THIS PLEDGE
AGREEMENT, dated as of June 9, 2008, is from ANCHOR BANCORP
WISCONSIN, INC., a Wisconsin corporation (the
“Pledgor”), and U.S. BANK NATIONAL ASSOCIATION, as
agent for the Lenders under the Credit Agreement referred to below
(the “Secured Party”).
Pledgor and
Secured Party acknowledge the following:
A. Pledgor is
the legal and beneficial owner of 100% of the issued and
outstanding stock of AnchorBank, fsb (the “Pledged
Shares”).
B. Pursuant
to an Amended and Restated Credit Agreement dated as of
June 9, 2008 (as amended, revised, supplemented or restated
from time to time, the “Credit Agreement”) among the
Pledgor, the Lenders (as defined therein) and the Secured Party, as
agent for the Lenders, the Lenders are providing certain credit
facilities to the Pledgor. Capitalized terms not defined herein
shall have the meanings ascribed to them in the Credit
Agreement.
C. A Lender
may enter into an interest rate swap or swaps with the Company
pursuant to an ISDA Master Agreement, Schedule and one or more
Confirmations (as amended, revised, supplemented or restated from
time to time, collectively, the “Swap
Documents”).
D. It is a
condition precedent to the Lenders entering into the Credit
Agreement and the Swap Documents that Pledgor enter into this
Pledge Agreement.
NOW, THEREFORE, in
consideration of the Recitals and to induce the Lenders to enter
into the Credit Agreement and provide the credit facilities to
Pledgor and to induce any Lender to enter into the Swap Documents,
and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Pledgor hereby agrees as
follows:
1. Pledge
of Security . Pledgor hereby pledges and assigns to Secured
Party, and hereby grants to Secured Party, for itself and as agent
for the Lenders, a security interest in all of Pledgor’s
right, title and interest in and to the following (the
“Pledged Collateral”):
(a) the
Pledged Shares and the certificates representing the Pledged Shares
and any interest of Pledgor in the entries on the books of the
issuer or of any financial intermediary pertaining to the Pledged
Shares, and all dividends, cash, warrants, rights, instruments and
other property or proceeds from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or
all of the Pledged Shares; and
(b) to
the extent not covered by clause (a) above, all proceeds of
any or all of the foregoing Pledged Collateral. For purposes of
this Agreement, the term “proceeds” includes whatever
is receivable or received when Pledged Collateral or proceeds are
sold, exchanged, collected or otherwise disposed of, whether such
disposition is voluntary or involuntary, and includes proceeds
of any indemnity or guaranty payable to Pledgor or Secured Party
from time to time with respect to any of the Pledged
Collateral.
2.
Security for Obligations . This Agreement secures, and the
Pledged Collateral is collateral security for, the prompt payment
or performance in full when due, whether at stated maturity, by
required prepayment, declaration, acceleration, demand or otherwise
(including the payment of amounts that would become due but for the
operation of the automatic stay under Section 362(a) of the
Bankruptcy Code, 11 U.S.C. §362(a)), of all obligations and
liabilities of every nature of Pledgor to the Agent and the
Lenders, now or hereafter existing under or arising out of or in
connection with the Loan Documents (as defined in the Credit
Agreement), the Swap Documents or this Agreement, and all
extensions or renewals thereof, whether for principal, interest ,
fees, expenses, indemnities or otherwise, whether voluntary or
involuntary, direct or indirect, absolute or contingent, liquidated
or unliquidated, whether or not jointly owed with others, and
whether or not from time to time decreased or extinguished and
later increased, created or incurred (all such obligations of
Pledgor being the “Secured Obligations”).
3.
Delivery of Pledged Collateral . All certificates or
instruments representing or evidencing the Pledged Collateral have
been, and for additional Pledged Collateral will be, delivered to
and held by Secured Party or such other bailee as directed by
Secured Party, and shall be in suitable form for transfer by
delivery or, as applicable, shall be accompanied by Pledgor’s
endorsement, where necessary, or duly executed instruments of
transfer or assignment in blank, all in form and substance
satisfactory to Secured Party. Upon the occurrence and during the
continuation of an Event of Default, Secured Party shall have the
right, without notice to Pledgor, to transfer to or to register in
the name of Secured Party or any of its nominees any or all of the
Pledged Collateral, subject only to the revocable rights specified
in Section 7(a). In addition, Secured Party shall have the
right at
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any time to
exchange certificates or instruments representing or evidencing
Pledged Collateral for certificates or instruments of smaller or
larger denominations.
4.
Representations and Warranties . Pledgor represents and
warrants to Secured Party that:
(a)
Due Authorization, Etc. of Pledged Collateral . All of the
Pledged Shares have been duly authorized and validly issued and are
fully paid and non-assessable.
(b)
Ownership of Pledged Collateral . Pledgor is the legal,
record and beneficial owner of all outstanding and currently
existing Pledged Collateral, and will be the legal, record and
beneficial owner of all after-acquired Pledged Collateral, free and
clear of any security interest, lien or other encumbrance except
for the security interest created by this Agreement.
5.
Transfers and Other Liens. Pledgor shall:
(a) not
(i) sell, assign (by operation of law or otherwise) or
otherwise dispose of, or grant any option with respect to, any of
the Pledged Collateral, (ii) create or suffer to exist any
security interest, lien or other encumbrance upon or with respect
to any of the Pledged Collateral, except for the security interest
created by this Agreement, or (iii) permit any issuer of
Pledged Shares to merge or consolidate unless all the outstanding
capital stock of the surviving or resulting corporation is, upon
such merger or consolidation, pledged hereunder and no cash,
securities or other property is distributed in respect of the
outstanding shares of any other constituent corporation;
(b) promptly
deliver to Secured Party all written notices received by Pledgor
with respect to the Pledged Collateral; and
(c) pay
promptly when due all taxes, assessments and governmental charges
or levies imposed upon, and all claims against, the Pledged
Collateral, except to the extent the validity thereof is being
contested in good faith; provided that Pledgor shall in any
event pay such taxes, assessments, charges, levies or claims not
later than five days prior to the date of any proposed sale under
any judgment, writ or warrant of attachment entered or filed
against Pledgor or any of the Pledged Collateral as a result of the
failure to make such payment.
6.
Further Assurances . Pledgor agrees that from time to time,
at the expense of Pledgor, Pledgor will promptly execute and
deliver all further instruments and documents, and take all further
action, that may be necessary or
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desirable, or
that Secured Party may reasonably request, in order to perfect and
protect any security interest granted or purported to be granted
hereby or to enable Secured Party to exercise and enforce its
rights and remedies hereunder with respect to any Pledged
Collateral. Without limiting the generality of the foregoing,
Pledgor: (i) will promptly deliver to Secured Party any stock
certificates or other instruments constituting Pledged Collateral
which Pledgor obtains after the date of this Agreement,
(ii) authorizes the Secured Party to file such financing or
continuation statements, or amendments thereto, and such other
instruments or notices, as may be necessary or desirable in order
to perfect and preserve the security interests granted or purported
to be granted hereby and (iii) at the request of Secured
Party, appear in and defend any action or proceeding that may
affect Pledgor’s title to or Secured Party’s security
interest in all or any part of the Pledged Collateral.
7. Voting
Rights; Dividends; Etc .
(a) So
long as no Event of Default shall have occurred and be
continuing:
(i) Pledgor
shall be entitled to exercise any and all voting and other
consensual rights pertaining to the Pledged Collateral or any part
thereof for any purpose not inconsistent with the terms of this
Agreement or the Credit Agreement. It is understood, however, that
neither (A) the voting by Pledgor of any Pledged Shares for or
Pledgor’s consent to the election of directors at a regularly
scheduled annual or other meeting of stockholders or with respect
to incidental matters at any such meeting nor
(B) Pledgor’s consent to or approval of any action
otherwise permitted under this Agreement or the Credit Agreement,
shall be deemed inconsistent with the terms of this Agreement or
the Credit Agreement within the meaning of this
Section 7(a)(i);
(ii) Pledgor
shall be entitled to receive and retain, and to utilize free and
clear of the lien of this Agreement, any and all dividends paid in
respect of the Pledged Collateral including, without limitation,
dividends and other distributions paid or payable in cash in
respect of any Pledged Collateral in connection with a partial or
total liquidation or dissolution or in connection with a reduction
of capital, capital surplus or paid-in-surplus; provided ,
however , that any and all
[a]
dividends paid or payable other than in cash in respect of, and
instruments and other property received, receivable or otherwise
distributed in respect of, or in exchange for, any Pledged
Collateral, and
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[b]
cash paid, payable or otherwise distributed in redemption of or in
exchange for any Pledged Collateral,
shall be, and
shall forthwith be delivered to Secured Party to hold as, Pledged
Collateral and shall, if received by Pledgor, be received in trust
for the benefit of Secured Party, be segregated from the other
property or funds of Pledgor and be forthwith delivered to Secured
Party as Pledged Collateral in the same form as so received (with
all necessary endorsements); and
(iii) Secured
Party shall promptly execute and deliver (or cause to be executed
and delivered) to Pledgor all such dividend payment orders and
other instruments as Pledgor may from time to time reasonably
request for the purpose of enabling Pledgor to receive the
dividends, principal or interest payments which he is authorized to
receive and retain pursuant to paragraph
(ii) above.
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