AMENDMENT NO. 3 TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
AMENDMENT NO. 3 TO
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 3 TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 2, 2009,
amends and supplements the Amended and Restated Credit Agreement dated as of June 9, 2008, as
amended (as so amended, the “Credit Agreement”) among ANCHOR BANCORP WISCONSIN INC., a Wisconsin
corporation (the “Borrower”), the financial institutions from time to time party thereto
(individually a “Lender” and collectively the “Lenders”) and U.S. BANK NATIONAL ASSOCIATION, a
national banking association, as administrative agent for the Lenders (in such capacity, the
“Agent”).
RECITALS
The parties acknowledge the following (capitalized terms used in this Amendment No. 3 and not
defined herein have the meanings ascribed thereto in the Credit Agreement):
A. The Borrower is indebted to the Lenders under the Credit Agreement. As of the date of this
Amendment No. 3, the aggregate outstanding principal amount of such indebtedness is $116,300,000.
B. To secure the indebtedness and obligations of the Borrower to the Agent and the Lenders,
the Borrower granted the Agent a security interest in all of the issued and outstanding stock of
AnchorBank, fsb (the “Subsidiary Bank”) pursuant to the Pledge Agreement dated as of June 9, 2008
(the “Pledge Agreement”) from the Borrower to the Agent.
C. The Borrower is unable to make the principal payment on the Notes required by the scheduled
reduction in the Total Revolving Loan Commitment on this date (the “Principal Reduction Failure”).
D. The Borrower has requested that the Agent and the Lenders forbear from exercising their
rights and remedies under the Credit Agreement and the Pledge Agreement arising from the Principal
Reduction Failure. On the terms and subject to the conditions set forth below, the Agent and the
Lenders are prepared to forbear from exercising such rights and remedies for a limited period of
time as set forth below.
AGREEMENTS
In consideration of the promises and agreements set forth in the Credit Agreement, as amended
and supplemented hereby, the Borrower and the Lenders agree as follows:
1. Definitions and References. Upon the execution and delivery of this Amendment No.
3 to Amended and Restated Credit Agreement (“Amendment No. 3”) by the Borrower, the Lenders and the
Agent and the satisfaction of the conditions listed in Section 5 below, each reference to the
Credit Agreement contained in the Credit Agreement, the Pledge Agreement and any other document,
instrument or agreement relating thereto means the Credit Agreement as amended by this Amendment
No. 3. This Amendment No. 3 is a Loan Document.
2. Acknowledgements by the Borrower. The Borrower acknowledges, represents and agrees
that:
(a) The Recitals are true and correct.
(b) Neither the Principal Reduction Failure nor any other Event of Default which has occurred
and is continuing has been waived by the Lenders.
(c) The Borrower has disclosed to the Agent and the Lenders each Event of Default existing on
the date of this Amendment No. 3.
(d) As a result of the Principal Reduction Failure, the Majority Lenders would be entitled to
direct the Agent to accelerate the maturity of the Notes and demand immediate payment.
(e) As a result of the Principal Reduction Failure, the Lenders have no obligation to make or
continue Loans to the Borrower.
(f) To the extent required by the Loan Documents and applicable law, the Borrower has received
adequate and proper notice of the Principal Reduction Failure and the Borrower hereby waives its
right, if any, to any further notice thereof.
(g) Neither this Amendment No. 3 nor any course of dealing between or among any of the parties
hereto is intended to operate, nor shall they be construed, as a waiver of any of the Principal
Reduction Failure or any other Event of Default, whether now existing or arising in the future, as
to which the Agent and the Lenders reserve all of their rights.
(h) Except as expressly provided to the contrary herein, (i) all of the Agent and the Lenders’
rights and remedies available under the Loan Documents and at law and in equity remain unchanged
and available without restriction; (ii) the terms of the Loan Documents remain unchanged and in
full force and effect and have not been amended, modified, or changed, whether orally or in
writing; and (iii) the obligations and duties of the Borrower to the Agent and the Lenders are not
released, impaired, diminished, or amended as a result of the
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execution and delivery of this Amendment No. 3 or by any subsequent undertakings of the parties.
(i) The principal of and accrued interest on the Notes, all fees and all other obligations and
liabilities of the Borrower to the Agent and the Lenders under the Loan Documents are due and owing
without offsets, deductions, counterclaims, or defenses of any kind or character whatsoever
(j) The security interest of the Agent in the outstanding stock of the Subsidiary Bank
constitutes a valid, enforceable and perfected security interest as to which the Borrower has no
offsets, deductions, counterclaims, or defenses of any kind or character whatsoever.
(k) The Loan Documents are valid, binding and enforceable against the Borrower in accordance
with their respective terms, and the Borrower hereby ratifies and reaffirms its obligations under
each of the Loan Documents. There have been no modifications to any of the Loan Documents except
pursuant to a writing signed by the Borrower, the Agent and each Lender.
(l) The Agent and each Lender has (i) fully and timely performed all of its obligations and
duties to the Borrower under the Loan Documents; (ii) no obligation to (nor has it made any
representation of any kind that it will) extend any financial accommodations to the Borrower;
(iii) not made any agreements, representations, or commitments, other than those expressly set
forth in the Loan Documents; and (iv) acted reasonably, in good faith, and appropriately under the
circumstances, and within the Agent’s and each Lender’s rights under the Loan Documents and
applicable law, in all actions taken by the Agent and each Lender with respect to the Borrower.
(m) The purpose of this Amendment No. 3 is to provide the Borrower an additional period of
time to obtain funds to pay in full all of the obligations and liabilities of the Borrower to the
Agent and the Lenders.
(n) The forbearance by the Agent and the Lenders provided herein was requested by the Borrower
and shall result in a direct and substantial benefit to the Borrower.
3. Forbearance by the Agent and the Lenders.
(a) The Agent and the Lenders agree to forbear from exercising their rights and remedies
against the Borrower until the earliest to occur of the following: (i) the occurrence of any Event
of Default other than those existing on the date of this Amendment No. 3 and disclosed by the
Borrower to the Lenders or (ii) the Maturity Date. The period of time from the date hereof until the earlier to
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occur of (i) or (ii) above is referred to as the “Forbearance Period.” The Forbearance Period shall
terminate immediately and automatically, as provided above, without notice to or action by any
party.
(b) Upon the termination of the Forbearance Period, any obligation of the Agent or the Lenders
to forbear from the exercise of its rights and remedies as provided in section 3(a) shall terminate
automatically and immediately without notice or further action and the Agent and the Lenders shall
be free to exercise immediately against the Borrower any and all of their rights and remedies,
including, without limitation, any rights and remedies under the Loan Documents or applicable law.
(c) Notwithstanding the agreement to forbear as set forth herein, the Agent may at any time,
in its sole discretion, take any action reasonably necessary to preserve or protect its interest in
the stock of the Subsidiary Bank against the actions of the Borrower or any third party (including
any executions, levies, injunctions, conversion, theft, commingling, waste, misuse, neglect,
misappropriation, fraud, or any of the like) without notice to or the consent of any party.
(d) The Agent and the Lenders have no obligation to, have not agreed to, nor have they made
any representation that they will, and this Amendment No. 3 shall not constitute an agreement by or
require the Agent or the Lenders to, renew or extend the Forbearance Period, grant additional
forbearance periods, extend the time for payment or make any Loans or otherwise extend credit to
the Borrower.
4. Amendments to Credit Agreement.
(a) Clause (a) of the defined term “Base Rate” in Section 1.1 of the Credit Agreement is
amended to read: “(a) 6% per annum”.
(b) The defined term “Maturity Date” in Section 1.1 of the Credit Agreement is amended by
deleting the date “December 31, 2009” and replacing it with the date “May 29, 2009”.
(c) Notwithstanding any provision in the Credit Agreement to the contrary, the Lenders have no
obligation to make any additional Loans to the Borrower and amounts repaid may not be reborrowed.
(d) Section 2.3(a) of the Credit Agreement is amended in its entirety to read as follows:
(a) Interest Rate. The entire unpaid principal balance of the Loans
outstanding from time to time shall bear interest at an annual rate
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equal to the Base Rate plus 2%, and such rate shall change on each day on which the Base Rate changes. The
Agent’s internal records of applicable interest rates shall be determinative in the absence
of manifest error.
(e) Section 2.6(a) of the Credit Agreement is deleted and replaced with the following:
(a) Reserved.
(f) Section 2.8(a) of the Credit Agreement is revised to read as follows:
(a) Mandatory. No later than one Business Day after the receipt of Net
Proceeds of Additional Capital, the Borrower shall prepay the Loans by an amount equal to
the Net Proceeds of Additional Capital so received; provided that if such Net Proceeds of
Additional Capital are received from the United States Department of the Treasury and the
terms of such investment prohibit the use of the investment proceeds to repay senior debt
such as the Loans, then no prepayment is required.
(g) Section 2.10 of the Credit Agreement is deleted.
(h) Section 4.11(m) of the Credit Agreement is amended to read as follows:
(m) on the first and fifteenth day of each month a written progress report regarding
the status of the issuance of equity interests in the Borrower and such other information
as the Agent or any Lender may request, in form and substance satisfactory to the Agent.
(i) Section 4.16 of the Credit Agreement is amended to read as follows:
4.16 Additional Capital. The Borrower agrees to diligently continue its
efforts to raise additional capital (whether by a secondary public offering, a private
investment or the sale of assets) to provide funds to repay or prepay the Loans.
(j) Section 4.20 of the Credit Agreement is created to read as follows:
4.20 Escrow Deposit. The Borrower agrees to take such action as is necessary
in order that, no later than March 31, 2009, the Borrower receives proceeds from a loan
from the Subsidiary Bank in an amount sufficient to pay (a) the aggregate interest that
would accrue on the Notes
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during the period from March 1, 2009 through December 31, 2009
(assuming the Base Rate is 6% per annum during such period) and (b) the aggregate dividends
required to be paid on the Borrower’s Fixed Rate Cumulative Preferred Stock, Series B
during such period. The Borrower agrees, no later than March 31, 2009, to deposit an
amount equal to clause (a) in the preceding sentence into an escrow account at the Agent
established pursuant to an escrow agreement satisfactory to the Agent and its counsel. The
satisfaction of these requirements does not create an obligation of any Lender to agree to
an extension of the Maturity Date. Each Lender may agree or not agree to any requested
extension of the Maturity Date in its sole and absolute discretion.
(k) Section 4.21 of the Credit Agreement is created to read as follows:
4.21 Future Discussions. SUBJECT IN ALL RESPECTS TO THE PROVISIONS OF SECTION
3 OF AMENDMENT NO. 3 TO THIS CREDIT AGREEMENT, the Borrower agrees that it will meet with
the Agent and the Lenders on or about April 15, 2009 (as specified by the Agent upon
reasonable advance notice) to discuss matters pertaining to any desirable amendments to the
Loan Documents including, without limitation, an extension of the Maturity Date, an
adjustment to the interest rate on the Notes and covenant revisions.
5. Closing Conditions. This Amendment No. 3 shall become effective upon the execution
and delivery of this Amendment No. 3 by the Borrower, the Lenders and the Agent, and the receipt by
the Agent of the following
(a) copies, certified to be accurate and complete by the Secretary or Assistant Secretary of
the Borrower, of a resolution of the Board of Directors of the Borrower authorizing the execution
and delivery of this Amendment No. 3;
(b) a certificate of the President or Vice President of the Borrower to the effect that the
representations and warranties of the Borrower set forth in the Credit Agreement and the other Loan
Documents are accurate and complete in all material respects and that no Default or Event of
Default exists other than those as disclosed to the Lenders;
(c) an amendment fee of $140,750, for the ratable account of the Lenders, which fee shall be
fully earned and nonrefundable upon receipt; and
(d) such other documents and instruments relating hereto as the Agent shall reasonably
request.
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6. Representations and Warranties; No Default.
(a) The execution and delivery of this Amendment No. 3 has been duly authorized by all
necessary corporate action on the part of the Borrower and does not violate or result in a default
under the Borrower’s Articles of Incorporation or By-Laws, any applicable law or governmental
regulation or any material agreement to which the Borrower is a party or by which it is bound.
(b) The representations and warranties of the Borrower in the Credit Agreement are true and
correct in all material respects and, except for the Defaults and Events of Default as disclosed to
the Lenders, no Default or Event of Default exists.
7. Waiver, Release of Claims, and Indemnification. The Borrower, for itself and each
and all of its officers, employees, agents, shareholders, members, directors, heirs, successors,
and assigns, does hereby fully, unconditionally, and irrevocably waive and release the Agent and
the Lenders and their respective officers, employees, agents, directors, shareholders, affiliates,
attorneys, successors, and assigns (each a “Released Party”), of and from any and all claims,
liabilities, obligations, causes of action, defenses, counterclaims, and setoffs, of any kind,
whether known or unknown and whether in contract, tort, statute, or under any other legal theory,
arising out of or relating to any act or omission by the Agent, any Lender or any other Released
Party, on or before the date of this Amendment No. 3. The Borrower agrees to defend, indemnify,
and hold the Agent, each Lender and each other Released Party harmless from and against any and all
losses, costs, expenses, damages, or liabilities (including reasonable attorneys’ fees) incurred in
connection with any demand, claim, counterclaim, cause of action, or proceeding brought as a result
of, or arising out of, or in any way related to any of the Loan Documents, this Amendment No. 3,
any documents executed in connection with or related to any of the Loan Documents, the performance
by the Agent and each Lender under any of the Loan Documents or any documents executed in
connection with or related to this Amendment No. 3 or any of the other Loan Documents, or any
transaction financed or to be financed, in whole or in part, directly or indirectly, with the
proceeds of any Loans. Notwithstanding the foregoing, the Borrower shall not have any obligation
to defend, indemnify, or hold the Agent, any Lender or any other Released Party harmless with
respect to any loss, cost, expense, damage, or liability resulting solely from willful misconduct
on the part of the Agent, such Lender or such other Released Party.
8. Governing Law. This Amendment No. 3 shall be governed by and construed in
accordance with the internal laws (without regard to the conflict of law provisions) of the State
of Wisconsin.
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9. Costs and Expenses. The Borrower agrees to pay to the Agent and each Lender all
costs and expenses (including reasonable attorneys’ fees) paid or incurred by the Agent or such
Lender in connection with the negotiation, execution and delivery of this Amendment No. 3.
10. Full Force and Effect. The Credit Agreement, as amended by this Amendment No. 3,
remains in full force and effect.
11. Relief from the Automatic Stay. As a material inducement to the Agent and the
Lenders to enter into this Amendment No. 3, the Borrower hereby stipulates and agrees that the
Agent and the Lenders shall be entitled to relief from the automatic stay imposed by 11 U.S.C.
§ 362 or any similar stay or suspension of remedies under any other federal or state law in the
event the Borrower becomes subject to a bankruptcy or other insolvency proceeding, to allow the
Agent and the Lenders to exercise their rights and remedies under the Pledge Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 3 as of the date first
set forth above.
| ANCHOR BANCORP WISCONSIN INC. | ||||||||
| BY | ||||||||
| Its | ||||||||
| U.S. BANK NATIONAL ASSOCIATION, as the Agent and a Lender | ||||||||
| BY | ||||||||
| Its | ||||||||
| ASSOCIATED BANK, NATIONAL ASSOCIATION | ||||||||
| BY | ||||||||
| Its | ||||||||
| BANK OF AMERICA, N.A. | ||||||||
| BY | ||||||||
| Its | ||||||||
Signature Page to
Amendment No. 3 to Amended and Restated Credit Agreement
Amendment No. 3 to Amended and Restated Credit Agreement
