Redline of Proposed Revised Final Order Against Proposed Final Order
- Date
- 2022-10-21
Summary
Doc 141-2, labeled Exhibit 2, filed October 21, 2022 in In re Kabbage, Inc. d/b/a KServicing, et al., Case No. 22-10951 (CTG), in the U.S. Bankruptcy Court for the District of Delaware. It is a redline comparing a proposed revised final order against the earlier proposed final order authorizing the debtors to pay prepetition wages, salaries, employee benefits and other compensation and to maintain employee benefit programs. The order text caps prepetition Employee Obligations at $1,070,800, with a chart listing amounts such as $600,000 for Deferred 2020 Payroll Tax and $400,000 for Contractor Workforce Compensation. Revised paragraphs permit payments to one member of the Contractor Workforce above the statutory caps as set out in a supplement, and bonuses to one eligible employee not to exceed $20,000. The document is 7 pages.
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Case 22-10951-CTG Doc 141-2 Filed 10/21/22 Page 1 of 7
Exhibit 2
Redline of Proposed Revised Final Order Against Proposed Final Order
WEIL 98860377V.4
Case 22-10951-CTG Doc 141-2 Filed 10/21/22 Page 2 of 7
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
------------------------------------------------------------ x
In re : Chapter 11
:
KABBAGE, INC. d/b/a KSERVICING, et al., : Case No. 22-________10951 (
CTG)
:
:
Debtors.1 : (Joint Administration Requested)
: (Jointly Administered)
:
Re: Docket Nos. 10, 75
------------------------------------------------------------ xX
FINAL ORDER (I) AUTHORIZING DEBTORS TO
(A) PAY PREPETITION WAGES, SALARIES, EMPLOYEE BENEFITS, AND OTHER
OTHER COMPENSATION AND (B) MAINTAIN EMPLOYEE BENEFIT PROGRAMS
AND PAY RELATED OBLIGATIONS AND (II) GRANTING RELATED RELIEF
Upon the motion, dated October 3, 2022 (the “Original Motion”)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”), and the supplement thereto, dated October [•],
2022 (the “Supplement” and collectively with the Original Motion, the “Motion”)2 for entry of
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 Motion.
2
Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to
such terms in the Motion.
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Case 22-10951-CTG Doc 141-2 Filed 10/21/22 Page 3 of 7
an order pursuant to sections 105(a), 363(b), and 507(a) of the Bankruptcy Code and Bankruptcy
Rules 6003 and 6004, (i) authorizing the Debtors to (a) pay the Employee Obligations and
(b) maintain, continue to honor, and pay amounts with respect to the Debtors’ business practices,
programs, and policies for their employees as such were in effect as of the commencement of
these Chapter 11 Cases and as such may be modified during the pendency of these Chapter 11
Cases and (ii) granting related relief, all as more fully set forth in the Motion; and upon
consideration of the Rieger-Paganis Declaration; and this Court having jurisdiction to consider
the Motion, and the relief requested therein pursuant to 28 U.S.C. §§ 157 and 1334, and the
Amended Standing Order of Reference entered by the United States District Court for the District
of Delaware, dated February 29, 2012; and consideration of the Motion 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 Motion 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 Motion; and this Court having entered an order granting the relief requested in the Motion on
an interim basis; and this Court having held a hearing to consider the relief requested in the
Motion; and all objections, if any, to the Motion having been withdrawn, resolved, or overruled;
and this Court having determined that the legal and factual bases set forth in the Motion establish
just cause for the relief granted herein; 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 Motion is granted to the extent set forth herein.
2
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Case 22-10951-CTG Doc 141-2 Filed 10/21/22 Page 4 of 7
2. The Debtors are authorized, but not directed, pursuant to sections 105(a),
363(b), and 507(a) of the Bankruptcy Code, to (i) pay the prepetition Employee Obligations in an
aggregate amount not to exceed, absent further order of this Court, $1,070,800 and any related
expenses, fees and costs incident to the foregoing, and (ii) maintain, honor, and continue the
Employee Benefit Programs in the ordinary course of business, as summarized in further detail in
the chart below:
Employee Obligations Final Amount
Administration Fees $1,000
Compensation $35,000
Employee Bonus Program $0
Employee Benefit Programs $22,000
Employer Taxes $3,000
Deferred 2020 Payroll Tax $600,000
Reimbursement Programs $5,000
Contractor Workforce Compensation $400,000
Employee Leave Benefits $0
Health and Welfare Benefits $2,800
Retirement Benefits $2,000
Total $1,070,800
3. Notwithstanding any other provision of this Final Order nothing in this
Final Order shall authorize the Debtors to make any payment to, or on behalf of, any Employee
or Contractor on account of prepetition wages and other compensation obligations or other
prepetition obligations in excess of the statutory caps set forth in sections 507(a)(4) and (5) of
3
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Case 22-10951-CTG Doc 141-2 Filed 10/21/22 Page 5 of 7
the Bankruptcy Code (the “Statutory Caps”); provided, however that the Debtors are authorized
but not directed to pay prepetition obligations on account of one member of the Contractor
Workforce in excess of the Statutory Caps (as applicable) as and to the extent set forth in the
Supplement.
4. 1. Except as set forth in paragraph 7 of this Final Order, Nnothing in the
Motion or this Final Order shall be deemed to (i) authorize the payment of any amounts in
satisfaction of bonus or severance obligations, including but not limited to the KERP program or
the Employee Bonus Program, or which are subject to section 503(c) of the Bankruptcy Code,
including, for the avoidance of doubt, payment of any obligations to or on behalf of any “insider”
(as defined by section 101(31) of the Bankruptcy Code) of the Debtors or any non-Debtor
affiliates or violate or permit a violation of section 503(c) of the Bankruptcy Code; or (ii)
authorize the Debtors to cash out unpaid vacation or leave time except upon termination of an
employee, if applicable state law requires such payment.
5. 2. The Banks are authorized to receive, process, honor, and pay any and all
checks issued, or to be issued, and electronic funds transfers requested, or to be requested, by the
Debtors relating to such obligations, to the extent that sufficient funds are on deposit and
standing in the Debtors’ credit in the applicable bank accounts to cover such payments. The
Banks are authorized to accept and rely on all representations made by the Debtors with respect
to which checks, drafts, wires, or automated clearing house transfers should be honored or
dishonored in accordance with this or any other order of this Court, whether such checks, drafts,
wires, or transfers are dated prior to, on, or subsequent to the Petition Date, without any duty to
inquire otherwise.
4
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Case 22-10951-CTG Doc 141-2 Filed 10/21/22 Page 6 of 7
6. 3. The Debtors are authorized, but not directed, to issue new post-petition
checks, or effect new electronic funds transfers, and to replace any prepetition checks or
electronic fund transfer requests that may be lost or dishonored or rejected as a result of the
commencement of the Debtors’ Chapter 11 Cases with respect to any prepetition amounts that
are authorized to be paid pursuant to this Final Order.
7. The Debtors are authorized, but not directed, to honor bonuses to one (1)
eligible Employee pursuant to the Employee Bonus Program, in an amount not to exceed
$20,000.
8. 4. The Debtors are authorized, but not directed, to continue theto retain
and pay the Contractor Workforce through the Employeement Bonus ProgramVendors in the
ordinary course of business as provided for in the Motion.
9. 5. Nothing contained in the Motion or this Final Order, nor any payment
made pursuant to the authority granted by this Final Order, is intended to be or shall be construed
as an approval, assumption, adoption, or rejection of any agreement, contract, lease, program, or
policy between the Debtors and any third party under section 365 of the Bankruptcy Code.
10. 6. Nothing in this Final Order shall implicitly or expressly approve or
sanction any current or prospective incentive bonus, key employee incentive or retention
program, or any payment having been made in relation to or pursuant thereto.
11. 7. Notice of the Motion is adequate under Bankruptcy Rule 6004(a).
12. 8. Notwithstanding the provisions of Bankruptcy Rule 6004(h), this Final
Order shall be immediately effective and enforceable upon its entry.
13. 9. The Debtors are authorized to take all actions necessary or appropriate
to effectuate the relief granted in this Final Order.
5
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Case 22-10951-CTG Doc 141-2 Filed 10/21/22 Page 7 of 7
14. 10. This Court shall retain jurisdiction to hear and determine all matters
arising from or related to the implementation, interpretation, or enforcement of this Final Order.
6
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