exv10w1






Exhibit 10.1




AMENDMENT NO. 5 TO

AMENDED AND RESTATED CREDIT AGREEMENT




     THIS AMENDMENT NO. 5 TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of December 22, 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. 5 and not
defined herein have the meanings ascribed thereto in the Credit Agreement):



     A. The Borrower is indebted to the Agent and the Lenders under the Credit Agreement. As of
the date of this Amendment No. 5, 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 to the Agent a security interest in (i) 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 “Bank Pledge Agreement”) from the Borrower to the Agent and (ii) all of the
issued and outstanding stock of Investment Directions, Inc. pursuant to the Pledge Agreement dated
as of May 29, 2009 from the Borrower to the Agent (the “IDI Pledge Agreement” and together with the
Bank Pledge Agreement, the “Pledge Agreements”).



     C. Events of Default have occurred and are continuing under the Credit Agreement by reason of
the Borrower failing to make a principal payment on the Notes required by the scheduled reduction
in the Total Revolving Loan Commitment on March 2, 2009 (“Principal Reduction Failure”); failing to
comply with the covenants set forth in Sections 4.15(a), 4.15(b) and 4.15(c) of the Credit
Agreement; and failure to provide reports required by Section 4.11(n) of the Credit Agreement
(collectively “Existing Defaults”).



     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 Agreements arising from the Existing
Defaults. 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. References to Credit Agreement. Upon the execution and delivery of this Amendment
No. 5 to Amended and Restated Credit Agreement (“Amendment No. 5”) 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 Agreements and any other document,
instrument or agreement relating thereto means the Credit Agreement as amended by this Amendment
No. 5. This Amendment No. 5 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 any of the Existing Defaults 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. 5.


          (d) As a result of the Existing Defaults, 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 Existing Defaults, 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 other Existing Defaults and
the Borrower hereby waives its right, if any, to any further notice thereof.


          (g) Neither this Amendment No. 5 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 Existing
Defaults or any other Event of 


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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’s 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 other than pursuant to a
writing signed by the Agent, each Lender and the Borrower; 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 execution and delivery of this Amendment No. 5 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 interests of the Agent in the outstanding stock of each of the Subsidiary Bank
and Investment Directions, Inc. and in all of the personal property of Investment Directions, Inc.
constitute valid, enforceable and perfected security interests as to which neither the Borrower,
the Subsidiary Bank nor Investment Directions, Inc. has any 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.


          (l) The Agent and each Lender have: (i) fully and timely performed all of their respective
obligations and duties to the Borrower under the Loan Documents; (ii) no obligation to (nor has the
Agent or any Lender 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. 5 is to provide the Borrower an additional period of time to
obtain funds to pay in full all of the Obligations of the Borrower to the Agent and the Lenders.



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          (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 available
to them against the Borrower as a result of the Principal Reduction Failure and the other Existing
Defaults until the earliest to occur of the following: (i) the occurrence of any Event of Default
(other than the Principal Reduction Failure or other Existing Defaults), or (ii) the Maturity Date.
The period of time from the date hereof until the earlier to 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,
or in equity.


          (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, Investment Directions, Inc. or any other collateral securing any
of the Obligations 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. 5 shall not constitute an agreement by or
require the Agent or the Lenders to, renew or extend the Forbearance Period, grant additional
forbearance periods, forbear from exercising remedies as a result of any other Event of Default,
extend the time for payment or make any Loans or otherwise extend credit to the Borrower.



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     4. Amendments to Credit Agreement.


          (a) The following defined terms shall be added to the Credit Agreement in appropriate alphabetical
order:




“Badger
Transaction Documents” means that certain Stock Purchase Agreement
by and between Badger Anchor Holdings, LLC and the Borrower dated as of December 1,
2009 and that certain Loan Agreement by and between Badger Anchor Holdings, LLC and
the Borrower dated as of December 1, 2009.




“Tier
1 Leverage Ratio” means the “leverage ratio” as defined in, and
calculated in accordance with, 12 C.F.R. Part 567.




“Total
Risk Based Capital Ratio” means the “total risk-based capital ratio”
as defined in, and calculated in accordance with, 12 C.F.R. Part 567.


          (b) The
defined term “Base Rate” is amended in its entirety as follows:




“Base
Rate” means, (i) on the date hereof and at all times up to and
including December 31, 2009, a fixed rate of 8.0% per annum, and (ii) at all times
thereafter, a floating rate per annum equal to the prime rate announced by the
Agent from time to time, and the Base Rate shall change on each day on which such
prime rate changes.



     (c) The
defined term “Deferred Interest Rate” is amended in its entirety as follows:




“Deferred
Interest Rate” means (i) on the date hereof and at all times up
to and including December 31, 2009, a fixed rate of 4.0% per annum and (ii) at all
times thereafter, the difference at any time between 12.0% per annum and the Base
Rate.



     (d) The
defined term “Gross Loans” is amended in its entirety as follows:




“Gross
Loans” means, at any time, the aggregate principal amount of the
total gross loans of the Subsidiary Bank determined on a basis consistent with the
Federal Reserve System Thrift Financial Report (TFR) of the Consolidated Financial
Statements for Bank Holding Companies most recently filed by the Borrower with the
appropriate governmental authority.



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          (e) 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 a rate equal to the Base Rate
plus the Deferred Interest Rate. The Agent’s internal records of applicable
interest rates shall be determinative in the absence of manifest error.


          (f) Section 2.3(b) of the Credit Agreement is amended in its entirety to read as follows:




(b) Interest Payments. Interest accruing on the Loans at the Base Rate is
due on the last day of each month and on the Maturity Date. Interest accruing on
the Loans at the Deferred Interest Rate is due on the earlier to occur of (i) the
date the Loans are paid in full or (ii) the Maturity Date.


          (g) Section 4.11(e) of the Credit Agreement is amended in its entirety to read as follows:




(e) Promptly, and in any event within two Business Days, after the Borrower has
knowledge thereof, a statement of the chief financial officer of the Borrower
describing: (i) any event which, either of itself or with the lapse of time or the
giving of notice or both, would constitute a Default hereunder or a default or
event of default under any other material agreement to which the Borrower or any
Subsidiary is a party, including but not limited to the Badger Transaction
Documents, together with a statement of the actions which the Borrower proposes to
take with respect thereto; and (ii) any pending or threatened litigation or
administrative proceeding of the type described in Section 4.3;


          (h) Section 4.11(n) of the Credit Agreement is amended in its entirety to read as follows:




(n) Within 15 days after the end of each calendar month, a certificate in the form
of Exhibit B attached hereto, duly executed by the President or Vice President of
the Borrower, indicating whether the Borrower is in compliance with the covenants
set forth in Section 4.15.




(i) Section 4.15 is amended in its entirety to read as follows:



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          4.15. Financial Covenants.




          (a) The Subsidiary Bank shall maintain a Tier 1 Leverage Ratio of not less
than (i) 4.00% at all times during the period ending February 28, 2010 and
(ii) 4.25% at all times thereafter.




          (b) The Subsidiary Bank shall maintain a Total Risk Based Capital ratio of not
less than (i) 7.25% at all times during the period ending February 28, 2010 and
(ii) 7.50% at all times thereafter.




          (c) The ratio of Non-Performing Loans to Gross Loans shall not exceed
(i) 13.75% at all times during the period ending January 31, 2010 and (ii) 14.50% at
all times thereafter.


          (j) Section 4.20 of the Credit Agreement is amended in its entirety to read as follows:




4.20 Escrow Deposits. On the date hereof, the Borrower shall deposit an
amount equal to $1,240,000 into the escrow account (the “Escrow Account”) at the
Agent established pursuant to that certain Escrow Agreement between the Agent and
the Borrower dated as of March 31, 2009. In the event that the Base Rate increases
after January 1, 2010 and results in the amount on deposit in the Escrow Account
being less than the interest which will accrue on the Notes through April 30, 2010,
then the Borrower shall deposit the amount of such deficiency into the Escrow
Account within two Business Days after the date of such change in the Base Rate.
In addition, on or before April 15, 2010, the Borrower shall deposit into the
Escrow Account an amount equal to the greater of (i) $315,000 or (ii) the amount
necessary to pay the interest payment due on May 31, 2010 at the Base Rate. In the
event that the Base Rate increases after April 15, 2010 and results in the amount
on deposit in the Escrow Account being less than the interest which will accrue on
the Notes through May 31, 2010, then the Borrower shall deposit the amount of such
deficiency into the Escrow Account within two Business Days after the date of such
change in the Base Rate.


          (k) Section 4.26 of the Credit Agreement is amended in its entirety as follows:




4.26 Agent’s and Lenders’ Access. The Borrower shall permit any
representatives, agents, accountants, valuation professionals,



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attorneys of the
Agent or any Lender or any person engaged by any of the foregoing (each a
“Representative”) access to the Borrower’s and each Subsidiary’s places of
business, books, records, documents, officers, directors, managers, employees and
any collateral securing any of the Obligations, including, without limitation, the
stock transfer records of the Subsidiary Bank, for the purpose of inspecting,
examining, verifying, appraising or valuing the same or providing an enterprise
valuation or appraisal for Borrower or any one or more of its Subsidiaries or
exercising any of the Agent’s or any Lender’s rights or remedies under any of the
Loan Documents (each, an “Inspection/Valuation”). The Representatives shall have
such access for an Inspection/Valuation at any reasonable time and as often as the
Agent or any Lender may reasonably desire, and, upon demand by the Agent, the
Borrower shall reimburse the Agent or any Lender, as the case may be, for the cost
of any such Inspection/Valuation. The Borrower acknowledges that the Agent and the
Lenders shall have no obligation whatsoever to disclose the results of any such
Inspection/Valuation to Borrower or any Affiliate of Borrower.


          (1) A new Section 6.1(i) is added to the Credit Agreement as follows:




(i) Termination or Default Under Badger Transaction Documents. There is a
termination of either or both of the Badger Transaction Documents, or a default or
event of default occurs under any of the Badger Transaction Documents or any
related document, instrument or agreement, whether or not such default or event of
default is subsequently cured.


          (m) Exhibit B to the Credit Agreement is hereby deleted and replaced in its entirety with
Exhibit B attached hereto.



     5. Closing Conditions. This Amendment No. 5 shall become effective upon the execution
and delivery of this Amendment No. 5 by the Borrower, the Lenders and the Agent, and the following:


          (a) the receipt by the Agent of 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. 5;


          (b) the receipt by the Agent of a certificate of the President or Vice President of the Borrower
to the effect that the representations and warranties


8









 







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; and



          (c) the receipt by the Agent of such other documents and instruments relating hereto as the Agent
shall reasonably request.



     6. Amendment Fee. Borrower shall pay to the Agent, for the ratable account of the
Lenders, an amendment fee of $1,163,000 (as such amount may be reduced pursuant to the last
sentence of this Section, the “Amendment Fee”). The Amendment Fee shall be fully earned by the
Lenders upon execution of this Amendment No. 5 and shall be due and payable on the earlier to occur
of (i) the date on which the Loans are paid in full or (ii) the Maturity Date. The Amendment Fee
shall be in addition to any other amendment fee or other fee payable pursuant to any other
agreement or other Loan Document. Notwithstanding the foregoing, in the event the transactions
contemplated by the Badger Transaction Documents close prior to the Maturity Date, the Amendment
Fee shall be reduced by an amount equal to the number of days between the day after such closing
and December 31, 2010 divided by 365, multiplied by the Amendment Fee.



     7. Representations and Warranties; No Default.


          (a) The execution and delivery of this Amendment No. 5 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 and the other Loan
Documents are true and correct in all material respects and, except for the Existing Defaults, no
Default or Event of Default exists.



     8. 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



9









 







Lender or any other Released
Party, on or before the date of this Amendment No. 5. 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. 5,
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. 5 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.



     9. Governing Law. This Amendment No. 5 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.



     10. 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. 5.



     11. Full Force and Effect. The Credit Agreement, as amended by this Amendment No. 5,
remains in full force and effect.



     12. Relief from the Automatic Stay. As a material inducement to the Agent and the Lenders
to enter into this Amendment No. 5, 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 Agreements.



     13. Counterparts. This Amendment No. 5 may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original, but all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple separate counterparts and attached



10









 







to a single counterpart so that all signature pages are physically attached to the same document.



Signature Page Follows




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     IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 5 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	 	 	 	 
	 

	 	 	 	 	 	 	 	 





Acknowledged and agreed:




INVESTMENT DIRECTIONS, INC.




	 	 	 	 	 
	BY
	 	 	 	 
	 	 	 
	 

	 	Its	 	 
	 

	 	 	 	 





Signature Page to Amendment No. 5




 









 








EXHIBIT B


FORM OF FINANCIAL COVENANT COMPLIANCE CERTIFICATE




U.S. Bank National Association

Special Assets Group

777 East Wisconsin Avenue

MK-WI-J5N

Milwaukee, Wisconsin 53202

Attn: Joseph Svehla, Vice President




Dear Mr. Svehla:




     Reference is made to that certain Amended and Restated Credit Agreement, dated as of June 9,
2008, as amended to date (as so amended, the “Credit Agreement”), by and between Anchor Bancorp
Wisconsin Inc. (the “Borrower”), the financial institutions from time to time party thereto (the
“Lenders”) and U.S. Bank National Association, as administrative agent for the Lenders (“Agent”).
Unless otherwise defined herein, capitalized terms used herein have the respective meanings
assigned to them in the Credit Agreement and section references herein are to the sections of the
Credit Agreement.



     This Certificate is provided pursuant to Section 4.11(n) of the Credit Agreement.



     The undersigned hereby certifies that:



     1. (He) (She) is the [President] [Vice President] of the Borrower.



     2. Financial Covenants:


          (a) Through                                         , 20___, the Subsidiary Bank has at all times maintained a Tier 1 Leverage
Ratio of ___. (Required by Section 4.15(a) of the Credit Agreement.)


          (b) Through                                         , 20___, the Subsidiary Bank has at all times maintained a Total Risk
Based Capital Ratio of ___(Required by Section 4.15(b) of the Credit Agreement.)


          (c) As of                                         , 20___, the ratio of Non-Performing Loans to Gross Loans is ___%.
(Required by Section 4.15(c) of the Credit Agreement).



 









 








     3. Attached hereto are detailed calculations supporting the statements made in Sections 2(a)
through 2(c) above. Such calculations were made in accordance with the applicable definitions in
the Credit Agreement and the statements made in 2(a) through 2(c) above are true and correct.



     Dated:                                                             , 20  
                  .



                                                            

                    , [President] [Vice President]