Full text
RLF1 28591633v.2
EXHIBIT A
Proposed Order
Case 22-10951-CTG Doc 525-1 Filed 02/13/23 Page 1 of 9
RLF1 28591633v.2
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)
:
:
Re: Docket No. __
------------------------------------------------------------ x
ORDER APPROVING STIPULATION BY AND BETWEEN THE
DEBTORS AND CORPORATION SERVICE COMPANY DISALLOWING
A CERTAIN CLAIM SOLELY FOR VOTING PURPOSES
Upon consideration of the Stipulation By and Between the Debtors and Corporation
Service Company Disallowing a Certain Claim Solely for Voting Purposes (the “Stipulation”),2
a copy of which is attached hereto as Exhibit 1; and the Court having determined that the
agreement set forth in the Stipulation is in the best interests of the Debtors, their estates, and
creditors, and any parties in interest; and good and sufficient cause appearing therefor,
IT IS HEREBY ORDERED THAT:
1.
The Stipulation is hereby approved.
2.
The Stipulation shall become effective immediately upon entry of this
Order.
1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification
number, as applicable are: Kabbage, Inc. d/b/a KServicing (3937); Kabbage Canada Holdings, LLC (N/A);
Kabbage Asset Securitization LLC (N/A); Kabbage Asset Funding 2017-A LLC (4803); Kabbage Asset Funding
2019-A LLC (8973); and Kabbage Diameter, LLC (N/A). Kabbage is a trademark of American Express used
under license; Kabbage, Inc. d/b/a KServicing is not affiliated with American Express. The Debtors’ mailing and
service address is 925B Peachtree Street NE, Suite 383, Atlanta, GA 30309.
2 Capitalized terms used but not defined in this Order have the meanings used in the Stipulation.
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RLF1 28591633v.2
3.
This Court retains jurisdiction over all matters arising from or related to
the implementation or interpretation of this Order.
Case 22-10951-CTG Doc 525-1 Filed 02/13/23 Page 3 of 9
RLF1 28591633v.2
EXHIBIT 1
Stipulation
Case 22-10951-CTG Doc 525-1 Filed 02/13/23 Page 4 of 9
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)
:
------------------------------------------------------------ x
STIPULATION BY AND BETWEEN
THE DEBTORS AND CORPORATION SERVICE COMPANY
DISALLOWING A CERTAIN CLAIM SOLELY FOR VOTING PURPOSES
This stipulation (this “Stipulation”) is made and entered into by and between
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 Corporation Service
Company (“CSC” and, together with the Debtors, the “Parties”), by and through their respective
undersigned counsel.
RECITALS
WHEREAS, on October 3, 2022 (the “Petition Date”), the Debtors commenced
with the United States Bankruptcy Court for the District of Delaware (the “Court”) a voluntary
case under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101-1532
(the “Bankruptcy Code”);
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.
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WHEREAS, on January 19, 2023, the Court entered the Order (I) Approving the
Disclosure Statement of the Debtors, (II) Establishing Solicitation, Voting, and Related
Procedures, (III) Scheduling Confirmation Hearing, (IV) Establishing Notice and Objection
Procedures for Confirmation of Plan, (V) Approving Special Electronic Noticing Procedures, (VI)
Approving Debtors’ Proposed Cure Procedures for Unexpired Leases and Executory Contracts,
and (VII) Granting Related Relief [Docket No. 470] (the “Disclosure Statement Order”)
approving the Amended Disclosure Statement for the Amended Joint Chapter 11 Plan of
Liquidation of Kabbage, Inc. (d/b/a KServicing) and its Affiliated Debtors [Docket No. 467]
(together with all schedules and exhibits thereto, and as may be modified, amended, or
supplemented from time to time, the “Disclosure Statement”), which authorized the Debtors to
solicit votes to accept or reject the Amended Joint Chapter 11 Plan of Liquidation of Kabbage,
Inc. (d/b/a KServicing) and its Affiliated Debtors [Docket No. 466] (together with all schedules
and exhibits thereto, and as may be modified, amended, or supplemented from time to time, the
“Plan”);
WHEREAS, on October 11, 2022, CSC filed the following two (2) proofs of claim
against the Debtors:
1. Claim no. 955-1 against Kabbage Asset Funding 2019-A LLC; and
2. Claim no. 951-1 against Kabbage, Inc. d/b/a KServicing (the “KS
Claim”).
Claim No. 955-1 is referred to as the “Subsidiary Claim”. The KS Claim and the
Subsidiary Claim each assert a general unsecured claim for services rendered prepetition. The KS
Claim asserts a $2,037.50 general unsecured claim and the Subsidiary Claim asserts a $740 claim.
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WHEREAS, in accordance with the procedures set forth in the Disclosure
Statement Order, the KS Claim and the Subsidiary Claim are in Class 4 (General Unsecured
Claims).
WHEREAS, in accordance with the procedures set forth in the Disclosure
Statement Order, the Parties have agreed that the Subsidiary Claim shall be deemed disallowed,
solely for purposes of voting on the Plan.
NOW THEREFORE, THE PARTIES, BY AND THROUGH THEIR
RESPECTIVE UNDERSIGNED COUNSEL, HEREBY STIPULATE AND AGREE AS
FOLLOWS:
1.
The above recitals are fully incorporated herein and made an express part
of this Stipulation.
2.
Upon approval of this Stipulation by the Court, the Subsidiary Claim
shall be deemed disallowed, solely for purposes of voting on the Plan.
3.
Except as otherwise expressly set forth in the preceding paragraph, each
of the Parties’ rights and remedies with respect to the Subsidiary Claim and the KS Claim are
expressly and fully preserved, including but not limited to with respect to the allowance of the
Subsidiary Claim and the KS Claim for distributions under the Plan. Nothing contained herein
shall be an admission or, except as otherwise expressly set forth in the preceding paragraph,
waiver of the substantive or procedural rights, remedies, claims, or defenses of any of the parties
in these chapter 11 cases, whether at law or equity and the Debtors expressly reserve the right
to file in the future objections to, and/or requests for estimation of, the Subsidiary Claim and
the KS Claim on any basis. For the avoidance of doubt, nothing in this Stipulation affects the
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KS Claim for any purpose, including for purposes of voting on the Plan in accordance with the
Disclosure Statement Order.
4.
This Stipulation constitutes the entire agreement between the Parties and
supersedes all prior agreements and understandings, both written and oral, between the Parties
with respect to the subject matter hereof and, except as otherwise expressly provided herein, is
not intended to confer upon any other person any rights or remedies hereunder.
5.
This Stipulation may be executed in counterparts, any of which may be
transmitted by electronic mail, and each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
6.
This Stipulation may not be amended without the express written consent
of all Parties hereto and approval by the Court.
7.
The Court shall retain jurisdiction over any and all disputes or other
matters arising under or otherwise relating to this Stipulation.
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Dated: February 10, 2023
Wilmington, Delaware
RICHARDS, LAYTON & FINGER, P.A.
Daniel J. DeFranceschi, Esq. (No. 2732)
Amanda R. Steele (No. 5530)
Zachary I. Shapiro (No. 5103)
Matthew P. Milana (No. 6681)
One Rodney Square
920 North King Street
Wilmington, Delaware 19801
Telephone: (302) 651-7700
E-mail: defranceschi@rlf.com
steele@rlf.com
shapiro@rlf.com
milana@rlf.com
-and-
WEIL, GOTSHAL & MANGES LLP
Ray C. Schrock (admitted pro hac vice)
Candace M. Arthur (admitted pro hac vice)
Natasha S. Hwangpo (admitted pro hac vice)
Chase A. Bentley (admitted pro hac vice)
767 Fifth Avenue
New York, New York 10153
Telephone: (212) 310-8000
E-mail: ray.schrock@weil.com
candace.arthur@weil.com
natasha.hwangpo@weil.com
chase.bentley@weil.com
Attorneys for the Debtors and Debtors in
Possession
______________________
CORPORATION SERVICES COMPANY
John C. O’Brien
251 Little Falls Dr.
Wilmington, Delaware 19808
Telephone: (929) 996-1651
E-mail:
John.Obrien@intertrustgroup.com
Case 22-10951-CTG Doc 525-1 Filed 02/13/23 Page 9 of 9
/s/ Zachary I. Shapiro