STOCK
PLEDGE AGREEMENT (BORROWER)
1. As
collateral security for the payment of any and all indebtedness
(principal, interest, fees, collection costs and expenses and other
amounts), liabilities and obligations of the undersigned,
SUPERIOR BANCORP , formerly known as The Banc Corporation, a
Delaware corporation (“ Debtor ”), to U.S.
BANK NATIONAL ASSOCIATION, a national banking association
(“ Secured Party ”), of every kind or character,
now or hereafter existing, absolute or contingent, joint or several
or joint and several, otherwise secured or unsecured, due or not
due, direct or indirect, expressed or implied in law, contractual
or tortious, liquidated or unliquidated, at law, or in equity or
otherwise, and whether heretofore, now or hereafter incurred or
given by Debtor as principal, surety, endorser, guarantor or
otherwise, and whether created directly or acquired by Secured
Party by assignment or otherwise, including, without limitation,
any and all present and future indebtedness (principal, interest,
fees, collection costs and expenses and other amounts) of Debtor to
Secured Party evidenced by or arising under the Loan Agreement
dated as of January 26, 2007, executed by Secured Party, as
Lender, and Debtor, as Borrower (as amended, the “ Loan
Agreement ”), and the Revolving Credit Note dated as of
January 26, 2007, executed by Debtor and payable to the order
of Secured Party in the original principal amount of up to
$10,000,000 (each, a “ Liability ”; and
collectively, “ Liabilities ”), Debtor hereby
pledges and delivers to Secured Party and grants Secured Party a
security interest in, a lien upon and right of set-off as to the
following: (a) 65,026 shares of capital stock of Superior
Bank, a Federal savings bank (the “ Subsidiary
”), set forth and described on Collateral Schedule #1
attached hereto and incorporated herein by reference (collectively,
the “ Pledged Shares ”) and the certificates
representing the Pledged Shares, and all dividends, cash,
instruments, stock, securities and other property from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any or all of the Pledged Shares, (b) all
additional shares of any class of capital stock of the Subsidiary
from time to time acquired by Debtor in any manner (including,
without limitation, any shares of preferred stock of the
Subsidiary) (collectively, the “ Additional Shares
”), and the certificates representing such Additional Shares,
and all dividends, cash, instruments, stock, securities and other
property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such
Additional Shares, (c) all other rights appurtenant to the
property described in clauses (a) and (b) above
(including, without limitation, voting rights) and (d) all
cash and noncash proceeds of any and all of the foregoing
(collectively, the “ Collateral ”). Certificates
representing the Pledged Shares set forth on Collateral Schedule
#1 attached hereto, accompanied by proper instruments of
assignment duly executed in blank by Debtor, are herewith being
delivered to Secured Party. Promptly upon Debtor’s
acquisition of any Additional Shares, Debtor will (i) deliver
to Secured Party the certificates representing such Additional
Shares together with proper instruments of assignment duly executed
in blank by Debtor and (ii) amend Collateral Schedule
#1 to include such Additional Shares.
2. Debtor
hereby covenants and agrees that (a) with respect to all
shares of any class of capital stock of Subsidiary pledged to
Secured Party contemporaneously with the execution of or pursuant
to this Stock Pledge Agreement (Borrower) (this “
Agreement ”), or at any time hereafter, if any stock
dividends, stock splits, reclassifications, adjustments or other
changes are made in the capital structure of Subsidiary (whether as
a result of a reorganization, recapitalization, share split up,
merger, transfer, consolidation or otherwise), all new, additional
or substituted securities issued with respect to any of such shares
by reason of any such change shall be subject to Secured
Party’s security interest and immediately delivered to
Secured Party, which shall hold such shares or securities so issued
as additional Collateral, (b) if any warrants, options or other
rights now or hereafter exist with respect to any of the Pledged
Shares, any of the Additional Shares or any of the other
Collateral, Debtor has and hereafter shall immediately so advise
Secured Party of the existence of such warrants, options and
rights, all such warrants, options and rights shall be subject to
Secured Party’s security interest and all stock or securities
issued pursuant to the exercise of any such warrant, option or
right shall be subject to Secured Party’s security interest
and immediately delivered to Secured Party, which shall hold such
shares or securities as additional Collateral, (c) Debtor
shall immediately pledge and deliver to Secured Party any and all
shares of any class of capital stock of Subsidiary now owned or
hereafter acquired by Debtor and (d) Debtor shall not, without
the prior written consent of Secured Party, (i) sell, assign
or
otherwise transfer or
pledge any of the Pledged Shares, any of the Additional Shares or
any of the other Collateral, (ii) create or permit any other
lien or encumbrance upon, or any other security interest in, any of
the Pledged Shares, any of the Additional Shares or any of the
other Collateral or (iii) grant any option or right with
respect to any of the Pledged Shares, any of the Additional Shares
or any of the other Collateral.
3. Debtor
hereby represents and warrants to Secured Party that:
(a) Debtor
is the sole legal, beneficial and record owner of all of the
Collateral pledged hereunder and none of the Collateral pledged
hereunder is or will be subject to any security interests, liens,
encumbrances, charges, claims, warrants, options, proxies,
restrictions on transfer, resale or other disposition, restrictions
on voting rights, preferences and/or other preferential
arrangements of any kind or nature whatsoever (except those in
favor of Secured Party under this Agreement);
(b) the
Pledged Shares have been duly authorized and validly issued by
Subsidiary and are fully paid and non-assessable;
(c) Debtor
has all requisite corporate power and authority to (i) pledge,
assign, grant a security interest in, transfer and deliver the
Collateral to Secured Party in the manner hereby done or
contemplated and (ii) execute, deliver and perform all of its
obligations under this Agreement;
(d) this
Agreement has been duly authorized, executed and delivered by
Debtor and constitutes the legal, valid and binding obligation of
Debtor, enforceable in accordance with its terms;
(e) no
consent, approval, authorization or other order of any governmental
or regulatory agency, authority, body or official or any other
third party is or will be required for (i) the execution,
delivery and/or performance of this Agreement by Debtor or the
delivery by Debtor of the Collateral to Secured Party as provided
herein or (ii) the exercise by Secured Party of the voting or
other rights provided for in this Agreement or the remedies in
respect of the Collateral pursuant to this Agreement;
(f) the
execution, delivery and performance by Debtor of this Agreement do
not and will not (i) violate any provision of the Articles of
Incorporation or Bylaws of Debtor or any law, rule, regulation
(including, without limitation, Regulations U or X of the Board of
Governors of the Federal Reserve System), order, writ, judgment,
injunction, decree, determination or award presently in effect
having applicability to Debtor, (ii) result in a breach of or
constitute a default under any indenture or loan or credit
agreement or any other agreement, document or instrument to which
Debtor is a party or by which it or its properties may be bound or
affected or (iii) result in or require the creation or
imposition of any mortgage, deed of trust, pledge, lien, security
interest or other charge or encumbrance of any nature upon or with
respect to any of the property or assets of Debtor (other than in
favor of Secured Party as provided for in this
Agreement);
(g) upon
the execution of this Agreement, Secured Party will have a valid
and enforceable security interest in the Collateral. So long as
Secured Party has possession of the certificates representing the
Pledged Shares, Secured Party’s security interest in the
Pledged Shares and the proceeds thereof will be perfected and have
a first priority;
(h) the
authorized capital of Subsidiary consists solely of 200,000 shares
of common stock, $1.00 par value and no shares of preferred stock.
As of the date hereof, (i) there are 127,501 shares of common
stock of Subsidiary issued and outstanding, (ii) Debtor is the
sole legal, beneficial and record owner of 127,501 shares of common
stock of Subsidiary, representing all of the issued and outstanding
shares of common stock of Subsidiary, and (iii) the Pledged
Shares consist of at least Fifty
- 2 -
One Percent (51%) of the
outstanding shares of common stock of Subsidiary. Subject to no
security interests, liens, encumbrances, warrants, options,
proxies, restrictions on transfer, resale or other disposition or
restrictions on voting rights (except those in favor of Secured
Party). As of the date hereof, there are no warrants or options, or
any agreements to issue any warrants or options, outstanding with
respect to any class of capital stock of Subsidiary.
4. Debtor
hereby covenants and agrees that: (a) it will not cause or
permit Subsidiary to (i) authorize or issue any new types,
varieties or classes of capital stock or any bonds or debentures,
subordinated or otherwise, or any stock warrants or options,
(ii) authorize or issue any additional shares of any existing
class of capital stock or (iii) declare any stock dividends or
stock splits or take any other action which could, directly or
indirectly, decrease Debtor’s ownership interest in
Subsidiary; and (b) without the prior written consent of
Secured Party, (i) it will not cause or permit Subsidiary to
amend or otherwise change its Articles or Certificate of
Incorporation or its Bylaws in any manner which could affect any of
the voting or other rights of any of the shares of capital stock of
Subsidiary now owned or hereafter acquired by Debtor and
(ii) it will not take or cause or permit Subsidiary to take
any other action which could, directly or indirectly, affect the
voting rights of Debtor with respect to any shares of capital stock
of Subsidiary now owned or hereafter acquired by Debtor.
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