EXHIBIT 6A
FORM OF FOUNDER LOAN AGREEMENT
THIS FOUNDER LOAN AGREEMENT (this "Agreement") is entered into by and
among each of the individuals executing this Agreement(each a "Lender" and
collectively, the "Lenders") and AMERICASBANK CORP., a Maryland corporation (the
"Company").
WHEREAS, on June 4, 1996, the Company was incorporated under the laws
of the State of Maryland primarily to own all of the outstanding capital stock
of a de novo federal stock savings bank to be named AmericasBank (the "Bank");
and
WHEREAS, on June 5, 1996, certain of the Lenders (the "Organizers")
filed an application with the Office of Thrift Supervision ("OTS") to charter
the Bank as a federal stock savings bank; and
WHEREAS, on April 15, 1997, the OTS conditionally approved the
application to charter the Bank as a federal stock savings bank; and
WHEREAS, on June 5, 1996, the Organizers filed an application with the
OTS for the Company to become a savings and loan holding company of the Bank;
and
WHEREAS, on April 15, 1997, the OTS approved the Company's application
to become a savings and loan holding company of the Bank; and
WHEREAS, on May 31, 1996, the Bank entered into agreements, as amended,
with Rushmore Trust and Savings, FSB ("Rushmore"), for the purchase and
assumption of certain of Rushmore's assets and liabilities; and
WHEREAS, the Company intends to offer to the public (the "Offering")
shares of its common stock (the "Common Stock") pursuant to a registration
statement filed with the Securities and Exchange Commission (the "SEC"); and
WHEREAS, subject to regulatory approval, each Organizer will serve as
either an officer or director of the Company and the Bank; and
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WHEREAS, the Organizers anticipate that each Lender who is not an
Organizer will be added as a director of the Company and the Bank or will be
appointed as an advisory director of the Bank; and
WHEREAS, in furtherance of the transactions described above (the
"Transactions"), each Lender desires to lend funds or has loaned funds to the
Company on a non-recourse basis to pay for the expenses incurred or to be
incurred in connection with the Transactions, in the amount set opposite such
Lender's name on the signature page of this Agreement; and
WHEREAS, the Lenders understand that if the necessary regulatory
approvals are not obtained and/or if the transaction with Rushmore is not
consummated for any reason and/or if the Bank does not commence banking
operations for any reasons and/or if the Company does not sell at least 240,000
shares of Common Stock in the Offering, the Lenders may not receive the
repayment of any of the funds loaned by them to the Company; and
WHEREAS, the Lenders and the Company intend by this Agreement to
delineate their respective rights and obligations with respect to their loans to
the Company.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. THE LOANS; REPAYMENT OR OTHER SATISFACTION. In accordance with this
Agreement, each Lender has loaned or hereby agrees to loan to the Company on a
non-recourse basis the amount set forth opposite his name on the signature page
of this Agreement. The loans shall bear interest as follows:
(a) All money expended from the Loan Account (as defined in
paragraph 2 below) after April 1, 1997 shall bear interest accruing at the rate
of 10% per annum. Interest shall be allocated among the Lenders based on a pro
rata allocation of the loans made by all of the Lenders.
(b) Money deposited into the Loan Account but not expended by
the Company shall not bear interest.
Each Lender agrees that the Company is obligated to repay such loans only from
the proceeds of the Offering, or, at the Lender's
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option, to accept the issuance of shares of Common Stock in the Offering in
satisfaction of such loan. The Lenders further agree that if the Offering has
not been successfully completed for any reason by December 31, 1997, the Company
shall be dissolved and liquidated and each of the Lenders shall: (i) receive, on
a pro rata basis based upon the loans made by all of the Lenders, a portion of
any of the Company's remaining assets (after the satisfaction of all liabilities
to all other creditors); and (ii) accept such distribution in full satisfaction
of any amounts due from the Company to the Lenders pursuant to this Agreement.
2. DEPOSIT AND EXPENDITURE OF FUNDS. All funds collected from the
Lenders pursuant to this Agreement (the "Lenders' Funds") have been or will be
deposited into an account (the "Loan Account") established with The First
National Bank of Maryland. The proper officers of the Company may withdraw funds
from the Loan Account, such funds to be used to pay normal and customary
expenses relating to the Transactions, including, but not limited to, the
following: (a) expenses arising from or relating to the organization,
capitalization and operation of the Company or the Bank; (b) expenses arising
from or relating to the Offering or the transaction with Rushmore; (c)
accounting, legal and due diligence expenses relating to or in connection with
the Transactions; and (d) other expenses arising from or directly relating to
the Transactions. The Lenders hereby acknowledge that the Company will make
withdrawals from the Loan Account, and, accordingly, if the Offering is not
successfully completed, the Lenders will not receive a repayment of 100% of the
Lenders' Funds, and may not receive the return of any of the Lenders' Funds.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS. Each Lender hereby
represents and warrants to, and acknowledges to and agrees with, the Company,
the Bank and each other Lender as follows:
(a) Each Lender recognizes that the Bank is a de novo bank to
be organized in the future and has no financial or operating history, that the
organization and operation of the Company and the Bank entails significant
risks, including, without limitation, that the organization of the Company and
the Bank is subject to regulatory approvals and that there are no assurances
that such approvals will be obtained and that the Offering may never be
commenced, and that even if commenced, it may be unsuccessful and not raise
sufficient funds to repay the
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indebtedness arising from the funds loaned by the Lenders to the Company
pursuant to this Agreement.
(b) Within five days after receipt of a request from the
Company, each Lender hereby agrees to provide such information and to execute
and deliver such documents as may be reasonably necessary to comply with any and
all laws and ordinances to which the Company or the Bank is subject.
4. TERMINATION OF PRIOR AGREEMENTS. In the event that any Lender has
entered into any other agreement with the Company or the Bank which is in any
way related to the Transactions, such agreement is hereby terminated and of no
further force or effect.
5. INDEMNIFICATION. Each Lender agrees to indemnify and hold harmless
the Company, the Bank and each of the other Lenders and all of their respective
agents and representatives who are associated with the Transactions and all of
the officers and directors of the Company and the proposed officers and
directors of the Bank against any and all loss, liability, claim, damage and
expense whatsoever (including, but not limited to, any and all expenses
reasonably incurred in investigating, preparing or defending against any
litigation commenced or threatened or any claim whatsoever) arising out of or
based upon any false representations or warranty or breach or failure by the
Lender to comply with any covenant or agreement made by the Lender in this
Agreement.
6. IRREVOCABILITY; BINDING EFFECT. Each Lender hereby acknowledges and
agrees that: (a) the Lender is not entitled to cancel, terminate or revoke this
Agreement; and (b) this Agreement shall survive the death or disability of the
Lender and shall be binding upon and inure to the benefit of the parties and
their heirs, executors, administrators, successors, legal representatives and
assigns.
7. MODIFICATION. Neither this Agreement nor any provisions hereof shall
be waived, modified, discharged or terminated except by an instrument in writing
signed by the party against whom any such waiver, modification, discharge or
termination is sought.
8. NOTICES. Any notice, demand or other communication which any party
hereto may be required, or may elect, to give to any other party hereunder shall
be sufficiently given if: (a)
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deposited, postage prepaid, in a United States mail box, stamped registered or
certified mail, return receipt requested, addressed to (i) a Lender at his
address as on file with the Company or (ii) the Company at 000 Xxxx Xxxxx Xxxx,
Xxxxxx, Xxxxxxxx 00000 and; or (b) delivered personally at such address.
9. COUNTERPARTS. This Agreement may be executed through the use of one
or more counterparts, and each counterpart shall, for all purposes, constitute
one agreement binding on all parties, notwithstanding that all parties are not
signatories to the same counterpart.
10. ENTIRE AGREEMENT. This Agreement contains the entire agreement of
the parties with respect to the subject matter hereof and there are no
representations, covenants or other agreements except as stated or referred to
herein.
11. SEVERABILITY. Each provision of this Agreement is intended to be
severable from every other provision, and the invalidity or illegality of any
portion hereof shall not affect the validity or legality of the remainder
hereof.
12. ASSIGNABILITY. This Agreement is not transferable or assignable by
any of the undersigned.
13. HEADINGS. All headings in this Agreement are included herein for
convenience of reference only, and shall not be deemed to affect the meaning or
construction of any of the provisions hereof.
14. GOVERNING LAW, JURISDICTION AND VENUE. This Agreement shall be
governed by and construed in accordance with the laws of the State of Maryland
applied to residents of that state executing contracts wholly to be performed in
that state. Each Lender irrevocably agrees that, subject to the Company's sole
and absolute election, any action or proceeding in any way, manner or respect
arising out of this Agreement or any amendment, instrument, document or
agreement delivered or which may in the future be delivered in connection
herewith shall be litigated only in the courts having situs within the City of
Baltimore, the State of Maryland, and each Lender hereby consents and submits to
the jurisdiction of any local, state or federal court located within such city
and state. Each Lender hereby waives any right he may
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have to transfer or change the venue of any litigation brought against the
Lender by the Company.
15. CERTIFICATE OF NON-FOREIGN STATUS. Each Lender declares that, to
the best of his knowledge and belief, the following statements are true, correct
and complete: (a) that unless an Internal Revenue Service Form 4224 has been
completed, the Lender is not a foreign person for purposes of U.S. income
taxation (i.e., he is not a nonresident alien, nor executing this document as an
officer of a foreign corporation, as a partner in a foreign partnership, or as a
fiduciary of a foreign employee benefit plan, foreign trust or foreign estate)
and (b) that the Lender agrees to inform the Company promptly if each of the
Lender becomes a nonresident alien.
16. ADDITIONAL LENDERS. Notwithstanding anything to the contrary
contained in this Agreement, the Company may add additional Lenders (an
"Additional Lender") to this Agreement without obtaining the consent of the
other Lenders executing this Agreement, and to the extent the Lenders make any
representations, warranties or agreements to each other pursuant to this
Agreement, such representations, warranties or agreements shall also be deemed
made to the Additional Lenders.
IN WITNESS WHEREOF, the Lenders and the Company have executed and
delivered this Agreement under their respective seals as of the date indicated
under the parties' signature.
Amount of Loan:
___________________________ _____________________________________
Name of Lender:
Date:
AMERICASBANK CORP.
___________________________ By: _________________________________
J. Xxxxxxxx Xxxxxxx, XX
President
Date:
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