STOCK PLEDGE AGREEMENT (BORROWER)
Exhibit 10.2
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
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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.
5. So long as no Event of Default (as hereinafter defined) under this Agreement
has occurred and is continuing:
(a) Debtor shall be entitled to exercise any and all voting and other consensual
rights pertaining to the Pledged Shares or any part thereof for any purpose not inconsistent with
the terms of this Agreement or the terms of the Loan Agreement; provided, however, that (i)
Debtor shall not exercise or refrain from exercising any such right if such action could
reasonably be expected to have an adverse effect on the value of the Pledged Shares or any
part thereof and (ii) Debtor shall not exercise or refrain from exercising any such right in
a manner which would authorize or effect (A) the dissolution or liquidation, in whole or in part,
of Subsidiary, (B) the consolidation or merger of Subsidiary with or into any corporation or other
entity unless such Subsidiary is the surviving entity, (C) the sale, disposition or
encumbrance of all or substantially all of the property or assets of Subsidiary, (D) any
change in the authorized capital of Subsidiary, (E) the issuance of any additional shares of
any class of capital stock of Subsidiary or (F) the alteration of the voting rights with respect to
any class of capital stock of Subsidiary; and
(b) Debtor shall be entitled to collect and use for its proper corporate purposes all
cash dividends (except cash dividends paid or payable in respect of the total or partial
liquidation of
Subsidiary) paid on the Pledged Shares so long as the declaration and payment of such
dividends does not violate the provisions of Section 6.04 of the Loan Agreement; provided, however,
that until actually paid, all rights to such dividends shall remain subject to the security
interest created by this Agreement. All dividends (other than cash dividends governed by the
immediately preceding sentence) and all other distributions in respect of any of the Pledged Shares
or any of the other Collateral, whenever paid or made, shall be delivered to Secured Party and held
by it subject to the security interest created by this Agreement.
6. If any one or more of the following events (each, an “Event of
Default”) shall occur and be continuing: (a) Debtor shall fail to make any payment
of any principal of or interest on any of the
Liabilities as and when the same shall become due and payable, whether by reason of
demand, maturity, acceleration or otherwise; (b) Debtor shall fail to perform or observe any term,
provision, covenant or agreement contained in this Agreement and any such failure shall
remain
unremedied for ten (10) days after the earlier of (i) written notice of default is given to
Debtor by Secured Party or (ii) an officer of Debtor obtaining knowledge of such default; (c)
any representation or warranty made by
Debtor in this Agreement shall prove to be untrue or incorrect in any material respect; (d)
if the shares of common stock of Subsidiary then pledged by Debtor to Secured Party pursuant to
this Agreement
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shall at any time constitute less than Fifty One Percent (51%) of the then issued and
outstanding shares of common stock of Subsidiary; or (e) any “Event of Default” (as defined
therein) shall occur under or within the meaning of the Loan Agreement; then Secured Party
may, at its option, (A) declare the principal of and interest on any or all of the
Liabilities to be immediately due and payable,
(B) exercise all voting rights with respect to the Collateral, (C) appropriate and apply
toward the payment and discharge of any such Liability, moneys on deposit or otherwise held
by Secured Party for the account of, to the credit of or belonging to Debtor, (D) sell or
cause to be sold any Collateral,
(E) have transferred to or registered in the name of Secured Party, or its nominee or
nominees, any
Collateral and thereafter to exercise all rights with respect thereto as the absolute owner
thereof, without notice or liability to Debtor, except to account for money or property actually
received by Secured Party; provided, however, that Secured Party may treat all cash proceeds as
additional
Collateral and such proceeds need not be applied to the reduction of the Liabilities of
Debtor unless
Secured Party so elects, (F) in Secured Party’s name, or in the name of Debtor, demand,
xxx for, collect and receive money, securities or other property which may at any time be
payable or receivable on account of or in exchange for any of the Collateral, or make any
compromise or settlement that Secured Party considers desirable with respect thereto or renew or
extend the time of payment or otherwise modify the terms of any obligation included in the
Collateral; provided, however, that it is expressly agreed that Secured Party shall
not be obligated to take any step to preserve rights against prior parties on any of the
Collateral, and that reasonable care of the Collateral shall not include the taking of any
such step and (G) exercise any or all of the rights and remedies of a Secured Party under the
Uniform Commercial Code of the State of Missouri, as from time to
time amended (the “Code”), or
other applicable law. Any sale of Collateral may be made without demand of performance and any
requirement of the Code for reasonable notice to Debtor shall be met if such notice is
mailed, postage prepaid, to Debtor at its address as it appears herein or as last shown on the
records of Secured Party at least five (5) business days before the time of sale, disposition
or other event giving rise to the notice. Debtor acknowledges and agrees that it shall be
reasonable for Secured Party to sell the
Collateral on credit for present or future delivery without any assumption of any
credit risk. In case of a public sale, notice published by Secured Party for ten (10)
days in a newspaper of general circulation in the City or County where the sale is to be held shall
be sufficient. The proceeds of any sale, or sales, of Collateral shall be applied by Secured
Party in the following order: (1) to expenses, including attorneys’ fees and expenses,
arising from the enforcement of any of the provisions hereof, or of the
Liabilities or of any actual or attempted sale; (2) to the payment or the reduction of any of
the Liabilities of Debtor to Secured Party with the right of Secured Party to distribute or
allocate such proceeds in such order and manner as Secured Party shall elect, and its determination
with respect to such allocation shall be conclusive; and (3) to the payment of any surplus
remaining after payment of the amounts mentioned, to Debtor or to whomsoever may be lawfully
entitled thereto. If any deficiency arises upon any such sale or sales Debtor agrees to pay the
amount of such deficiency promptly upon demand with interest. Notwithstanding that Secured
Party may continue to hold the Collateral and regardless of the value thereof, Debtor shall
be and remain liable for the payment in full of the principal of and interest on any balance of the
Liabilities and expenses at any time unpaid.
7. Secured Party shall have no duties or obligations with respect to the Collateral
except that while the Collateral is in Secured Party’s possession, Secured Party’s obligation with
respect to the same shall be limited to preserving the physical condition of the same.
8. At any time, whether prior to or after the occurrence of an Event of Default
under this
Agreement, Secured Party may, at its option, but shall not be obligated to, surrender or
deliver, without further liability on the part of Secured Party to account therefor, all or
any part of the
Collateral to or upon the written order of Debtor, permit substitutions therefor or additions
thereto, and accept the receipt of Debtor for any Collateral, or proceeds thereof, which receipt
shall be a full and complete discharge of Secured Party with respect to the Collateral so
delivered and proceeds so paid.
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9. The rights and powers of Secured Party under this Agreement (a) are cumulative
and do not exclude any other right which Secured Party may have independent of this
Agreement and (b) may be exercised or not exercised at the discretion of Secured Party
(i) without regard to any rights of Debtor, (ii) without forfeiture or waiver because of
any delay in the exercising thereof, (iii) without imposing any liability on
Secured Party for so exercising or failing to exercise and (iv) in the event of a
single or partial exercise thereof, without precluding further exercise thereof. No delay or
omission on the part of Secured Party in exercising any right hereunder shall operate
as a waiver of such right or of any other right hereunder and no waiver shall be construed as a bar
to or waiver of any right or remedy in the future. The rights and powers of Secured Party under
this Agreement shall inure to the benefit of its successors and assigns and any assignee of any
Liability secured hereby. Any and all liabilities and obligations of Debtor under this
Agreement shall be binding upon the successors and assigns of
Debtor.
10. Debtor agrees to do such further acts and things and to execute and deliver
such additional conveyances, assignments, agreements and instruments as Secured Party may at
any time reasonably request in connection with the administration or enforcement of this Agreement
or related to the Collateral or any part thereof or in order to better assure and confirm to
Secured Party its rights, powers and remedies hereunder. Debtor hereby makes, constitutes and
appoints Secured Party the true and lawful agent and attorney-in-fact of Debtor with full power of
substitution to execute, endorse and deliver such agreements, documents and instruments and to take
such other action in the name and on behalf of Debtor as may be necessary or appropriate to carry
out the intent of this Agreement, including, without limitation, the grant of the security
interest granted under this Agreement, and to perfect and protect the security interest granted to
Secured Party in respect of the Collateral and
Secured Party’s rights created under this Agreement, which power of attorney is
irrevocable during the term of this Agreement. Debtor hereby consents and agrees that the issuers
of or obligors in respect of the Collateral or any registrar or transfer agent for any of the
Collateral shall be entitled to accept the provisions hereof as conclusive evidence of the right of
Secured Party to effect any transfer pursuant to this Agreement, notwithstanding any other
notice or direction or the contrary heretofore or hereafter given by Debtor or any other person
(unless consented to in writing by Secured Party) to any such issuers or obligors or to any
such registrar or transfer agent.
11. Except as otherwise specified in this Agreement, any notice, request, demand,
consent or other communication under this Agreement shall be in writing and delivered in
person, or sent by registered or certified mail, return receipt requested and postage
prepaid, or transmitted by facsimile, if to Debtor at 00 Xxxxx
00xx Xxxxxx, Xxxxxxxxxx, Xxxxxxx
00000, (000) 000-0000 (FAX), or if to Secured Party at One US Bank Plaza, 7th Street & Xxxxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention:
Correspondent Banking Department (000) 000-0000 (FAX), or at such other address as either party may
designate as its address for communications hereunder by notice so given. Such notices shall be
deemed effective on the day on which delivered, if delivered in
person, on the third
(3rd) business
day after the day on which mailed, if sent by registered or certified mail, or when with
answerback confirmation received if sent by facsimile.
12. The terms of this Agreement, the pledge of Collateral hereunder and the
security interest created by this Agreement are continuing and shall apply to all existing
transactions and to all future transactions, although such transactions may not be continuous.
Debtor may not revoke or terminate this Agreement unless and until (a) all of the Liabilities shall
have been indefeasibly paid in full in cash,
(b) the Loan Agreement and the Guaranty shall have been terminated and (c) Secured Party shall have
no further commitment or obligation to make advances or extend credit
to Debtor, whether under the Loan Agreement, the Guaranty or otherwise.
13. If claim is ever made on Secured Party for repayment or recovery of any amount
or amounts received by Secured Party in payment or on account of any of the Liabilities (including
payment under a guaranty or from application of collateral) and Secured Party repays all or
part of said
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amount by reason of (a) any judgment, decree or order of any court or administrative body
having jurisdiction over Secured Party or any property of Secured Party or (b) any
settlement or compromise of any such claim effected by Secured Party with any such
claimant (including, without limitation, Debtor), then and in such event Debtor agrees
that any such judgment, decree, order, settlement or compromise shall be binding on Debtor,
notwithstanding any cancellation of any note or other instrument or agreement evidencing such
Liabilities or of this Agreement, and this Agreement shall continue to be effective or be
reinstated, as the case may be, and shall secure the payment of the amount so repaid or
recovered to the same extent as if such amount had never originally been received by Secured Party
except to the extent such judgment, decree, order, settlement or compromise were caused
by the gross negligence or intentional misconduct of Secured Party. This Agreement shall
continue to be effective or be reinstated, as the case may be, if (i) at any time any payment of
any of the Liabilities is rescinded or must otherwise be returned by Secured Party upon the
insolvency, bankruptcy or reorganization of Debtor or otherwise, all as though such payment
had not been made or
(ii) this Agreement is released in consideration of a payment of money or transfer of property or
grant of a security interest by Debtor or any other person or entity and such payment,
transfer or grant is rescinded or must otherwise be returned by Secured Party upon the
insolvency, bankruptcy or reorganization of such person or entity or otherwise, all as
though such payment, transfer or grant had not been made.
14. This Agreement shall be governed by and construed in accordance with the
substantive laws of the State of Missouri (without reference to conflict of law principles);
provided, however, that the perfection and effect of the perfection or nonperfection of the
security interests and liens created by this
Agreement shall in all respects be governed, construed, applied and enforced in accordance with the
substantive laws of the applicable jurisdictions.
15. DEBTOR IRREVOCABLY AGREES THAT, SUBJECT TO SECURED PARTY’S SOLE AND
ABSOLUTE ELECTION, ALL ACTIONS OR PROCEEDINGS IN ANY WAY, MANNER OR RESPECT ARISING OUT OF
OR FROM OR RELATED TO THIS AGREEMENT, THE OTHER AGREEMENTS OR THE COLLATERAL SHALL BE
LITIGATED ONLY IN COURTS HAVING SITUS WITHIN THE COUNTY OF ST. LOUIS, STATE OF MISSOURI.
DEBTOR HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF ANY LOCAL, STATE OR FEDERAL
COURT LOCATED
WITHIN SAID COUNTY AND STATE. DEBTOR HEREBY WAIVES ANY RIGHT IT MAY HAVE TO TRANSFER OR
CHANGE THE VENUE OF ANY LITIGATION BROUGHT IN ACCORDANCE WITH THIS SECTION. DEBTOR AND SECURED
PARTY IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY ACTION IN WHICH DEBTOR
AND SECURED PARTY ARE
PARTIES.
This Agreement executed by Debtor as of January 26, 2007.
(SIGNATURES ON FOLLOWING PAGE)
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SIGNATURE PAGE-
STOCK PLEDGE AGREEMENT (DEBTOR)
STOCK PLEDGE AGREEMENT (DEBTOR)
| Debtor: | ||||||
| SUPERIOR BANCORP, | ||||||
| formerly known as The Banc Corporation | ||||||
| By: | /s/ Xxxx X. Xxxxxxx | |||||
| Print Name: Xxxx X. Xxxxxxx | ||||||
| Title: Chief Operating Officer | ||||||
Acknowledged by and agreed to by Secured Party as of January 26, 2007:
Secured Party:
| U.S. BANK NATIONAL ASSOCIATION | ||||
By:
|
/s/ Xxxxxx X. Xxxxxx | |||
| Xxxxxx X. Xxxxxx, Vice President | ||||
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COLLATERAL SCHEDULE #1
| Description of Stock Pledged | Stock Certificate Number(s) | |
65,076 Shares of Common Stock of Superior
Bank
|
Superior Bank Common Stock Certificate No(s). 001 issued in the name of Superior Bancorp f/k/a The Banc Corporation |
