STOCK PLEDGE AGREEMENT (BORROWER)
Exhibit 10.3
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 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 6.09 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 shall at any time constitute less than One Hundred Percent
(100%) 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 Alabama, 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.
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 000 Xxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, XX 00000-0000,
(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 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, 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
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 Alabama (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
JEFFERSON, STATE OF ALABAMA. 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 September 4 , 2008.
(SIGNATURES ON FOLLOWING PAGE)
SIGNATURE PAGE-
STOCK PLEDGE AGREEMENT
STOCK PLEDGE AGREEMENT
Debtor:
By:
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/s/ Xxxx X. Xxxxxxxx
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Print Name:
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Xxxx X. Xxxxxxxx | |||
Title:
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CFO |
Acknowledged by and agreed to by Secured Party as of September 4 , 2008:
Secured Party:
COLONIAL BANK
By:
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/s/ Xxxx X. Xxxxx Xx.
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Print Name:
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Xxxx X. Xxxxx Xx. | |||
Title:
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Sr. Vice President |
COLLATERAL SCHEDULE #1
Description of Stock Pledged
127,501 Shares of Common Stock of Superior Bank Common
Stock Certificate No(s). 1 & 2 issued in the name of Superior Bancorp
