no
circumstances
shall
the
aggregate
of
all
such
allocations or other claims against the AlixPartners
Parties pursuant to this Agreement exceed the Liability
Cap.
Section 12. General
Equitable Remedies. Each party acknowledges and
agrees that money damages alone may not be an
adequate remedy for a breach of the Agreement. Each
party agrees that the non-breaching party shall have
the right to seek a restraining order and/or an
injunction for any breach of the Agreement. If any
provision of the Agreement is found to be invalid or
unenforceable, then it shall be deemed modified or
restricted to the extent and in the manner necessary to
render the same valid and enforceable.
Severability. If any portion of the Agreement shall be
determined to be invalid or unenforceable, the
remainder shall be valid and enforceable to the
maximum extent possible.
Entire Agreement. This Agreement, including the
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 43 of 90
AlixPartners, LLP
General Terms and Conditions
Page 10 of 10
letter, the Terms and the schedule(s), contains the
entire understanding of the parties relating to the
services to be rendered by AlixPartners and supersedes
any
other
communications,
agreements,
understandings, representations, or estimates among
the parties (relating to the subject matter hereof) with
respect to such services. The Agreement, including the
letter, the Terms and the schedule(s), may not be
amended or modified in any respect except in a writing
signed by the parties. AlixPartners is not responsible for
performing any services not specifically described
herein or in a subsequent writing signed by the parties.
Related Matters. If an AlixPartners Party is required
by applicable law, legal process or government action
to produce information or testimony as a witness with
respect to this Agreement, the Company shall
reimburse AlixPartners for any professional time and
expenses (including reasonable external and internal
legal costs and e-discovery costs) incurred to respond
to the request, except in cases where an AlixPartners
Party is a party to the proceeding or the subject of the
investigation.
Joint and Several. If more than one party signs this
Agreement, the liability of each party shall be joint and
several. In addition, in the event more than one entity
is included in the definition of Company under this
Agreement, the Company shall cause each other entity
which is included in the definition of Company to be
jointly and severally liable for the Company’s liabilities
and obligations set forth in this Agreement.
Third-Party Beneficiaries. The AlixPartners Parties
shall be third-party beneficiaries with respect to Section
7 hereof.
Notices. All notices required or permitted to be
delivered under the Agreement shall be sent, if to
AlixPartners, to:
AlixPartners, LLP
2000 Town Center, Suite 2400
Southfield, MI 48075
Attention: General Counsel
and if to the Company, to the address set forth in the
Agreement, to the attention of the Company’s General
Counsel, or to such other name or address as may be
given in writing to AlixPartners. All notices under the
Agreement shall be sufficient only if delivered by
overnight mail. Any notice shall be deemed to be given
only upon actual receipt.
Section 13. Bankruptcy Related Matters
Notwithstanding any to the contrary in these Terms, in
the event the Company files for protection under the
U.S. Bankruptcy Code, the following provisions will
prevail:
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
if the Company becomes a debtor under the U.S.
Bankruptcy Code unless AlixPartners’ retention under
the terms of the Agreement is approved by a final order
of the Bankruptcy Court reasonably acceptable to
AlixPartners. The Company shall assist, or cause its
counsel to assist, with filing, serving and noticing of
papers related to AlixPartners’ fee and expense
matters.
The Company and AlixPartners agree that the
Bankruptcy Court shall have exclusive jurisdiction over
any and all matters arising under or in connection with
this Agreement.
AlixPartners will have the right to obtain independent
legal counsel to obtain advice with respect to its
services under this engagement. The Company will
reimburse AlixPartners’ for the reasonable fees and
expenses of such independent legal counsel.
AlixPartners acknowledges that, during the pendency of
any
Bankruptcy
Court
approved
retention,
the
indemnification provisions and Liability Cap set forth
above may be subject to modification as stated within
the Bankruptcy Court’s retention order.
Due
to
the
ordinary
course
and
unavoidable
reconciliation of fees and submission of expenses
immediately prior to, and subsequent to, the date of
filing, AlixPartners may have incurred but not billed
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.
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 44 of 90
RLF1 28018300v.1
Exhibit C
Rieger-Paganis Declaration
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 45 of 90
RLF1 28018300v.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 DEBORAH RIEGER-PAGANIS
IN SUPPORT OF DEBTORS’ APPLICATION TO
EMPLOY AND RETAIN ALIXPARTNERS, LLP AS FINANCIAL
ADVISOR TO THE DEBTORS EFFECTIVE AS OF THE PETITION DATE
I, Deborah Rieger-Paganis, make this Declaration pursuant to 28 U.S.C. § 1746, and
state:
1.
I am a Managing Director of AlixPartners, LLP (“AlixPartners”), which
has a principal place of business at 909 Third Avenue, Floor 30, New York, New York 10022.
2.
I submit this declaration (the “Declaration”) on behalf of AlixPartners in
support of the Debtors’ Application for an Order Authorizing Debtors to Retain and Employ
AlixPartners, LLP as Financial Advisor Effective as of the Petition Date (the “Application”),2 by
which the Debtors are seeking retention of AlixPartners on the terms and conditions set forth in
the Application and the engagement letter attached to the Application as Exhibit B (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 otherwise defined herein have the meanings set forth in the Application.
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 46 of 90
2
RLF1 28018300v.1
“Engagement Letter”). Except as otherwise noted,3 I have personal knowledge of the matters set
forth herein. If called and sworn as a witness, I could, and would, testify competently to the matters
set forth herein.
AlixPartners’ Qualifications
3.
AlixPartners is an internationally recognized restructuring and turnaround
firm with substantial experience in providing financial advisory services and has an excellent
reputation for services it has rendered in large and complex chapter 11 cases on behalf of debtors
and creditors throughout the United States. In light of the size and complexity of these Chapter
11 Cases, the Debtors require a qualified and experienced financial advisor with the resources,
capabilities, and experience of AlixPartners to assist them in pursuing the transaction(s) that are
crucial to the success of the Debtors’ Chapter 11 Cases. AlixPartners performs critical services
that complement the services provided by the Debtors’ other professionals.
4.
AlixPartners has assisted, advised, and provided strategic advice to debtors,
creditors, bondholders, investors, and other entities in numerous chapter 11 cases of similar size
and complexity to these Chapter 11 Cases. Its professionals have provided restructuring or crisis
management services in numerous large cases, including recent filings in this district. See, e.g., In
re MD Helicopters, Inc., No. 22-10263 (KBO) (Bankr. D. Del. Apr. 25, 2022); In re Alto Maipo
Delaware LLC, No. 21-11507 (KBO) (Bankr. D. Del. Dec. 16, 2021); In re Riverbed Tech., Inc.,
No. 21-11503 (CTG) (Bankr. D. Del. Dec. 8, 2021); In re Alpha Latam Mgmt., LLC, No. 21-11109
(JKS) (Bankr. D. Del. Sept. 15, 2021); In re Nine Point Energy, LLC, No. 21-10570 (MFW)
(Bankr. D. Del. Apr. 20, 2021); In re HighPoint Res. Corp., No. 21-10565 (CSS) (Bankr. D. Del.
Apr. 13, 2021); In re Mallinckrodt plc, No. 20-12522 (JTD) (Bankr. D. Del. Nov. 19, 2020); In re
3 Certain of the disclosures herein relate to matters within the personal knowledge of other professionals at
AlixPartners and are based on information provided by them.
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 47 of 90
3
RLF1 28018300v.1
RGN-Grp. Holdings, LLC, No. 20-11961 (BLS) (Bankr. D. Del. Sept. 15, 2020); In re Skillsoft
Corp., No. 20-11532 (MFW) (Bankr. D. Del. July 23, 2020); In re Celadon Grp., Inc., No. 19-
12606 (KBO) (Bankr. D. Del. Jan. 3, 2020); In re Bumble Bee Parent, Inc., No. 19-12505 (LSS)
(Bankr. D. Del. Dec. 26, 2019); In re Hexion Holdings LLC, No. 19-10684 (KG) (Bankr. D. Del.
May 1, 2019; In re David’s Bridal, No. 18-12635 (LSS) (Bankr, D. Del. Dec. 18, 2018); In re
Mattress Firm, Inc., No. 18-12241 (CSS) (Bankr. D. Del. Nov. 7, 2018); In re Am. Tire Distribs.,
No. 18-12221 (KJC) (Bankr. D. Del. Nov. 1, 2018); In re The Bon-Ton Stores, Inc., No. 18-10248
(MFW) (Bankr. D. Del. Mar. 6, 2018; In re Charming Charlie Holdings, Inc., No. 17-12906 (CSS)
(Bankr. D. Del. Jan. 20, 2018); and In re Prospector Offshore Drilling S.à r.l., No. 17-11572 (CSS)
(Bankr. D. Del. Oct. 2, 2017).
5.
The Debtors have selected AlixPartners as their financial advisor because
of AlixPartners’ experience and reputation for providing financial advisory services in large,
complex chapter 11 cases such as those listed above. Furthermore, AlixPartners has performed
significant prepetition work for the Debtors, and as a result has acquired significant knowledge of
the Debtors and their businesses, and familiarity with the Debtors’ financial affairs, debt structure,
operations, and related matters. Likewise, in providing prepetition services to the Debtors,
AlixPartners’ professionals have worked closely with the Debtors’ management and their other
advisors. Accordingly, AlixPartners has experience, expertise, and specifically relevant
knowledge regarding the Debtors that will assist it in providing effective and efficient services in
these Chapter 11 Cases. The Debtors submit that the retention of AlixPartners on the terms and
conditions set forth herein are necessary and appropriate, in the best of the Debtors’ estates,
creditors, and all other parties in interest, and should be granted in all respects.
6.
If the Application is approved, AlixPartners’ Personnel, all with substantial
expertise in the areas discussed above, will continue to provide services to the Debtors. Such
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 48 of 90
4
RLF1 28018300v.1
personnel will work closely with the Debtors’ management and other professionals throughout the
restructuring process. By virtue of the expertise of its restructuring personnel and the significant
prepetition work that AlixPartners performed for the Debtors, AlixPartners is well-qualified to
provide services to and represent the Debtors’ interests in these Chapter 11 Cases.
Services to be Provided
7.
Prior to the Petition Date, the Debtors and AlixPartners entered into the
Engagement Letter, which governs the relationship between them. The terms and conditions of
the Engagement Letter were negotiated between the Debtors and AlixPartners and reflect the
parties’ mutual agreement as to the substantial efforts that will be required in this engagement.
Under the Engagement Letter, AlixPartners has assisted, and it is expected that AlixPartners will
continue to assist, the Debtors in matters throughout the course of these Chapter 11 Cases,
including, but not limited to, the following:
Restructuring
Work with the Debtors and their team to further identify and implement both short-term
and long-term liquidity-generating and cost reduction initiatives.
Assist the Debtors in developing a global wind-down plan and a detailed work plan
identifying key milestones and in setting appropriate priorities.
Assist Debtors’ management and their professionals specifically assigned to sourcing,
negotiating and implementing any financing in conjunction with the Chapter 11 Plan and
the overall restructuring, as applicable.
Assist Debtors’ management in the design and implementation of a restructuring strategy
designed to maximize value, taking into account the unique interests of all constituencies.
Work with senior management to negotiate and implement restructuring initiatives and
evaluate strategic alternatives.
Communication with Outsiders
Assist in negotiations with stakeholders and their representatives regarding the
restructuring.
Assist in negotiations with potential acquirers of the Debtors’ assets.
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 49 of 90
5
RLF1 28018300v.1
Assist in communication and/or negotiate and implement restructuring initiatives and
evaluate strategic alternatives.
Bankruptcy Case Management
Assist in managing the “working group” professionals who are assisting the Debtors in the
wind down process or who are working for the Debtors’ various stakeholders to improve
coordination of their efforts and individual work product to be consistent with the Debtors’
overall restructuring goals.
Assist in obtaining and presenting information required by parties in interest in the Debtors’
bankruptcy process, including official committees appointed by the Court and the Court
itself.
Assist the Debtors in other business and financial aspects of a Chapter 11 proceeding,
including, but not limited to, development of a disclosure statement, Chapter 11 Plan, first
day motions and petitions.
Assist with the preparation of the statement of affairs, schedules and other regular reports
required by the Court, as well as provide assistance in areas such as testimony before the
Court on matters that are within AlixPartners’ areas of expertise.
Assist as requested in supporting any litigation that may be brought against the Debtors in
the Court.
Assist as requested in analyzing preferences and other avoidance actions.
Manage the claims reconciliation processes.
Assist the Debtors with electronic data collection.
Finance and Cash Management
Assist the Debtors with providing financial leadership and support.
Assist the Debtors and their 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 Debtors.
Assist the Debtors in developing an actual to forecast variance reporting mechanism
including written explanations of key differences.
Miscellaneous
Assist with such other matters as may be requested that fall with AlixPartners’ expertise
and that are mutually agreeable.
8.
Such financial advisory services are necessary to the Debtors’ restructuring
efforts and in the ongoing operation and management of the Debtors’ businesses while subject to
chapter 11 of the Bankruptcy Code.
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 50 of 90
6
RLF1 28018300v.1
9.
When necessary, the individuals working on this matter (the “AlixPartners
Personnel”) will be assisted by or replaced by various professionals at various levels.
No Duplication of Services
10.
AlixPartners understands that the Debtors may retain additional
professionals during the term of its engagement and will work cooperatively with such
professionals to integrate any respective work conducted by the professionals on behalf of the
Debtors. The services provided by AlixPartners will complement, and not duplicate, the services
to be rendered by any other professional retained in these Chapter 11 Cases.
Professional Compensation and Expense Reimbursement
11.
AlixPartners’ decision to accept this engagement to provide services to the
Debtors is conditioned upon its ability to be retained in accordance with its customary terms and
conditions of employment, compensated for its services, and reimbursed for the out-of-pocket
expenses it incurs in accordance with its customary billing practices, as set forth in Schedule 1 of
the Engagement Letter (the “Fee and Expense Structure”).
12.
AlixPartners’ current standard hourly rates for 2022, subject to periodic
adjustments, are as follows:
Title
Hourly Rate
Managing Director
$1,060 – $1,335
Director
$840 – $990
Senior Vice President
$700 – $795
Vice President
$510 – $685
Consultant
$190 – $505
Paraprofessional
$320 – $340
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 51 of 90
7
RLF1 28018300v.1
13.
AlixPartners reviews and revises its billing rates on a semi-annual basis.
Changes in applicable hourly rates will be noted on the invoices for the first time period in which
the revised rates become effective.
14.
To the extent the Debtors request services related to electronic discovery
and data collection, certain monthly hosting fees and consulting fees will apply, as further detailed
and outlined by the Engagement Letter.
15.
In addition to compensation for professional services rendered by
AlixPartners Personnel, AlixPartners will seek reimbursement for reasonable and necessary
expenses incurred in connection with these Chapter 11 Cases, including but not limited to
transportation costs, lodging, and meals.
16.
To the extent that AlixPartners requires services of its international
divisions or personnel from specialized practices, the standard hourly rates for that international
division or specialized practice will apply.
17.
To the extent AlixPartners uses the services of independent contractors (the
“Contractors”) in these Chapter 11 Cases, AlixPartners shall: (a) pass through the cost of such
Contractors to the Debtors at the same rate that AlixPartners pays the Contractors; (b) seek
reimbursement for actual costs only; (c) ensure that the Contractors are subject to the same conflict
checks as required for AlixPartners; and (d) file with the Court such disclosures required by
Bankruptcy Rule 2014.
18.
AlixPartners intends to apply for compensation for professional services
rendered and reimbursement of expenses incurred in connection with these Chapter 11 Cases,
subject to this Court’s approval and in compliance with applicable provisions of the Bankruptcy
Code, including sections 330 and 331 of the Bankruptcy Code, the Bankruptcy Rules, the Local
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 52 of 90
8
RLF1 28018300v.1
Rules, and any other applicable procedures and orders of this Court and consistent with the
proposed terms of compensation set forth in the Engagement Letter.
19.
AlixPartners will maintain records in support of any fees (in 1/10th of an
hour increments), costs, and expenses incurred in connection with services rendered in these
Chapter 11 Cases. Records will be arranged by category and nature of the services rendered and
will include reasonably detailed descriptions of those services provided on behalf of the Debtors.
20.
AlixPartners often provides services for compensation that includes hourly-
based fees and performance-based, contingent-incentive compensation earned upon achieving
meaningful results. AlixPartners does not request a success fee in connection with these Chapter
11 Cases.
21.
The Fee and Expense Structure is consistent with and typical of
compensation arrangements entered into by AlixPartners and other comparable firms that render
similar services under similar circumstances. AlixPartners believes that the Fee and Expense
Structure is reasonable, market-based, and designed to compensate AlixPartners fairly for its work
and to cover fixed and routine overhead expenses.
22.
Prior to the Petition Date, AlixPartners received a retainer in the amount of
$500,000 from the Debtors (the “Retainer”). According to AlixPartners’ books and records,
during the 90-day period prior to the Petition Date, the Debtors paid AlixPartners $2,653,545.74
in aggregate for professional services performed and expenses incurred, including advanced
payments and excluding the Retainer.
23.
AlixPartners is requesting that any balance of the Retainer constitute an
evergreen retainer as security for post-petition services and expenses. I believe that an evergreen
retainer is appropriate in these Chapter 11 Cases because it reflects normal business terms in the
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 53 of 90
9
RLF1 28018300v.1
marketplace and because AlixPartners and the Debtors are sophisticated business entities that have
negotiated the Retainer at arm’s length.
24.
Due to the ordinary course and unavoidable reconciliation of fees and
submission of expenses immediately prior, and subsequent to, the Petition Date, AlixPartners may
have incurred fees and reimbursable expenses that relate to the prepetition period which remain
unpaid. Approval is sought from this Court for AlixPartners to apply the Retainer and advanced
payments to these unpaid amounts. Upon entry of an order approving the relief requested in the
Application, the Debtors will not owe AlixPartners any sums for prepetition services.
Indemnification
25.
The Engagement Letter contains standard indemnification language with
respect to AlixPartners’ services including, without limitation, an agreement by the Debtors to
indemnify AlixPartners and its affiliates, partners, directors, officers, employees and agents (each,
an “AlixPartners Party” and collectively, the “AlixPartners Parties”) from and against all
claims, liabilities, losses, expenses and damages arising out of or in connection with the
engagement of AlixPartners that is the subject of the Engagement Letter, except to the extent
caused by gross negligence, willful misconduct, or fraud of any AlixPartners Party.
26.
The Debtors and AlixPartners believe that the indemnification provisions
contained in the Engagement Letter, as may be amended in the Proposed Order, are customary and
reasonable for AlixPartners and comparable firms providing financial advisory services, and as
would be modified pursuant to the foregoing limitations, reflect the qualifications and limitations
on indemnification provisions that are customary in this district and others. See, e.g., In re TNT
Crane & Rigging, Inc., No. 20-11982 (BLS) (Bankr. D. Del. Sept. 18, 2020) (approving similar
modified indemnification provisions for the retention and employment of FTI Consulting, Inc.);
In re VIVUS, Inc., No. 20-11779 (LSS) (Bankr. D. Del. Aug. 24, 2020) (approving similar modified
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 54 of 90
10
RLF1 28018300v.1
indemnification provisions for the retention and employment of Ernst & Young LLP); In re Lucky
Brand Dungarees, LLC, No. 20-11768 (CSS) (Bankr. D. Del. July 29, 2020) (approving similar
modified indemnification provisions for the retention and employment of Houlihan Lokey Capital,
Inc.); In re Paddock Enters., LLC, No. 20-10028 (LSS) (Bankr. D. Del. June 24, 2020) (approving
similar modified indemnification provisions for the retention and employment of Alvarez &
Marsal North America, LLC); In re Longview Power, LLC, No. 20-10951 (BLS) (Bankr. D. Del.
May 18, 2020) (approving similar modified indemnification provisions for the retention and
employment of Houlihan Lokey Capital, Inc.); In re Fred’s Inc., No. 19-11984 (CSS) (Bankr. D.
Del. Oct. 30, 2019) (approving similar modified indemnification provisions for the retention and
employment of Alvarez & Marsal North America, LLC).
27.
Moreover, the terms and conditions of the indemnification provisions were
negotiated by the Debtors and AlixPartners at arm’s length and in good faith. The provisions
contained in the Engagement Letter, viewed in conjunction with the other terms of AlixPartners’
proposed retention, are reasonable and in the best interest of the Debtors, their estates, and creditors
in light of the fact that the Debtors require AlixPartners’ services to successfully restructure.
Accordingly, as part of this Application, the Debtors request that this Court approve the
indemnification provisions as set forth in the Engagement Letter, as may be amended by the
Proposed Order (setting forth the foregoing limitations).
AlixPartners’ Disinterestedness
28.
In connection with its proposed retention by the Debtors in these Chapter
11 Cases, AlixPartners undertook a complex process, the details of which are set forth in
Schedule 2, to determine whether it had any conflicts or other relationships that might cause it not
to be disinterested or to hold or represent an interest adverse to the Debtors’ estates. Specifically,
AlixPartners obtained from the Debtors and/or their representatives a potential parties in interest
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 55 of 90
11
RLF1 28018300v.1
list in these Chapter 11 Cases (each party a “Party in Interest,” and collectively the “Parties in
Interest List”). The Parties in Interest List is attached hereto as Schedule 1. A search was
performed for connections to each Party in Interest as to AlixPartners Holdings, LLP,
AlixPartners’ parent company (“Holdings”), and each of Holdings’ U.S. and non-U.S. subsidiaries
(“Holdings Enterprise”, collectively “AP”). The results for connections found on the Parties in
Interest List are disclosed on Schedule 2.
29.
Based on that review, AlixPartners represents that, to the best of its
knowledge, AlixPartners knows of no fact or situation that would represent a conflict of interest
for AlixPartners with regard to the Debtors, as it does not or hold or represent an interest adverse
to the Debtors’ estates.
30.
AlixPartners and its affiliates are advisors and crisis managers providing
services and advice in many areas, including restructuring and distressed debt. As part of its
diverse practice, AlixPartners appears in numerous cases, proceedings, and transactions involving
many different attorneys, accountants, investment bankers, and financial consultants, some of
whom may represent claimants and parties in interest in these Chapter 11 Cases. Further,
AlixPartners has in the past, and may in the future, be represented by various attorneys and law
firms, some of whom may be involved in these Chapter 11 Cases. In addition, AlixPartners has
been in the past, and likely will be in the future, engaged in matters unrelated to the Debtors or
these Chapter 11 Cases in which it works with or in opposition to other professionals involved in
these Chapter 11 Cases. Moreover, AlixPartners might have referred work to other professionals
who are retained in these Chapter 11 Cases. Likewise, certain such professionals who are retained
in these Chapter 11 Cases might have referred work to AlixPartners. To the best of my knowledge,
information and belief, insofar as I have been able to ascertain after reasonable inquiry, none of
these business relationships constitute interests adverse to the Debtors.
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 56 of 90
12
RLF1 28018300v.1
31.
From time to time, AlixPartners has provided services, and likely will
continue to provide services, to certain creditors of the Debtors and various other parties adverse
to the Debtors in matters wholly unrelated to these Chapter 11 Cases. As described herein,
however, AlixPartners has undertaken a detailed search to determine, and to disclose, whether it
is providing or has provided services to any significant creditor, equity security holder, insider or
other party in interest in such unrelated matters.
32.
To the best of my knowledge, information and belief, insofar as I have been
able to ascertain after reasonable inquiry, none of the AlixPartners Personnel (a) have any
connection with the United States Trustee for the District of Delaware (the “U.S. Trustee”), or
any employee in the Office of the U.S. Trustee; or (b) are related or connected to any United States
Bankruptcy Judge for the District of Delaware, except as otherwise set forth Schedule 2.
33.
To the best of my knowledge, none of the members of the engagement team
or AP is a direct holder of any of the Debtors’ securities. It is possible that members of the
engagement team or certain of AlixPartners employees, managing directors, board members,
equity holders, or an affiliate of any of the foregoing, may own interests in mutual funds or other
investment vehicles (including various types of private funds) that own the Debtors’ or other
parties in interest’s debt or equity securities or other financial instruments, including bank loans
and other obligations. Typically, the holders of such interests have no control over investment
decisions related to such investment funds or financial instruments. AlixPartners’ policy prohibits
its employees from personally trading in the Debtors’ securities.
34.
To the best of my knowledge, information and belief, insofar as I have been
able to ascertain after reasonable inquiry, AlixPartners has not been retained to assist any entity or
person other than the Debtors on matters relating to, or in direct connection with, these Chapter 11
Cases. AlixPartners will continue to provide professional services to entities that may be creditors
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 57 of 90
13
RLF1 28018300v.1
or equity security holders of the Debtors or other parties in interest in these Chapter 11 Cases,
provided that such services do not relate to, or have any direct connection with, these Chapter 11
Cases.
35.
Certain of AlixPartners’ employees, managing directors, board members,
equity holders, or an affiliate of any of the foregoing may have financial accounts or insurance
relationships with a potential party in interest.
36.
Despite the efforts described above to identify and disclose the connections
that AP and its affiliates have with parties in interest in these Chapter 11 Cases, because the
Debtors form a large enterprise with numerous creditors and other relationships, AlixPartners is
unable to state with certainty that every client relationship or other connection has been identified
and disclosed.
37.
In accordance with section 504 of the Bankruptcy Code and Bankruptcy
Rule 2016, neither I nor AlixPartners has entered into any agreements, express or implied, with
any other party in interest, including the Debtors, any creditor, or any attorney for such party in
interest in these Chapter 11 Cases, (a) for the purpose of sharing or fixing fees or other
compensation to be paid to any such party in interest or its attorneys for services rendered in
connection therewith, (b) for payment of such compensation from the assets of the estates in excess
of the compensation allowed by this Court pursuant to the applicable provisions of the Bankruptcy
Code, or (c) for payment of compensation in connection with these Chapter 11 Cases other than in
accordance with the applicable provisions of the Bankruptcy Code.
38.
Accordingly, except as otherwise set forth herein, insofar as I have been
able to determine, neither I, AlixPartners nor any AlixPartners Personnel holds or represents any
interest adverse to the Debtors or their estates, and AlixPartners is a “disinterested person” as that
term is defined in section 101(14) of the Bankruptcy Code, as modified by section 1107(b) of the
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 58 of 90
14
RLF1 28018300v.1
Bankruptcy Code, in that AlixPartners and its professionals and employees who will work on the
engagement:
(a)
are not creditors, equity security holders, or insiders of the Debtors;
(b)
were not, within two years before the Petition Date, a director,
officer or employee of the Debtors; and
(c)
do not have an interest materially adverse to the interest of the
Debtors’ estates or any class of creditors or equity security holders, by
reason of any direct or indirect relationship to, connection with, or interest
in, the Debtors, or for any other reason.
39.
If AlixPartners discovers additional information that requires disclosure,
AlixPartners will promptly file a supplemental disclosure with this Court as required by
Bankruptcy Rule 2014. AlixPartners reserves the right to supplement this Declaration in the event
that AlixPartners discovers any facts bearing on matters described in this Declaration regarding
AlixPartners’ employment by the Debtors.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing
is true and correct to the best of my knowledge and belief.
Dated: October 4, 2022
ALIXPARTNERS, LLP
By:
/s/ Deborah Rieger-Paganis
Deborah Rieger-Paganis
Managing Director
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 59 of 90
RLF1 28018300v.1
Schedule 1
Potential Parties in Interest
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 60 of 90
KServicing Retention Checklist Category
1. Debtors – exact Corporate Name (name should be the same as in the articles of incorporation)
2. Non Debtor Affiliates and Subsidiaries (including any partnerships and JV partners)
3. Debtors’ Trade Names and Aliases (up to 8 years) (a/k/a, f/k/a, d/b/a)
4. Banks/Bank Accounts
5. Banks – Servicing
6. Bankruptcy Judges and Staff (District of Delaware)
7. Benefit Providers (Workers Compensation/Pension Plans/Third Party Administrators)
8. Clerk of the Court
9. Committees and Committee Members (including UCC)
10. Non-Debtor Professionals (law firms, accountants, and other professionals)
11. Contract Counterparties (includes patents and intellectual property)
12. Current Officers and Directors (include senior management)
13. Affiliations of Current Officers and Directors
14. Debtors Professionals (law firms, accountants and other professionals)
15. Former Officers and Directors (include senior management if readily available) (3 years)
16. Affiliation of Former Officers and Directors (as of last day with company)
17. Insurance/Insurance Provider
18. Landlords and parties to leases
19. Lenders, Noteholders, Administrative Agents and Indenture Trustees (includes ABL
Lenders/Term Loan Lender/Revolver/Collateral Agents/Prepetition & Proposed Postpetition)
20. List of Secured Creditors
21. Top 30 Unsecured Creditors
22. Litigation Counterparties/Litigation Pending Lawsuits (includes threatened litigation)
23. Litigation - Governmental Investigations Agencies
24. Other Parties in Interest (Notice of Appearance Parties, Ombudsman, any other person or group
appointed)
25. Other Professionals
26. Regulatory and Government (Federal, State, and Local)
27. Significant Customers
28. Significant Shareholders (more than 5% of equity)
29. Taxing Authorities (Federal, State, and Local; trust fund, use property, franchise, sales)
30. UCC Search Results/UCC Lien Search Results
31. Unions
32. United States Attorney’s Office for the District of Delaware
33. United States Trustee and Staff (District of Delaware)
34. Utility Providers/Utility Brokers
35. Vendors/Suppliers (includes critical, foreign, common carrier, shippers, warehousemen, customs
duties, brokers charges, facilities provider, etc.)
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 61 of 90
2
1. Debtors
(1) Kabbage, Inc.
(2) Kabbage Canada Holdings, LLC
(3) Kabbage Asset Securitization LLC
(4) Kabbage Asset Funding 2017-A LLC
(5) Kabbage Asset Funding 2019-A LLC
(6) Kabbage Diameter, LLC
2. Non-Debtor Affiliates and Subsidiaries (including any partnerships and JV partners)
(1) Kabbage Financial Services Limited (UK entity)
(2) Kabbage India Private Limited (India entity)
3. Debtors’ Trade Names and Aliases (up to 8 years) (a/k/a, f/k/a, d/b/a)
(1) d/b/a KServicing
(2) d/b/a KServicing Corp.
(3) d/b/a KServicing, Inc.
4. Banks/Bank Accounts
(1) Celtic Bank
(2) Primis Bank
(3) Synovus Bank (Synovus Financial Corp.)
5. Banks – Servicing
(1) Celtic Bank
(2) Cross River Bank
(3) Customers Bank
(4) HCG (a/k/a Home Capital Group Inc.)
(5) Stone Ridge
6. Bankruptcy Judges and Staff for the District of Delaware
(1) Chief Judge Laurie Selber Silverstein
(2) Cacia Batts
(3) Lora Johnson
(4) Judge John T. Dorsey
(5) Laura Haney
(6) Robert Cavello
(7) Judge Craig T. Goldblatt
(8) Demitra Yeager
(9) Nickita Barksdale
(10) Judge Karen B. Owens
(11) Claire Brady
(12) Marquietta Lopez
(13) Judge Brendan L. Shannon
(14) Jill Walker
(15) Rachel Bello
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 62 of 90
3
(16) Judge J. Kate Stickles
(17) Paula Subda
(18) Al Lugano
(19) Judge Mary F. Walrath
(20) Catherine Farrell
(21) Laurie Capp
(22) Judge Ashely M. Chan
(23) Joan Ranieri
7. Benefit Providers (Workers Compensation/Pension Plans/Third Party Administrators)
(1) Blue Cross Blue Shield of California
(2) Hawaii Medical Service Association (HMSA) - Blue Cross Blue Shield of Hawaii
(3) Insperity, Inc.
(4) Kaiser Permanente
(5) New York Life
(6) New York Life (f/k/a Cigna)
(7) Optum Bank
(8) UnitedHealthcare
(9) UnitedHealthcare Dental
(10) UnitedHealthcare of California
(11) VSP Choice
8. Clerk of the Court
(1) Una O’Boyle
9. Committees and Committee Members
[Unknown at this time]
10. Non-Debtors Professionals (law firms, accountants, and other professionals)
(1) Cleary Gottlieb Steen & Hamilton LLP
(2) Holland & Knight LLP
(3) Quinn Emmanuel Urquhart & Sullivan LLP
(4) [UCC Legal]
(5) [UCC Financial]
11. Contract Counterparties (includes patents and intellectual property)
(1) Abel Commercial Funding
(2) Airbnb, Inc.
(3) American Nation Bank
(4) Alexandra Schieren
(5) A-Lign Assurance
(6) A-Lign Compliance and Security, Inc.
(7) Altabank
(8) American Express Travel Related Services Company, Inc.
(9) Andy Mei
(10) Anthony Gallucci
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 63 of 90
4
(11) Apisero, Inc.
(12) Aprio, LLP
(13) Automation Anywhere, Inc.
(14) Azlo Business, Inc.
(15) Bank of Bird in Hand
(16) Become Technological Solutions, Inc.
(17) Better Impression Ltd.
(18) Bhayva Brundavanam
(19) Big Think Capital
(20) Biz2credit
(21) BlackLine Systems, Inc.
(22) Bonduel State Bank
(23) Bradley Wells
(24) Carter Bank & Trust
(25) Catherine Pargeter
(26) Celtic Bank Corporation
(27) CentSai
(28) Cobbs Allen Capital, LLC d/b/a CAC Specialty
(29) CommerceOne Bank
(30) Community Financial Services Bank
(31) Community National Bank
(32) CoreCard Software, Inc.
(33) Credit Suisse
(34) Crestmont Capital, LLC
(35) Cross River Bank
(36) CSC
(37) Cullum Financial LLC d/b/a Walloot
(38) Customer Bank
(39) David Rodin
(40) David Snitkof
(41) David Stein d/b/a Law Office of David Stein d/b/a David Stein Law Group
(42) Daysmart
(43) Debt Settlement Info Bank
(44) Docusign
(45) Dorado Real Estate, Inc d/b/a Host Financial
(46) Dynamic Recovery Solutions, LLC
(47) Endurance International Group, Inc.
(48) East West Bank
(49) Emprise Bank
(50) Erik Goshin
(51) Evangelical Christian Credit Union (ECCU)
(52) Ernst & Young LLP
(53) Farm Credit East, ACA
(54) Farm Credit West, ACA
(55) Federal Reserve
(56) First Florida Credit Union
(57) First National Bank of Syracuse
(58) five9 Inc.
(59) FNBC Bank and Trust
(60) Forensic Risk Alliance Inc.
(61) Fortis Advisors, LLC
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 64 of 90
5
(62) Fortis Private Bank
(63) Frank Sauer
(64) Fraz Khalil
(65) GoDaddy.com, LLC
(66) Guggenheim Securities, LLC
(67) Guideline
(68) Guillaume Poirier
(69) Hi Tech Capital
(70) Hyperion Bank
(71) Innovative Funding Solutions, Inc.
(72) Investar Bank, National Association
(73) Investment 360
(74) InscribeAI, Inc.
(75) Insperity
(76) Invariant LLC
(77) iAdvance Now Inc.
(78) James Candalino
(79) James Frohnhofer
(80) Jason Dolinger
(81) Jason Hwa
(82) Jonathan Kelfer
(83) Jones Day
(84) Karrot
(85) KLDiscovery Ontrack, LLC
(86) Kroll Associates, Inc.
(87) Legacy Bank Colorado
(88) Lendio, Inc.
(89) Level Up Funding LLC
(90) LexisNexis Risk Solutions FL Inc.
(91) Lexolution, LLC
(92) Liam Von Thien
(93) LIG International LLC
(94) Lincoln and Morgan, LLC
(95) Llano National Bank
(96) Macquarie
(97) Major, Lindsey & Africa
(98) Marqeta, Inc
(99) MasterCard International Incorporated
(100) Matt Burton
(101) Mechanics Bank
(102) Merchant and Manufacturers Bank
(103) Mission Capital d/b/a SBG Funding
(104) Moore Colson & Company, P.C.
(105) MorganFranklin Consulting, LLC
(106) Mountainseed Real Estate Services, LLC
(107) National Check Resolution, Inc.
(108) Natural Intelligence Ltd.
(109) Nicholas DelZingaro
(110) Northern California National Bank
(111) Northwest Farm Credit Services, FLCA
(112) Okta, Inc.
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 65 of 90
6
(113) OnCourse Learning d/b/a BankersEdge
(114) Option 1 Partners, LLC
(115) Orchard App, Inc.
(116) P.A.R. Consulting d/b/a US Business Funding
(117) People Bank
(118) PharmaCentra LLC
(119) Prospera Credit Union
(120) Providence Bank
(121) Quick Funding Solutions LLC
(122) Radius Intelligence, Inc.
(123) Redwood Growth Capital, LLC
(124) Red River Bank
(125) ReliaQuest Holdings, LLC
(126) Resource Bank
(127) Salesforce
(128) Sam Zakalik
(129) Sound Point Capital Management, LP
(130) South State Bank
(131) Stericycle Inc.
(132) Strategic Capital
(133) Synovus
(134) The Law Office of Hayes & Welsh
(135) The National Directory of Registered Tax Return Preparers & Professionals Ltd
(136) The Poplar Grove State Bank
(137) The Provident Bank
(138) TransUnion Risk and Alternative Data Solutions, Inc. (TRADS)
(139) Trevelino/Keller and Groovy Studios
(140) TrustArc Inc.
(141) United Capital Source Inc
(142) United Resources Enterprise Corp. d/b/a Brickell Capital Finance
(143) Upwise Capital, LLC
(144) URS Technologies Solutions LLC
(145) Vaco LLC
(146) Venture Lending & Leasing VII, Inc.
(147) Venture Lending & Leasing VIII, Inc.
(148) Visa U.S.A. Inc.
(149) Vital Outsourcing Services, Inc.
(150) Walker Morris
(151) WeTravel, Inc.
(152) Wheaten Financial, Inc.
(153) Xact Data Discovery
(154) Yuhui Yang
(155) Zendesk
(156) Zip Capital Group, LLC
(157) ZMC & Associates LLC
12. Current Officers and Directors (include senior management)
Current Officers
(1) Salim Kafiti
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 66 of 90
7
(2) Ian Cox
(3) Holly Loiseau
(4) David Walker
(5) Laquisha Milner
(6) Donna Evans
Current Directors
(1) Laquisha Milner
(2) Robin Gregg
(3) Eric Hartz (dba CorporateHartz, LLC)
(4) John Hebert
(5) Lawrence X. Taylor
Current Independent Manager
(1) John Hebert
13. Affiliations of Current Officers and Directors
(1) Solomon’s Temple
(2) Vector Solutions
(3) M2 Business Group, LLC
(4) Point Predictive
(5) DRUM Technologies
(6) Roadsync
(7) Lending Science
(8) PadSplit
(9) Emory Goizueta Business School
(10) American Chemistry Council
(11) Nexus Circular
(12) Corporation Service Company (CSC)
(13) 1847 Holdings
(14) Item 9 Labs
(15) Barrie House Coffee Roasters
(16) CLP Holdings III, LLC
(17) Taylor Strategy Group
(18) National Association of Corporate Directors
(19) Arizona State University
(20) Major Lindsey & Africa
(21) Automatic Data Processing, Inc. (ADP)
(22) Clairvoyant Ventures, LLC
(23) Kafiti Real Estate Group, Inc.
(24) Electrolux AB
(25) Libra Risk Management
(26) Creative Essentials, LLC
(27) National Bar Association Executive Committee, Commercial Law Section
(28) Moore Colson
(29) Magnolia Trust Company
14. Debtors Professionals (law firms, accountants and other professionals)
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 67 of 90
8
(1) AlixPartners, LLP
(2) Forensic Risk Alliance Inc.
(3) Greenberg Traurig, LLP
(4) Jones Day
(5) KPMG
(6) McGuireWoods LLP
(7) Omni Agent Solutions
(8) Richard Layton & Finger
(9) Weil, Gotshal & Manges LLP
15. Former Officers and Directors (include senior management if readily available) (3 years)
(1) Daniel Scott Eidson
(2) Jon Hoffman
(3) Julia McCullough
(4) Kathryn Petralia
(5) Kimberly Withrow
(6) L. Scott Askins
(7) Marc Gorlin
(8) Oneal Bhambani
(9) Robert Frohwein
(10) Spencer Robinson
(11) Troy Deus
16. Affiliation of Former Officers and Directors (as of last day with company)
(1) Corporation Service Company (CSC)
(2) Keep Financial
(3) DRUM Technologies, Inc.
(4) Tricolor Auto Group, LLC
(5) PadSplit
(6) Kimberly F. Withrow Law
(7) eCapital Corp.
(8) Bibby Financial Services
(9) American Express
(10) Roadie
(11) Flutterwave
(12) Keep Financial Technologies, Inc.
17. Insurance/Insurance Provider
(1) AIG Specialty Insurance Company
(2) Atlantic Specialty Insurance Company
(3) Berkshire Hathaway Specialty Insurance Company
(4) Cobbs Allen Capital, LLC d/b/a CAC Specialty
(5) Endurance American Insurance Company c/o Sompro Pro
(6) Everest National Insurance Company
(7) Marsh USA Inc.
(8) National Union Fire Insurance Company of Pittsburgh, Pa.
(9) QBE Insurance Corporation
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 68 of 90
9
(10) XL Specialty Insurance Company
18. Landlords and Parties to Leases
(1) 730 Midtown SVP, LLC (Lincoln Property Company)
19. Lenders, Noteholders, Administrative Agents and Indenture Trustees
(1) Credit Suisse
(2) Guggenheim
(3) Macquarie
(4) U.S. Bank
20. List of Secured Creditors
(1) Reserve Bank of San Francisco
[The Company only has one secured creditor]
21. Top 30 Unsecured Creditors
(1) Cross River Bank
(2) Customers Bank
(3) Federal Reserve Bank of San Francisco
(4) U.S. Department of Justice
(5) Federal Trade Commission
(6) Small Business Bureau
(7) American Express Kabbage Inc.
(8) Biz2Credit
(9) Vital Outsourcing Services Inc
(10) MorganFranklin Consulting, LLC
(11) Vaco LLC
(12) RSM US LLP
(13) Transunion Risk and Alternative Data Solutions
(14) URS Technologies Solutions LLC
(15) KLDiscovery Ontrack, LLC
(16) Amazon Web Services
(17) Allegis Group Holdings Inc
(18) Google Workspace
(19) Moore Colson
(20) Option 1 Partners LLC
(21) Libra Risk Management
(22) Marcell Birk
(23) Slack
(24) Box
(25) Goodwin Proctor
(26) Marcus Carr
(27) Kenny Ajetunmobi
(28) Moyin Omotayo
(29) Thomas E. Austin Jr. LLC
(30) Corporation Service Company
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 69 of 90
10
22. Litigation Counterparties/Litigation Pending Lawsuits – includes threatened litigation
(1) 365 Sun LLC
(2) Alison F. Kanne
(3) Bosco Seungchul Baek
(4) Calvin L. Erby, II
(5) Candice Worthy
(6) Carlton Morgan
(7) Celtic Bank Corporation d/b/a Celtic Bank
(8) Christina R. King
(9) Cole Ratias
(10) Customers Bank
(11) Douglas Biviano
(12) Edward Ford Services, LLC
(13) Eric L. Lifschitz
(14) Eva Merian Spahn
(15) First Home Bank
(16) Florida Veterinary Behavior Service
(17) George Pullen
(18) Greenberg Traurig
(19) Henry Anesthesia Associates, LLC
(20) Holland & Knight, LLP
(21) Jason Russell Carr
(22) Jennifer Pullen
(23) Jeremy Sternberg
(24) John P. Mertens
(25) Joshua Borger
(26) JP Morgan Chase Bank, N.A.
(27) Justin E. Proper
(28) Keith W. Berglund
(29) LaDonna Wiggins
(30) Latoya Clark
(31) Lauren B. Veggian
(32) Law Office of James A. Flanagan
(33) Law Offices of Eric L. Lifschitz
(34) Leslie K. Rinaldi
(35) Lexington National Insurance Corporation
(36) Love Watch Hill & Sailors Haven, Inc.
(37) Luxx Lashes by Lay, LLC
(38) Marco Bell
(39) MaryBeth V. Gibson
(40) Melissa Davis Lowe
(41) Ogier, Rothschild & Rosenfeld P.C.
(42) Pia Hoyt Law Firm
(43) Power Bail Bonds
(44) Rice Pugatch Robinson Storfer & Cohen PLLC,
(45) Richard A. Marshack
(46) Richard Storfer
(47) Shulman Bastian Friedman & Bui LLP
(48) SM Novelties
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 70 of 90
11
(49) Smooth & EZ Merchant Funding
(50) Squeeze-It Corp.
(51) Strategic Elements, LLC
(52) Tamara Miles Ogier, Chapter 11 Subchapter V Trustee
(53) Tastetunup, LLC
(54) The Berglund Group
(55) The Cardoza Law Corporation
(56) The Finley Firm, P.C
(57) Vicki LeMaster
(58) Wandro & Associates, P.C.
(59) White & Williams, LLP
23. Litigation - Governmental Investigations Agencies
(1) U.S. Federal Trade Commission
(2) U.S. Department of Justice – Massachusetts
(3) U.S. Department of Justice – Eastern District of Texas
(4) The Small Business Administration (SBA)
(5) The United States House Representatives Select Subcommittee on the Coronavirus Crisis
24. Other Parties in Interest (Notice of Appearance Parties, Ombudsman, any other person or
group appointed)
[Unknown at this time]
25. Other Professionals
(1) Akin Gump Strauss Hauer & Feld LLP
(2) Bailey Duquette
(3) Dentons US LLP
(4) Davis Polk & Wardwell LLP
(5) Goodwin Procter LLP
(6) Green & Sklartz
(7) Hayes & Welsh
(8) Mandelbaum Salsburg, P.C.
(9) RSM US LLP
(10) Sidley Austin LLP
(11) Thomas E. Austin
(12) Windham Brannon
26. Regulatory and Government (Federal, State, and Local)
(1) Delaware Attorney General – Kathy Jennings
(2) Federal Deposit Insurance Corporation
(3) Federal Reserve
(4) Federal Trade Commission
(5) Internal Revenue Service
(6) Office of Foreign Assets Control
(7) Small Business Administration
(8) U.S. Securities and Exchange Commission
(9) United States Attorney for the District of Delaware – David C. Weiss
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 71 of 90
12
(10) United States Department of Justice
27. Significant Customers
(1) Celtic Bank
(2) Cross River Bank
(3) Customers Bank
(4) HCG (a/k/a Home Capital Group Inc.)
(5) Stone Ridge
(6) FleetCor Technologies, Inc.
(7) Relief Without Borders LLC
(8) SJ MEDICAL PLLC
(9) GO AFRICA GLOBAL LLC
(10) CUISANE 365 MOBILE INC
(11) New Legend, Inc
(12) JLITE MORTORS
(13) BOOM REWARDS LLC
(14) David Horvath PA
(15) Wiggins & Graham Enterprise LLC
(16) Pink Lady Line
(17) R and L ARCADE INC
(18) Potomac Valley Operator LLC
(19) Source Allies, Inc.
(20) European Service at Home Inc
(21) Tigris, LLC
(22) AREPII SA Hotel LLC
(23) ASPEN RIVER CANDLE COMPANY
(24) BIG SHOT LLC
(25) Wesley Aron Mock LLC
(26) Club One Casino, Inc
(27) Brian Bui Inc
(28) repairo llc
(29) California Freight Solutions Corp
(30) Torque Power Equipment Repairs
(31) PG Medical Lab
(32) ENERGY EFFICIENT CONSTRUCTION SOLUTIONS
(33) TRUSTEDCOMMUNICATIONS LLC
(34) Horizon 5 Lakes LLC
(35) WINGFIELD LEIGH INDUSTRIES, INC
(36) Allegro School, Inc.
(37) Dog Training With Mario Holland LLC
(38) A ONE ROOF MANAGEMENT & CONSTRUCTION, INC.
(39) Koger Industrial Staffing, LLC
(40) PROVIDENT INVESTMENT REALTY, LLC
(41) FLAIR GROUP INC
(42) REX Therapeutics LLC
(43) IMR CONTRACTING CORP
(44) Gods Anointed Youth Ministry
(45) SHOWTIME ON THE PIERS, LLC.
(46) SUMMIT TRUCK LINE
(47) K Weaver Properties LLC
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 72 of 90
13
(48) ENCES SERVICES INC
(49) Federal Credit Union
(50) Heart Living Centers of Colorado, LLC
(51) Agee Construction Corporation
(52) 1 PONCE DE LEON LLC
(53) Bustro Inc
(54) Francis Joseph Capital Inc
(55) DataSync Inc
(56) SMELifestyle, inc
(57) Crown Management Services, LLC
(58) SUITE Media Productions & Management LLC
(59) Gourmet Nut Inc
(60) Propel Opportunity Fund Inc.
(61) Keystrokes Transcription Service Inc
(62) E. Mishan & Sons
(63) RUSSELL ROAD FOOD AND BEVERAGE LLC
28. Significant Shareholders (more than 5% of equity)
(1) Softbank Vision Fund (AIV M2) L.P.
(2) Blue Run Ventures IV, L.P.
(3) Thomvest Ventures Ltd.
(4) MDV Ix, L.P. c/o Mohr Davidow Ventures
(5) SoftBank PriceVille Investments, L.P.
29. Taxing Authorities (Federal, State, and Local; trust fund, use property, franchise, sales)
(1) Alabama Department of Revenue
(2) California Franchise Tax Board
(3) Georgia Department of Revenue
(4) Internal Revenue Service
(5) North Carolina Department of Revenue
(6) New York State Department of Finance
(7) New York City Department of Finance
(8) Pennsylvania Department of Revenue
30. UCC Search Results/UCC Lien Search Results
(1) CHTD Company
(2) CIT
(3) CIT Bank, N.A.
(4) Cross River Bank
(5) CSC
(6) Direct Capital Corporation
(7) Federal Reserve Bank of San Francisco
(8) Financial Agent Services
(9) Fulton County, Georgia Tax Commissioner
(10) Secured Lender Solutions, LLC
(11) U.S. Bank
(12) Wilmington Savings Fund Society, FSB
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 73 of 90
14
31. Unions
N/A
32. United States Attorney’s Office for the District of Delaware
(1) David C. Weiss
33. United States Trustee and Staff for the District of Delaware
(1) Andrew R. Vara
(2) Joseph McMahon
(3) David Buchbinder
(4) Linda Casey
(5) Joseph Cudia
(6) Timothy J. Fox, Jr.
(7) Benjamin Hackman
(8) Jane Leamy
(9) Hannah M. McCollum
(10) Linda Richenderfer
(11) Juliet Sarkessian
(12) Richard Schepacarter
(13) Rosa Sierra-Fox
(14) Lauren Attix
(15) Shakima L. Dortch
(16) Christine Green
(17) Ramona Harris
(18) Angelique Okita
(19) Edith A. Serrano
(20) Dion Wynn
(21) Denis Cooke
(22) Holly Dice
(23) Nyanquoi Jones
(24) James R. O'Malley
(25) Michael Panacio
(26) Diane Giordano
34. Utility Providers/Utility Brokers
(1) Cogent Communications, Inc.
(2) Five9 Inc.
35. Vendors/Suppliers (includes critical, foreign, common carrier, shippers, warehousemen,
customs duties, brokers charges, facilities provider, etc.)
(1) A-Lign
(2) Allegis Group Holdings Inc
(3) American Express Kabbage Inc.
(4) Biz2X LLC
(5) BlackLine Systems, Inc.
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 74 of 90
15
(6) Box
(7) DataBricks
(8) Five9
(9) Fusion Cloud Services LLC
(10) Google Duo
(11) Google Workspace
(12) HP Holdings, Inc. (dba Invariant LLC)
(13) InscribeAI, Inc.
(14) KLDiscovery Ontrack, LLC
(15) Kroll Associates, Inc.
(16) Lexolution
(17) Libra Risk Management
(18) MLA
(19) Moore Colson
(20) MorganFranklin Consulting, LLC
(21) Option 1 Partners LLC
(22) ReliaQuest Holdings, LLC
(23) Salesforce.com
(24) Sage Intacct, Inc.
(25) Slack
(26) TLO
(27) Transunion Risk and Alternative Data Solutions
(28) URS Technologies Solutions LLC
(29) Vaco LLC
(30) Vital Outsourcing Services Inc.
(31) Willis Towers Watson US LLC
(32) Zendesk
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 75 of 90
RLF1 28018300v.1
Schedule 2
AlixPartners’ Disinterestedness
In connection with the proposed employment and retention of AlixPartners, LLP
(“AlixPartners”) by the Debtors in these Chapter 11 Cases, AlixPartners undertook a
complex process, the details of which are set forth below, to determine whether it had
any conflicts or other relationships that might cause it not to be disinterested or to hold
or represent an interest adverse to the Debtors’ estates.
AlixPartners Holdings, LLP, AlixPartners’ parent company (“Holdings”), directly or
indirectly owns Holdings’ U.S. and non-U.S. subsidiaries (collectively, the “Holdings
Enterprise”). The equity capital of Holdings is owned by the following investors:
(i)
Lakeview Capital Holdings, Inc., the Jay Alix Living Trust and other
trusts established by Jay Alix (collectively the “Lakeview Parties”);
(ii)
Caisse de dépôt et placement du Québec (“CDPQ”);
(iii)
Investcorp Holdings B.S.C. (“IVC”);
(iv)
Public Sector Pension Investment Board (“PSP”); and
(v)
current and certain former Managing Directors of AP (as defined below)
and their individual and family trusts, as well as certain other individuals,
including current members of the Boards (as hereinafter defined) and
employees of the Lakeview Parties, and their individual and family trusts.
(Collectively, (i) – (v) above are hereinafter referred to as the “Investors”, and the subset
(ii) – (iv) above are hereinafter referred to as the “Institutional Investors”).
Holdings and AlixPartners, each have a board of directors (together, the “Boards”). No
individual or entity controls either of the Boards. Designees of each of the Investors (i) –
(iv) above serve as members of the Boards. The Holdings Enterprise does not invest in
distressed assets of any class, nor does it have any investment affiliates.
CDPQ is one of Canada’s largest institutional investment managers. It manages
investments on behalf of most of Quebec Canada’s public and parapublic pension and
insurance funds. CDPQ invests globally in numerous industries.
IVC is a leading global provider and manager of alternative investment products.
PSP is one of Canada’s largest pension investment managers. It invests funds for the
pension plans of the Public Service, the Canadian Armed Forces, the Royal Canadian
Mounted Police and the Reserve Force. PSP manages a diversified global portfolio in
numerous industries throughout the world.
The Lakeview Parties and related entities are entities owned or controlled by Jay Alix that,
among other things, make investments on behalf of Mr. Alix and his family.
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 76 of 90
2
RLF1 28018300v.1
In addition to their investments in Holdings, the Institutional Investors have substantial
investments unrelated to AlixPartners.
The Boards are not involved in the delivery of client services and their members do not
have access to client files, except for a minority of members of the Boards that are
AlixPartners employees. As a precautionary matter, AlixPartners maintains information
barriers and guidelines designed to prevent certain confidential client information,
including the names of clients likely to be involved in a not-yet-filed case under the
Bankruptcy Code, from being shared with the Investors or their designees on the Boards.
To that end, no material nonpublic information about the Debtors (including, before the
filing of these Chapter 11 Cases, the fact that AlixPartners was about to undertake an
assignment involving the Debtors) has been or will be furnished by AlixPartners to the
Investors or their Board designees, and AlixPartners will continue to abide by its
confidentiality obligations to the Debtors. Each Investor is independent of each other
Investor and is governed by its own board of directors or similar body and managed by its
own management team. AlixPartners operates independently and does not share
employees, officers or other management with any of the Investors. AlixPartners and each
of the Investors have separate offices in separate buildings, use separate internet email
addresses, and do not otherwise share IT systems.
AlixPartners has one database where connections are stored for all entities in the Holdings
Enterprise. The process for the preparation of disclosures is as follows: upon receipt of a
potential parties in interest list from the Debtors and/or their representatives (the “Parties
in Interest List”), all such parties are input to the database by team members familiar with
the database. A report of the “hits” is generated, and the team members review those “hits”
for connections. Where there is a connection, a disclosure is drafted. After the team
completes draft disclosures, the disclosures are reviewed by an in-house bankruptcy
attorney. The attorney coordinates with the team to finalize the disclosures, which are then
reviewed by the engagement AlixPartners managing director. These initial disclosures (the
“Initial Disclosures”) are thereafter filed with the Bankruptcy Court as part of the retention
pleadings.
Promptly thereafter, a bankruptcy paralegal in the firm uses the Initial Disclosures and the
parties in interest list to draft a firmwide email for each bankruptcy filing, including the
Debtors’ cases. This email is sent to every firm employee as well as the members of the
Boards and the Lakeview Parties. The firmwide email requests each recipient to review
the attached file that includes the parties in interest and corresponding disclosures,
and asks that every recipient: (a) contact the legal department in the event that they have
a connection or relationship with an interested party that is not included in our disclosures;
(b) if they have a connection or relationship with an interested party that is included in our
disclosures, confirm that it is accurately described; and (c) contact the legal department if
they own securities of the Debtors. Members of the legal team review all email responses
and draft any supplemental disclosures appropriate to reflect information received in
response to the firmwide email. After the review process described in the immediately
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 77 of 90
3
RLF1 28018300v.1
preceding paragraph, supplemental disclosures are thereafter filed with the Bankruptcy
Court.
After the Initial Disclosures are filed with the Bankruptcy Court, AlixPartners also provides
the names of the Debtors, their owners/investors, lenders and, on a case-by-case basis, other
named entities (collectively, the “Investor Search Parties”), to the Institutional Investors,
and requests that each Institutional Investor run a check of the Investor Search Parties
across all investment portfolios including, upon reasonable investigation, (i) private and
public funds, (ii) loan positions, and (iii) known positions across CLO holdings (all of the
foregoing subject to the exceptions listed below, the “Investor Connections Check”). The
exceptions to the Investor Connections Check are (i) investments over which the
Institutional Investors do not possess actual investment authority and discretion (“direct
control”), (ii) index replication position, (iii) investments owned in separate accounts
managed by independent parties not affiliated with the Institutional Investors, and (iv)
pooled investment vehicles in which the Institutional Investors do not exercise actual
control or in which the Institutional Investors do not have visibility sufficient to ascertain
such vehicle’s investments. Members of the legal team review all responses received from
the Institutional Investors and draft disclosures appropriate to reflect information received
from the Institutional Investors that, following review, are filed with the Bankruptcy Court.
Upon receipt of the responses from the Institutional Investors to the Investor Connections
Check, AlixPartners will file any supplemental disclosures which may be required.
To the extent AlixPartners learns of connections that are not included herein, AlixPartners
will promptly file a supplemental disclosure.
Further, AlixPartners may have had, currently have or may in the future have business
relationships with, among other entities, portfolio companies of the Institutional Investors
and portfolio companies of private equity funds in which they are limited partners, in
matters unrelated to the Debtors or their affiliates in these Chapter 11 Cases. Based on,
among other things, the business separation between each of the Investors and
AlixPartners, the contractual client confidentiality obligations of AlixPartners and the
information barriers referred to above, AlixPartners believes that it does not hold or
represent an interest adverse to the estate with respect to any such engagement.
Other than as specifically noted herein, AlixPartners has not undertaken to determine the
existence, nature, and/or full scope of any business relationships or connections that the
Investors may have with the Investor Search Parties, the Debtors and their affiliates, and
other parties in interest in these Chapter 11 Cases.
Specifically, AlixPartners obtained from the Debtors and/or their representatives the
Parties in Interest List, which is attached hereto as Schedule 1 and conducted a search for
connections in accordance with the procedures set forth above.
AlixPartners represents that, to the best of its knowledge, it knows of no fact or situation
that would represent a conflict of interest, cause it not to be disinterested or hold or
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 78 of 90
4
RLF1 28018300v.1
represent an interest adverse to the Debtors’ estates, and furthermore wishes to the disclose
the following with respect to the Holdings Enterprise (collectively, “AP”, unless otherwise
noted):
AP interacts with U.S. Bankruptcy Court judges and representatives of the U.S. Trustee
Program regularly in its capacity as a professional consulting firm that offers turnaround
and restructuring services.
AP has issued debt in the form of a USD-denominated senior secured term loan, and a
Euro-denominated senior secured term loan (collectively, the “Term Loans”), as well as
a Revolving Credit Facility.
Bank of America, N.A. serves as the Administrative Agent for the Term Loans and the
Revolving Credit Facility and as such manages all trading of the Term Loans and
Revolving Credit Facility between investors. Many of the holders of the Term Loans are
pools organized by banks, mutual fund management companies and other fund managers
(collectively, “Fund Managers”) who pool debt instruments issued by multiple / different
borrowers and offer interests in the pools to investors. The identities of the investors in the
pools cannot be ascertained by AP. The Term Loans are actively traded. Thus, the list of
Fund Managers and other investors directly holding the Term Loans can become outdated
quickly. On a monthly basis, AP reviews the list of investors in the Term Loans for the
purpose of making relationship disclosures in chapter 11 cases. As of the last monthly
report, no Fund Manager or other investor in the Term Loans held greater than 10% of the
combined US-denominated and Euro-denominated Term Loans. In the event that any
entity accumulates a 10% or greater interest in the combined US-denominated and Euro-
denominated Term Loans, AP will disclose the name of such entity.
The participants in the Revolving Credit Facility are Bank of America, N.A., Credit Suisse,
Deutsche Bank AG Host Bank, Goldman Sachs Lending Partners LLC, HSBC Bank USA,
NA, and JPMorgan Chase Bank N.A.
The Internal Revenue Service (“IRS”) is a current and former AP client in matters
unrelated to the Debtors. The IRS is a lienholder and adverse litigation party to current
and former AP clients in matters unrelated to the Debtors. The IRS is a former employer
of a current AP employee.
The United States Department of Justice (“DOJ”), including the United States Attorney
General’s Office, is a current and former client of AP in matters unrelated to the
Debtors. The DOJ is a litigation party, adverse litigation party, lessor and professional to
current and former AP clients in matters unrelated to the Debtors.
AP follows a practice to solicit from the members of its Boards their connections to the
parties in interest independent of AP. In response, one or more of the members of its
Boards have offered the following disclosures:
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 79 of 90
5
RLF1 28018300v.1
o American Express Kabbage Inc. and American Express Travel Related Services, top
creditors, vendors and contract counterparties to the Debtors, and affiliates, are vendors
to an AP investor or one of its affiliates.
o Blue Cross Blue Shield of California and Blue Cross Blue Shield of Hawaii, benefits
providers to the Debtors, and affiliates, are vendors to an AP investor or one of its
affiliates.
o Holland & Knight LLP, counsel to a litigation counterparty to the Debtors and a
professional in this bankruptcy matter, is a current or former legal services provider to
an AP investor or one of its affiliates.
o JP Morgan Chase Bank, N.A., a litigation counterparty to the Debtors, and affiliates,
are vendors to an AP investor or one of its affiliates.
o Kroll Associates, Inc. and affiliates (“Kroll”) are contract counterparties and vendors
to the Debtors. AP's current CEO was formerly the CEO of Kroll.
o Quinn Emmanuel Urquhart & Sullivan LLP, a professional in this bankruptcy matter,
is a current or former legal services provider to an AP investor or one of its affiliates.
o U.S. Bank, a lender/noteholder/agent/indenture trustee and UCC lien search party to
the Debtors, and affiliates, are vendors to an AP investor or one of its affiliates.
o UnitedHealthcare, UnitedHealthcare Dental and UnitedHealthcare of California, and
affiliates (“United”) are benefits providers to the Debtors. An AP board member is on
the Board of Trustees of United.
Adobe, a top creditor to the Debtors, and affiliates, are vendors to AP.
AIG Specialty Insurance Company, an insurance provider to the Debtors, and affiliates
(“AIG”) are bondholders, adverse litigation parties, lenders and lessors to current and
former AP clients in matters unrelated to the Debtors. AIG is a current and former AP
client in matters unrelated to the Debtors. AIG is a former employer of current AP
employees. Illinois National Insurance Company, an affiliate of AIG, is a former insurance
provider to AP. Illinois National Insurance Company was adverse to AP in a former
litigation regarding an insurance dispute in matters unrelated to the Debtors.
Airbnb, Inc., a contract counterparty to the Debtors, is a former AP client in matters
unrelated to the Debtors.
Akin Gump Strauss Hauer & Feld LLP (“Akin Gump”), a professional to the Debtors, is
a professional, counsel and opposing counsel to current and former AP clients in matters
unrelated to the Debtors. Akin Gump is a current and former AP client in matters unrelated
to the Debtors. Akin Gump is a legal services provider to AP.
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 80 of 90
6
RLF1 28018300v.1
A-Lign, A-Lign Assurance and A-Lign Compliance and Security, Inc., vendors and
contract counterparties to the Debtors, and affiliates (“A-Lign”) are professionals to a
current AP client in matters unrelated to the Debtors. A-Lign is a vendor to AP.
Allegis Group Holdings Inc., a vendor to the Debtors, and affiliates, are former employers
of a current AP employee.
Amazon Webservices, a top creditor to the Debtors, and affiliates (“Amazon”) are
litigation parties, adverse litigation parties and professionals to current and former AP
clients in matters unrelated to the Debtors. Amazon is a current and former AP client in
matters unrelated to the Debtors. Amazon is a former employer of current AP employees.
Amazon is a vendor to AP.
American Express Kabbage Inc. and American Express Travel Related Services, top
creditors, vendors, contract counterparties and director-affiliated companies to the Debtors,
and affiliates (“AmEx”) are lessors, lienholders and adverse litigation parties to current
and former AP clients in matters unrelated to the Debtors. AmEx was a member of the
official committee of unsecured creditors that retained AP in in Aegean Marine Petroleum
Network, Inc., a former bankruptcy matter unrelated to the Debtors. AmEx is a former
employer of current AP employees. AmEx is a vendor to AP.
Atlantic Specialty Insurance Company, an insurance provider to the Debtors, and affiliates
(“Atlantic Specialty”) are bondholders, director-affiliated companies and adverse
litigation parties to current and former AP clients in matters unrelated to the Debtors.
Atlantic Specialty is an insurance provider to AP.
Automatic Data Processing Inc. (ADP), a director-affiliated company to the Debtors, is an
adverse litigation party and professional to current and former AP clients in matters
unrelated to the Debtors. ADP is a current AP client in matters unrelated to the Debtors.
ADP is a former employer of current AP employees. ADP is an employee benefits provider
to AP.
Automation Anywhere, Inc., a contract counterparty to the Debtors, is a former employer
of a current AP employee.
Berkshire Hathaway Specialty Insurance Company, an insurance provider to the Debtors,
and affiliates (“Berkshire Hathaway”) are investors, bondholders, litigation parties,
adverse litigation parties, parent companies and shareholders to current and former AP
clients in matters unrelated to the Debtors. Berkshire Hathaway is a current AP client in
matters unrelated to the Debtors. Berkshire Hathaway is an insurance provider to AP.
Bibby Financial Services, a director-affiliated company to the Debtors, and affiliates
(“Bibby”) are related parties to a former AP client in matters unrelated to the Debtors.
Bibby is a former AP client in matters unrelated to the Debtors.
Blue Cross Blue Shield of California and Blue Cross Blue Shield of Hawaii, benefits
providers to the Debtors, and affiliates (“BCBS”) are adverse litigation parties, director-
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 81 of 90
7
RLF1 28018300v.1
affiliated companies, investors, lenders, lienholders and professionals to current and
former AP clients in matters unrelated to the Debtors. BCBS is a former employer of
current AP employees. BCBS is a member of the official committee of unsecured creditors
that retained AP in in LTL Management LLC, a current bankruptcy matter unrelated to the
Debtors.
Box, a vendor and top creditor to the Debtors, is an adverse litigation party to a former AP
client in matters unrelated to the Debtors. Box is a vendor to AP.
CIT and CIT Bank, N.A., UCC lien search parties to the Debtors, and affiliates (“CIT”)
are lenders, bondholders, lessors, lienholders, adverse litigation parties and shareholders to
current and former AP clients in matters unrelated to the Debtors. CIT was a member of
the official committee of unsecured creditors that retained AP in Modell’s Sporting Goods,
Inc., a former bankruptcy matter unrelated to the Debtors.
Cleary Gottlieb Steen & Hamilton LLP (“Cleary”), a professional in this bankruptcy
matter, is a professional and counsel to current and former AP clients in matters unrelated
to the Debtors. Cleary is a current and former AP client in matters unrelated to the Debtors.
Cobbs Allen Capital, LLC d/b/a CAC Specialty, an insurance provider to the Debtors, is a
bondholder and adverse litigation party to former AP clients in matters unrelated to the
Debtors. CAC Specialty is an insurance provider to AP.
Corporation Service Company (CSC), a contract counterparty, UCC lien search party and
director-affiliated company to the Debtors, is a professional to current and former AP
clients in matters unrelated to the Debtors. CSC is a vendor to AP.
Credit Suisse, a contract counterparty and lender/noteholder/agent/indenture trustee to the
Debtors, and affiliates (“Credit Suisse”) are bondholders, litigation parties, adverse
litigation parties, director-affiliated companies, investors, lenders, lienholders, limited
partners, parent companies, professionals and shareholders to current and former AP clients
in matters unrelated to the Debtors. Credit Suisse is a current and former AP client in
matters unrelated to the Debtors. Credit Suisse is a former employer of current AP
employees.
DataBricks, a vendor to the Debtors, is a vendor to AP through AP’s vendor relationship
with Microsoft Azure.
Davis Polk & Wardwell LLP (“Davis Polk”), a top creditor and professional to the
Debtors, is a professional, counsel and opposing counsel to current and former AP clients
in matters unrelated to the Debtors. Davis Polk is a current and former AP client in matters
unrelated to the Debtors.
Dentons US LLP, a top creditor and professional to the Debtors, and affiliates (“Dentons”)
are professionals, counsel and opposing counsel to current and former AP clients in matters
unrelated to the Debtors. Dentons is a current AP client in matters unrelated to the Debtors.
Dentons is a former legal services provider to AP.
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 82 of 90
8
RLF1 28018300v.1
DocuSign, a contract counterparty to the Debtors, is a vendor to AP.
Duo, a top creditor to the Debtors, and affiliates (“Duo”) are former employers of a current
AP employee. Duo is a vendor to AP.
East West Bank, a contract counterparty to the Debtors, is a lender to current and former
AP clients in matters unrelated to the Debtors.
Electrolux AB, a director-affiliated company to the Debtors, and affiliates, are adverse
litigation parties to a former AP client in matters unrelated to the Debtors.
Endurance American Insurance Company c/o Sompro Pro and Endurance International
Group, Inc., insurance providers and contract counterparties to the Debtors, and affiliates
(“Endurance”) are bondholders, related parties, litigation parties, joint venture entities and
adverse litigation parties to current and former AP clients in matters unrelated to the
Debtors. Endurance is a former AP client in matters unrelated to the Debtors. Endurance
is an insurance provider to AP.
Ernst & Young LLP, a contract counterparty to the Debtors, and affiliates (“E&Y”) are
adverse litigation parties, director-affiliated companies and shareholders to current and
former AP clients in matters unrelated to the Debtors. E&Y is a current and former AP
client in matters unrelated to the Debtors. E&Y is a former employer of current AP
employees. E&Y is a vendor to AP.
Everest National Insurance Company, an insurance provider to the Debtors, and affiliates
(“Everest”) are litigation parties and adverse litigation parties to current AP clients in
matters unrelated to the Debtors. Everest is an insurance provider to AP.
Federal Deposit Insurance Corporation, a governmental regulatory agency to the Debtors,
is a current AP client in matters unrelated to the Debtors.
Federal Reserve and Federal Reserve Bank of San Francisco, contract counterparties, top
creditors, governmental regulatory agencies and UCC lien search parties to the Debtors,
and affiliates (“Federal Reserve”) are litigation parties and related parties to a current AP
client in matters unrelated to the Debtors. Federal Reserve is a current AP client in matters
unrelated to the Debtors.
First Home Bank, a litigation counterparty to the Debtors, is a lienholder to a current AP
client in matters unrelated to the Debtors.
First National Bank of Syracuse, a contract counterparty to the Debtors, and affiliates, are
lenders, lienholders and adverse litigation parties to current and former AP clients in
matters unrelated to the Debtors.
Forensic Risk Alliance, a contract counterparty, top creditor and professional to the
Debtors, is a former employer of a current AP employee.
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 83 of 90
9
RLF1 28018300v.1
Fortis Advisors, LLC and Fortis Private Bank, contract counterparties to the Debtors, and
affiliates, are former AP clients in matters unrelated to the Debtors.
Fusion Cloud Services LLC, a vendor to the Debtors, and affiliates (“Fusion”) are current
AP clients in matters unrelated to the Debtors. AP was retained by Fusion (a debtor) in
Fusion Connect, a former bankruptcy matter unrelated to the Debtors.
GoDaddy.com, LLC, a contract counterparty to the Debtors, is a former AP client in
matters unrelated to the Debtors.
Goodwin Procter LLP (“Goodwin Procter”), a professional to the Debtors, is a
professional, counsel and opposing counsel to current and former AP clients in matters
unrelated to the Debtors. Goodwin Procter is a former AP client in matters unrelated to
the Debtors.
Google Workspace, a vendor to the Debtors, and affiliates (“Google”) are adverse litigation
parties and lessors to current and former AP clients in matters unrelated to the Debtors.
Google is a current and former AP client in matters unrelated to the Debtors. Google is a
former employer of a current AP employee.
Greenberg Traurig, LLP (“Greenberg Traurig”), counsel to a litigation counterparty to
the Debtors, is a professional, counsel and opposing counsel to current and former AP
clients in matters unrelated to the Debtors. Greenberg Traurig is a former AP client in
matters unrelated to the Debtors.
Guggenheim Securities, LLC, a contract counterparty and lender/noteholder/
agent/indenture trustee to the Debtors, and affiliates (“Guggenheim”) are bondholders,
adverse litigation parties, investors, lenders, lienholders and professionals to current and
former AP clients in matters unrelated to the Debtors. Guggenheim is a former AP client
in matters unrelated to the Debtors.
Holland & Knight LLP (“Holland & Knight”), counsel to a litigation counterparty to the
Debtors and a professional in this bankruptcy matter, is a professional, counsel and
opposing counsel to current and former AP clients in matters unrelated to the Debtors.
Holland & Knight is a former AP client in matters unrelated to the Debtors.
Jones Day, a contract counterparty, top creditor, and professional to the Debtors, is a
professional and counsel to current and former AP clients in matters unrelated to the
Debtors. Jones Day is a current and former AP client in matters unrelated to the Debtors.
Jones Day is a legal services provider to AP.
JP Morgan Chase Bank, N.A., a litigation counterparty to the Debtors, and affiliates
(“JPM”) are affiliates, bondholders, litigation parties, adverse litigation parties, investors,
lenders, lessees, lessors, lienholders, limited partners, parent companies, professionals and
shareholders to current and former AP clients in matters unrelated to the Debtors. JPM is
a current and former AP client in matters unrelated to the Debtors. JPM is a former
employer of current AP employees. The spouse of an attorney who works in AP’s Legal
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 84 of 90
10
RLF1 28018300v.1
department is a lawyer employed by JPM advising on distressed investments. Strict
confidentiality obligations pertaining to all AP employees, as well as general legal
professional responsibility, prohibit the AP attorney from discussing or exchanging non-
public information related to AP’s client engagements, including this bankruptcy matter,
with third parties, including spouses
Kaiser Permanente, a benefits provider to the Debtors, and affiliates (“Kaiser”) are
associated companies, litigation parties, adverse litigation parties, lenders, lessors and
shareholders to current and former AP clients in matters unrelated to the Debtors. Kaiser
is a former AP client in matters unrelated to the Debtors.
KLDiscovery Ontrack, LLC, a contract counterparty, vendor and top creditor to the
Debtors, and affiliates (“KLDiscovery”) are former AP clients in matters unrelated to the
Debtors. KLDiscovery is a former employer of current AP employees. KLDiscovery is a
vendor to AP.
KPMG LLP, a top creditor and professional to the Debtors, and affiliates (“KPMG”) are
professionals and adverse litigation parties to current and former AP clients in matters
unrelated to the Debtors. KPMG is a former employer of current AP employees. KPMG
is an auditor to AP.
Kroll Associates, Inc., a contract counterparty and vendor to the Debtors, and affiliates
(“Kroll”) are affiliates to current AP clients in matters unrelated to the Debtors. Kroll is a
current AP client in matters unrelated to the Debtors. Kroll is a former employer of current
AP employees. Kroll is a vendor to AP.
Lexington National Insurance Corporation, a litigation counterparty to the Debtors, and
affiliates, are litigation parties and adverse litigation parties to current and former AP
clients in matters unrelated to the Debtors.
LexisNexis Risk Solutions FL Inc., a contract counterparty to the Debtors, and affiliates
(“LexisNexis”) are professionals to a current AP client in matters unrelated to the Debtors.
LexisNexis is a current and former AP client in matters unrelated to the Debtors.
LexisNexis is a vendor to AP.
Macquarie, a contract counterparty and lender/noteholder/agent/indenture trustee to the
Debtors, and affiliates (“Macquarie”) are bondholders, litigation parties, adverse litigation
parties, investors, lenders, lessors, lienholders and shareholders to current and former AP
clients in matters unrelated to the Debtors. Macquarie is a current and former AP client in
matters unrelated to the Debtors. Macquarie is a former employer of current AP
employees.
Major, Lindsey & Africa (“Major”), a director-affiliated company to the Debtors, is a
professional to a former AP client in matters unrelated to the Debtors. Major is a vendor
to AP.
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 85 of 90
11
RLF1 28018300v.1
Marsh USA Inc., an insurance provider to the Debtors, and affiliates (“Marsh”) are
litigation parties and professionals to former AP clients in matters unrelated to the Debtors.
Marsh is an insurance provider to AP.
MasterCard International Incorporated, a contract counterparty to the Debtors, and
affiliates (“MasterCard”) are litigation parties to current AP clients in matters unrelated
to the Debtors. MasterCard is a former employer of current AP employees.
McGuireWoods LLP (“McGuireWoods”), a top creditor and professional to the Debtors,
is a professional, counsel and opposing counsel to current and former AP clients in matters
unrelated to the Debtors. McGuireWoods is a former AP client in matters unrelated to the
Debtors.
Mechanics Bank, a contract counterparty to the Debtors, is a former AP client in matters
unrelated to the Debtors.
Microsoft, a top creditor to the Debtors, and affiliates (“Microsoft”) are adverse litigation
parties, lessors and shareholders to current and former AP clients in matters unrelated to
the Debtors. Microsoft is a current and former AP client in matters unrelated to the
Debtors. Microsoft is a former employer of current AP employees. Microsoft is a vendor
to AP.
National Association of Corporate Directors, a director-affiliated company to the Debtors,
is a director-affiliated company to a former AP client in matters unrelated to the Debtors.
National Union Fire Insurance Company of Pittsburgh, Pa., an insurance provider to the
Debtors, and affiliates, are bondholders, litigation parties and adverse litigation parties to
current and former AP clients in matters unrelated to the Debtors.
New York City Department of Finance, a taxing authority to the Debtors, is a litigation
party to a former AP client in matters unrelated to the Debtors.
New York State Department of Finance (“NYS Finance”), a taxing authority to the
Debtors, is a professional, litigation party and adverse litigation party to current and former
AP clients in matters unrelated to the Debtors. NYS Finance is a former AP client in
matters unrelated to the Debtors.
New York Life (f/k/a Cigna), a benefits provider to the Debtors, and affiliates (“New York
Life”) are bondholders, litigation parties, adverse litigation parties, lenders, lessors,
lienholders and shareholders to current and former AP clients in matters unrelated to the
Debtors. New York Life is a current and former AP client in matters unrelated to the
Debtors.
Omni Agent Solutions, a professional to the Debtors, and affiliates, are professionals to
current and former AP clients in matters unrelated to the Debtors. Omni is a former AP
client in matters unrelated to the Debtors.
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 86 of 90
12
RLF1 28018300v.1
Optum Bank, a benefits provider to the Debtors, is a litigation party and associated
company to current and former AP clients in matters unrelated to the Debtors. Optum Bank
is a vendor to AP.
Pennsylvania Department of Revenue, a taxing authority to the Debtors, is an adverse
litigation party to a former AP client in matters unrelated to the Debtors.
People’s Bank, a contract counterparty to the Debtors, and affiliates, are lenders, lessees
and lienholders to current and former AP clients in matters unrelated to the Debtors.
People’s Bank is a former employer of current AP employees.
QBE Insurance Corporation, an insurance provider to the Debtors, and affiliates (“QBE”)
are lenders, litigation parties and adverse litigation parties to current and former AP clients
in matters unrelated to the Debtors. QBE is a former AP client in matters unrelated to the
Debtors. QBE is an insurance provider to AP.
Quinn Emmanuel Urquhart & Sullivan LLP (“Quinn”), a professional in this bankruptcy
matter, is a professional, counsel and opposing counsel to current and former AP clients
in matters unrelated to the Debtors. Quinn is a current and former AP client in matters
unrelated to the Debtors.
Richards Layton & Finger (“Richards”), a professional to the Debtors, is a professional,
counsel and opposing counsel to current and former AP clients in matters unrelated to the
Debtors. Richards is a current and former AP client in matters unrelated to the Debtors.
Richards is a current legal services provider to AP.
RSM US LLP, a professional to the Debtors, and affiliates (“RSM”) are litigation parties
and professionals to current and former AP clients in matters unrelated to the Debtors.
RSM is a former AP client in matters unrelated to the Debtors. RSM is a former employer
of current AP employees.
Salesforce and Salesforce.com, contract counterparties and vendors to the Debtors, and
affiliates (“Salesforce”) are investors to a current AP client in matters unrelated to the
Debtors. Salesforce is a vendor to AP.
Sidley Austin LLP (“Sidley”), a top creditor and professional to the Debtors, is a
professional and counsel to current and former AP clients in matters unrelated to the
Debtors. Sidley is a current and former AP client in matters unrelated to the Debtors.
Sidley is a current legal services provider to AP.
Small Business Administration (SBA), a top creditor and governmental regulatory agency
to the Debtors, is a lender and lienholder to current AP clients in matters unrelated to the
Debtors.
Softbank PriceVille Investments, L.P. and Softbank Vision Fund (AIV M2) L.P.,
shareholders to the Debtors, and affiliates (“Softbank”) are litigation parties, adverse
litigation parties, lenders, lessors, parent companies and shareholders to current and former
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 87 of 90
13
RLF1 28018300v.1
AP clients in matters unrelated to the Debtors. Softbank is a current and former AP client
in matters unrelated to the Debtors. Softbank is a vendor to AP.
Sound Point Capital Management, LP, a contract counterparty to the Debtors, and affiliates
(“Sound Point”) are bondholders, adverse litigation parties, lenders, lienholders and
shareholders to current and former AP clients in matters unrelated to the Debtors. Sound
Point is a current and former AP client in matters unrelated to the Debtors.
Stericycle, a contract counterparty to the Debtors, and affiliates (“Stericycle”) are
bondholders to a current AP client in matters unrelated to the Debtors. Stericycle is a
former employer of a current AP employee. Stericycle is a vendor to AP.
Stone Ridge, a banking services provider to the Debtors, and affiliates, are shareholders to
a former AP client in matters unrelated to the Debtors.
Synovus and Synovus Bank (Synovus Financial Corp.), contract counterparties and
banking services providers to the Debtors, and affiliates, are lenders and adverse litigation
parties to current and former AP clients in matters unrelated to the Debtors.
Transunion Risk and Alternative Data Solutions, Inc. (TRADS), a top creditor to the
Debtors, and affiliates, are adverse litigation parties to a former AP client in matters
unrelated to the Debtors.
U.S. Bank, a lender/noteholder/agent/indenture trustee and UCC lien search party to the
Debtors, and affiliates (“U.S. Bank”) are bondholders, litigation parties, adverse litigation
parties, lenders, lessors, lienholders, professionals and shareholders to current and former
AP clients in matters unrelated to the Debtors. U.S. Bank is a current and former AP client
in matters unrelated to the Debtors. U.S. Bank was a member of the official committee of
unsecured creditors that retained AP in Tops Holding II Corporation, a former bankruptcy
matter unrelated to the Debtors.
U.S. Federal Trade Commission, a litigation party, top creditor, and governmental
regulatory agency to the Debtors, is an adverse litigation party to current and former AP
clients in matters unrelated to the Debtors.
U.S. Securities and Exchange Commission (“SEC”), a governmental regulatory agency to
the Debtors, is a litigation party and adverse litigation party to current and former AP
clients in matters unrelated to the Debtors. SEC is a current and former AP client in matters
unrelated to the Debtors. SEC is a former employer of current AP employees.
UnitedHealthcare, UnitedHealthcare Dental and UnitedHealthcare of California, benefits
providers to the Debtors, and affiliates (“UnitedHealthcare”) are litigation parties, adverse
litigation parties and associated companies to current and former AP clients in matters
unrelated to the Debtors. UnitedHealthcare is a former AP client in matters unrelated to
the Debtors. UnitedHealthcare is an employee benefits provider to AP.
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 88 of 90
14
RLF1 28018300v.1
Vaco LLC, a top creditor, contract counterparty and vendor to the Debtors, is a vendor to
AP.
Vector Solutions, a director-affiliated company to the Debtors, is a current AP client in
matters unrelated to the Debtors.
Venture Lending & Leasing VII, Inc. and Venture Lending & Leasing VIII, Inc., contract
counterparties to the Debtors, and affiliates, are lenders to current AP clients in matters
unrelated to the Debtors.
Visa U.S.A. Inc., a contract counterparty to the Debtors, and affiliates (“Visa”) are related
parties and litigation parties to current and former AP clients in matters unrelated to the
Debtors. Visa is a current AP client in matters unrelated to the Debtors. Visa is a vendor
to AP.
VSP Choice, a benefits provider to the Debtors, and affiliates, are employee benefits
providers to AP.
Weil, Gotshal & Manges LLP (“Weil”), a professional to the Debtors, is a professional and
counsel to current and former AP clients in matters unrelated to the Debtors. Weil is a
current and former AP client in matters unrelated to the Debtors. Weil is a current legal
services provider to AP.
White & Williams, LLP, counsel to a litigation counterparty to the Debtors, is a
professional to a current AP client in matters unrelated to the Debtors.
Willis Towers Watson US LLC, a vendor to the Debtors, and affiliates (“WTW”) are
professionals, adverse litigation parties and lessors to current and former AP clients in
matters unrelated to the Debtors. WTW is a former employer of current AP employees.
WTW is a vendor to AP.
Wilmington Savings Fund Society FSB (“WSFS”), a UCC lien search party to the Debtors,
is a lender, adverse litigation party and professional to current and former AP clients in
matters unrelated to the Debtors. WSFS is a former AP client in matters unrelated to the
Debtors. WSFS was a member of the official committee of unsecured creditors that
retained AP in in Extraction Oil & Gas, Inc. and EP Energy Corporation, former
bankruptcy matters unrelated to the Debtors.
Windham Brannon, a professional to the Debtors, is a professional to a current AP client
in matters unrelated to the Debtors.
XL Specialty Insurance Company, an insurance provider to the Debtors, and affiliates
(“XL”) are bondholders, litigation parties, adverse litigation parties and lessors to current
and former AP clients in matters unrelated to the Debtors. XL is an insurance provider to
AP.
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 89 of 90
15
RLF1 28018300v.1
Zendesk, a contract counterparty and vendor to the Debtors, is a related party to a current
AP client in matters unrelated to the Debtors.
Case 22-10951-CTG Doc 49-1 Filed 10/05/22 Page 90 of 90