in re: chapter 11 hexion holdings llc, et al., case no. 19...

$: In re: Chapter 11 HEXION HOLDINGS LLC, et al., Case No. 19 ...omnimgt.com/CMSVol2/pub_47331/729665_176.pdf · Case 19-10684-KG Doc 176 Filed 04/17/19 Page 5 of 14. 6 US-DOCS\105701584.8RLF1$
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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

In re: HEXION HOLDINGS LLC, et al.,1 Debtors.

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Chapter 11 Case No. 19-10684 (KG) Jointly Administered Objection Deadline: April 24, 2019 at 4:00 p.m. (ET) Hearing Date: May 1, 2019 at 2:00 p.m. (ET)

DEBTORS’ MOTION FOR ENTRY OF AN ORDER

AUTHORIZING EMPLOYMENT AND PAYMENT OF PROFESSIONALS UTILIZED IN THE ORDINARY COURSE OF BUSINESS

Hexion Holdings LLC (“Hexion”) and its affiliated debtors and debtors in

possession (collectively, the “Debtors”) respectfully submit this motion for the entry of an order,

substantially in the form attached hereto as Exhibit A (the “Proposed Order”), pursuant to

sections 105(a), 327, and 330 of title 11 of the United States Code (the “Bankruptcy Code”),

Rule 1015(b) of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”),

and Rule 1015-1 of the Local Rules of Bankruptcy Practice and Procedure of the United States

Bankruptcy Court for the District of Delaware (the “Local Rules”), authorizing, but not

directing, the Debtors to employ and pay the Ordinary Course Professionals (as defined below)

for postpetition services without the necessity of a separate, formal retention application

1 The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, are Hexion Holdings LLC (6842); Hexion LLC (8090); Hexion Inc. (1250); Lawter International Inc. (0818); Hexion CI Holding Company (China) LLC (7441); Hexion Nimbus Inc. (4409); Hexion Nimbus Asset Holdings LLC (4409); Hexion Deer Park LLC (8302); Hexion VAD LLC (6340); Hexion 2 U.S. Finance Corp. (2643); Hexion HSM Holdings LLC (7131); Hexion Investments Inc. (0359); Hexion International Inc. (3048); North American Sugar Industries Incorporated (9735); Cuban-American Mercantile Corporation (9734); The West India Company (2288); NL Coop Holdings LLC (0696); and Hexion Nova Scotia Finance, ULC (N/A). The address of the Debtors’ corporate headquarters is 180 East Broad Street, Columbus, Ohio 43215.

Case 19-10684-KG Doc 176 Filed 04/17/19 Page 1 of 14

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approved by this Court for each Ordinary Course Professional. In support of this motion, the

Debtors respectfully represent:

JURISDICTION AND VENUE

1. This Court has jurisdiction to consider this motion under 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 as of February 29, 2012. This is a core proceeding pursuant to

28 U.S.C. § 157(b), and, under 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 motion to the extent that it is later

determined that the Court, absent consent of the parties, cannot enter final orders or judgments in

connection herewith consistent with Article III of the United States Constitution. Venue of these

cases and this motion in this district is proper under 28 U.S.C. §§ 1408 and 1409. The statutory

and legal predicates for the relief requested herein are sections 105(a), 327, 328, and 330 of the

Bankruptcy Code.

BACKGROUND

2. On April 1, 2019 (the “Petition Date”), each of the Debtors commenced a

voluntary case under chapter 11 of the Bankruptcy Code with the United States Bankruptcy

Court for the District of Delaware. The Debtors are authorized to operate their business and

manage their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the

Bankruptcy Code. On April 10, 2019, the Office of the United States Trustee for the District of

Delaware (the “U.S. Trustee”) appointed the Official Committee of Unsecured Creditors (the

“Creditors Committee”).

3. Additional information about the Debtors’ business, capital structure, and

the events leading up to the Petition Date are set forth in the George F. Knight’s Declaration in


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Support of the Debtors’ Chapter 11 Petitions and First Day Pleadings (the “Knight

Declaration”) [Docket No. 3], filed on the Petition Date. 2

RELIEF REQUESTED

4. By this motion, pursuant to sections 105(a), 327, 330, and 331 of the

Bankruptcy Code, the Debtors respectfully request entry of an order authorizing, but not

directing, the Debtors to employ and pay the Ordinary Course Professionals (as defined below)

for postpetition services without the necessity of a separate, formal retention application

approved by this Court for each Ordinary Course Professional.

EMPLOYMENT OF ORDINARY COURSE PROFESSIONALS

5. The Debtors customarily retain the services of various accountants,

attorneys, and other professionals to represent them in matters arising in the ordinary course of

their business but unrelated to the administration of these chapter 11 cases (each, an “Ordinary

Course Professional” and, collectively, the “Ordinary Course Professionals”). An initial list

of the Debtors’ current Ordinary Course Professionals is attached hereto as Exhibit B. As

discussed more fully below, the Debtors reserve the right to supplement Exhibit B in the future.

6. In contrast, individual retention applications will be required for any

professionals that the Debtors seek to employ in connection with the administration of these

chapter 11 cases or in connection with special matters not appropriate for ordinary course

treatment (the “Chapter 11 Professionals”). Moreover, the Chapter 11 Professionals will be

permitted to be compensated and reimbursed only in accordance with applicable provisions of

the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, and any orders entered in these

chapter 11 cases governing professional compensation and reimbursement for services rendered

and expenses incurred.

2 Capitalized terms used but not defined in this motion have the meanings used in the Knight Declaration.


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7. To the best of the Debtors’ knowledge, none of the Ordinary Course

Professionals represents or holds any interest materially adverse to the Debtors or to their estates

with respect to the matter in which such Ordinary Course Professional is to be employed.

Although certain of the Ordinary Course Professionals may hold unsecured claims against the

Debtors, the Debtors do not believe that any of such claims constitute interests materially

adverse to the Debtors, their estates, their creditors, or other parties in interest. By this motion,

the Debtors are not requesting authorization to pay prepetition amounts owed to any of the

Ordinary Course Professionals.

PROPOSED RETENTION PROCEDURE

8. By this motion, the Debtors request that they be permitted to employ and

retain the Ordinary Course Professionals without submitting separate applications for, and

obtaining separate orders approving, the retention of each of the Ordinary Course Professionals.

The Debtors recognize, however, the importance of providing information regarding the

Ordinary Course Professionals to the Court, the Office of the United States Trustee for the

District of Delaware (the “U.S. Trustee”), and other key parties in these chapter 11 cases.

9. The Debtors propose that they be permitted to continue to employ and

retain the Ordinary Course Professionals currently listed in Exhibit B hereto (each an “Initial

Ordinary Course Professional” and, collectively, the “Initial Ordinary Course

Professionals”). Prior to the receipt of payment for postpetition services rendered to the Debtors

and expenses incurred, each Initial Ordinary Course Professional will be required to provide to

the Debtors and their counsel, for filing with the Court and service upon: (a) Kramer Levin

Naftalis & Frankel LLP, 1177 Avenue of the Americas, New York, New York 10036, Attn:

Kenneth H. Eckstein ([email protected]), Douglas H. Mannal

([email protected]) and Rachael L. Ringer ([email protected]) as co-counsel


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to the official committee of unsecured creditors; (b) Bayard, P.A., 600 North King Street, Suite

400, Wilmington, Delaware 19801, Attn: Justin R. Alberto ([email protected]) and Erin

R. Fay ([email protected]) as co-counsel to the official committee of unsecured creditors; (c)

Akin Gump Strauss Hauer & Feld LLP, One Bryant Park, Bank of America Tower, New York,

New York 10036, Attn: Philip C. Dublin ([email protected]) and Naomi Moss

([email protected]) as counsel to the ad hoc group of first lien noteholders; (d) Milbank

LLP, 55 Hudson Yards, New York, New York 10001, Attn: Matthew L. Brod

([email protected]) and Brian Kinney ([email protected]) as counsel to the ad hoc

group of crossover noteholders; (e) Jones Day, 250 Vesey Street, New York, New York 10281,

Attn: Benjamin Rosenblum ([email protected]) and Jeremy D. Evans

([email protected]) as counsel to the ad hoc group of 1.5 lien noteholders; and (f) the U.S.

Trustee, 844 King Street, Suite 2207, Wilmington, Delaware 19801, Attn: Linda J. Casey, Esq.

([email protected]) (collectively, the “Notice Parties”), a declaration, substantially in the

form attached hereto as Exhibit C, certifying that such Initial Ordinary Course Professional does

not represent or hold any interest adverse to the Debtors or their estates with respect to the

matter(s) on which the professional is to be employed (the “Declaration of Disinterestedness”).

10. The Debtors further request that, upon service of each required

Declaration of Disinterestedness, the Notice Parties have fourteen (14) calendar days (the

“Objection Deadline”) to object to the retention of the Initial Ordinary Course Professional in

question. Any such objection must be filed with the Court and served upon the Notice Parties

and the applicable Initial Ordinary Course Professional by the Objection Deadline. If any such

objection cannot be resolved within fourteen (14) calendar days after service of the objection, the

matter will be scheduled for hearing before the Court on the next regularly scheduled hearing


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date or such other date that may be agreed to by the Initial Ordinary Course Professional, the

Debtors, and the objecting party. If no objection is received on or before the Objection Deadline,

or if any objection submitted is timely withdrawn or resolved, the Debtors will be authorized to

retain the Initial Ordinary Course Professional on a final basis, without further order of the

Court, nunc pro tunc to the Petition Date or, if engaged later, the date of engagement.

11. The Debtors also request that they be authorized to employ and retain

additional Ordinary Course Professionals not currently listed in Exhibit B, as future

circumstances require (each an “Additional Ordinary Course Professional” and, collectively,

the “Additional Ordinary Course Professionals”), by filing with the Court a supplement to

Exhibit B (the “Supplement”), listing the name of the Additional Ordinary Course Professional,

together with a brief description of the services to be rendered, and serving a copy of the

Supplement upon the Notice Parties. The Debtors propose that, as with the Initial Ordinary

Course Professionals listed on Exhibit B, each Additional Ordinary Course Professional be

required to provide to the Debtors and their counsel, for filing with the Court and service upon

the Notice Parties, a Declaration of Disinterestedness prior to the receipt of payment for

postpetition services rendered to the Debtors and expenses incurred. The Notice Parties would

then be given fourteen (14) calendar days after service of the required Declaration of

Disinterestedness to object to the retention of the Additional Ordinary Course Professional in

question. Any objection would be handled as set forth above. If no objection is received on or

before the Objection Deadline, or if any objection submitted is timely withdrawn or resolved, the

Debtors will be authorized to retain the Additional Ordinary Course Professional on a final basis,

without further order of the Court, nunc pro tunc to the Petition Date or, if engaged later, the date

of engagement.


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PROPOSED PAYMENT PROCEDURE

12. The Debtors will not pay any fees and expenses to any Ordinary Course

Professional unless (a) such Ordinary Course Professional has executed its Declaration of

Disinterestedness and such Declaration of Disinterestedness was filed with the Court and served

on the Notice Parties, (b) the applicable Objection Deadline has expired, and (c) no timely

objection is pending. If a timely objection is received, no payment will be made to such

Ordinary Course Professional until such objection is either resolved, withdrawn or overruled by

the Court.

13. Subject to the foregoing, the Debtors propose that they be permitted to pay

to each of the Ordinary Course Professionals, without formal application to the Court by any

Ordinary Course Professional, one-hundred percent (100%) of the fees and expenses of each of

the Ordinary Course Professionals upon the submission to the Debtors of an appropriate invoice

setting forth in reasonable detail the nature of the services rendered after the Petition Date, so

long as such fees and expenses for any single Ordinary Course Professional set forth on Annex 1

to Exhibit B (the “Tier 1 Ordinary Course Professionals”) do not exceed an average of

$150,000 per month over a rolling three-month period (the “Tier 1 OCP Cap Amount”) and so

long as such fees and expenses for any single Ordinary Course Professional set forth on Annex 2

to Exhibit B (the “Tier 2 Ordinary Course Professionals”) do not exceed $50,000 per month

over a rolling three-month period (the “Tier 2 OCP Cap Amount” and together with the Tier 1

OCP Cap Amount, the “Cap Amounts”). Any contingency fees earned by an Ordinary Course

Professional on account of recoveries realized on behalf of the Debtors would not be subject to

the Cap Amounts.

14. The Debtors propose that payments to a particular Ordinary Course

Professional should become subject to court approval based upon an application for allowance of


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fees and expenses under sections 330 and 331 of the Bankruptcy Code, pursuant to the same

procedures that are established for the Chapter 11 Professionals, only if such payments exceed

the Cap Amounts or any other applicable incremental amount agreed to by the Notice Parties or

ordered by the Court as set forth in the preceding paragraph.

15. As a routine matter, prior to the commencement of these chapter 11 cases,

the Debtors carefully reviewed all bills received from the Ordinary Course Professionals to

ensure that the fees charged were reasonable and that the expenses incurred were necessary.

This type of review will continue postpetition and, coupled with the proposed caps, will protect

the Debtors’ estates against excessive and improper billing.

16. Within thirty (30) calendar days after the end of, and with respect to, each

full three (3) month period after the Petition Date (including any initial partial month in the first

period), the Debtors propose to file a summary of payments with the Court and to serve such

statement upon the Notice Parties. The summary statement will include the following

information for each Ordinary Course Professional: (a) the name of the Ordinary Course

Professional; (b) the aggregate amounts actually paid as compensation for services rendered and

reimbursement of expenses incurred by such Ordinary Course Professional during the statement

period; and (c) a general description of the services rendered by such Ordinary Course

Professional. The obligation to file summary statements will terminate upon confirmation of a

chapter 11 plan in these chapter 11 cases, provided that a summary statement will be filed with

respect to the final period (or partial period) ending on the date such chapter 11 plan is

confirmed.


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BASIS FOR RELIEF REQUESTED

17. In determining whether an entity is a “professional” whose retention must

be approved by a court as required by section 327 of the Bankruptcy Code, courts generally

consider the following factors:

whether the entity controls, manages, administers, invests, purchases, or sells assets that are significant to the debtor’s chapter 11 cases;

whether the entity is involved in negotiating the terms of a chapter 11 plan;

whether the entity is directly related to the type of work carried out by the debtor or to the routine maintenance of the debtor’s business operations;

whether the entity is given discretion or autonomy to exercise his or her own professional judgment in some part of the administration of the debtor’s estate;

the extent of the entity’s involvement in the administration of the debtor’s estate; and

whether the entity’s services involve some degree of special knowledge or skill, such that it can be considered a “professional” within the ordinary meaning of the term.

See, e.g., In re Am. Tissue, Inc., 331 B.R. 169, 173 (Bankr. D. Del. 2005); In re First Merchants

Acceptance Corp., 1997 WL 873551, at *2 (D. Del. Dec. 15, 1997) (defining “professionals”

within the meaning of section 327 of the Bankruptcy Code as those whose “occupations . . . play

a central role in the administration of the debtor proceeding, and not those occupations which are

[merely] involved in the day-to-day mechanics of the debtor’s business . . . [or those who are]

given discretion or autonomy in some part of administration of the debtor’s estate”).

18. These factors must be considered in totality—none of the factors alone is

dispositive. See First Merchants, 1997 WL 873551 at *3. Considering all of these factors, the

Debtors believe that the Ordinary Course Professionals are not “professionals” within the

meaning of section 327(a) of the Bankruptcy Code whose retention must be approved by the


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Court. In particular, the Ordinary Course Professionals will not be involved in the administration

of these chapter 11 cases, but rather will provide services in connection with the Debtors’

ongoing business operations and services ordinarily provided by non-bankruptcy professionals.

Nevertheless, out of an abundance of caution, the Debtors seek the relief requested in this motion

to avoid any subsequent controversy as to the Debtors’ employment and payment of the Ordinary

Course Professionals during these chapter 11 cases. The Debtors will seek specific court

authority under section 327 of the Bankruptcy Code to retain any professionals involved in the

actual administration of these chapter 11 cases.

19. The Debtors and their estates would be well-served by the continued

retention of the Ordinary Course Professionals because of their prior relationships with the

Debtors and their understanding of the Debtors and their operations. The continued employment

and retention of the Ordinary Course Professionals will enable the Debtors to continue the

normal business activities that are essential to the achievement of their chapter 11 objectives.

Moreover, the work of the Ordinary Course Professionals, albeit ordinary course, is directly

related to the preservation of the value of the Debtors’ business and their estates, even though the

amount of the fees and expenses of the Ordinary Course Professionals will represent only a

fraction of that value.

20. The administration of the Debtors’ estates would be severely hindered if

the Debtors were required to (a) submit to the Court an application, affidavit, and proposed

retention order for each Ordinary Course Professional, (b) wait until such retention order is

approved before such Ordinary Course Professional continues to render services, and

(c) withhold payment of the fees and expenses of the Ordinary Course Professionals until they


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comply with the compensation and reimbursement procedures applicable to the Chapter 11

Professionals.

21. If such conditions were to apply, there would be a significant risk that

some Ordinary Course Professionals would refuse to provide services and that others would

suspend services pending a specific court order authorizing the services. Since many of the

matters for which the Ordinary Course Professionals provide services are active on a day-to-day

basis, any delay or need to replace such Ordinary Course Professionals could have significant

adverse consequences. For example, if the expertise and institutional knowledge of the Ordinary

Course Professionals with respect to the particular matters for which they were responsible prior

to the Petition Date were lost, the Debtors’ estates undoubtedly would incur additional and

unnecessary expenses, as the Debtors would be forced to retain other professionals without such

expertise and knowledge, at potentially higher rates. It is therefore in the best interest of the

Debtors’ estates to avoid any disruption to the professional services required in the day-to-day

operation of the Debtors’ business.

22. Moreover, requiring the Ordinary Course Professionals to file retention

pleadings and participate in the payment approval process along with the Chapter 11

Professionals would unnecessarily burden the Clerk’s Office, the Court, and the U.S. Trustee,

while adding significantly to the administrative costs of these chapter 11 cases without any

corresponding benefit to the Debtors’ estates.

23. Accordingly, the Debtors submit that the relief requested herein is in the

best interests of all creditors and parties in interest and will avoid any disruption of the services

provided by the Ordinary Course Professionals.


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NOTICE

24. The Debtors will provide notice of this motion by first class mail to:

(i) Linda J. Casey of the Office of the United States Trustee for the District of Delaware; (ii)

Kramer Levin Naftalis & Frankel LLP and Bayard, P.A. as co-counsel to the official committee

of unsecured creditors; (iii) the United States Attorney’s Office for the District of Delaware; (iv)

the attorneys general for the states in which the Debtors conduct business; (v) Akin Gump

Strauss Hauer & Feld LLP as counsel to the ad hoc group of first lien noteholders; (vi) Milbank

LLP as counsel to the ad hoc group of crossover noteholders; (vii) Jones Day as counsel to the ad

hoc group of 1.5 lien noteholders; (viii) Simpson Thacher & Bartlett LLP as counsel to

JPMorgan Chase Bank, N.A. as administrative agent and collateral agent under the Debtors’

prepetition asset-based revolving credit facility; (ix) Wilmington Trust, National Association, as

trustee under the First Lien Notes and the Second Lien Notes; (x) Arnold & Porter Kaye Scholer

LLP as counsel to Wilmington Savings Fund Society, FSB, as trustee under the 1.5 Lien Notes;

(xi) The Bank of New York Mellon, as trustee under the Borden Debentures; (xii) Simpson

Thacher & Bartlett LLP and Landis Rath & Cobb LLP as counsel to the administrative agent and

collateral agent under the Debtors’ postpetition financing facility; (xiii) the Internal Revenue

Service; (xiv) the Securities and Exchange Commission; (xv) the Pension Benefit Guaranty

Corporation; (xvi) the Environmental Protection Agency; and (xvii) all parties that have

requested notice pursuant to Bankruptcy Rule 2002. A copy of the motion is available on the

Debtors’ case website at http://www.omnimgt.com/HexionRestructuring.

NO PRIOR MOTION

25. The Debtors have not made any prior motion for the relief sought in this

motion to this Court or any other.


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The Debtors respectfully request entry of an order, substantially in the form

attached as Exhibit A, granting the relief requested in its entirety and any other relief as is just

and proper.

Dated: April 17, 2019 Wilmington, Delaware /s/ Sarah E. Silveira_____________________

Mark D. Collins (No. 2981) Michael J. Merchant (No. 3854) Amanda R. Steele (No. 5530) Brendan J. Schlauch (No. 6115) Sarah E. Silveira (No. 6580) RICHARDS, LAYTON & FINGER, P.A. One Rodney Square 920 North King Street Wilmington, Delaware 19801 Telephone: 302-651-7700 Fax: 302-651-7701 Email: [email protected] [email protected] [email protected] [email protected] [email protected] - and - George A. Davis (admitted pro hace vice) Andrew M. Parlen (admitted pro hace vice) Hugh Murtagh (admitted pro hace vice) LATHAM & WATKINS LLP 885 Third Avenue New York, New York 10022 Telephone: (212) 906-1200 Facsimile: (212) 751-4864 Email: [email protected] [email protected] [email protected]


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- and - Caroline A. Reckler (admitted pro hace vice) Jason B. Gott (admitted pro hace vice) LATHAM & WATKINS LLP 330 North Wabash Avenue, Suite 2800 Chicago, Illinois 60611 Telephone: (312) 876-7700 Facsimile: (312) 993-9767 Email: [email protected] [email protected] Proposed Attorneys for the Debtors and Debtors in Possession


RLF1 21121662v.1



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Chapter 11 Case No. 19-10684 (KG) Jointly Administered Objection Deadline: April 24, 2019 at 4:00 p.m. (ET) Hearing Date: May 1, 2019 at 2:00 p.m. (ET)

NOTICE OF MOTION AND HEARING

PLEASE TAKE NOTICE that, on April 17, 2019, Hexion Holdings LLC and its

affiliated debtors and debtors-in-possession in the above-captioned cases (collectively,

the “Debtors”) filed the Debtors’ Motion for Entry of an Order Authorizing Employment and

Payment of Professionals Utilized in the Ordinary Course of Business (the “Motion”) with the

United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”).

PLEASE TAKE FURTHER NOTICE that, any responses or objections to the

Motion must be in writing and filed with the Clerk of the Bankruptcy Court, 824 North Market

Street, 3rd Floor, Wilmington, Delaware 19801 on or before April 24, 2019 at 4:00 p.m.

(prevailing Eastern Time).


Case 19-10684-KG Doc 176-1 Filed 04/17/19 Page 1 of 4

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PLEASE TAKE FURTHER NOTICE that, if any objections to the Motion are

received, the Motion and such objections shall be considered at a hearing before The Honorable

Kevin Gross at the Bankruptcy Court, 824 North Market Street, 6th Floor, Courtroom No. 3,

Wilmington, Delaware 19801 on May 1, 2019 at 2:00 p.m. (prevailing Eastern Time).

PLEASE TAKE FURTHER NOTICE THAT, IF NO OBJECTIONS TO

THE MOTION ARE TIMELY FILED, SERVED AND RECEIVED IN ACCORDANCE

WITH THIS NOTICE, THE BANKRUPTCY COURT MAY GRANT THE RELIEF

REQUESTED IN THE MOTION WITHOUT FURTHER NOTICE OR HEARING.


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Dated: April 17, 2019 Wilmington, Delaware /s/ Sarah E. Silveira

Mark D. Collins (No. 2981) Michael J. Merchant (No. 3854) Amanda R. Steele (No. 5530) Brendan J. Schlauch (No. 6115) Sarah E. Silveira (No. 6580) RICHARDS, LAYTON & FINGER, P.A. One Rodney Square 920 North King Street Wilmington, Delaware 19801 Telephone: (302) 651-7700 Fax: (302) 651-7701 Email: [email protected] [email protected] [email protected] [email protected] [email protected] - and - George A. Davis (admitted pro hac vice) Andrew M. Parlen (admitted pro hac vice) Hugh Murtagh (admitted pro hac vice) LATHAM & WATKINS LLP 885 Third Avenue New York, New York 10022 Telephone: (212) 906-1200 Facsimile: (212) 751-4864 Email: [email protected] [email protected] [email protected]


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- and - Caroline A. Reckler (admitted pro hac vice) Jason B. Gott (admitted pro hac vice) LATHAM & WATKINS LLP 330 North Wabash Avenue, Suite 2800 Chicago, Illinois 60611 Telephone: (312) 876-7700 Facsimile: (312) 993-9767 Email: [email protected] [email protected]

Proposed Attorneys for the Debtors and Debtors in Possession


US-DOCS\105701584.8RLF1 21133663v.1

Exhibit A

Proposed Order


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x : : : : : x

Chapter 11 Case No. 19-10684 (KG) Jointly Administered

ORDER AUTHORIZING EMPLOYMENT AND PAYMENT OF

PROFESSIONALS UTILIZED IN THE ORDINARY COURSE OF BUSINESS

Upon the Debtors’ motion (the “Motion”)2 for entry of an order (this “Order”)

(i) authorizing, but not directing, the Debtors to employ and pay the Ordinary Course

Professionals (as defined below) for postpetition services without the necessity of a separate,

formal retention application approved by this Court, all as more fully set forth in the Motion; and

(ii) granting certain related relief, all as more fully set forth in the Motion; and due and sufficient

notice of the Motion having been provided under the particular circumstances, and it appearing

that no other or further notice need be provided; and the Court having jurisdiction to consider the

Motion and the relief requested therein in accordance with 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 as of February 29, 2012; and consideration of the Motion and the relief requested

therein being a core proceeding under 28 U.S.C. § 157(b)(2); and that this Court may enter a

1 The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, are Hexion Holdings LLC (6842); Hexion LLC (8090); Hexion Inc. (1250); Lawter International Inc. (0818); Hexion CI Holding Company (China) LLC (7441); Hexion Nimbus Inc. (4409); Hexion Nimbus Asset Holdings LLC (4409); Hexion Deer Park LLC (8302); Hexion VAD LLC (6340); Hexion 2 U.S. Finance Corp. (2643); Hexion HSM Holdings LLC (7131); Hexion Investments Inc. (0359); Hexion International Inc. (3048); North American Sugar Industries Incorporated (9735); Cuban-American Mercantile Corporation (9734); The West India Company (2288); NL Coop Holdings LLC (0696); and Hexion Nova Scotia Finance, ULC (N/A). The address of the Debtors’ corporate headquarters is 180 East Broad Street, Columbus, Ohio 43215. 2 Capitalized terms used but not defined in this Order have the meanings used in the Motion.


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final order consistent with Article III of the United States Constitution; and venue being proper

before this Court under 28 U.S.C. §§ 1408 and 1409; and a hearing having been held to consider

the relief requested in the Motion (the “Hearing”); and upon the Knight Declaration and the

record of the Hearing and all the proceedings before the Court; and the Court having found and

determined the relief requested in the Motion is necessary to avoid immediate and irreparable

harm to the Debtors and their estates, as contemplated by Bankruptcy Rule 6003, and such relief

to be in the best interests of the Debtors, their estates and creditors, and any parties in interest;

and the legal and factual bases set forth in the Motion and at the Hearing having established just

cause for the relief granted herein; and after due deliberation thereon and sufficient cause

appearing therefor, it is HEREBY ORDERED THAT:

1. The Motion is granted as set forth herein.

2. The Debtors are authorized, but not directed, to employ and retain the

Ordinary Course Professionals listed on Exhibit B attached to the Motion (each an “Initial

Ordinary Course Professional” and, collectively, the “Initial Ordinary Course

Professionals”) without the need to file individual retention applications and obtain retention

orders for each such Initial Ordinary Course Professional.

3. Within five (5) business days after the date of entry of this Order, the

Debtors shall serve this Order upon each Initial Ordinary Course Professional. Thereafter, prior

to the receipt of payment for postpetition services rendered to the Debtors and expenses incurred,

each such Initial Ordinary Course Professional shall provide to the Debtors and their counsel, for

filing with the Court and service upon: (a) Kramer Levin Naftalis & Frankel LLP, 1177 Avenue

of the Americas, New York, New York 10036, Attn: Kenneth H. Eckstein

([email protected]), Douglas H. Mannal ([email protected]) and Rachael L.


3 US-DOCS\105701584.8RLF1 21133663v.1

Ringer ([email protected]) as co-counsel to the official committee of unsecured

creditors; (b) Bayard, P.A., 600 North King Street, Suite 400, Wilmington, Delaware 19801,

Attn: Justin R. Alberto ([email protected]) and Erin R. Fay ([email protected]) as

co-counsel to the official committee of unsecured creditors; (c) Akin Gump Strauss Hauer &

Feld LLP, One Bryant Park, Bank of America Tower, New York, New York 10036, Attn: Philip

C. Dublin ([email protected]) and Naomi Moss ([email protected]) as counsel to

the ad hoc group of first lien noteholders; (d) Milbank LLP, 55 Hudson Yards, New York, New

York 10001, Attn: Matthew L. Brod ([email protected]) and Brian Kinney

([email protected]) as counsel to the ad hoc group of crossover noteholders; (e) Jones Day,

250 Vesey Street, New York, New York 10281, Attn: Benjamin Rosenblum

([email protected]) and Jeremy D. Evans ([email protected]) as counsel to the

ad hoc group of 1.5 lien noteholders; and (f) the U.S. Trustee, 844 King Street, Suite 2207,

Wilmington, Delaware 19801, Attn: Linda J. Casey, Esq. ([email protected])

(collectively, the “Notice Parties”), a declaration, substantially in the form attached to the

Motion as Exhibit C, certifying that such Initial Ordinary Course Professional does not represent

or hold any interest adverse to the Debtors or their estates with respect to the matter(s) on which

the professional is to be employed (the “Declaration of Disinterestedness”).

4. The Debtors are authorized, without the need for further hearing or order

from the Court, to employ and retain Ordinary Course Professionals not currently listed in

Exhibit B attached to the Motion (each an “Additional Ordinary Course Professional,”

collectively, the “Additional Ordinary Course Professionals” and, collectively with the Initial

Ordinary Course Professionals, the “Ordinary Course Professionals”) by filing with the Court,

and serving on the Notice Parties, a supplement to Exhibit B (a “Supplement”), listing the name


4 US-DOCS\105701584.8RLF1 21133663v.1

of the Additional Ordinary Course Professional, together with a brief description of the services

to be rendered, and by otherwise complying with the terms of this Order. Such authorization

shall be effective nunc pro tunc to the date of the filing of the Supplement or the applicable date

of engagement. The procedures set forth in this Order shall apply to the Additional Ordinary

Course Professionals.

5. The Notice Parties shall have fourteen (14) calendar days after service of

each Ordinary Course Professional’s Declaration of Disinterestedness (the “Objection

Deadline”) to object to the retention of such Ordinary Course Professional. Any such objection

shall be filed with the Court and served upon the Notice Parties, the Debtors, and the applicable

Ordinary Course Professional by the Objection Deadline. If any such objection cannot be

resolved within fourteen (14) calendar days after service thereof, the matter shall be scheduled

for hearing before the Court on the next regularly scheduled hearing date or such other date that

may be agreed to by the Ordinary Course Professional, the Debtors, and the objecting party. If

no objection is received on or before the Objection Deadline, or if any objection submitted is

timely withdrawn or resolved, the Debtors shall be authorized to retain the Ordinary Course

Professional on a final basis, without further order of the Court, nunc pro tunc to the Petition

Date or, if engaged later, the date of engagement.

6. The Debtors shall not pay any fees and expenses to any Ordinary Course

Professional unless (i) such Ordinary Course Professional has executed its Declaration of

Disinterestedness and such Declaration of Disinterestedness was filed with the Court and served

on the Notice Parties, (ii) the applicable Objection Deadline has expired, and (iii) no timely

objection is pending. If a timely objection is received, no payment shall be made to such


5 US-DOCS\105701584.8RLF1 21133663v.1

Ordinary Course Professional until such objection is either resolved, withdrawn or overruled by

the Court.

7. Without the need for a further hearing or order from the Court, the Debtors

are authorized, but not directed, to make monthly payments for postpetition fees and expenses to

each of the Ordinary Course Professionals, in the full amount billed by any such Ordinary

Course Professional, subject to the provisions of paragraph 6 above, upon receipt therefrom of

invoices setting forth in reasonable detail the nature of the professional services rendered and

expenses incurred and calculated in accordance with such professional’s standard billing

practices (without prejudice to the Debtors’ rights to dispute any such invoices); provided,

however, that, without further order of the Court, the Debtors shall not pay any individual

Ordinary Course Professional listed on Exhibit B attached to the Motion and any Supplement to

Exhibit B amounts in excess of the Cap Amounts during the pendency of these chapter 11 cases.

8. The payments to a particular Ordinary Course Professional shall be subject

to Court approval based upon an application for allowance of fees and expenses under

sections 330 and 331 of the Bankruptcy Code, pursuant to the same procedures that are

established for the Chapter 11 Professionals, only if such payments exceed the Cap Amounts or

any other applicable incremental amount agreed to by the Notice Parties or ordered by the Court

as set forth in paragraph 7 above; provided, however, that the Debtors shall not be required to file

an application to retain such Ordinary Course Professional under section 327 or 328 of the

Bankruptcy Code.

9. Within thirty (30) calendar days after the end of, and with respect to, each

full three (3) month period after the Petition Date (including any initial partial month in the first

period), the Debtors shall file with this Court, and serve upon the Notice Parties, a statement that


6 US-DOCS\105701584.8RLF1 21133663v.1

includes the following information for each Ordinary Course Professional: (a) the name of the

Ordinary Course Professional, (b) the aggregate amounts paid as compensation for services

rendered and reimbursement of expenses incurred by such Ordinary Course Professional during

the statement period, and (c) a general description of the services rendered by such Ordinary

Course Professional. The obligation to file summary statements shall terminate upon

confirmation of a chapter 11 plan in these chapter 11 cases, provided that a summary statement

shall be filed with respect to the final period (or partial period) ending on the date such chapter

11 plan is confirmed.

10. Nothing in the Motion or this Order or the relief granted herein (including

any actions taken or payments made by the Debtors) is to be construed as (i) an admission of the

validity of any claim against the Debtors; (ii) an admission with respect to the validity, extent, or

perfection of any lien; (iii) a waiver of the Debtors’ rights or those of any party in interest to

dispute, contest, setoff, or recoup any claim, or assert any related rights, claims, or defenses;

(iv) a waiver of the Debtors’ rights or those of any party in interest over the validity, extent,

perfection, or possible avoidance of any lien; or (v) an approval or assumption of any agreement,

contract, program, policy, or lease under section 365 of the Bankruptcy Code.

11. This Order shall not apply to any professional retained by the Debtors

under a separate order of this Court.

12. All time periods referenced in this Order shall be calculated in accordance

with Bankruptcy Rule 9006(a).

13. The Debtors are authorized and empowered to take all actions necessary

or appropriate to implement the relief granted in this Order.


7 US-DOCS\105701584.8RLF1 21133663v.1

14. This Court retains jurisdiction over all matters arising from or related to

the implementation or interpretation of this Order.


US-DOCS\105701584.8RLF1 21133663v.1

Exhibit B

Initial Ordinary Course Professionals


US-DOCS\105701584.8RLF1 21133663v.1

Annex 1

Ordinary Course Professionals Subject to $150,000 Monthly Cap

Type Name/Mailing Address Type of Service

Ordinary Course Professional

KPMG LLP 191 W NATIONWIDE BLVD STE 500, COLUMBUS, 43215

Accounting Services


MORGAN, LEWIS & BOCKIUS, LLP 101 PARK AVE, NEW YORK, NY 10178-0060

Legal Counsel


PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 AVENUE OF THE AMERICAS, NEW YORK, NY 10019-6064

Legal Counsel


SEYFARTH SHAW LLP 3807 COLLECTIONS CTR DR, CHICAGO, IL 60693

Legal Counsel


SQUIRE PATTON BOGGS (US) LLP P.O. BOX 643051, CINCINNATI, OH 45264-3051

Legal Counsel


2 US-DOCS\105701584.8RLF1 21133663v.1

Annex 2

Ordinary Course Professionals Subject to $50,000 Monthly Cap



ANDERSON & KREIGER LLP 50 MILK ST, 21ST FL, BOSTON, MA 2109

Legal Counsel


ARNOLD & PORTER LLP P.O. BOX 759451, BALTIMORE, MD 21275-9451

Legal Counsel


BARNES & THORNBURG LLP 11 S MERIDAN ST, INDIANAPOLIS, IN 46204-3535

Legal Counsel


BINGHAM GREENEBAUM DOLL LLP 3913 SOLUTIONS CTR, CHICAGO, IL 60677-3009

Legal Counsel


BOWLES RICE LLP 600 Quarrier Street Charleston, WV 25301

Legal Counsel


BRADLEY MURCHISON KELLY & SHEA LLC 1100 POYDRAS ST STE 2700, NEW ORLEANS, LA 70163

Legal Counsel


BRADLEY MURCHISON KELLY & SHEA LLC 401 EDWARDS STREET SUITE 1000, SHREVEPORT, LA 71101-5529

Legal Counsel


BROWN & JAMES PC 800 MARKET ST, STE 1100, ST LOUIS, MO 63101-2501

Legal Counsel


CALFEE HALTER & GRISWOLD LLP 1405 E 6TH ST, CLEVELAND, OH 44114-1607

Legal Counsel


3 US-DOCS\105701584.8RLF1 21133663v.1



CMBG3 LAW LLC 265 FRANKLIN ST, 6TH FLOOR, BOSTON, MA 2110

Legal Counsel


COLLINS EINHORN FARRELL & ULANOFF 4000 TOWN CTR STE 909, SOUTHFIELD, MI 48075

Legal Counsel


CONNELL FOLEY & GEISER LLP 85 LIVINGSTON AVE, ROSELAND, NJ 07068-1765

Legal Counsel


DANNEMANN SIEMSEN BIGLER & IPANEMA RUA MARQUES DE OLINDA, 70, RIO DE JANEIRO, RJ 22251-040

Legal Counsel


DELOITTE TAX LLP PO BOX 844736, DALLAS, TX 75284-4736

Accounting Services


DUCHARME MCMILLEN & ASSOCIATES INC P.O. BOX 914, MIDDLETOWN, OH 45044-0914

Accounting Services


FISH & RICHARDSON PC P.O. BOX 3295, BOSTON, MA 02241-3295

Legal Counsel


FISHER & PHILLIPS LLP 1075 PEACHTREE ST NE STE 3500, ATLANTA, GA 30309

Legal Counsel


Fleishman-Hilliard INC PO Box 771733, ST LOUIS, MO 63177

Legal Counsel


GARLINGTON LOHN ROBINSON 350 Ryman St, Missoula, MT 59802

Legal Counsel


4 US-DOCS\105701584.8RLF1 21133663v.1



GBQ PARTNERS LLC 230 W ST STE 700, COLUMBUS, OH 43215

Accounting Services


GORDON & REES LLP 1111 BROADWAY SUITE 1700, OAKLAND, CA 94607

Legal Counsel


HANSON BRIDGETT MARCUS 425 MARKET ST 26TH FL, SAN FRANCISCO, CA 94105

Legal Counsel


HARRIS BEACH PLLC 100 WALL ST 23RD FL, NEWYORK, NY 10005

Legal Counsel


HOLLINGSWORTH LLP 1350 I ST NW, WASHINGTON, DC 20005

Legal Counsel


HUSCH BLACKWELL LLP 190 CARONDELET PLAZA, ST. LOUIS, MO 63105-3441

Legal Counsel


KAZMAREK MOWREY CLOUD LASETER LLP 1230 PEACHTREE ST NE STE 3600 PROME, ATLANTA, GA 30309

Legal Counsel


KILPATRICK TOWNSEND & STOCKTON LLP 607 14TH ST NW STE 900, WASHINGTON, DC 20005-2018

Legal Counsel


KUTAK ROCK LLP P.O. BOX 30057, OMAHA, NE 68103-1157

Legal Counsel


LEWIS WAGNER LLP 501 INDIANA AVE STE 200 INDIANAPOLIS, IN 46202

Legal Counsel


5 US-DOCS\105701584.8RLF1 21133663v.1



MARVIN F POER & CO P.O. BOX 674300, DALLAS, TX 75267-4300

Accounting Services


MCGUIREWOODS LLP 800 EAST CANAL ST GATEWAY PLAZA, RICHMOND, VA 23219

Legal Counsel


MCNEER, HIGHLAND, MCMUNN P.O. BOX 2040, CLARKSBURG, WV 26302-2040

Legal Counsel


NORTON ROSE FULBRIGHT 1 PL VILLE MARIE BUREAU 2500, MONTREAL, QC H3B 1R1

Legal Counsel


O'MELVENY & MYERS LLP 400 S HOPE ST, LOS ANGELES, CA 90071-2899

Legal Counsel


PORTER & HEDGES LLP PO BOX 4346 DEPT 510, HOUSTON, TX 77210-4346

Legal Counsel


REILLY JANICZEK MCDEVITT HENRICH 2500 MCCLELLAN BLVD STE 240, MERCHANTVILLE, NJ 8109

Legal Counsel


RYAN LLC PO BOX 848351, DALLAS, TX 75284-8351

Accounting Services


SCHENCK PRICE SMITH & KING LLP 220 PARK AVE, FLORHAM PARK, NJ 07932-0991

Legal Counsel


STIKEMAN ELLIOTT LLP 5300 COMMERCE CT W 199 BAY ST, TORONTO, ON M5L 1B9

Legal Counsel


6 US-DOCS\105701584.8RLF1 21133663v.1



WILSON WILLIAMS LLC 1033 Bullard Ct suite 207, Raleigh, NC 27615

Legal Counsel


WINSTEAD PC 2728 NORTH HARWOOD SUITE 500, DALLAS, TX 75201

Legal Counsel


ZUCKERMAN SPAEDER TAYLOR & EVANS 101 E KENNEDY BLVD STE 1200, TAMPA, FL 33602

Legal Counsel


US-DOCS\105701584.8RLF1 21133663v.1

Exhibit C

Declaration of Disinterestedness


US-DOCS\105701584.8RLF1 21133663v.1



x : : : : : x

Chapter 11 Case No. 19-10684 (KG) (Jointly Administered)

DECLARATION IN SUPPORT OF EMPLOYMENT OF [__________] AS PROFESSIONAL UTILIZED IN THE ORDINARY COURSE OF BUSINESS

I, ______________, declare that the following is true to the best of my knowledge,

information and belief:

1. I am a [position] of [Firm], located at [Street, City, State ZIP Code] (the

“Firm”), which has been employed by the debtors and debtors in possession (collectively, the

“Debtors”) in the above-captioned cases in the ordinary course of the Debtors’ business. The

Debtors wish to retain the Firm to continue providing ordinary course services during these

chapter 11 cases, and the Firm has consented to provide such services. This Declaration is

submitted in compliance with the Order Authorizing Employment and Payment of Professionals

Utilized in the Ordinary Course of Business (the “Ordinary Course Professionals Order”).

2. The Firm may have performed services in the past, may currently perform

services, and may perform services in the future in matters unrelated to these chapter 11 cases for

persons that are parties in interest in these chapter 11 cases. The Firm does not perform services



2 US-DOCS\105701584.8RLF1 21133663v.1

for any such person in connection with these chapter 11 cases, or have any relationship with any

such person, their attorneys, or their accountants that would be adverse to the Debtors or their

estates.

3. The Debtors have requested that the Firm provide [specific description of

services] to the Debtors, and the Firm has consented to provide such services.

4. The Firm [has/has not] provided services to the Debtors prior to the

commencement of these chapter 11 cases.

5. As part of its customary practice, the Firm is retained in cases,

proceedings and transactions involving many different parties, some of whom may represent or

be employed by the Debtors, claimants, and parties in interest in these chapter 11 cases.

6. Neither I nor any principal, partner, director, or officer of, or professional

employed by, the Firm, has agreed to share or will share any portion of the compensation to be

received from the Debtors with any other person other than the principal and regular employees

of the Firm.

7. Neither I nor any principal, partner, director, or officer of, or professional

employed by, the Firm, insofar as I have been able to ascertain, holds or represents any interest

adverse to the Debtors or their estates with respect to the matter(s) upon which the Firm is to be

employed.

8. The Debtors owe the Firm $[________] for fees and expenses incurred

prior to and unpaid as of the date these chapter 11 cases were commenced (the “Petition Date”),

the payment of which is subject to the limitations contained in the Bankruptcy Code. The Firm

understands that it must file a proof of claim for such fees and expenses unless the amount

thereof is properly listed in the Debtors’ schedules of liabilities and is not designated therein as


3 US-DOCS\105701584.8RLF1 21133663v.1

contingent, unliquidated, or disputed. [FOR NON-LEGAL FIRMS: The Firm has waived or will

waive any prepetition claim against the Debtors’ estates.]

9. As of the Petition Date, the Firm [was/was not] party to an agreement for

indemnification with the Debtors. [A copy of such agreement is attached as Exhibit A to this

Declaration.]

10. The Firm is conducting further inquiries regarding its retention by any

creditors of the Debtors, and upon conclusion of such inquiries, or at any time during the period

of its employment, if the Firm should discover any facts bearing on the matters described herein,

the Firm will supplement the information contained in this Declaration.

[Signature page follows]


4 US-DOCS\105701584.8RLF1 21133663v.1

I declare under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct.

Dated: _________________

[Name] [Title] [FIRM NAME] Address: Telephone: Facsimile: Email:


in re: chapter 11 hexion holdings llc, et al., case no. 19...

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