EXHIBIT 6B
INDEMNITY AGREEMENT
This Indemnity Agreement ("Agreement") is entered into as of this ____
day of ________, 1997 among AmericasBank Corp., Towson, Maryland
("Corporation"), a Maryland corporation and the proposed holding company of
AmericasBank (in formation), Towson Maryland ("AmericasBank"), AmericasBank, and
Rushmore Trust and Savings, FSB, Bethesda, Maryland ("Indemnified Party").
W I T N E S S E T H:
WHEREAS, Corporation and AmericasBank have requested from Indemnified
Party certain financial and other information with respect to Indemnified Party
("Information") for inclusion in the registration statement (the "Registration
Statement") to be filed by Corporation under the Securities Act of 1933, as
amended ("Securities Act");
WHEREAS, Indemnified Party desires indemnification for it and its
officers, directors, agents, servants, employees and each person, if any, who
controls Indemnified Party within the meaning of Section 15 of the Securities
Act or Section 20(a) of the Securities Exchange Act of 1934, as amended
("Exchange Act") (collectively, the "Indemnified Party's Agents"), from any
claims and liabilities that may arise from the provision of the Information.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises contained herein, the undersigned hereby agree as follows:
1. Indemnification of Indemnified Party and Indemnified Party's Agents.
Corporation and AmericasBank, jointly and severally, shall indemnify Indemnified
Party and Indemnified Party's Agents against, and agrees to hold Indemnified
Party and Indemnified Party's Agents harmless from and reimburse Indemnified
Party and Indemnified Party's Agents for, any and all damage, loss, liability,
cost and expense, including without limitation attorneys' fees, (collectively,
"Damages") incurred, suffered or paid by Indemnified Party or Indemnified
Party's Agents under the Securities Act, state "blue sky" laws or otherwise, by
reason of the use of Information provided by Indemnified Party to Corporation
1
and AmericasBank in the Registration Statement; provided, however, that
Corporation and AmericasBank shall not be subject to any such obligations or
covenants to the extent any of the Damages arise as a result of, or are related
to, a material breach by Indemnified Party of any of its representations,
warranties or covenants contained in the Branch Agreement, the Branch
Modification Agreement, the Loan Agreement or the Loan Modification Agreement
(as such terms are defined below). Indemnified Party's right to indemnity
hereunder is not limited by any claims or rights that it may have against
AmericasBank under either the Branch Purchase and Assumption Agreement dated May
31, 1996 ("Branch Agreement"), and the related Modification Agreement dated
_______________, 1997 ("Branch Modification Agreement"), or the Loan Purchase
and Assumption Agreement dated May 31, 1996 ("Loan Agreement"), and the related
Modification Agreement dated ___________, 1997 ("Loan Modification Agreement"),
all between AmericasBank and Indemnified Party. Similarly, nothing in this
Agreement shall limit any claims or rights that either Corporation or
AmericasBank may have against Indemnified Party under the Branch Agreement, the
Branch Modification Agreement, the Loan Agreement or the Loan Modification
Agreement. Notwithstanding anything to the contrary contained in this Agreement,
Corporation and AmericasBank shall have no obligation to indemnify, hold
harmless or reimburse Indemnified Party or Indemnified Party's Agents pursuant
to this Agreement in the event the Damages arise as a result of, or are related
to, an intentional or reckless misrepresentation contained in this Information.
2. Notice; Mitigation.
(a) Whenever any claim shall arise for indemnification
hereunder, Indemnified Party shall notify AmericasBank within 30 days after
Indemnified Party has actual knowledge of the facts constituting the basis for
such claim. Indemnified Party shall also so notify AmericasBank within 15 days
after commencement of any legal proceedings with respect to such claim. The
omission to provide such notification to AmericasBank shall not relieve
AmericasBank from any liability that it may have to Indemnified Party to the
extent AmericasBank is not prejudiced as a result of such omission.
(b) To the extent reasonably practicable, Indemnified Party
shall mitigate any Damages incurred or suffered by it for which indemnification
is claimed hereunder. Any expenditures,
2
costs and expenses in connection with such mitigation shall be considered
additional Damages and shall be subject to indemnification pursuant to this
Agreement.
3. Defense.
(a) If the facts giving rise to any indemnification hereunder
shall involve any actual or threatened claim, proceeding or demand by any person
other than a party hereto or its successors assigns (a "third party") against
Indemnified Party or any possible claim by Indemnified Party against any third
party, then AmericasBank shall be entitled, upon its election, by written notice
given to Indemnified Party within 30 days after the date on which notice of the
claim or demand is given to AmericasBank (without prejudice to the right of
Indemnified Party to participate at its expense through counsel of its own
choosing), to assume the defense or prosecution of such claim, proceeding or
demand resulting therefrom at its expense through counsel of its own choosing.
If AmericasBank assumes the defense or prosecution of any claim, proceeding or
demand, it shall take all steps reasonably necessary in the defense, prosecution
or settlement thereof. AmericasBank shall not, in the defense or prosecution of
such claim, proceeding or demand, except with the written consent of Indemnified
Party, consent to the entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving to Indemnified
Party by the third party of an unconditional release from all liability in
respect of such claim or litigation. Indemnified Party shall cooperate in the
defense of prosecution of such action or proceeding.
(b) If AmericasBank shall not assume the defense or
prosecution of any such claim proceeding or demand, Indemnified Party may defend
against or prosecute such action, proceeding or demand in such manner as it may
deem appropriate and may settle such claim, proceeding or demand, after giving
written notice thereof to AmericasBank, on such terms as Indemnified Party may
deem appropriate.
(c) AmericasBank shall indemnify Indemnified Party against and
hold it harmless from any and all Damages resulting from or arising out of any
such settlement or any judgment in connection with any such claim proceeding or
demand.
3
(d) If by reason of the claim, proceeding or demand of such
third party, a mortgage, lien, pledge, charge, claim, security interest,
attachment, garnishment, execution of encumbrance or any kind ("Lien") is placed
upon any of the property or assets of Indemnified Party, then AmericasBank, if
it desires to exercise its right to defend or prosecute such claim, proceeding
or demand, shall furnish a satisfactory indemnity bond to obtain the prompt
release of such Lien.
4. Payment. Each amount determined to be payable by AmericasBank
hereunder shall be paid, in cash, to Indemnified Party within 30 days after the
date on which AmericasBank receives written notice of the amount of such
indemnity, as finally determined in accordance with the terms hereof. Each such
notice shall contain a reasonably detailed itemization of the damages, expenses,
costs and liabilities comprising the indemnity, certified to be true and correct
by the Indemnified Party or its legal representative.
5. Representations and Warranties of Corporation and AmericasBank.
Corporation and AmericasBank, jointly and severally, expressly represents and
warrants as follows:
(a) The execution, delivery and performance of this Agreement
by Corporation and AmericasBank, and the consummation of the transactions
contemplated hereby, are within the corporate power of Corporation and
AmericasBank, have been duly authorized by all necessary corporate action on the
part of Corporation, AmericasBank or its organizers, will not contravene or
violate any applicable law or regulation, and will not contravene or constitute
a default under any mortgage, indenture, agreement, judgment, injunction, order,
decree or other instrument binding on Corporation, AmericasBank or its
organizers.
(b) This Agreement has been duly executed and delivered by
Corporation and AmericasBank and, assuming the due authorization, execution and
delivery hereof by Rushmore, constitutes a legal, valid and binding obligation
of Corporation and AmericasBank, enforceable in accordance with its terms.
6. Remedies. Indemnified Party shall have and may exercise all of the
rights, powers, privileges and remedies (collectively, "Remedies") contained in
this Agreement. No delay by or omission of Indemnified Party to exercise any
such Remedies shall impair any
4
remedy or be a waiver of any event of default hereunder, and any single or
partial exercise of any such Remedies shall not preclude other or further
exercise thereof, and no waiver of any such Remedies shall be valid unless in
writing signed by Indemnified Party and then only to the extent specifically set
forth.
7. Termination. This Agreement may be terminated only by the prior
written agreement of the parties hereto.
8. Miscellaneous.
(a) This Agreement shall become effective when executed by
AmericasBank and delivered to Indemnified Party, shall be binding upon
Corporation, AmericasBank and their successors and assigns, and shall inure to
the benefit of Indemnified Party and its successors and assigns.
(b) Any notice herein required or permitted to be given shall
be given in writing by mailing the same by certified or registered mail, postage
prepaid, or by telegraph, charges prepaid, addressed (i) if to Indemnified
Party, as follows, Rushmore Trust and Savings, FSB, 0000 Xxxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. X'Xxxxxx, III, (ii) if to
Corporation or AmericasBank, as follows: J. Xxxxxxxx Xxxxxxx, III, 000 Xxxx
Xxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000. Indemnified Party and AmericasBank and any
of their respective successors in interest may change the address for service
upon it by written notice to Indemnified Party and to each successor in interest
who has served note of its interest upon the other parties hereto.
(c) This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
(d) This agreement shall be construed and interpreted in
accordance with and governed and enforced in all respects by the laws of the
State of Maryland.
5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
AMERICASBANK CORP.
By: /s/ J. Xxxxxxxx Xxxxxxx, III
____________________________________
J. XXXXXXXX XXXXXXX, III
Duly Authorized Representative
AMERICASBANK (in formation)
By: /s/ J. Xxxxxxxx Xxxxxxx, III
____________________________________
J. XXXXXXXX XXXXXXX, III
Duly Authorized Representative
RUSHMORE TRUST AND SAVINGS, FSB
By: /s/ Xxxxxx X. X'Xxxxxx, III
____________________________________
XXXXXX X. X'XXXXXX, III
Duly Authorized Representative
6
