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, a Delaware corporation (“Debtor”), to COLONIAL
BANK (“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 September 4, 2008, executed by Secured Party, as
Lender, and Debtor, as Borrower (as amended, the “Loan
Agreement”), and the Revolving Credit Note dated as of
September 4, 2008, 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) 127,501 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 One Hundred Percent (100%) 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.
5. So long
as no Event of Default (as hereinaf
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