Case KJC Doc 295 Filed 11/07/18 Page 1 of 13 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

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1 Case KJC Doc 295 Filed 11/07/18 Page 1 of 13 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re ATD CORPORATION., et al., 1 Debtors. Chapter 11 Case No (KJC) (Jointly Administered) Hearing Date: Nov. 29, 2018, at 2:00 p.m. (ET) Obj. Deadline: Nov. 21, 2018, at 4:00 p.m. (ET) APPLICATION OF THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS FOR ENTRY OF AN ORDER AUTHORIZING RETENTION AND EMPLOYMENT OF BENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP AS DELAWARE COUNSEL TO THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS, NUNC PRO TUNC TO OCTOBER 18, 2018 The Official Committee of Unsecured Creditors (the Committee ), appointed on October 18, 2018 [D.I. 183] in the above-captioned chapter 11 cases of the above-captioned debtors (collectively, the Debtors ), hereby submits this application (the Application ), pursuant to sections 328, 330 and 1103 of title 11 of the United States Code, 11 U.S.C (the Bankruptcy Code ), Rules 2014, 2016(a) and 5002 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ) and Rules of the Local Rules of Practice and Procedure for the United States Bankruptcy Court for the District of Delaware (the Local Rules ), for an order authorizing the retention and employment of Benesch, Friedlander, Coplan & Aronoff LLP ( Benesch ) as Delaware counsel to the Committee nunc pro tunc to October 18, The Declaration of Jennifer R. Hoover in support of this Application is attached hereto as Exhibit A 1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number, include: ATD Corporation (3683); Accelerate Holdings Corp. (0528); American Tire Distributors Holdings, Inc. (6143); American Tire Distributors, Inc. (4594); Rubbr Automotive Services, LLC (3334); The Hercules Tire & Rubber Company (3365); Terry s Tire Town Holdings, Inc. (7464); Tire Pros Francorp (1361); and Hercules Asia Pacific, LLC (2499). The location of the Debtors service address in these chapter 11cases is Herbert Wayne Court, Suite 150, Huntersville, North Carolina v1

2 Case KJC Doc 295 Filed 11/07/18 Page 2 of 13 (the Hoover Declaration ). In further support of this Application, the Committee respectfully represents as follows: Background 1. On October 4, 2018 (the Petition Date ), each of the Debtors filed a voluntary petition for relief under the Bankruptcy Code in the United States Bankruptcy Court for the District of Delaware (the Court ). The Debtors chapter 11 cases are jointly administered under Case No (KJC). 2. The Debtors continue to operate their businesses and manage their properties as debtors in possession pursuant to sections 1107 and 1108 of the Bankruptcy Code. No trustee or examiner has been appointed in these cases. 3. On October 18, 2018 (the Formation Date ), the Office of the United States Trustee (the U.S. Trustee ) selected a seven (7) member Committee pursuant to section 1102(a)(1) of the Bankruptcy Code [D.I. 183], including: (i) Continental Tire The Americas, LLC.; (ii) Cooper Tire & Rubber Company; (iii) Michelin North America, Inc.; (iv) Sumitomo Rubber of North America; (v) Sailun Jinyu Group, LTD.; (vi) Pirelli Tire LLC c/o Pirelli North America, Inc.; and (vii) Ryder Truck Rental dba Ryder Transportation Services On the Formation Date, the Committee held a meeting and, subject to this Court s approval, selected Kelley Drye & Warren LLP ( Kelley Drye ) as its lead counsel, Benesch as its Delaware counsel, and Province, Inc. ( Province ) as its financial advisor in these cases. Jurisdiction and Venue 5. The Court has jurisdiction over this Application pursuant to 28 U.S.C. 157 and 1334 and the Amended Standing Order of Reference from the United States District Court for the 2 An Amended Notice of Appointment of Committee of Unsecured Creditors was filed on October 31, 2018 [D.I. 259]. 2

3 Case KJC Doc 295 Filed 11/07/18 Page 3 of 13 District of Delaware, dated February 29, This is a core proceeding pursuant to 28 U.S.C. 157(b)(2) and the Court may enter a final order consistent with Article III of the United States Constitution. Venue is proper pursuant to 28 U.S.C and Pursuant to Local Rule (f), the Committee consents to the entry of a final judgment or order with respect to this Application if it is determined that the Court would lack Article III jurisdiction to enter such final order or judgment absent consent of the parties. 6. The statutory predicates for the relief sought herein are sections 327, 328, 330 and 1103 of the Bankruptcy Code, Bankruptcy Rules 2014, 2016(a) and 5002, and Local Rule Relief Requested 7. By this Application, and pursuant to sections 328, 330 and 1103 of the Bankruptcy Code, the Committee respectfully requests the entry of an order approving the employment and retention of Benesch as its Delaware counsel to perform the services described more thoroughly herein in connection with the Debtors chapter 11 cases, nunc pro tunc to October 18, Basis for Relief 8. Section 328(a) of the Bankruptcy Code empowers a committee appointed under section 1102 of the Bankruptcy Code to employ attorneys under section 1103 of the Bankruptcy Code under any reasonable terms and conditions with the Court s approval. 11 U.S.C. 328(a). Pursuant to section 1103(b) of the Bankruptcy Code, an attorney employed to represent a committee may not, while employed by such committee, represent any other entity having an adverse interest in connection with the case. 11 U.S.C. 1103(b). For the reasons that follow, the Committee respectfully submits that Benesch is appropriately eligible and capable to serve as its Delaware counsel in these cases. 3

4 Case KJC Doc 295 Filed 11/07/18 Page 4 of 13 A. Benesch s Eligibility to Serve as Delaware Counsel Under Section In connection with its proposed retention by the Committee in these cases, Benesch researched its computer client database to determine whether it has any relationships with any of the entities in the categories on the Conflicts Check List attached to the Hoover Declaration. Benesch s conflict database includes the names of: (i) current and former clients and where practical, the known affiliates of those clients, (ii) current and former adverse parties, and (iii) certain current and former related parties in matters upon which Benesch has been or is currently engaged. 10. Benesch maintains and systematically updates its conflict check system in the regular course of its business, and it is the regular practice of Benesch to make and maintain these records. It is the policy of Benesch that no new matter be accepted or opened within the firm without completing and submitting to those charged with maintaining the conflict check system the information necessary to check each such matter for conflicts, including the identity of the prospective client, the matter and the related adverse parties. Accordingly, it is Benesch s regular practice to update its database for every new matter undertaken by Benesch. 11. Moreover, through a firm-wide , Benesch solicited information from its attorneys to determine whether any attorneys employed by Benesch are related to any of the Bankruptcy Judges in this District, the U.S. Trustee for Region 3, or any attorney known by Benesch to be employed in the Wilmington Office of the U.S. Trustee. Benesch also solicited information from its attorneys to determine if any attorneys employed by Benesch (i) are investors of any of the Debtors, or (ii) were, within two years of the Petition Date, a director, officer, or employee of any of the Debtors. No such connections were discovered. 4

5 Case KJC Doc 295 Filed 11/07/18 Page 5 of To the best of the Committee s knowledge, based upon the Hoover Declaration, and except as otherwise set forth herein and the Hoover Declaration, (i) Benesch does not hold or represent any interest adverse to the Debtors or their chapter 11 estates, their creditors or any other party in interest in connection with these cases, and (ii) neither Benesch nor any of its partners or associates has had or presently have any connections with the Debtors or any other party listed on the Conflicts Check List attached to the Hoover Declaration. Benesch is a disinterested person, as that term is defined in section 101(14) of the Bankruptcy Code, and neither represents nor holds an interest adverse to the interests of the Committee, the Debtors or their estates with respect to the matters on which Benesch is to be employed. 3 Finally, Benesch will not, while employed by the Committee, represent any other entity having an adverse interest in connection with these cases. 13. Benesch advised the Committee that Benesch and certain of its partners and associates may have in the past represented or opposed, may currently represent or oppose, and may in the future represent or oppose, in matters wholly unrelated to the Debtors, parties in interest in these cases. Benesch has not (except as disclosed in the Hoover Declaration) and will not represent any such parties, or any of their affiliates or subsidiaries, in relation to the Committee, the Debtors, or these chapter 11 cases. 14. Benesch has further advised the Committee that it appears in many cases, proceedings, and transactions involving many different attorneys, counsel, accountants, financial consultants, and investment bankers, some of which now or may in the future represent parties in interest in these cases. Benesch has not and will not represent any such entities in relation to the 3 Section 1103(b) of the Bankruptcy Code provides that proposed counsel to an official committee of unsecured creditors may not represent any other entity having an adverse interest in connection with the cases. Benesch has made this disclosure with respect to its disinterestedness out of an abundance of caution and to the extent required by section 328(c) of the Bankruptcy Code. 5

6 Case KJC Doc 295 Filed 11/07/18 Page 6 of 13 Debtors cases and Benesch does not have any relationship with any such entities that would be adverse to the Committee or its interests in the matters upon which Benesch is to be employed. For the avoidance of doubt, Benesch will not represent any entity other than the Committee in connection with the Debtors chapter 11 cases. Benesch may, however, represent a successor in interest to the Committee, if one is formed or appointed. 15. To the extent that Benesch discovers any connections with any interested party or enters into any new relationships with any interested party, the Committee understands that Benesch will promptly supplement its disclosures to the Court. 16. The Committee therefore respectfully submits that Benesch satisfies the applicable standards to represent the Committee as co-counsel in the Debtors chapter 11 cases. B. Benesch s Qualifications 17. The Committee selected Benesch because of its attorneys experience and knowledge and because of the absence of any conflict of interest. Benesch is particularly well suited for the type of representation that the Committee requires because of Benesch s substantial experience appearing before courts in this District and its substantial experience representing committees and other interested parties in complex bankruptcy cases. Benesch s experience representing creditors committees in other chapter 11 bankruptcy cases before this Court as lead counsel or Delaware counsel include, among others, certain of the following: Charming Charlie Holdings Inc., ion Worldwide Inc., DesignLine Corporation, MFM Industries, Inc., and Micromed Technologies, Inc. 18. The Committee has determined that Benesch has the resources and experience necessary to assist Kelley Drye and deal effectively with many of the potential legal issues that may arise in the context of the Debtors chapter 11 cases. Further, Benesch s appearance before 6

7 Case KJC Doc 295 Filed 11/07/18 Page 7 of 13 this Court for the applications, motions, and other matters that may arise in these cases will be efficient and cost-effective for the Debtors estates. The Committee therefore believes that Benesch s employment as Delaware counsel with Kelley Drye is in the best interest of the Debtors, their estates and their constituents and desires that Benesch represent it as Delaware counsel in connection with these cases. C. Benesch s Scope of Employment as Delaware Counsel to the Committee 19. To specifically disclose the division of labor and to avoid unnecessary duplication of services, subject to the Court s approval of the Application, Kelley Drye and Benesch have discussed the appropriate scope of services of both firms and the firms have developed a working plan to ensure that there is no duplication of services rendered on behalf of the Committee. 20. The services Benesch has rendered and may be required to render for the Committee, include, without limitation, the following: (a) (b) (c) (d) (e) in conjunction with Kelley Drye, providing legal advice where necessary with respect to the Committee s powers and duties and strategic advice on how to accomplish the Committee s goals, bearing in mind that the Court relies on Delaware counsel such as Benesch to be involved in all aspects of the bankruptcy proceedings; drafting, reviewing and commenting on drafts of documents to ensure compliance with local rules, practices, and procedures; assisting and advising the Committee in its consultation with the Debtors and the U.S. Trustee relative to the administration of these cases; drafting, filing, and serving documents as requested by Kelley Drye and the Committee; assisting the Committee and Kelley Drye, as necessary, in the investigation (including through discovery) of the acts, conduct, assets, liabilities and financial condition of the Debtors, the operation of the Debtors businesses, and any other matter relevant to these cases or to the formulation of a plan or plans of reorganization or liquidation; 7

8 Case KJC Doc 295 Filed 11/07/18 Page 8 of 13 (f) (g) (h) (i) (j) (k) (l) compiling and coordinating delivery to the Court and the U.S. Trustee information required by the Bankruptcy Code, Bankruptcy Rules, Local Rules, and any applicable U.S. Trustee guidelines and/or requests; appearing in Court and at any meetings of creditors on behalf of the Committee in its capacity as Delaware counsel with Kelley Drye; monitoring the case docket and coordinating with Kelley Drye and Province on matters impacting the Committee; participating in calls with the Committee; preparing, updating and distributing critical dates memoranda and working group lists; handling inquiries and calls from creditors and counsel to interested parties regarding pending matters and the general status of these cases and coordinating with Kelley Drye on any necessary responses; and providing additional support to Kelley Drye, Province, and the Committee, as requested. The services described in this paragraph are designed to limit any unnecessary duplication of services with Kelley Drye and the Committee s other professionals. To the extent that Benesch is assigned by the Committee, in consultation with Kelley Drye, to perform additional services as requested by the Committee that may be necessary and proper in these proceedings and that are materially different from the above-described services, Benesch will file a supplemental declaration in accordance with Bankruptcy Rule 2014, disclosing both the nature of its expanded employment and the reasons supporting the additional duties and responsibilities. D. Benesch s Professional Compensation 21. Section 328(a) of the Bankruptcy Code authorizes the employment of a professional person on any reasonable terms and conditions of employment, including on an hourly basis. 11 U.S.C. 328(a). Subject to this Court s approval and in accordance with section 330(a) of the Bankruptcy Code, the Bankruptcy Rules, and the Local Rules, the Committee requests that 8

9 Case KJC Doc 295 Filed 11/07/18 Page 9 of 13 Benesch be compensated on an hourly basis for the work it performs, plus reimbursement of the actual and necessary expenses that Benesch incurs. 22. Benesch has advised the Committee that its ordinary hourly rates for manner such as these range from $415 to $650 per hour for partners, from $270 to $425 per hour for associates, and from $230 to $300 per hour for paraprofessionals. The primary attorneys and paralegal that will work on this representation and their respective hourly rates are included in the following chart. As part of its ordinary business practice, Benesch reviews and adjusts its rates yearly effective October 1 of each year. Professional Position Rate Jennifer R. Hoover Partner $570 per hour Kevin M. Capuzzi Associate $425 per hour Lou Anne Molinaro/ Patrice Parson Paralegal 9 $300 per hour Other attorneys and paralegals will render services to the Committee as needed. 23. The ranges of hourly rates set forth above are Benesch s standard hourly rates for work of this nature. These rates are set at a level designed to fairly compensate Benesch for the work of its attorneys and paralegals, to cover fixed and routine overhead expenses, and are subject to periodic adjustment to reflect economic and other conditions. Benesch has advised the Committee, and the Committee understands, that the hourly rates set forth above are subject to periodic adjustments on October 1 each year as part of its ordinary business practice. Benesch will advise the Committee of any additional rate increases once they are established and when any other rate change becomes effective during the course of Benesch s engagement. 24. In addition to the hourly billing rates set forth above, Benesch customarily charges its clients for all costs and expenses incurred, including telephone and telecopier charges, mail and

10 Case KJC Doc 295 Filed 11/07/18 Page 10 of 13 express mail charges, hand delivery charges, document processing, photocopying and print copy charges, travel expenses, expenses for working meals, computerized research and transcription costs. Benesch has advised the Committee that it will charge such costs and expenses in accordance, and only to the extent consistent, with the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, and any applicable U.S. Trustee guidelines. 25. Benesch did not receive any retainer from the Debtors, the Committee, or any other entity in these cases. Other than set forth herein, there is no proposed arrangement to compensate Benesch. Benesch has not shared, nor agreed to share, (a) any compensation it has received or may receive with any other party or person, other than with the partners and associates of Benesch, or (b) any compensation another person or party has received or may receive. Benesch has advised the Committee that it intends to apply to the Court for compensation and reimbursement of expenses in accordance with applicable provisions of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, any order entered in these cases governing the compensation of professionals, and any applicable U.S. Trustee guidelines. 26. The Committee believes the compensation arrangements with Benesch are consistent with, and typical of, arrangements entered into by Benesch and other law firms with respect to rendering similar services for clients such as the Committee. The Committee, therefore, respectfully requests entry of an order, substantially in the form submitted herewith, authorizing the retention and employment of Benesch as Delaware counsel to the Committee. 27. By separate application, the Committee is also seeking approval to employ Kelley Drye. The Committee believes that if the employment of Kelley Drye and Benesch are approved by this Court, these firms have allocated and will allocate their delivery of services to the Committee so as to limit unnecessary duplication of services. It is the carefully considered view 10

11 Case KJC Doc 295 Filed 11/07/18 Page 11 of 13 of the Committee that, considering the complexity of these cases, the timing of the Committee s appointment, the pace of these cases and the various interests involved, representation of the Committee by Kelley Drye and Benesch is necessary, advisable and in the best interests of the Committee and these estates. E. Nunc Pro Tunc Relief 28. The Committee requests that Benesch s retention be made effective as of October 18, 2018, in order to allow Benesch to be compensated for the work it performed for the Committee as of and following the date it was retained and prior to the Court s consideration and approval of this Application. Due to the size, short timeline, and complex nature of these chapter 11 cases, as well as the significant relief sought by the Debtors during the early stages of these chapter 11 cases, there was an immediate need for Benesch to perform services for the Committee upon its retention. The Committee submits that under the circumstances, and to avoid the irreparable harm to the Debtors estates that may occur if Benesch is not immediately retained, retroactive approval to October 18, 2018, the date of Benesch s retention, is warranted. See, e.g., F/S Airlease II, Inc. v. Simon (In re F/S Airlease II, Inc.), 844 F.2d 99, 105 (3d Cir. 1988), cert denied, 488 U.S. 852 (1988); Indian River Homes, Inc. v. Sussex Tr. Co., 108 B.R. 46, 51 (D. Del. 1989). Notice 29. Notice of this Application has been given to: (a) counsel to the Debtors; (b) the U.S. Trustee; (c) counsel for the Debtors prepetition secured lenders; and (d) those parties requesting notice pursuant to Bankruptcy Rule 2002, in accordance with Local Rule (b). The Committee submits that, in light of the nature of the relief requested herein, no other or further notice is necessary. No previous application for the relief requested herein has been made to this or any other court. 11

12 Case KJC Doc 295 Filed 11/07/18 Page 12 of 13 WHEREFORE, the Committee respectfully requests that the Court enter an order substantially in the form submitted herewith and grant such other and further relief as is just and proper. Dated: Wilmington, Delaware November 7,2018 Respectfully submitted, THE OFFICIAL COMMITTEE OF LINSECURED CREDITORS OF ATD CORPORATION, ET AL. By: Continental Tire The Americas, LLC 2 Timothy P. Rogers Chief Financial Officer -and- Ryder Truck Rental By: Michael Mandell Corporate Collection & Stop Loss Manager Co-Chairpersons of the Official Committee of Unsecured Creditors of ATD Corporation, et al.4 4 Under the Bylaws of the Official Committee of Unsecured Creditors of ATD Corporation, et al., Continental Tires The Americas LLC and Ryder Truck Rental, as Co-Chairpersons of the Committee, by and through its representatives, each has authority to sign documents on behalf of the Committee as appropriate to implement decisions of the Committee made in accordance with the Bylaws v.1

13 Case KJC Doc 295 Filed 11/07/18 Page 13 of 13

14 Case KJC Doc Filed 11/07/18 Page 1 of 12 EXHIBIT A

15 Case KJC Doc Filed 11/07/18 Page 2 of 12 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re ATD CORPORATION., et al., 1 Debtors. Chapter 11 Case No (KJC) (Jointly Administered) DECLARATION OF JENNIFER R. HOOVER IN SUPPORT OF APPLICATION OF THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS FOR ENTRY OF AN ORDER AUTHORIZING RETENTION AND EMPLOYMENT OF BENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP AS DELAWARE COUNSEL TO THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS, NUNC PRO TUNC TO OCTOBER 18, 2018 I, Jennifer R. Hoover, hereby declare, pursuant to 28 U.S.C. 1746, under penalty of perjury as follows: 1. I am a Partner at Benesch, Friedlander, Coplan & Aronoff LLP ( Benesch ), which maintains offices for the practice of law at 222 Delaware Avenue, Suite 801, Wilmington, Delaware I am an attorney-at-law, duly admitted and in good standing to practice in the State of Delaware, as well as the United States District Court for the District of Delaware, the Commonwealth of Pennsylvania and the State of New Jersey. 2. I submit this declaration in connection with the application (the Application ) of the Official Committee of Unsecured Creditors (the Committee ) appointed in the cases of the above-captioned debtors (collectively, the Debtors ) for an order approving the retention of 1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number, include: ATD Corporation (3683); Accelerate Holdings Corp. (0528); American Tire Distributors Holdings, Inc. (6143); American Tire Distributors, Inc. (4594); Rubbr Automotive Services, LLC (3334); The Hercules Tire & Rubber Company (3365); Terry s Tire Town Holdings, Inc. (7464); Tire Pros Francorp (1361); and Hercules Asia Pacific, LLC (2499). The location of the Debtors service address in these chapter 11cases is Herbert Wayne Court, Suite 150, Huntersville, North Carolina

16 Case KJC Doc Filed 11/07/18 Page 3 of 12 Benesch as Delaware counsel, nunc pro tunc to October 18, 2018, and to provide the disclosures required under section 1103 of title 11 of the United States Code 11 U.S.C (the Bankruptcy Code ), Rules 2014, 2016(a) and 5002 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ), and Rule of the Local Rules of Practice and Procedure for the United States Bankruptcy Court for the District of Delaware (the Local Rules ). 3. All terms not otherwise defined herein have the meanings ascribed to such terms in the Application. Except as otherwise indicated herein, I have personal knowledge of the matters set forth herein and, if called as a witness, would testify competently thereto. To the extent that any information disclosed herein requires amendment or modification upon Benesch s completion of further analysis or as additional information becomes available to Benesch, a supplemental declaration will be submitted to the Court. 4. In preparing this affidavit and the Application, we have used a set of procedures established by Benesch to ensure compliance with the requirements of the Bankruptcy Code and the Bankruptcy Rules regarding retention of professionals by an official committee under the Bankruptcy Code. In that regard, Benesch requested and obtained a list of names and entities who may be parties in interest in the chapter 11 cases. A list of those parties is attached hereto as Schedule A. 5. In connection with its proposed retention by the Committee in these cases, Benesch researched its computer client database to determine whether it has any relationships with any of the entities in the categories on the Conflicts Check List attached hereto as Schedule A. Benesch s conflict database includes the names of: (i) current and former clients and where practical, the known affiliates of those clients, (ii) current and former adverse parties, and (iii) 2

17 Case KJC Doc Filed 11/07/18 Page 4 of 12 certain current and former related parties in matters upon which Benesch has been or is currently engaged. 6. Benesch maintains and systematically updates its conflict check system in the regular course of its business, and it is the regular practice of Benesch to make and maintain these records. It is the policy of Benesch that no new matter be accepted or opened within the firm without completing and submitting to those charged with maintaining the conflict check system the information necessary to check each such matter for conflicts, including the identity of the prospective client, the matter and the related and adverse parties. Accordingly, it is Benesch s regular practice to update its database for every new matter undertaken by Benesch. 7. Moreover, through a firm-wide , Benesch solicited information from its attorneys to determine whether any attorneys employed by Benesch are related to any of the Bankruptcy Judges in this District, the U.S. Trustee for Region 3, or any attorney known by Benesch to be employed in the Wilmington Office of the U.S. Trustee. Benesch also solicited information from its attorneys to determine if any attorneys employed by Benesch (i) are investors of any of the Debtors, or (ii) were, within two years of the Petition Date, a director, officer, or employee of any of the Debtors. No such connections were discovered. In the event that any related information is received relevant to the Application, I will promptly supplement this Declaration with such information. 8. Insofar as I have been able to ascertain, neither I, Benesch, nor any partner or associate at Benesch, represent or have any connection with any of the parties in interest listed on Schedule A, except as otherwise disclosed in Schedule B attached hereto. Benesch is a disinterested person, as that term is defined in section 101(14) of the Bankruptcy Code, and neither represents nor holds an interest adverse to the interests of the Committee, the Debtors or 3

18 Case KJC Doc Filed 11/07/18 Page 5 of 12 their estates with respect to the matters on which Benesch is to be employed. 2 Finally, Benesch will not, while employed by the Committee, represent any other entity having an adverse interest in connection with these cases. 9. Benesch and certain of its partners and associates may have in the past represented or opposed, may currently represent or oppose, and may in the future represent or oppose, parties in interest in these cases. I do not believe that any single matter is a major engagement that, alone or in the aggregate with other engagements for the same entity, involves the billing of fees in excess of 1% of Benesch s annual fees billed. 10. As part of its practice, Benesch appears in many cases, proceedings, and transactions involving many different attorneys, counsel, accountants, financial consultants, and investment bankers, some of which now or may in the future represent claimants and parties in interest in these cases. I have advised the Committee that Benesch has not and will not represent any such entities in relation to the Debtors chapter 11 cases and Benesch does not have any relationship with any such entities that would be adverse to the Committee or its interests in the matters upon which Benesch is to be employed. 11. If Benesch discovers any information that is contrary to or pertinent to the statements made herein, Benesch will promptly disclose such information to the Court by filing and serving a supplemental declaration. To the extent that Benesch discovers any connection with any interested party or enters into any new relationship with any interested party, Benesch will promptly supplement its disclosure to the Court. 2 Section 1103(b) of the Bankruptcy Code provides that proposed counsel to an official committee of unsecured creditors may not represent any other entity having an adverse interest in connection with the cases. I make this disclosure with respect to Benesch s disinterestedness out of an abundance of caution and to the extent required by section 328(c) of the Bankruptcy Code. 4

19 Case KJC Doc Filed 11/07/18 Page 6 of It is my understanding that the Committee has selected the law firm of Kelley Drye & Warren LLP ( Kelley Drye ) as its lead counsel. Benesch has and will continue to work closely with Kelley Drye to avoid unnecessary duplication of services performed for or charged to the Debtors estates. 13. Benesch intends to apply to the Court for compensation and reimbursement of expenses in accordance with applicable provisions of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, any order entered in these cases governing the compensation of professionals, and any applicable U.S. Trustee guidelines. 14. Benesch will seek compensation on an hourly basis for the services it renders, plus reimbursement of actual and necessary expenses and other charges that it incurs. Attorneys and paraprofessionals of Benesch bill their time in one-tenth hour increments. Benesch has advised the Committee that Benesch s standard hourly rates range from $415 to $650 per hour for partners, from $270 to $425 per hour for associates, and from $230 to $300 per hour for paraprofessionals. The primary attorneys and paralegal that will work on this representation, and their respective hourly rates are included in the following chart. Professional Position Rate Jennifer R. Hoover Partner $570 per hour Kevin M. Capuzzi Associate $425 per hour Lou Anne Molinaro/ Patrice Parson Paralegal $300 per hour Other attorneys and paralegals will render services to the Committee as needed. 5

20 Case KJC Doc Filed 11/07/18 Page 7 of The hourly rates set forth in the ranges disclosed above are Benesch s standard hourly rates for work of this nature both inside and outside of the bankruptcy context The rates indicated in the Application and this Declaration are set at a level designed to fairly compensate Benesch for the work of its attorneys and paralegals, to cover fixed and routine overhead expenses, and are subject to periodic adjustments to reflect economic and other conditions. Benesch has advised the Committee, and the Committee understands, that the hourly rates set forth above are subject to periodic adjustments on October 1 each year as part of its ordinary business practice. Benesch will advise the Committee of any additional rate increases once they are established and when any other rate change becomes effective during the course of Benesch s engagement. 17. In addition to the hourly billing rates set forth above, Benesch customarily charges its clients for all costs and expenses incurred, including telephone and telecopier charges, mail and express mail charges, hand delivery charges, document processing, photocopying and print copy charges, travel expenses, expenses for working meals, computerized research and transcription costs. Benesch has advised the Committee that it would charge such costs and expenses in accordance, and only to the extent consistent, with the Local Rules. 18. Benesch has not received any retainer from the Debtors, the Committee, or any other entity in these cases. Other than set forth herein, there is no proposed arrangement to compensate Benesch. Benesch has not shared, nor agreed to share, (a) any compensation it has 3 Benesch has national practices in commercial bankruptcy, corporate litigation, intellectual property litigation, entity law and commercial transactions, among others. The hourly rates reflected in the ranges disclosed in the body of paragraph 14 and in the Application are Benesch s standard hourly rates for engagements in those practice areas. In addition, Benesch has a full service national law firm. While Benesch generally charges its standard hourly rates in its regional practice areas, occasionally certain Benesch attorneys will agree to reduce rates for those representations. Benesch also occasionally accepts representations with alternative fee structures, such as contingent, mixedcontingent, flat fee and blended-hourly. 6

21 Case KJC Doc Filed 11/07/18 Page 8 of 12 received or may receive with any other party or person, other than with the partners and associates of Benesch, or (b) any compensation another person or party has received or may receive. 19. The U.S. Trustee has adopted the Guidelines for Reviewing Applications for Compensation and Reimbursement of Expenses Filed Under 11 U.S.C. 330 by Attorneys in Larger Chapter 11 Cases (the 2013 UST Guidelines ). Benesch intends to make reasonable efforts to comply with the 2013 UST Guidelines. Benesch also intends to work cooperatively with the U.S. Trustee to address any concerns with Benesch s Application and to respond to any further information requests. 20. Pursuant to Part D.1 of the 2013 UST Guidelines, Benesch is seeking employment as Delaware co-counsel to the Committee and hereby provides the following responses set forth below: Question Answer Further Explanation Did you agree to any variations from, or alternatives to, your standard or customary billing arrangements for this engagement? No. N/A Do any of the professionals included in this engagement vary their rate based on the geographic location of the bankruptcy case? If you represented the client in the 12 months prepetition, disclose your billing rates and material financial terms for the prepetition engagement, including any adjustments during the 12 months prepetition. If your billing rates and material financial terms have changed postpetition, explain the difference and the reasons for the difference. No. Not applicable. Benesch did not represent the Committee during the prepetition period. N/A N/A 7

22 Case KJC Doc Filed 11/07/18 Page 9 of 12 Has your client approved your prospective budget and staffing plan, and, if so, for what budget period? Yes. For the period from October 18, 2018 through December 31, Pursuant to Part F of the 2013 UST Fee Guidelines, Benesch is proposed to serve as Delaware counsel for the Committee with primary counsel, Kelley Drye. Kelley Drye has primary responsibility for the services disclosed in its retention application. To disclose the division of labor and to avoid unnecessary duplication of services, subject to the Court s approval of the Application, the services Benesch has rendered and may be required to render for the Committee in these cases, include, without limitation, the following: (a) (b) (c) (d) (e) in conjunction with Kelley Drye, providing legal advice where necessary with respect to the Committee s powers and duties and strategic advice on how to accomplish the Committee s goals, bearing in mind that the Court relies on Delaware counsel such as Benesch to be involved in all aspects of the bankruptcy proceedings; drafting, reviewing and commenting on drafts of documents to ensure compliance with local rules, practices, and procedures; assisting and advising the Committee in its consultation with the Debtors and the U.S. Trustee relative to the administration of these cases; drafting, filing, and serving documents as requested by Kelley Drye and the Committee; assisting the Committee and Kelley Drye, as necessary, in the investigation (including through discovery) of the acts, conduct, assets, liabilities and financial condition of the Debtors, the operation of the Debtors businesses, and any other matter relevant to these cases or to the formulation of a plan or plans of reorganization; 8

23 Case KJC Doc Filed 11/07/18 Page 10 of 12 (f) (g) (h) (i) (j) (k) (l) compiling and coordinating delivery to the Court and the U.S. Trustee information required by the Bankruptcy Code, Bankruptcy Rules, Local Rules, and any applicable U.S. Trustee guidelines and/or requests; appearing in Court and at any meetings of creditors on behalf of the Committee in its capacity as Delaware counsel with Kelley Drye; monitoring the case docket and coordinating with Kelley Drye and Province, Inc. ( Province ), the Committee s financial advisor, on matters impacting the Committee; participating in calls with the Committee; preparing, updating and distributing critical dates memoranda and working group lists; handling inquiries and calls from creditors and counsel to interested parties regarding pending matters and the general status of these cases and coordinating with Kelley Drye on any necessary responses; and providing additional support to Kelley Drye, Province, and the Committee, as requested. 22. By reason of the foregoing, I believe Benesch is eligible for employment and retention by the Committee pursuant to section 1103 of the Bankruptcy Code and the applicable Bankruptcy Rules, nunc pro tunc to October 18, I declare under penalty of perjury that the foregoing is true and correct. Dated: November 7, 2018 BENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP /s/ Jennifer R. Hoover Jennifer R. Hoover (No. 5111) 222 Delaware Avenue, Suite 801 Wilmington, Delaware Telephone: (302) Facsimile: (302) jhoover@beneschlaw.com 9

24 Case KJC Doc Filed 11/07/18 Page 11 of 12 Schedule A

25 Case KJC Doc Filed 11/07/18 Page 12 of 12 Schedule B Parties (or affiliates thereof) who are current or past clients of Benesch, or with whom Benesch has a professional relationship in matters unrelated to the Debtors, whose names include the following: None.

26 Case KJC Doc Filed 11/07/18 Page 1 of 4 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re ATD CORPORATION., et al., 1 Debtors. Chapter 11 Case No (KJC) (Jointly Administered) DECLARATION OF TIMOTHY P. ROGERS, CO-CHAIRPERSON OF THE COMMITTEE, IN SUPPORT OF APPLICATION OF THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS FOR ENTRY OF AN ORDER AUTHORIZING RETENTION AND EMPLOYMENT OF BENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP AS DELAWARE COUNSEL TO THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS, NUNC PRO TUNC TO OCTOBER 18, 2018 I, Timothy P. Rogers, hereby declare, pursuant to 28 U.S.C. 1746, as follows: 1. My name is Timothy P. Rogers. I am over the age of 21 and am competent in all respects to make this Declaration. I am the representative of Continental Automotive, Inc., Continental Tire the Americas LLC (collectively, Continental ) in connection with the abovecaptioned chapter 11 cases and serve as Co-Chairperson of Official Committee of Unsecured Creditors (the Committee ) of ATD Corporation and its affiliated debtors (collectively, the Debtors ). Accordingly, I am in all respects competent to make this Declaration in support of the application of the Committee to retain Benesch, Friedlander, Coplan & Aronoff LLP ( Benesch ) as Delaware counsel for the Committee nunc pro tunc to October 18, 2018 (the Retention Date ). Except as otherwise noted, I have personal knowledge as to all the information set forth below. 1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number, include: ATD Corporation (3683); Accelerate Holdings Corp. (0528); American Tire Distributors Holdings, Inc. (6143); American Tire Distributors, Inc. (4594); Rubbr Automotive Services, LLC (3334); The Hercules Tire & Rubber Company (3365); Terry s Tire Town Holdings, Inc. (7464); Tire Pros Francorp (1361); and Hercules Asia Pacific, LLC (2499). The location of the Debtors service address in these chapter 11cases is Herbert Wayne Court, Suite 150, Huntersville, North Carolina

27 Case KJC Doc Filed 11/07/18 Page 2 of 4 2. This declaration is provided pursuant to Part D.2 of the Guidelines for Reviewing Applications for Compensation and Reimbursement of Expenses Filed Under 11 U.S.C. 330 by Attorneys in Larger Chapter 11 Cases (the Guidelines ) promulgated by the Office of the United States Trustee. I am informed by Benesch that the Guidelines require that any application for employment of an attorney under 11 U.S.C. 327 or 1103, be accompanied by a verified statement from the client that addresses the following: The identity and position of the person making the verification. The person ordinarily should be the general counsel of the debtor or another officer responsible for supervising outside counsel and monitoring and controlling legal costs. The steps taken by the client to ensure that the applicant s billing rates and material terms for the engagement are comparable to the applicant s billing rates and terms for other non-bankruptcy engagements and to the billing rates and terms of other comparably skilled professionals. The number of firms the client interviewed. If the billing rates are not comparable to the applicant s billing rates for other nonbankruptcy engagements and to the billing rates of other comparably skilled professionals, the circumstances warranting the retention of that firm. The procedures the client has established to supervise the applicant s fees and expenses and to manage costs. If the procedure for the budgeting, review and approval of fees and expenses differ from those the client regularly employs in nonbankruptcy cases to supervise outside general counsel, explain how and why. In addition, describe any efforts to negotiate rates including rates for routing matters, or in the alternative to delegate such matters to less expensive counsel. Identity of Declarant 3. On October 18, 2018 (the Formation Date ), the Office of the United States Trustee (the U.S. Trustee ) selected a seven (7) member Committee pursuant to Section 1102(a)(1) of the Bankruptcy Code [D.I. 183], including: (i) Continental Tire The Americas, LLC.; (ii) Cooper Tire & Rubber Company; (iii) Michelin North America, Inc.; (iv) Sumitomo Rubber 2

28 Case KJC Doc Filed 11/07/18 Page 3 of 4 of North America; (v) Sailun Jinyu Group, LTD.; (vi) Pirelli Tire LLC c/o Pirelli North America, Inc.; and (vii) Ryder Truck Rental dba Ryder Transportation Services As a member and Co-Chairperson of the Committee, on behalf of Continental, I was directly involved in the Committee s decision to retain Benesch as the Committee s Delaware counsel in these chapter 11 cases. Steps Taken to Ensure Comparability of Engagement Terms 5. I have confirmed with Benesch that, while its billing rates vary from attorney to attorney based on such factors as the attorney s seniority and position with the firm (e.g., partner, associate), years of experience, and the demand for services in the attorney s particular area of expertise, its billing rates do not vary as a function of whether the services performed relate to a bankruptcy engagement or a non-bankruptcy engagement. 6. The Committee has been informed that Benesch endeavors to set the hourly rates for their attorneys and paraprofessionals at levels competitive to those charged by firms with whom they compete. Number of Firms Interviewed 7. The Committee did not formally interview any law firms for the position of Delaware counsel. However, on the date that the Committee was formed, the Committee met to consider various firms as Delaware counsel in these cases, including Benesch. In selecting Delaware counsel to represent the Committee, the Committee considered various firms based on their expertise in the relevant legal issues and the competitiveness of such firm s rates. Using this criteria, the Committee decided to retain Benesch as its Delaware counsel because of the firm s 2 An Amended Notice of Appointment of Committee of Unsecured Creditors was filed on October 31, 2018 [D.I. 259]. 3

29 Case KJC Doc Filed 11/07/18 Page 4 of 4 familiarity with the legal issues impacting the Committee and the chapter 11 restructuring process before this Court, as well as Benesch's competitive rates. Procedures Established to Supervise Fees and Expenses and Manaee Costs 8. I understand that Benesch will be using budgets and staffing reports for legal services to be provided to the Committee during this engagement. The Committee recognizes that in the course of a chapter 1 1 case, there may be unforeseeable fees and expenses that will need to be addressed by the Committee and Benesch. Therefore, the Committee recognizes that it is its responsibility to closely monitor the billing practices of its counsel to ensure that the fees and expenses paid by the estates remain consistent with the Committee's expectations and exigencies of these cases. The Committee will continue to review the invoices regularly submitted by Benesch, and, together with Benesch, may periodically amend the budget and staffing plan as the cases develop to reflect changed circumstances or unanticipated developments. I further understand that Benesch and Kelley Drye have discussed the division of responsibilities between the firms to ensure that all appropriate steps are taken to avoid unnecessary and wasteful duplication of efforts. 9. Based on the foregoing, the Committee is of the opinion that it is necessary and desirable to employ Benesch nunc pro tunc to the Retention Date, and that such employment is in the best interest of the Debtors' estates. I declare under penalty of perjury that the foregoing is and correct. Date: November.,2018 u2. Timothy P. Rogers, CPA Continental Tire the Americas, LLC Co-Chairperson for the Official Committee of Unsecured Creditors of ATD Corporation, et al v.1

30 Case KJC Doc Filed 11/07/18 Page 1 of 3 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re ATD CORPORATION., et al., 1 Debtors. Chapter 11 Case No (KJC) (Jointly Administered) Re: Docket No. ORDER AUTHORIZING EMPLOYMENT AND RETENTION OF BENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP AS DELAWARE COUNSEL TO THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS NUNC PRO TUNC TO OCTOBER 18, 2018 Upon the application (the Application ) of the Official Committee of Unsecured Creditors (the Committee ) appointed in the chapter 11 cases of the above-captioned debtors and debtors in possession (collectively, the Debtors ) for an order, pursuant to sections 328, 330 and 1103 of title 11 of the United States Code, 11 U.S.C (the Bankruptcy Code ), authorizing the Committee to employ and retain Benesch, Friedlander, Coplan & Aronoff LLP ( Benesch ) as the Committee s Delaware counsel in these cases, nunc pro tunc to October 18, 2018 (the Retention Date ); and upon the declaration of Jennifer R. Hoover (the Hoover Declaration ); and it appearing that due and proper notice of the Application has been given; and it appearing that this Court has jurisdiction to consider the Application pursuant to 28 U.S.C. 157 and 1334; and it appearing that venue of these cases and the Application in this district is proper pursuant to 28 U.S.C and 1409; and it appearing that this matter is a core proceeding pursuant to 28 U.S.C. 157(b); and it appearing that Benesch is eligible for retention pursuant to sections The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number, include: ATD Corporation (3683); Accelerate Holdings Corp. (0528); American Tire Distributors Holdings, Inc. (6143); American Tire Distributors, Inc. (4594); Rubbr Automotive Services, LLC (3334); The Hercules Tire & Rubber Company (3365); Terry s Tire Town Holdings, Inc. (7464); Tire Pros Francorp (1361); and Hercules Asia Pacific, LLC (2499). The location of the Debtors service address in these chapter 11cases is Herbert Wayne Court, Suite 150, Huntersville, North Carolina