Exhibit 4.8
ESCROW AGREEMENT
This Escrow Agreement (this "Agreement") is made and entered into as of
the __ day of ______, 1998, by and among McKINNON & COMPANY, INC., a Virginia
corporation (the "Underwriter"), GUARANTY CAPITAL TRUST I, a statutory business
trust organized under Delaware law (the "Trust") and GUARANTY FINANCIAL
CORPORATION, a Virginia corporation (the "Company" and, together with the Trust,
the "Offerors"), and WILMINGTON TRUST COMPANY, a Delaware banking corporation
(the "Escrow Agent").
R E C I T A L S :
A. The Offerors propose to sell up to $6.9 million of $____
Convertible Preferred Securities or liquidation amount of $25.00 per convertible
preferred security (the "Preferred Securities"), to the public at a price of
$25.00 per Preferred Security (the "Offering").
B. The Offerors have retained the Underwriter, as selling agent for
the Offerors on a best efforts basis, to sell the Preferred Securities in the
Offering, and the Underwriter has agreed to sell the Preferred Securities as the
Offerors' selling agent on a best efforts basis in the Offering, and the
Underwriter has agreed to serve in this capacity, the terms of which
relationship are set forth in an Underwriting Agreement between the Offerors and
the Underwriter, the form of which is attached hereto as Exhibit A (the
"Underwriting Agreement").
C. The Underwriter will enter into agreements with other
brokers/dealers (the "Selected Dealers" or individually, the "Selected Dealer")
to assist in the sale of the Preferred Securities.
D. The Offerors have agreed to pay the Underwriter a commission of
up to $_______.
E. The Escrow Agent is willing to hold the proceeds in escrow
pursuant to this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained in this Agreement, it is hereby agreed as
follows:
1. Establishment of the Escrow Account. On or prior to the
date of commencement of the Offering, the parties shall establish a
non-interest-bearing account with the Escrow Agent, which escrow account shall
be entitled "Guaranty Capital Trust I, Escrow Account" (the "Escrow Account").
The Underwriter shall make, and shall instruct purchasers and Selected Dealers
to make payment for the Preferred Securities by wire transfer of immediately
available funds as follows:
Fed. Funds to be wired to:
Wilmington Trust Company
Wilmington, Delaware
ABA No. 031100092
for credit to the account of Guaranty Capital Trust I-Escrow
Account No. _______
Attention: Terri Tavani, Corporate Trust Administration
Telephone No. (302) 651-8558
Fax No. (302) 651-8882
The Offerors will make payment of the Underwriter's commission as
provided above.
2. Deposits into the Escrow Account. Funds received from the
Underwriter, purchasers and Selected Dealers shall be deposited in the Escrow
Account. All monies so deposited in the Escrow Account are hereinafter referred
to as the "Escrow Amount." The Escrow Account shall be a non-interest-bearing
account.
3. Escrow Period. The escrow period (the "Escrow Period")
shall begin on _______, 1998 and shall terminate at 5:00 p.m. on ________, 1998,
or such other time as shall be mutually agreed upon in writing by the parties.
During the Escrow Period, the Offerors acknowledge that they are not entitled to
any funds received into escrow and no amounts deposited by the Escrow Agent
shall become property of the Offerors or any other entity, or be subject to the
debts of the Offerors or any other entity.
4. Delivery of Escrow Account Proceeds. At the Closing Time
as defined in the Underwriting Agreement, the Underwriter and Offerors shall
provide the Escrow Agent with written directions for the distribution of the
Escrow Account, and the Escrow Agent agrees to distribute the Escrow Account
pursuant to such written directions. If no direction is received on or before
5:00 p.m., ________, 1998 (unless such time shall be extended by written
agreement of the Underwriter, Offerors and the Escrow Agent), the Escrow Agent
shall return the Escrow Amount to the parties that made payments to the Escrow
Account and this Agreement shall be of no further force or effect.
5. Closing Date. The "Closing Time" shall be that date
specified in the Underwriting Agreement.
6. Duties and Rights of the Escrow Agent. The foregoing
agreements and obligations of the Escrow Agent are subject to the following
provisions:
(a) The Escrow Agent's duties hereunder are limited
solely to the safekeeping of the Escrow Account in accordance with the terms of
this Agreement. It is agreed that the Escrow Agent shall have no other duties or
obligations hereunder except as expressly set forth herein, shall be responsible
only for the performance of such duties and obligations, shall not be required
to take any action otherwise than in accordance with the terms hereof, shall not
be required to perform any acts that may violate any applicable laws, and shall
not be liable or responsible in any manner for any loss or damage arising by
reason of any act or omission to act hereunder or in connection with any of the
transactions contemplated hereby, including, but not limited to, any loss or
damage that may occur by reason of forgery, false representation, the exercise
of its discretion in any particular manner or for any other reason, except any
loss or damage arising by reason of its gross negligence or willful misconduct.
(b) The Escrow Agent may rely upon, and shall be
protected in acting or refraining from acting upon, any written instructions
furnished to it hereunder and in good faith believed by it to be genuine or
presented by the proper party or parties, and the Escrow Agent may assume that
any person or entity purporting to give instructions in connection with
provisions hereof has been duly authorized to do so. The Escrow Agent may at any
time request written instructions from the Underwriter and the Offerors with
respect to the interpretation of this Agreement or of any action to be taken or
suffered or not taken hereunder.
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(c) In the event that the Escrow Agent shall be
uncertain about the interpretation of this Escrow Agreement or about its rights
or obligations hereunder or the propriety of any action contemplated hereunder,
or if the Escrow Agent shall receive instructions with respect to the Escrow
Account that are in its opinion in conflict with any other instructions with
respect to the Escrow Account that it has received or in conflict with any
provision of this Agreement, (i) the Escrow Agent promptly shall notify the
Underwriter and the Offerors (and any other involved parties, if necessary) of
such uncertainty or inconsistent instructions, (ii) the Escrow Agent shall be
entitled to refrain from taking any action other than to keep safely the Escrow
Account until it shall be directed otherwise in writing signed by the
Underwriter and the Offerors (and any other involved parties, if necessary) or
by a final order or judgment of a court of competent jurisdiction, and (iii) if
the Escrow Agent does not receive a notice signed by the Underwriter and the
Offerors (and any other involved parties, if necessary) resolving such
uncertainty or inconsistent instructions within a reasonable time, the Escrow
Agent shall have the right (but not the obligation) to file suit in interpleader
and obtain an order or judgment from a court of competent jurisdiction requiring
all persons involved to interplead and litigate in such court their several
claims and rights among themselves and, upon the conclusion thereof, to act in
accordance with the resolution of such litigation.
7. Indemnification and Fees of the Escrow Agent. The
Underwriter and the Offerors hereby jointly and severally agree to indemnify,
defend and save harmless the Escrow Agent from and against any and all losses,
expenses (including without limitation, reasonable fees, disbursements and other
expenses of counsel), assessments, liabilities, claims, damages, actions, suits
or other charges incurred by or assessed against the Escrow Agent for anything
done or omitted by it in the performance of its duties hereunder other than as a
result of its gross negligence or willful misconduct. In addition to the
foregoing, the Underwriter and the Offerors hereby agree that the Escrow Agent
shall deduct from the Escrow Account prior to distributing or delivering the
Escrow Account in accordance with Section 8 hereof reasonable compensation for
the services rendered by the Escrow Agent hereunder.
8. Resignation and Replacement of the Escrow Agent.
(a) The Escrow Agent may resign at any time and
thereupon be discharged of its duties and obligations as escrow agent hereunder
by giving five (5) days' prior written notice thereof to the Underwriter and
Offerors. Upon expiration of such five day period, the Escrow Agent shall take
no further action until the Underwriter and the Offerors have jointly appointed
a successor escrow agent. Upon receipt of written instructions signed by the
Underwriter and the Offerors, the Escrow Agent shall promptly turn over the
Escrow Account to the successor escrow agent. The Escrow Agent shall thereafter
have no further duties or obligations hereunder.
(b) The Escrow Agent may be removed and discharged
from its duties and obligations as escrow agent hereunder upon the mutual
agreement of the Underwriter and the Offerors by delivering a written notice
executed by the Underwriter and the Offerors of such removal to the Escrow Agent
specifying the date when such removal shall be effective (but such a removal
shall in no event be effective prior to the appointment of a successor escrow
agent). In the event of such removal, the Underwriter and the Offerors shall,
within thirty (30) days after such notice, jointly appoint a successor escrow
agent and, upon receipt of written instructions signed by the Underwriter and
the Offerors, the Escrow Agent shall promptly turn over the Escrow Account to
such successor escrow agent. The Escrow Agent shall thereafter have no further
duties or obligations hereunder.
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9. Notices. It is further agreed as follows:
(a) All notices given hereunder will be in writing,
served by registered or certified mail, return receipt requested, postage
prepaid, or by hand-delivery, to the parties at the following addresses:
To the Offerors:
Guaranty Capital Trust I
Guaranty Financial Corporation
1658 State Farm Boulevard
Charlottesville, Virginia 22911
Attention: ________________
To the Underwriter:
McKinnon & Company, Inc.
1609 First Virginia Building
555 Main Street
Norfolk, Virginia 23510
Attention: William J. McKinnon, Jr.
To the Escrow Agent:
Wilmington Trust Company
1100 North Market Street
Wilmington, Delaware 19890
Attention: Jack Beeson
10. Miscellaneous.
(a) This Agreement shall be binding upon, inure to
the benefit of and be enforceable by the parries hereto and their respective
successors and assigns.
(b) If any provision of this Agreement shall be held
invalid by any court of competent jurisdiction, such holding shall not
invalidate any other provision hereof.
(c) This Agreement shall be governed by the
applicable laws of the State of Delaware.
(d) This Agreement may not be modified except in
writing signed by the parties hereto.
(e) All demands, notices, approvals, consents,
requests and other communications hereunder shall be given in the manner
provided in this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their respective names, all as of the date first above written.
McKINNON & COMPANY, INC.
By:
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William J. McKinnon, Jr.
President
GUARANTY CAPITAL TRUST I
By:___________________________________
Trustee
GUARANTY FINANCIAL CORPORATION
By:___________________________________
Title:________________________________
WILMINGTON TRUST COMPANY
By:___________________________________
Title:________________________________
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