Case KJC Doc 204 Filed 10/09/13 Page 1 of 12 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE : :

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1 Case KJC Doc 204 Filed 10/09/13 Page 1 of 12 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE x In re Mercantile Bancorp, Inc., Debtor x Chapter 11 Case No (KJC) Re Docket Nos. 149 & 150 DEBTOR MERCANTILE BANCORP, INC. S OBJECTION TO (I) THE OFFICIAL COMMITTEE OF TRUST PREFERRED SECURITIES HOLDERS APPLICATION FOR ENTRY OF AN ORDER AUTHORIZING THE RETENTION AND EMPLOYMENT OF GRIFFIN FINANCIAL GROUP, LLC AS INVESTMENT BANKER AND FINANCIAL ADVISOR FOR THE OFFICIAL COMMITTEE OF TRUST PREFERRED SECURITIES HOLDERS EFFECTIVE NUNC PRO TUNC TO JULY 19, 2013 AND (II) THE OFFICIAL COMMITTEE OF TRUST PREFERRED SECURITIES HOLDERS APPLICATION FOR ENTRY OF AN ORDER AUTHORIZING THE RETENTION AND EMPLOYMENT OF C&CO/PRINCERIDGE LLC AS INVESTMENT BANKER AND FINANCIAL ADVISOR FOR THE OFFICIAL COMMITTEE OF TRUST PREFERRED SECURITIES HOLDERS EFFECTIVE NUNC PRO TUNC TO JULY 19, 2013 Mercantile Bancorp, Inc., debtor and debtor in possession in the above-captioned chapter 11 case (the Debtor ), hereby objects to The Official Committee of Trust Preferred Securities Holders Application for Entry of an Order Authorizing the Retention and Employment of Griffin Financial Group, LLC as Investment Banker and Financial Advisor for the Official Committee of Trust Preferred Securities Holders Effective Nunc Pro Tunc to July 19, 2013 (the Griffin Application ) and The Official Committee of Trust Preferred Securities Holders Application for Entry of an Order Authorizing the Retention and Employment of C&Co/PrinceRidge LLC as Investment Banker and Financial Advisor for the Official Committee of Trust Preferred Securities Holders Effective Nunc Pro Tunc to July 19, 2013 (the PrinceRidge Application, EAST\

2 Case KJC Doc 204 Filed 10/09/13 Page 2 of 12 and together with the Griffin Application, the Retention Applications ). 1 In support of this objection, the Debtor respectfully states as follows Introduction 1. The Debtor does not object to the Committee (defined below) retaining professionals, but the Debtor does object to those professionals being paid for work that did not and will not benefit the Debtor s bankruptcy estate or increase the distributions made to the Debtor s creditors. Specifically, the Debtor objects to the Committee Advisors (defined below) being (i) paid monthly fees for months after September 2013 during which time the Debtor will have no assets to sell or alternative transaction to pursue which would justify paying two financial advisors; (ii) paid a success fee for the sale of the Debtor s assets, because the Committee Advisor s efforts were focused on an alternative transaction and their efforts did not impact the sale or increase the purchase price; and (iii) retained pursuant to section 328 of the Bankruptcy Code, such that the Debtor will not have an opportunity to adequately scrutinize and object to the Committee Advisors fee applications. 2. In this case, only a limited pool of funds will be available to make a distribution to the Debtor s creditors. Accordingly, the terms of the Committee Advisors retention and compensation merits special attention, considering that it is likely that the Committee s attorneys have already incurred fees and expenses for the period from their appointment through September 2013 in excess of $1 million The objection deadline, originally set for October 1, 2013 at 400 p.m. (EDT), was voluntarily extended for the Debtor until October 9, 2013 at 100 p.m. (EDT) by the Committee s counsel. This figure is an estimate based upon the one fee application filed by the Committee s counsel, and their activity in this case. At this time, the Committee s primary counsel has only filed one fee application [Dkt. No. 193] for the period from Committee formation through August by which it seeks fees and expenses in the amount of $803, EAST\

3 Case KJC Doc 204 Filed 10/09/13 Page 3 of 12 Jurisdiction and Venue 3. The Court has jurisdiction over this matter 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, This is a core proceeding under 28 U.S.C. 157(b). Venue is proper in this district under 28 U.S.C and Background A. The Sale of the Debtor s Assets 4. On June 27, 2013 (the Petition Date ), the Debtor filed with this Court a voluntary petition for relief under title 11 of chapter 11 of the United States Code (the Bankruptcy Code ). That same day the Debtor also filed its Motion of Debtor Mercantile Bancorp, Inc., Pursuant to Sections 105(a), 363 and 365 of the Bankruptcy Code, for an Order (i)(a) Approving Procedures In Connection with the Sale of All of the Debtor s Shares in Mercantile Bank and the Related Trademark for Mercantile Bank s M Logo; (b) Approving the Stalking Horse Bidder Fee; (c) Scheduling the Related Auction and Hearing to Consider Approval of the Sale; (d) Approving Procedures Related to the Assumption of Certain Executory Contracts and Unexpired Leases; (e) Approving the Form and Manner of Notice Thereof; and (f) Granting Related Relief; and (ii)(a) Authorizing the Sale of All of the Debtor s Shares in Mercantile Bank and the Related Trademark for Mercantile Bank s M Logo Free and Clear of Liens, Claims, Encumbrances and Other Interests (b) Approving the Assumption and Assignment of Certain of the Debtor s Executory Contracts and Unexpired Leases Related Thereto; and (c) Granting Related Relief [Dkt. No. 6] (the Sale Motion ). Through the Sale Motion, the Debtor sought to sell the Debtor s shares in Mercantile Bank and the related trademark for Mercantile Bank s M Logo (the Assets ) to United Community Bancorp, Inc. ( UCB ), as its stalking horse purchaser. EAST\

4 Case KJC Doc 204 Filed 10/09/13 Page 4 of On July 16, 2013, the Office of the United States Trustee (the US Trustee ) appointed the Official Committee of Trust Preferred Securities Holders (the Committee ) [Dkt. No. 42]. On July 19, 2013, the Committee selected Griffin Financial Group, LLC ( Griffin ) and C&Co/PrinceRidge LLC ( PrinceRidge, and together with Griffin, the Committee Advisors ) as its investment bankers and financial advisors. 6. On July 31, 2013, the Committee filed an objection to the Sale Motion [Dkt. No. 72] in which it argued, among other things, that the sale of the Assets should be delayed so that the Debtor and Committee could pursue an alternative transaction exploiting potential tax attributes. On August 7, 2013, the Court entered an order, granting in part the Committee s objection, establishing revised procedures and extended deadlines to sell the Assets [Dkt. No. 109] (the Sales Procedures Order ). Pursuant to the Sales Procedures Order, bids were to be submitted by September 10, 2013, and if one qualified overbid was submitted, an auction was to be held on September 12, Following the entry of the Sales Procedures Order, the Committee s Advisors did participate in the Debtor s sale process, albeit minimally, by providing to the Debtor s professionals the names of a few parties that should be solicited to make an overbid to purchase the Assets. The Committee s Advisors also reviewed a marketing teaser that the Debtor s professionals were sending to potential purchasers of the Assets. Upon information and belief, the Committee s Advisors also contacted certain private equity investors to gauge their interest in purchasing the Assets, but nothing came of this effort. Otherwise, the Committee s Advisors did not participate in the sale of the Assets, but instead focused their efforts on a potential alternative transaction. EAST\

5 Case KJC Doc 204 Filed 10/09/13 Page 5 of The Debtor received one timely, qualified overbid, which was received from a party with which the Debtor had previously engaged, not from a prospect identified by the Committee Advisors. On September 12, 2013, the Debtor conducted an auction. That same day, in consultation with the Committee, the Debtor designated UCB as the Successful Bidder and Equity Bancshares, Inc. as the Back-up Bidder. 9. On September 10, 2013, the Committee filed another objection to the sale [Dkt. No. 148]. Wilmington Trust Company, solely in its capacities as Indenture Trustee, Institutional or Property Trustee, Delaware Trustee, and Guarantee Trustee with respect to four series of TruPS Trusts ( Wilmington Trust ) filed a joinder in such objection [Dkt. No. 151]. The Committee later filed a supplement to their objection [Dkt. No. 168]. By that objection, the Committee proposed an alternative transaction and in support of such transaction attached two non-binding letters of intent to invest a total of $15 million in the Debtor. The Committee Advisors had only ever spoken directly to one of the prospective investors that submitted a nonbinding letter of intent. The letters were inconsistent with each other in that one represented an expression of interest in a $20 million transaction while the other only contemplated a $15 million transaction, calling into question the feasibility of the alternative transaction proposed by the Committee Advisors and supported by the Committee. 10. On September 16, 2013, the Court held a hearing to consider approval of the Sale Motion. At the conclusion of the hearing, the Court informed the parties in interest that it would issue a ruling at a telephonic hearing initially scheduled for September 20, Later, the Court rescheduled the telephonic hearing for September 24, Prior to the hearing on September 24, 2013, the Debtor and the Committee reached a settlement resolving the Committee s and Wilmington Trust s objections to the entry of an order approving the sale of EAST\

6 Case KJC Doc 204 Filed 10/09/13 Page 6 of 12 the Assets to UCB. On September 25, 2013, the Court entered an order approving the sale of the Assets to UCB pursuant to section 363 of the Bankruptcy Code [Dkt. No. 192]. B. The Retention Applications 11. On September 10, 2013, 53 days after the Committee Advisors were selected by the Committee, the Committee filed the Retention Applications. Under the terms set forth in the engagement letters between the Committee Advisors and the Debtors, and pursuant to which the Committee now seeks to engage the Committee Advisors pursuant to section 328 of the Bankruptcy Code. Although the Committee Advisors will be retained pursuant to section 328, the proposed orders attached to the Retention Applications provide that the US Trustee will have the right to object to the Committee Advisors request(s) for interim and final compensation and reimbursement based upon the reasonableness standard imposed on fee applications for professionals retained pursuant to section 330 of the Bankruptcy Code. 12. As set forth in the Retention Applications, Griffin s compensation would be capped at $1,200,000 for (i) monthly fees of $90,000 for the period beginning July 19, 2013 and ending August 31, 2013, and $36,000 for each month thereafter (each a Monthly Fee ); (ii) an incentive fee in the amount of 4% of the increase between the sale price in the asset purchase agreement filed with the Sale Motion and the final sale price for the sale of the Assets (a 363 Fee ); and (iii) a fee equal to a percentage of the sum of 1% of the face amount of new debt raised, 3% of the face amount of unsecured debt raised, 5% of any equity capital and an amount to be determined with respect to any hybrid capital (a New Capital Fee ). In addition to these fees, the Committee requests authority to have Griffin perform additional services for additional fees that are not disclosed and not subject to the $1,200,000 fee cap. EAST\

7 Case KJC Doc 204 Filed 10/09/13 Page 7 of PrinceRidge s proposed compensation structure is similar to Griffin s. PrinceRidge s compensation would be capped at $800,000 for (i) a Monthly Fee of $60,000 for the period beginning July 19, 2013 and ending August 31, 2013, and a Monthly Fee of $24,000 for each month thereafter; (ii) a 363 Fee in the amount of 6% of the increase between the sale price in the asset purchase agreement filed with the Debtor s sale motion and the final sale price; and (iii) a New Capital Fee. In addition to these fees, the Committee requests authority to have PrinceRidge to perform additional services for additional fees that are not disclosed and are not subject to the $800,000 fee cap. 14. After the Committee filed the Retention Applications the Debtor contacted the Committee s counsel to discuss the Debtor s objections to the proposed terms of the Committee Advisors retention. Pursuant to these discussions the Committee has agreed not to seek authority to have the Committee Advisors perform additional services or incur additional fees above the fee caps. Otherwise, the Debtor and the Committee were unable to reach a resolution on the Retention Applications. Argument 15. Section 328(a) of the Bankruptcy Code provides provides, in relevant part The trustee, or a committee appointed under section 1102 of this title, with the court's approval, may employ or authorize the employment of a professional person under section 327 or 1103 of this title, as the case may be, on any reasonable terms and conditions of employment, including on a retainer, on an hourly basis, or on a contingent fee basis. Notwithstanding such terms and conditions, the court may allow compensation different from the compensation provided under such terms and conditions after the conclusion of such employment, if such terms and conditions prove to have been improvident in light of developments not capable of being anticipated at the time of the fixing of such terms and conditions. EAST\

8 Case KJC Doc 204 Filed 10/09/13 Page 8 of U.S.C. 328(a). Courts must review for reasonableness the compensation to be paid to a professional seeking retention pursuant to section 328(a) of the Bankruptcy Code. In re Federal Mogul-Global, Inc., 348 F.3d 390, (3d Cir. 2003). Courts in this district use a marketdriven approach to evaluate whether professional fee arrangements proposed under section 328(a) of the Bankruptcy Code are reasonable. See, e.g., In re United Artists Theatre Comp., 315 F.3d 217, (3d Cir. 2003) (indemnification agreement with financial advisors reasonable under section 328(a) of the Bankruptcy Code in part because such provisions are common in the marketplace); In re Busy Beaver Bldg. Ctrs., Inc., 19 F.3d 833, 849 (3d Cir. 1994) (requested compensation should be based upon a market rate, what the professional would charge and collect from its client in a similar, non-bankruptcy context). 16. Here, the Committee Advisors (i) should not be paid Monthly Fees after September 2013, (ii) should not be paid 363 Fees, and (iii) should have their fee applications reviewed under the standards imposed by section 330 of the Bankruptcy Code, because it would be unreasonable to compensate the Committee Advisors for work that did not and cannot benefit the Debtor s bankruptcy estate or increase the distributions to be paid to the Debtor s creditors. 11 U.S.C. 330 and 503(b)(2); In re O'Brien Envtl. Energy, Inc., 181 F. 3d 527, (3d Cir. 1999). EAST\

9 Case KJC Doc 204 Filed 10/09/13 Page 9 of 12 A. The Committee Advisors Should Not Be Paid Monthly Fees After September The Debtor has already negotiated an asset purchase agreement for the sale of the Assets, conducted a process and obtained approval for that sale from this Court. The Debtor does not have any other significant assets, and therefore, there is no need for the Debtor s estate to pay the monthly fees of a financial advisor to the Committee to assist the Debtor in selling its assets or negotiating a straight forward absolute priority waterfall plan, let alone two financial advisors. It is objectively unreasonable for the Debtor s estate to pay Monthly Fees to the Committee Advisors, who will not have any work to do, will not provide any benefit to the Debtor s bankruptcy estate and will not increase the amount available for distribution to the Debtor s creditors. Furthermore, the Monthly Fees cannot be justified on the grounds that the Committee Advisors will perform other services like negotiate with the FDIC or assist with drafting a plan, because those services are outside the scope of the retention sought in the Retention Applications. Accordingly, the Court should not approve the Retention Applications to the extent that such approval would entitle the Committee Advisors to Monthly Fees for the months after September B. The Committee Advisors Should Not Be Paid 363 Fees. 18. The Committee Advisors did not materially assist the Debtor in connection with the sale of the Assets, rather the Committee Advisors focused upon the pursuit of an alternative transaction. In particular, the Committee Advisors did not negotiate the asset purchase agreement with any potential bidders, the Committee Advisors only added a few names to the dozens of parties contacted by the Debtor s professionals while marketing the Assets, and most important none of the names provided by the Committee Advisors resulted in a bid, and the Committee Advisors did not participate in the auction process. The few modifications made to EAST\

10 Case KJC Doc 204 Filed 10/09/13 Page 10 of 12 the bid procedures at the request of the Committee, such as decreasing the minimum overbid increments and extending the length of time between the Petition Date and the hearing to approve the sale, did not benefit the Debtor s estate. The $750,000 increase in the sale price from UCB s initial bid as stalking horse purchaser to UCB s winning bid at the auction was far less than what was spent in professionals fees in preparing and responding to the Committee s objections. 19. Considering the Committee Advisors disengagement with the sale process and the fact that they were not responsible for bringing a bidder to the auction that resulted in an increase in the purchase price, there are no reasonable grounds to justify their receipt of a 363 Fee. To the extent that the Committee Advisors did any work in connection with the sale of the Assets, the Committee Advisors are already being compensated for that work by receiving their Monthly Fees. C. The Committee Advisors Fee Applications Should Be Reviewed for Reasonableness as Set Forth In Section 330 of the Bankruptcy Code. 20. The Committee has already agreed that the US Trustee should have the right to object to the Financial Advisors fee applications for reasonableness pursuant to section 330 of the Bankruptcy Code, and that same right should also be extended to the Debtor. Given the limited pool of funds available to the Debtor s creditors after payment of the FDIC s crossguaranty claim and the payment of professional fees the Court and the parties in this case should be particularly vigilent about reviewing the amount of professionals fees awarded. This is especially true here, where the Committee s attorneys have already incurred a tremendous amount of fees relative to the size of this Chapter 11 case. 21. Further, the Committee argues in the Retention Applications that two Committee Advisors were necessary to do the job that would often be done by one. In order to ensure that EAST\

11 Case KJC Doc 204 Filed 10/09/13 Page 11 of 12 the Committee Advisors have not performed duplicative services or incurred unnecessary fees and expenses the Committee Advisors fee applications should be subject to review and objection pursuant to the reasonableness standard set forth in section 330 of the Bankruptcy Code. To the extent that the Committee Advisors performed valuable services and did not duplicate their efforts, the Committee and Committee Advisors should have no reason to object to the review of their fee applications. [remainder of page intentionally left blank] EAST\

12 Case KJC Doc 204 Filed 10/09/13 Page 12 of 12 WHEREFORE, the Debtor respectfully objects to the Retention Applications, and seeks entry of an order (i) granting the Retention Applications such that (a) the Committee Advisors are not entitled to Monthly Fees after September 2013, (b) the Committee Advisors are not entitled to 363 Fees, (c) the Committee Advisors fee applications are subject to review pursuant to section 330 of the Bankruptcy Code and (ii) granting such other and further relief as the Court finds just and necessary. Dated October 9, 2013 Wilmington, Delaware Respectfully submitted, /s/ Stuart M. Brown Stuart M. Brown (DE 4050) DLA PIPER LLP (US) 919 North Market Street, Suite 1500 Wilmington, Delaware Telephone (302) Facsimile (302) and- Richard A. Chesley (IL ) Kimberly D. Newmarch (DE 4340) James R. Irving (IL ) Aaron M. Paushter (IL ) DLA PIPER LLP (US) 203 N. LaSalle Street, Suite 1900 Chicago, Illinois Telephone (312) Facsimile (312) ATTORNEYS FOR MERCANTILE BANCORP, INC. EAST\