Final Order (I) Authorizing Debtors To (A) Pay Prepetition
Summary
A certification of counsel filed November 1, 2022 as Doc 190 in the jointly administered Chapter 11 cases of 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 concerns a revised proposed final order authorizing the debtors to pay prepetition wages, salaries, employee benefits and other compensation and to maintain employee benefit programs. The certification recounts the October 3, 2022 motion (Docket No. 10), the October 6, 2022 interim order (Docket No. 75) and the October 21, 2022 supplement (Docket No. 141). It states the debtors received informal comments from the U.S. Trustee and Morgan Franklin LLC and no objections, and agreed to file an application to retain Phoenix Executive Services, LLC to provide an interim Chief Financial Officer. Counsel asks the Court to enter a further revised order.
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Case 22-10951-CTG Doc 190 Filed 11/01/22 Page 1 of 4
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. 10, 75, 80 & 141
------------------------------------------------------------ x
CERTIFICATION OF COUNSEL REGARDING REVISED PROPOSED
FINAL ORDER (I) AUTHORIZING DEBTORS TO (A) PAY PREPETITION
WAGES, SALARIES, EMPLOYEE BENEFITS, AND OTHER COMPENSATION
AND (B) MAINTAIN EMPLOYEE BENEFIT PROGRAMS AND PAY RELATED
OBLIGATIONS AND (II) GRANTING RELATED RELIEF
The undersigned hereby certifies as follows:
1. On October 3, 2022, 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”), filed the Motion of Debtors for Entry of Interim and Final Orders
(I) Authorizing Debtors to (A) Pay Prepetition Wages, Salaries, Employee Benefits, and Other
Compensation and (B) Maintain Employee Benefit Programs and Pay Related Obligations and
(II) Granting Related Relief [Docket No. 10] (the “Original Motion”) with the United States
Bankruptcy Court for the District of Delaware (the “Court”). A proposed form of order granting
the relief requested in the Original Motion on a final basis was attached to the Motion as Exhibit
B (the “Proposed Order”).
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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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Case 22-10951-CTG Doc 190 Filed 11/01/22 Page 2 of 4
2. On October 6, 2022, the Court entered the Interim Order (I) Authorizing
Debtors to (A) Pay Prepetition Wages, Salaries, Employee Benefits, and Other Compensation and
(B) Maintain Employee Benefit Programs and Pay Related Obligations and (II) Granting Related
Relief [Docket No. 75] (the “Interim Order”).
3. Pursuant to the Interim Order and the Notice of (A) Entry of Interim Order
(I) Authorizing Debtors to (A) Pay Prepetition Wages, Salaries, Employee Benefits, and Other
Compensation and (B) Maintain Employee Benefit Programs and Pay Related Obligations and
(II) Granting Related Relief; and (B) Final Hearing Thereon [Docket No. 80], objections or
responses to the final relief requested in the Original Motion, if any, were to be made in writing
and filed with the Court on or before October 19, 2022 at 4:00 p.m. (prevailing Eastern Time).
4. On October 21, 2022, the Debtors filed the Supplement to the Motion of
Debtors for Entry of Interim and Final Orders (I) Authorizing Debtors to (A) Pay Prepetition
Wages, Salaries, Employee Benefits, and Other Compensation and (B) Maintain Employee Benefit
Programs and Pay Related Obligations and (II) Granting Related Relief [Docket No. 141] (the
“Supplement” and together with the Original Motion, the “Motion”). Attached as Exhibit 1 to
the Supplement was a revised Proposed Order (the “Revised Proposed Order”). Objections or
responses to the relief requested in the Supplement, if any, were to be filed with the Court on or
before October 31, 2022 at 4:00 p.m. (prevailing Eastern Time).
5. The Debtors received certain informal comments to the final relief
requested in the Motion from the Office of the United States Trustee for the District of Delaware
(the “U.S. Trustee”) and Morgan Franklin LLC (“Morgan Franklin” and the comments from the
U.S. Trustee and Morgan Franklin, the “Comments”). Other than the Comments, the Debtors
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Case 22-10951-CTG Doc 190 Filed 11/01/22 Page 3 of 4
received no other informal responses to the Motion, and no objection or responsive pleading to the
Motion has appeared on the Court’s docket in these chapter 11 cases.
6. To resolve certain of the informal Comments of the U.S. Trustee to the relief
requested in the Motion, the Debtors have agreed to file an application to retain Phoenix Executive
Services, LLC, who will be providing the Debtors with a new interim Chief Financial Officer,
under section 363 of the Bankruptcy Code.
7. In addition, the Debtors have revised the Revised Proposed Order (the
“Further Revised Order”) to resolve the remaining Comments. A copy of the Further Revised
Order is attached hereto as Exhibit 1. For the convenience of the Court and all parties in interest,
a redline comparison of the Further Revised Order marked against the Revised Proposed Order is
attached hereto as Exhibit 2.
[Remainder of page intentionally left blank]
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WHEREFORE the Debtors respectfully request that the Further Revised Order be
entered at the earliest convenience of the Court.
Dated: November 1, 2022
Wilmington, Delaware
/s/ Matthew P. Milana
RICHARDS, LAYTON & FINGER, P.A.
Daniel J. DeFranceschi, Esq. (No. 2732)
Amanda R. Steele, Esq. (No. 5530)
Zachary I. Shapiro, Esq. (No. 5103)
Matthew P. Milana, Esq. (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, P.C. (admitted pro hac vice)
Candace M. Arthur, Esq. (admitted pro hac vice)
Natasha S. Hwangpo, Esq. (admitted pro hac vice)
Chase A. Bentley, Esq. (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 Debtors
and Debtors in Possession
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