EX-10.6






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.




 









 





			
	No. 1
	 	Principal Amount:       $10,000,000
	 	 	 





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.



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     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 delivered to the Noteholder in form reasonably satisfactory to the Noteholder, the due
and punctual payment of the principal of and any premium and interest on this Note according to
their terms, and the due and punctual performance of all covenants and conditions hereof on the
part of the Issuer to be performed or observed; and



     (b) immediately after giving effect to such transaction, no Event of Default (as defined
hereinbelow), and no event which, after notice or lapse of time or both, would become an Event of
Default, shall have happened and be continuing.



     6. Events of Default; Acceleration If any of the following events shall occur and be
continuing (each an “Event of Default”):



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     (a) the Issuer shall consent to the appointment of a receiver, liquidator, trustee or other
similar official in any liquidation, insolvency or similar proceeding with respect to the Issuer or
all or substantially all of its property; or



     (b) a court or other governmental agency or body having jurisdiction on the premises shall
enter a decree or order for the appointment of a receiver, liquidator, trustee or other similar
official in any liquidation, insolvency or similar proceeding with respect to the Issuer or all or
substantially all of the property of the Issuer, or for the winding up of the affairs or business
of the Issuer and such decree or order shall have remained in force for 60 days; then, and in each
such case, unless the principal of this Note already shall have become due and payable, the holder
of this Note, by notice in writing to the Issuer may declare the principal amount of this Note to
be due and payable immediately and, upon any such declaration the same shall become and shall be
immediately due and payable. The Issuer waives demand, presentment for payment, notice of
nonpayment, notice of protest, notice of default, and all other notices. The Issuer also waives
the benefit of any exemptions under the Constitution and laws of the State of Alabama and the
United States of America that are not specifically preserved herein.



     The Issuer, promptly after the occurrence of an Event of Default with respect to this Note,
shall mail to the Noteholder, at its address shown on the Issuer’s records, such written notice of
Event of Default, unless such Event of Default shall have been cured or waived before the giving of
such notice.


THIS NOTE MAY NOT BE REPAID PRIOR TO THE MATURITY DATE, WHETHER PURSUANT TO AN ACCELERATION UPON AN
EVENT OF DEFAULT OR OTHERWISE, WITHOUT THE PRIOR APPROVAL OF THE OTS.




     7. Failure to Make Payment. In the event of failure by the Issuer to make any payment
of principal of or interest on this Note (and, in the case of payment of interest, such failure to
pay shall have continued for 30 days), the Issuer will, upon demand of the holder of this Note, pay
to such holder the whole amount then due and payable on this Note for principal and interest
(without acceleration), with interest on the overdue principal and interest at the rate borne by
this Note, to the extent permitted by applicable law. If the Issuer fails to pay such amount upon
such demand, the holder of this Note may, among other things, institute a judicial proceeding for
the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Issuer and collect the amounts adjudged or decreed to
be payable in the manner provided by law out of the property of the Issuer. The Issuer agrees to
pay all costs, expenses, and reasonable attorneys’ fees of the Noteholder in connection with the
enforcement of the payment of this Note.



     8. Payment Procedures. Payment of the principal and interest payable on the Maturity
Date will be made by wire transfer in immediately available funds to a bank account in the United
States designated by the holder of this Note, upon presentation and surrender of this Note at the
office of Issuer in Birmingham, Alabama or at such other place or places as the Noteholder may
reasonably request, provided that this Note is presented to the Issuer in time for the Issuer to
make such payments in such funds in accordance with its normal procedures. Payments of interest
(other than interest payable on the Maturity Date) shall be made by check or wire transfer, at the
sole discretion of the Issuer, to the holder of this Note. Interest payable on



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any Interest Payment Date shall be payable to the holder in whose name this Note is registered
at the close of business on February 15, May 15, August 15, or November 15, as the case may be,
next preceding such Interest Payment Date (such date being referred to herein as the “Regular
Record Date”) for such Interest Payment Date, except that interest not so punctually paid, if
any, will be paid to the holder in whose name this Note is registered at the close of business on a
Special Record Date fixed by the Issuer (a “Special Record Date”) notice of which shall be
given to the holder not less than ten (10) calendar days prior to such Special Record Date. (The
Regular Record Date and Special Record Date are referred to herein collectively as the “Record
Dates”). To the extent permitted by applicable law, interest shall accrue, at the Default Rate
on any amount of principal of or interest on this Note not paid when due. All payments on this
Note shall be applied first to accrued interest and then the balance, if any, to principal.



     9. Form of Payment. Payments of principal of and interest on this Note shall be made
in such coin or currency of the United States of America as at the time of payment shall be legal
tender for the payment of public and private debts.



     10. Registration of Transfer, Subordinated Note Register. This Note is transferable
in whole or in part, and may be exchanged for a like aggregate principal amount of Subordinated
Notes of other authorized denominations, by the holder of this Note in person, or by his attorney
duly authorized in writing, at the principal office of the Issuer in the City of Birmingham,
Alabama. The Issuer shall maintain a register providing for the registration of the Subordinated
Note and any exchange or transfer thereof (the “Subordinated Note Register”). Upon
surrender or presentation of this Note for exchange or registration of transfer, the Issuer shall
execute and the Issuer shall deliver in exchange therefor a Note or Notes of like aggregate
principal amount, each in a denomination of $1,000,000 or any amount in excess thereof which is an
integral multiple of $1,000 and that is or are registered in such name or names requested by the
holder. Any Subordinated Note presented or surrendered for registration of transfer or for
exchange shall (if so required by the Issuer) be duly endorsed, or accompanied by a written
instrument of transfer with such evidence of due authorization and guarantee of signature as may
reasonably be required by the Issuer in form satisfactory to the Issuer, duly executed by the
holder or his attorney duly authorized in writing, and with such tax identification number or other
information for each person in whose name a Subordinated Note is to be issued as the Issuer may
reasonably request to comply with applicable law and accompanied by a legal opinion of counsel
reasonably satisfactory to the Issuer that the transfer of the Note does not violate any securities
law registration requirements. No exchange or registration of transfer of this Note shall be made
on or after the fifteenth day immediately preceding the Maturity Date.



     11. Charges and Transfer Taxes. No service charge (other than any cost of delivery)
shall be imposed for any exchange or registration of transfer of this Note, but the Issuer may
require the payment of a sum sufficient to cover any stamp or other tax or governmental charge that
may be imposed in connection therewith (or presentation of evidence that such tax or charge has
been paid).



     12. Ownership. Prior to due presentment of this Note for registration of transfer,
the Issuer may treat the holder in whose name this Note is registered in the Subordinated Note
Register as the absolute owner of this Note for the purpose of receiving payments of principal of
and interest on this Note and for all other purposes whatsoever, whether or not this Note be



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overdue, and the Issuer and the Subordinated Note shall not be affected by any notice to the
contrary.



     13. Priority. This Note ranks pari passu in the event of any insolvency proceeding,
receivership, conservatorship, reorganization, readjustment of debt, marshalling of assets and
liabilities or similar proceeding or any liquidation or winding up of the Issuer, with all other
present or future unsecured subordinated debt obligations of the Issuer, except any unsecured
subordinated debt which may be expressly stated to be senior to or subordinate to the Subordinated
Notes.



     14. Notices. All notices to the Issuer under this Note shall be in writing and
addressed to the Issuer at 17 North 20th Street, Birmingham, Alabama 35203, Attention:
William H. Caughran, General Counsel and Secretary, or to such other address as the Issuer may
notify to the holder. All notices to the Subordinated Noteholders shall be in writing and sent by
first-class mail to each Subordinated Noteholder at his, her or its address as set forth in the
Subordinated Note Register.



     15. Modification. This Note may not be amended or modified by the Issuer without the
consent of the Noteholder. This Note may not be amended or modified by the Issuer for the purpose
of changing the Maturity Date or other terms of the Subordinated Notes without the prior consent of
the OTS.



     16. Absolute and Unconditional Obligation of the Issuer. No provisions of this Note
shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the
principal of and interest on this Note at the times, places and rate, and in the coin or currency,
herein prescribed.



     17. Waiver and Consent. (a) Any consent or waiver given by the holder of this Note
shall be conclusive and binding upon such holder and upon all future holders of this Note and of
any Note issued upon the registration of transfer hereof or in exchange therefore or in lieu
hereof, whether or not notation of such consent or waiver is made upon this Note.



     (b) No delay or omission of the holder of this Note to exercise any right or remedy accruing
upon any Event of Default shall impair such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein.



     18. Further Issues. The Issuer may, without the consent of the Noteholder, create and
issue additional notes having the same terms and conditions of this Note (except for the issue date
and issue price) so that such further notes shall be consolidated and form a single series with
this Note. Any such issuance will either be registered or issued pursuant to an exemption from
registration under the Securities Act of 1933, as amended, or similar laws or regulations issued by
the applicable banking agency.



     19. Governing Law. This Note shall be governed by and construed in accordance with
applicable federal law and the laws of the State of Alabama.



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     IN WITNESS WHEREOF, the undersigned has caused this Subordinated Note to be duly executed and
its corporate seal to be hereunto affixed and attested.



	 	 	 	 	 
	 	SUPERIOR BANK

 	 
	 	By:  	/s/ C. Stanley Bailey
 	 
	 	 	Name:  	C. Stanley Bailey 	 
	 	 	Title:  	Chairman and Chief Executive Officer 	 
	 




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