Revised Order
- Date
- 2022-10-20
Summary
Doc 131-1, filed October 20, 2022 in In re Kabbage, Inc. d/b/a KServicing, et al., Case No. 22-10951 (CTG), a jointly administered Chapter 11 case in the U.S. Bankruptcy Court for the District of Delaware, is Exhibit 1, a revised form of order. The order would authorize the Debtors to employ and retain Omni Agent Solutions, Inc. as Administrative Agent effective as of the Petition Date under section 327(a) of the Bankruptcy Code, Bankruptcy Rules 2014(a) and 2016, and Local Rules 2014-1 and 2016-2. Its 17 numbered paragraphs require Omni to apply to the Court for compensation and limit the Debtors' indemnification obligations, excluding claims arising from gross negligence, willful misconduct or fraud. It also provides that the engagement agreement's limitation of liability provision has no effect during the cases and that Omni may not stop providing services without a court order.
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Case 22-10951-CTG Doc 131-1 Filed 10/20/22 Page 1 of 6
Exhibit 1
Revised Order
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UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
------------------------------------------------------------ x
:
In re : Chapter 11
:
KABBAGE, INC. d/b/a KSERVICING, et al., : Case No. 22-10951 (CTG)
:
:
Debtors.1 : (Jointly Administered)
:
: Ref. Docket No. 17
------------------------------------------------------------ x
ORDER AUTHORZING DEBTORS
TO EMPLOY AND RETAIN OMNI AGENT SOLUTIONS, INC.
AS ADMINISTRATIVE AGENT EFFECTIVE AS OF THE PETITION DATE
Upon the application (the “Application”)2 of Kabbage Inc. d/b/a KServicing and
its debtor affiliates, as debtors and debtors in possession in the Chapter 11 Cases (collectively,
the “Debtors”), for entry of an order pursuant to section 327(a) of the Bankruptcy Code,
Bankruptcy Rules 2014(a) and 2016, and Local Rules 2014-1 and 2016-2 authorizing the Debtors
to retain and employ Omni as Administrative Agent effective as of the Petition Date, all as more
fully set forth in the Application; and upon consideration of the First Day Declaration; and the
Court having jurisdiction to consider the Application and the relief requested therein pursuant to
28 U.S.C. §§ 157 and 1334, and the Amended Standing Order of Reference from the United States
District Court for the District of Delaware, dated February 29, 2012; and consideration of the
1
The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification
number, as applicable are: Kabbage, Inc. d/b/a KServicing (3937); Kabbage Canada Holdings, LLC (N/A); Kabbage
Asset Securitization LLC (N/A); Kabbage Asset Funding 2017-A LLC (4803); Kabbage Asset Funding 2019-A LLC
(8973); and Kabbage Diameter, LLC (N/A). Kabbage is a trademark of American Express used under license;
Kabbage, Inc. d/b/a KServicing is not affiliated with American Express. The Debtors’ mailing and service address is
925B Peachtree Street NE, Suite 383, Atlanta, GA 30309.
2
Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the
Application.
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Application and the requested relief being a core proceeding pursuant to 28 U.S.C. § 157(b); and
venue being proper before this Court pursuant to 28 U.S.C. §§ 1408 and 1409; and due and proper
notice of the Application having been provided; and such notice having been adequate and
appropriate under the circumstances; and it appearing that no other or further notice need be
provided; and this Court having reviewed the Application; and upon any hearing held on the
Application; and all objections, if any, to the Application having been withdrawn, resolved, or
overruled; and this Court having determined that the legal and factual bases set forth in the
Application establish just cause for the relief granted herein; and it appearing that the relief
requested in the Application is in the best interests of the Debtors, their estates, creditors, and all
parties in interest; and upon all of the proceedings had before this Court and after due deliberation
and sufficient cause appearing therefor,
IT IS HEREBY ORDERED THAT
1. The Application is granted to the extent set forth herein.
2. The Debtors are authorized, but not directed, pursuant to section 327(a) of
the Bankruptcy Code, Bankruptcy Rules 2014(a) and 2016, and Local Rules 2014-1 and 2016-2
to retain and employ Omni as Administrative Agent effective as of the Petition Date under the
terms of the Engagement Agreement, and Omni is authorized and directed to perform the Services,
and all related tasks, all as described in the Application.
3. Omni is authorized to take such other action to comply with all duties set
forth in the Application.
4. Omni shall apply to the Court for allowance of compensation and
reimbursement of expenses incurred after the Petition Date in accordance with the applicable
2
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provisions of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, and any orders entered
in these cases regarding professional compensation and reimbursement of expenses.
5. The Debtors shall indemnify Omni under the terms of the Engagement
Agreement, as modified pursuant to this Order, as modified pursuant to this Order. Omni shall not
be entitled to indemnification, contribution, or reimbursement pursuant to the Engagement
Agreement for services other than the Services provided under the Engagement Agreement, unless
such services and the indemnification, contribution or reimbursement therefor are approved by the
Court.
6. Notwithstanding anything to the contrary in the Engagement Agreement,
the Debtors shall have no obligation to indemnify Omni, or provide contribution or reimbursement
to Omni, for any claim or expense that is either: (i) judicially determined (the determination having
become final) to have arisen from Omni’s gross negligence, willful misconduct or fraud; (ii) for a
contractual dispute in which the Debtors allege the breach of Omni’s contractual obligations if the
Court determines that indemnification, contribution, or reimbursement would not be permissible
pursuant to In re United Artists Theatre Co., 315 F.3d 217 (3d Cir. 2003); or (iii) settled prior to a
judicial determination under (i) or (ii), but determined by this Court, after notice and a hearing, to
be a claim or expense for which Omni should not receive indemnity, contribution, or
reimbursement under the terms of the Engagement Agreement as modified by this Order.
7. To the extent applicable in the Engagement Agreement, all requests by
Omni for the payment of indemnification shall be made by means of an application to the Court
and shall be subject to review by the Court to ensure that payment of such indemnity conforms to
the terms of the Engagement Agreement and is reasonable under the circumstances of the litigation
or settlement in respect of which indemnity is sought. In no event shall Omni be indemnified in
3
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the case for its own negligence or willful misconduct. All parties in interest shall retain the right
to object to any demand by Omni for indemnification, contribution, or reimbursement.
8. In the event that Omni seeks reimbursement from the Debtors for attorneys’
fees in connection with the payment of an indemnity claim, the invoices and supporting time
records for the attorneys’ fees and expenses shall be included in Omni’s own applications, both
interim and final, but determined by this Court after notice and a hearing.
9. During the course of the bankruptcy cases, any provision in the Engagement
Agreement, the Application, or any attachment thereto, requiring the payment of interest or fees
or expenses if not paid within a certain time frame will have no force or effect.
10. The limitation of liability provision contained in the Engagement
Agreement shall have no force and effect during the pendency of these chapter 11 cases.
11. Omni shall not cease providing the Services during these Chapter 11 Cases
for any reason, including nonpayment, without an order of the Court; provided, however, that
Omni may seek such an order on expedited notice by filing a motion with this Court with notice
of such motion to be served on the Debtors, the U.S. Trustee, and any official committee of
creditors appointed in these Chapter 11 Cases.
12. Notwithstanding any provision to the contrary in the Engagement Agreement,
this Order shall be immediately effective and enforceable upon its entry.
13. Notwithstanding any term in the Engagement Agreement to the contrary,
this Court shall retain jurisdiction with respect to all matters arising from or related to the
implementation of this Order.
14. In the event of any inconsistency between the Engagement Agreement, the
Application and this Order, this Order shall govern.
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15. Notwithstanding entry of this Order, nothing herein shall create, nor is
intended to create, any rights in favor of or enhance the status of any claim held by any party.
16. The Debtors and Omni are authorized to take all actions necessary or
appropriate to effectuate the relief granted in this Order.
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.
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