AMENDMENT NO. 7 TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
AMENDMENT NO. 7 TO
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 7 TO AMENDED AND RESTATED CREDIT AGREEMENT (“Amendment No. 7”), dated as
of May 25, 2011, 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
A. The term of the Credit Agreement matures on May 31, 2011.
B. Borrower has requested Agent and Lenders extend the maturity of the Credit Agreement and
make certain modifications thereto.
C. As an accommodation to Borrower, Agent and Lenders have agreed to the foregoing request,
subject in all respects to the terms and conditions of this Amendment.
AGREEMENTS
NOW THEREFORE, in consideration of the promises and agreements set forth in the Credit
Agreement, as amended and supplemented hereby, the Borrower, Agent and the Lenders agree as
follows:
1. Each of the foregoing Recitals are hereby incorporated herein by reference. All
capitalized terms used herein which are defined in the Credit Agreement, unless otherwise defined
herein, shall have the meanings given to such terms in the Credit Agreement.
2. Upon the execution and delivery of this Amendment No. 7 by the Borrower, the Lenders and
the Agent and the satisfaction of the conditions listed in Section 3 below, the Credit Agreement is
hereby amended as follows:
2.1. The definition of the defined term “Maturity Date” in Section 1.1 of the Credit
Agreement is hereby amended by deleting the date “May 31, 2011” where it appears therein and
replacing it with the date “November 30, 2011”.
2.2. Section 4.15 of the Credit Agreement is amended in its entirety to read as
follows:
“4.15 Financial Covenants.
(a) The Subsidiary Bank shall maintain a Tier 1 Leverage
Ratio of not less than 3.95% at all times.
(b) The Subsidiary Bank shall maintain a Total Risk Based
Capital Ratio of not less than 7.65% at all times.
(c) The ratio of Non-Performing Loans to Gross Loans shall not
exceed 12.00% at any time.”
2.3. Borrower, Agent and Lenders hereby confirm that from and after the date of this
Amendment No. 7, the entire outstanding principal balance of the Loans outstanding from time
to time shall bear interest at the rate of fifteen percent (15%) per annum, and that all
accrued and unpaid interest as of the date of this Amendment No. 7 and all interest accruing
after the date of this Amendment No. 7, shall be due and payable upon the earlier of (i) the
Maturity Date, or (ii) acceleration of the obligations and indebtedness of Borrower to Agent
and Lenders upon the occurrence of an Event of Default.
2.4. Schedule 4.3 to the Credit Agreement is hereby deleted and replaced in its
entirety with Schedule 4.3 attached hereto.
3. Closing Conditions. This Amendment No. 7 shall become effective upon the
execution and delivery of this Amendment No. 7 by the Borrower, the Lenders and the Agent, and the
following:
(a) the receipt by the Agent of a resolution of the Board of Directors of the Borrower
authorizing the execution and delivery of this Amendment No. 7, certified to be accurate and
complete by the Secretary or Assistant Secretary of the Borrower; and
(b) the receipt by the Agent of an executed copy of this Amendment No. 7 and such other
documents and instruments relating hereto as the Agent shall reasonably request.
4. Representations and Warranties; No Default.
Borrower hereby represents and warrants to Agent and Lenders as follows: (i) it is duly
organized, validly existing and in good standing under the laws of its jurisdiction of
organization; (ii) the execution, delivery and performance by it of this Amendment No. 7 are
within its corporate powers, have been duly authorized, and do not contravene (A) its articles of
incorporation, bylaws or other organizational documents, or (B) any applicable law, statute,
regulation, ordinance, tariff or order; (iii) no consent, license, permit, approval or
authorization of; or registration, filing or declaration with any Regulatory Authority or other
Person is required in connection with the execution, delivery, performance, validity or
enforceability of this Amendment No. 7 by or against it; (iv) this Amendment No. 7 has been duly
executed and delivered by it; (v) this Amendment No. 7 constitutes its legal, valid and binding
obligations enforceable against it in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors’ rights generally or by general principles of equity; (vi) it is in
compliance with all covenants and agreements in the Loan Documents as modified by Amendments No. 1
through 7 and it is not in default under the Credit Agreement or any other Loan Document as so
modified and no Event of Default exists, has occurred and is continuing or
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would result by the execution, delivery or performance of this Amendment No. 7; and (vii) the
representations and warranties contained in the Loan Documents are true and correct in all
material respects as of the date hereof as if made on the date hereof.
5. Amendment Fees. The Agent, the Lenders and the Borrower acknowledge that the
Borrower has previously agreed to pay to the Agent, for the ratable account of the Lenders, an
amendment fee of $1,163,000 (the “Fifth Amendment Fee”), which Fifth Amendment Fee was fully earned
by the Lenders upon execution by Borrower, Agent and Lenders of Amendment No. 5 to Amended and
Restated Credit Agreement dated as of December 22, 2009 (“Amendment No. 5”).
Notwithstanding anything to the contrary in Amendment No. 5, the Fifth Amendment Fee shall be due
and payable on the earlier to occur of (i) the date on which the Borrower’s obligations and
liabilities to Agent and Lenders are due or declared due or (ii) the Maturity Date. The Fifth
Amendment Fee shall be in addition to any other amendment fee or other fee payable pursuant to any
other agreement or other Loan Document.
6. Waiver, Release of Claims, and Indemnification. The Borrower, for itself and each
and all of its officers, employees, agents, shareholders, directors, affiliates, 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. 7. 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. 7,
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. 7 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.
7. 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. 7.
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8. Miscellaneous.
8.1. The execution, delivery and effectiveness of this Amendment No. 7 shall not, except as
expressly provided herein, be deemed to be an amendment or modification of, or operate as a waiver
of, any provision of the Credit Agreement or any other Loan Document or any right, power or remedy
of Agent or Lenders, nor constitute a waiver of any provision of the Credit Agreement or any other
Loan Document, or any other document, instrument and/or agreement executed or delivered in
connection therewith or a waiver of any Event of Default under any of the foregoing, in each case
whether arising before or after the date hereof or as a result of performance hereunder or
thereunder. This Amendment No. 7 shall not preclude the future exercise of any right, remedy, power
or privilege available to Agent or Lenders whether under the Credit Agreement, other Loan
Documents, at law or otherwise.
8.2. This Amendment No. 7 may be executed in any number of counterparts (including by
facsimile), and by the different parties hereto or thereto on the same or separate counterparts,
each of which shall be deemed to be an original instrument but all of which together shall
constitute one and the same agreement. Each party agrees that it will be bound by its own facsimile
signature and that it accepts the facsimile signature of each other party. The descriptive
headings of the various sections of this Amendment No. 7 are inserted for convenience of reference
only and shall not be deemed to affect the meaning or construction of any of the provisions hereof
or thereof. Whenever the context and construction so require, all words herein in the singular
number herein shall be deemed to have been used in the plural, and vice versa, and the masculine
gender shall include the feminine and neuter and the neuter shall include the masculine and
feminine.
8.3. This Amendment No. 7 may not be changed, amended, restated, waived, supplemented,
discharged, canceled, terminated or otherwise modified orally or by any course of dealing or in any
manner other than as provided in the Credit Agreement or the applicable Loan Document. This
Amendment No. 7 shall be considered part of the Credit Agreement and shall be a Loan Document for
all purposes under the Credit Agreement and other Loan Documents. In the event of any
inconsistency between this Amendment No. 7 and the Credit Agreement, any amendments thereto or any
other Loan Document, the terms of this Amendment No. 7 shall control.
8.4. This Amendment No. 7, the Credit Agreement and the Loan Documents constitute the final,
entire agreement and understanding between the parties with respect to the subject matter hereof
and thereof and may not be contradicted by evidence of prior, contemporaneous or subsequent oral
agreements between the parties, and shall be binding upon and inure to the benefit of the
successors and assigns of the parties hereto and thereto. There are no unwritten oral agreements
between the parties with respect to the subject matter hereof and thereof. If any provision of
this Amendment No. 7 is adjudicated to be invalid under applicable laws or regulations, such
provision shall be inapplicable to the extent of such invalidity without affecting the
validity or enforceability of the remainder of this Amendment No. 7 which shall be given effect
so far as possible.
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8.5. THIS AMENDMENT NO. 7 AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL
BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE CHOICE OF
LAW PROVISIONS SET FORTH IN THE CREDIT AGREEMENT, AS AMENDED BY THIS AMENDMENT AND SHALL BE
SUBJECT TO THE WAIVER OF JURY TRIAL AND NOTICE PROVISIONS OF THE CREDIT AGREEMENT. NEITHER
AGENT, LENDERS, NOR ANY AGENT OR ATTORNEY OF AGENT OR LENDERS, SHALL BE
LIABLE TO ANY CREDIT PARTY OR ANY OTHER PERSON ON ANY THEORY OF LIABILITY FOR ANY SPECIAL,
INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES.
8.6. Borrower hereby: (i) agrees that this Amendment No. 7 shall not limit or diminish
the obligations of Borrower under the Loan Documents except as modified by the terms hereof,
(ii) reaffirms its obligations under each of the Loan Documents to which it is a party, and
(iii) agrees that each of such Loan Documents as modified by this Amendment No. 7 remain in
full force and effect and are hereby ratified and confirmed. All representations and
warranties made in this Amendment No. 7 and shall survive the execution and delivery of this
Amendment No. 7 and no investigation by Agent or Lenders shall affect such representations
or warranties or the right of Agent or Lenders to rely upon them.
8.7. Borrower shall execute and deliver such other documents, certificates and/or
instruments and take such other actions as Agent or Lenders may reasonably request in order
more effectively to consummate the transactions contemplated hereby.
9. Relief from the Automatic Stay. As a material inducement to the Agent and the
Lenders to enter into this Amendment No. 7, 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 Loan Documents.
Signature Page Follows
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IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 7 as of the date first
set: forth above.
| ANCHOR BANCORP WISCONSIN INC. | |||||||
| BY: | |||||||
| Name: | |||||||
| Title: | |||||||
| U.S. BANK NATIONAL ASSOCIATION, as the Agent and a Lender | |||||||
| BY: | |||||||
| Name: | |||||||
| Title: | |||||||
| ASSOCIATED. BANK, NATIONAL ASSOCIATION | |||||||
| BY: | |||||||
| Name: | |||||||
| Title: | |||||||
| BANK OF AMERICA, N.A. | |||||||
| BY: | |||||||
| Name: | |||||||
| Title: | |||||||
