TRUST AGREEMENT OF ANCHOR CAPITAL FUNDING TRUST I
Exhibit 4.13
This Trust Agreement, dated as of October2, 2008, between Anchor BanCorp Wisconsin Inc., a
Wisconsin corporation, as “Depositor,” Wilmington Trust Company, a Delaware banking corporation,
and Xxxx X. Xxxxxxxxx, each solely as trustee and not in its or his individual capacity, as
“Trustees.” The Depositor and the Trustees hereby agree as follows:
Section 1. The Trust. The trust created hereby shall be known as Anchor BanCorp Capital
Funding Trust I (the “Trust”), in which name the Trustees, or the Depositor to the extent provided
herein, may conduct the business of the Trust and make and execute contracts.
Section 2. The Trust Estate. The Depositor hereby assigns, transfers, conveys and sets over
to the Trustees the sum of $10. The Trustees hereby acknowledge receipt of such amount in trust
from the Depositor, which amount shall constitute the initial trust estate. The Trustees hereby
declare that they will hold the trust estate in trust for the Depositor. It is the intention of the
parties hereto that the Trust created hereby constitute a statutory trust under Chapter 38 of Title
12 of the Delaware Code, 12 Del. C. §§ 3801 et seq. (the “Statutory
Trust Act”), and that this document constitutes the governing instrument of the Trust. The Trustees
are hereby authorized and directed to execute and file a restated certificate of trust with the
Delaware Secretary of State in accordance with the provisions of the Statutory Trust Act amending
and restating the original certificate trust filed October 2, 2008.
Section 3. Amended and Restated Trust Agreement. The Depositor and the Trustees will enter
into an amended and restated Trust Agreement, satisfactory to each such party and substantially in
the form included as an exhibit to the 1933 Act Registration Statement (as defined below), to
provide for the contemplated operation of the Trust created hereby and the issuance of the
Preferred Securities (as defined below) and common securities referred to therein. Prior to the
execution and delivery of such amended and restated Trust Agreement, the Trustees shall not have
any duty or obligation hereunder or with respect to the trust estate, except as otherwise required
by applicable law or as may be necessary to obtain prior to such execution and delivery of any
licenses, consents or approvals required by applicable law or otherwise.
Section 4. Certain Authorizations. The Depositor and the Trustees hereby authorize the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and Exchange Commission
(the “Commission”) and execute, in each case on behalf of the Trust, (a) the Registration Statement
on Form S-3 (the “1933 Act Registration Statement”), including any pre-effective or post-effective
amendments to such 1933 Act Registration Statement (including the prospectus and the exhibits
contained therein), relating to the registration under the Securities Act of 1933, as amended, of
the preferred securities of the Trust (the “Preferred Securities”) and possibly certain other
securities and (b) a Registration Statement on Form 8-A (the “1934 Act Registration Statement”)
(including all pre-effective and post-effective amendments thereto) relating to the registration of
the Preferred Securities of the Trust under Section 12(b) of the Securities Exchange Act of 1934,
as amended; (ii) to file with the New York Stock Exchange or any other national stock exchange or
The Nasdaq Global Market (each, an “Exchange”) and execute on behalf of the Trust one or more
listing applications and all other applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the Preferred Securities to be listed on
any of the Exchanges; (iii) to file and execute on behalf of the Trust such applications, reports,
surety bonds, irrevocable consents, appointments of attorney for service of process and other
papers and documents as shall be necessary or desirable to register the Preferred Securities under
the securities or blue sky laws, and to obtain any permits under the insurance laws of such
jurisdictions as the Depositor, on behalf of the Trust, may deem necessary or desirable; (iv) to
execute on behalf of the Trust letters or documents, or instruments for filing with, a depository
relating to the Preferred Securities; and (v) to execute on behalf of the Trust one or more
underwriting agreements with one or more underwriters relating to the offering of the Preferred
Securities.
In the event that any filing referred to in clauses (i) through (iv) above is required by the rules
and regulations of the Commission, an Exchange or any state securities or blue sky laws, to be
executed on behalf of the Trust by the
Trustees, in their capacities as Trustees of the Trust, the
Trustees are hereby authorized and directed to join in any such filing and to execute on behalf of
the Trust any and all of the foregoing, it being understood that Wilmington Trust Company, in its
capacity as Trustee of the Trust, shall not be required to join in any such filing or execute on
behalf of the Trust any such document unless required by the rules and regulations of the
Commission, an Exchange or any state securities or blue sky laws. In connection with all of the
foregoing, the Depositor and each Trustee (other than Wilmington Trust Company), solely in its
capacity as Trustee of the Trust, hereby constitutes and appoints Xxxx X. Xxxxxxxxx as his, her or
its, as the case may be, true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the Depositor or such Trustee or in the Depositor’s or such
Trustee’s name, place and stead, in any and all capacities, to sign the 1933 Act Registration
Statement and any and all amendments (including post-effective amendments) thereto and the 1934 Act
Registration Statement and any and all amendments (including post-effective amendments) thereto and
to file the same, with all exhibits thereto, and other documents in connection therewith, with the
Commission, granting unto said attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be done in connection therewith, as
fully to all intents and purposes as the Depositor or such Trustee might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their
respective substitute or substitutes, shall do or cause to be done by virtue hereof.
Section 5. Counterparts. This Trust Agreement may be executed in one or more counterparts.
Section 6. Trustees. The number of Trustees initially shall be two (2) and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a written instrument
signed by the Depositor which may increase or decrease the number of Trustees; provided, however,
that to the extent required by the Statutory Trust Act, one Trustee shall either be a natural
person who is a resident of the State of Delaware or, if not a natural person, an entity which has
its principal place of business in the State of Delaware and otherwise meets the requirements of
applicable Delaware law. Subject to the foregoing, the Depositor is entitled to appoint or remove
without cause any Trustee at any time. A Trustee may resign upon thirty days’ prior notice to the
Depositor.
Section 7. Delaware Trustee. Wilmington Trust Company in its capacity as Trustee, shall not
have any of the powers or duties of the Trustees set forth herein (except as may be required under
the Statutory Trust Act) and shall be a Trustee of the Trust for the sole purpose of satisfying the
requirements of Section 3807(a) of the Statutory Trust Act.
Section 8. (a) The Trustees and their officers, directors, agents and servants (collectively, the
“Fiduciary Indemnified Persons”) shall not be liable, responsible or accountable in damages or
otherwise to the Trust, the Depositor, the Trustees or any holder of the Preferred Securities (the
Trust, the Depositor and any holder of the Trust Securities being a “Covered Person”) for any loss,
damage or claim incurred by reason of any act or omission performed or omitted by the Fiduciary
Indemnified Persons in good faith on behalf of the Trust and in a manner the Fiduciary Indemnified
Persons reasonably believed to be within the scope of authority conferred on the Fiduciary
Indemnified Persons by this Trust Agreement or by law, except that the Fiduciary Indemnified
Persons shall be liable for any such loss, damage or claim incurred by reason of the Fiduciary
Indemnified Person’s negligence or willful misconduct with respect to such acts or omissions.
(b) The Fiduciary Indemnified Persons shall be fully protected in relying in good faith upon the
records of the Trust and upon such information, opinions, reports or statements presented to the
Trust by any person as to matters the Fiduciary Indemnified Persons reasonably believes are within
such other person’s professional or expert competence and who has been selected with reasonable
care by or on behalf of the Trust, including information, opinions, reports or statements as to the
value and amount of the assets, liabilities, profits, losses, or any other facts pertinent to the
existence and amount of assets from which distributions to holders of Trust Securities might
properly be paid.
(c) The Depositor agrees, to the fullest extent permitted by applicable law, (i) to indemnify and
hold harmless each Fiduciary Indemnified Person from and against any loss, damage, liability, tax,
penalty, expense or claim of
any kind or nature whatsoever incurred by the Fiduciary Indemnified Persons by reason of the
creation, operation or termination of the Trust in a manner the Fiduciary Indemnified Persons
reasonably believed to be within the scope of authority conferred on the Fiduciary Indemnified
Persons by this Trust Agreement of Trust, except that no Fiduciary Indemnified Persons shall be
entitled to be indemnified in respect of any loss, damage or claim incurred
by the Fiduciary
Indemnified Persons by reason of negligence or willful misconduct with respect to such acts or
omissions, and (ii) to advance expenses (including legal fees) incurred by a Fiduciary Indemnified
Person in defending any claim, demand, action, suit or proceeding shall, from time to time, prior
to the final disposition of such claim, demand, action, suit or proceeding, upon receipt by the
Trust of an undertaking by or on behalf of such Fiduciary Indemnified Persons to repay such amount
if it shall be determined that such Fiduciary Indemnified Person is not entitled to be indemnified
as authorized in the preceding subsection.
(d) The provisions of Section 8 shall survive the termination of this Trust Agreement or the
earlier resignation or removal of the Fiduciary Indemnified Persons.
Section 9. Governing Law. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict of laws principles).
Section 10. NRIA Services, LLC Notwithstanding that certain Designation of Trustee Agreement,
NRIA Services, LLC shall not be deemed a trustee of the Trust but instead is an agent of the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be duly executed as
of the day and year first above written.
| ANCHOR BANCORP WISCONSIN INC., | |||||
| as Depositor | |||||
| By: | |||||
| /s/ Xxxx X. Xxxxxxxxx | |||||
| Name: | Xxxx Xxxxxxxxx | ||||
| Title: | Executive Vice President | ||||
| Wilmington Trust Company, a Delaware banking corporation | |||||
| By: | |||||
| /s/ Xxxx X. Xxxxxxxx | |||||
| Name: | Xxxx X. Xxxxxxxx | ||||
| Title: | Assistant Vice President | ||||
| /s/ Xxxx X. Xxxxxxxxx | |||||
| Xxxx X. Xxxxxxxxx | |||||
