SUPERIOR BANK 9.5% Subordinated Note due September 15, 2018

Exhibit 10.6

SUPERIOR BANK
9.5% Subordinated Note due September 15, 2018

THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IS NOT INSURED BY THE UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES.

THIS SECURITY IS SUBORDINATED AND JUNIOR IN RIGHT OF PAYMENT UPON ANY LIQUIDATION OF SUPERIOR BANK (THE “ISSUER”) AS TO PRINCIPAL, INTEREST, AND PREMIUM TO ALL CLAIMS AGAINST THE ISSUER THAT HAVE THE SAME PRIORITY AS SAVINGS ACCOUNTS.

THIS SECURITY IS UNSECURED AS TO THE ISSUER’S ASSETS OR THE ASSETS OF ANY AFFILIATE OF THE ISSUER, INCLUDING, BUT NOT LIMITED TO, SUPERIOR BANCORP, AND IS INELIGIBLE AS COLLATERAL FOR A LOAN BY THE ISSUER.

THE ISSUER SHALL NOT PAY ANY DIVIDENDS OR INTEREST ON THIS SECURITY (IF SUCH INTEREST IS REQUIRED TO BE PAID ONLY OUT OF NET PROFITS) OR DISTRIBUTE ANY CAPITAL ASSETS IF IT IS IN DEFAULT IN THE PAYMENT OF ANY ASSESSMENT DUE TO THE FEDERAL DEPOSIT INSURANCE CORPORATION (THE “FDIC”), PROVIDED, THAT, IF SUCH DEFAULT IS DUE TO A DISPUTE BETWEEN THE ISSUER AND THE FDIC OVER THE AMOUNT OF SUCH ASSESSMENT, SUCH PROHIBITION ON THE PAYMENT OF DIVIDENDS OR INTEREST SHALL NOT APPLY IF THE ISSUER DEPOSITS SECURITY SATISFACTORY TO THE FDIC FOR PAYMENT UPON FINAL DETERMINATION OF THE ISSUE.

IF THE ISSUER BECOMES CRITICALLY UNDERCAPITALIZED, THEN IT IS PROHIBITED, BEGINNING 60 DAYS AFTER BECOMING CRITICALLY UNDERCAPITALIZED, FROM MAKING ANY PAYMENT OF PRINCIPAL OR INTEREST ON THIS SECURITY, PROVIDED, THAT, IF THE OFFICE OF THRIFT SUPERVISION (THE “OTS”) HAS TAKEN ACTION WITH RESPECT TO SUCH UNDERCAPITALIZATION AND THE FDIC DETERMINES THAT THE PAYMENT OF PRINCIPAL OR INTEREST WOULD FURTHER THE PURPOSE OF 12 U.S.C. 1831o(h), THEN SUCH PAYMENT MAY BE PERMITTED.

THE ISSUER MAY PREPAY OR REDEEM THIS SECURITY PURSUANT TO THAT CERTAIN AGREEMENT TO PURCHASE SUBORDINATED NOTES DATED SEPTEMBER 17, 2008 AND SECTION 3 OF THIS NOTE, WHICH ALSO PROVIDES THAT THE ISSUER MUST OBTAIN PRIOR APPROVAL FROM THE “OTS” BEFORE ANY VOLUNTARY PREPAYMENT OR ACCELERATION OF PAYMENT OF PRINCIPAL ON THIS SECURITY IF THE ISSUER IS UNDERCAPITALIZED, SIGNIFICANTLY UNDERCAPITALIZED OR CRITICALLY UNDERCAPITALIZED OR WOULD FAIL TO MEET ANY OF THESE STANDARDS FOLLOWING SUCH PAYMENT.

Superior Bank
9.5% Subordinated Note due September 15, 2018

THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND NEITHER THIS NOTE NOR ANY INTEREST THEREIN MAY BE TRANSFERRED, HYPOTHECATED OR OTHERWISE DISPOSED OF WITHOUT (I) REGISTRATION UNDER THAT ACT OR (II) AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.

1. Payment .

     (a) Superior Bank, a federal savings bank (the “ Issuer ”), for value received, hereby promises to pay to DURDEN ENTERPRISES, LLC (“Purchaser”), the principal sum of $10,000,000 on September 15, 2018 (the “ Maturity Date ”) and to pay interest thereon at the rate of 9.5% per annum (computed on the basis of a 360-day year of twelve 30-day months) from the date of issuance of this Note or from the most recent Interest Payment Date to which interest has been paid or duly provided, on March 15, June 15, September 15, and December 15 of each year, (each, an “ Interest Payment Date ”), commencing December 15, 2008 until the principal hereof is paid or made available for payment.

     (b) Any payment of principal of or interest on this Note that would otherwise become due and payable on a day which is not a Business Day shall become due and payable on the next succeeding Business Day, with the same force and effect as if made on the date for payment of such principal or interest, and no interest shall accrue in respect of such payment for the period after such day. The term “ Business Day ” means any day that is not a Saturday or Sunday and that is not a day on which banks in Birmingham, Alabama or any city where payment is to be made hereunder are generally authorized or required by law or executive order to be closed.

     2.  Subordinated Notes and Subordinated Noteholders . This Note is designated as a 9.5% Subordinated Note due September 15, 2018 (herein called the “ Subordinated Note ”).

     3.  Optional Redemption. Beginning on September 15, 2013, the Issuer may, at its sole option and subject to obtaining prior approval, if required at the time, of the OTS, redeem some portion of or all of the Subordinated Note on any Interest Payment Date at a redemption price of 100% of the principal amount of the redeemed Subordinated Note, plus any accrued but unpaid interest.

     The Subordinated Note, when it has been called for redemption, and with respect to which monies sufficient to pay the principal thereof and interest thereon have been paid to the Subordinated Noteholder shall cease to be outstanding from and after the redemption date.

     4.  Subordination . The indebtedness of the Issuer evidenced by this Note, including the principal and interest on this Note, shall be subordinate and junior in right of payment to the Issuer’s obligations to its depositors, its obligations under bankers’ acceptances and letters of credit, and its obligations to its other creditors, including its obligations to the Federal Reserve Bank of Atlanta, the FDIC, and any rights acquired by the FDIC as a result of loans made by the FDIC to the Issuer or the purchase or guarantee of any of its assets by the FDIC, pursuant to the provisions of 12 U.S.C. 1823 (c), (d) or (e) whether now outstanding or hereafter incurred (except any other obligations which rank on a parity with or subordinate to the Subordinated Note). In the event of any insolvency, receivership, conservatorship, reorganization, readjustment of debt, marshalling of assets and liabilities or similar proceedings or any liquidation or winding up of or relating to the Issuer, whether voluntary or involuntary, all obligations of the Issuer (except any other obligations which rank on a parity with or subordinate to this Note) shall be entitled to be paid in full before any payment shall be made on account of the principal of or interest on this Note. In the event of any such proceeding, after payment in full of all sums owing with respect to such prior obligations, the Noteholder, together with the holders of any obligations of the Issuer ranking on a parity with this Note, shall be entitled to be paid from the remaining assets of the Issuer the unpaid principal thereof, and the unpaid interest thereon before any payment or other distribution, whether in cash, property or otherwise, shall be made on account of any capital stock or any obligations of the Issuer ranking junior to this Note.

     Nothing herein shall impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Note in accordance with its terms.

     5.  Consolidation, Merger and Sale of Assets . The Issuer shall not consolidate with or merge into another entity or convey, transfer or lease its properties and assets substantially as an entirety to any person, unless:

     (a) the continuing entity formed by such consolidation or into which the Issuer is merged or the person which acquires by conveyance or transfer or which leases the properties and assets of the Issuer substantially as an entirety shall be a corporation, association or general partnership or other legal entity organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and expressly shall assume, by a supplemental agreement executed and delive