Form Of Escrow Agreement

ESCROW AGREEMENT


THIS ESCROW AGREEMENT (this "Agreement") is entered into and effective as of the ___ day of ______________, 1997, by and between Buckhead Community Bancorp, Inc., a Georgia corporation (the "Company"), and SunTrust Bank, Atlanta, a Georgia banking corporation (the "Escrow Agent").


W I T N E S S E T H:
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WHEREAS, the Company proposes to offer and sell (the "Offering") up to 2,400,000 shares of common stock, $.01 par value per share (the "Shares"), to investors (the "Investors") at $5.00 per Share pursuant to a registered public offering; and


WHEREAS, the Company desires to establish an escrow for funds forwarded by subscribers for Shares, and the Escrow Agent is willing to serve as Escrow Agent upon the terms and conditions herein set forth.


NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:


1. DEPOSIT WITH ESCROW AGENT.
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(a) The Escrow Agent agrees that it will from time to time accept, in its capacity as escrow agent, subscription funds for the Shares (the "Escrowed Funds") received by it from subscribers through or by the Company. All checks shall be made payable to the Escrow Agent for Buckhead Community Bancorp, Inc. Any check which does not clear normal banking channels and is returned by the drawer's bank to Escrow Agent will be promptly turned over to the Company along with all other subscription documents relating to such check. Any check received that is made payable to a party other than the Escrow Agent shall be returned to the Company for return to the proper party. The Company in its sole and absolute discretion may reject any subscription for Shares for any reason and upon such rejection it shall notify and instruct the Escrow Agent in writing to return the Escrowed Funds by check made payable to the subscriber. If the Company rejects or cancels any subscription for any reason the Company will retain any interest earned on the Escrowed Funds to help defray organizational costs.


(b) Subscription agreements for the Shares shall be reviewed for accuracy by the Company and, immediately thereafter, the Company shall deliver to the Escrow Agent the following information in a typed format: (i) the name and address of the subscriber; (ii) the number of Shares subscribed for by such subscriber; (iii) the subscription price paid by such subscriber; (iv) the subscriber's tax identification number certified by such subscriber; and (v) a copy of the subscription agreement.


(c) Subscribers may pay a deposit on their subscription price after receipt of the Preliminary Prospectus used by the Company in the offering, but prior to the delivery of a final Prospectus and confirmation of subscription to the subscribers. Such deposit will be at least 10%


of the total subscription price for the number of shares subscribed for, and will be refundable if the subscription is not confirmed by the subscriber when the final Prospectus becomes available.


2. INVESTMENT OF ESCROWED FUNDS. Upon collection of each check by
---------------------------- the Escrow Agent, the Escrow Agent shall invest the funds in the Escrow Agent's STI Classic Government Money Market Fund or such other investments as the Company shall direct in writing. The Escrow Agent warrants that its STI Classic Government Money Market Fund is invested only in short-term securities issued or fully guaranteed by the United States government. The Company shall provide the Escrow Agent with instructions from time to time concerning in which of the specific investment instruments described above the Escrowed Funds shall be invested, and the Escrow Agent shall adhere to such instructions. Interest and other earnings shall start accruing on such funds as soon as such funds would be deemed to be available for access under applicable banking laws and pursuant to the Escrow Agent's own banking policies.


3. DISTRIBUTION OF ESCROWED FUNDS. The Escrow Agent shall distribute
------------------------------ the Escrowed Funds in the amounts, at the times, and upon the conditions hereinafter set forth in this Agreement.


(a) If at any time on or prior to September 30, 1998, or such subsequent extension date not later than March 31, 1999 (the "Closing Date"), (i) the Escrow Agent has certified to the Company in writing that the Escrow Agent has received at least $8,000,000 in Escrowed Funds which are collected funds, and (ii) the Escrow Agent has received a certificate from the President or the Chairman of the Board of the Company that all other conditions to the release of funds as described in the Company's Registration Statement filed with the Securities and Exchange Commission pertaining to the public offering have been met, then the Escrow Agent shall deliver the Escrowed Funds to the Company to the extent such Escrowed Funds are collected funds. If any portion of the Escrowed Funds are not collected funds, then the Escrow Agent shall notify the Company of such facts and shall distribute such funds to the Company only after such funds become collected funds. For purposes of this Agreement, "collected funds" shall mean all funds received by the Escrow Agent which have cleared normal banking channels. In all events, the Escrow Agent shall deliver not less than $8,000,000 in collected funds to the Company, except as provided in Paragraph 3(b) hereof.


(b) If the Escrowed Funds do not, on or prior to the Closing Date, become deliverable to the Company based on failure to meet the conditions described in Paragraph 3(a), or if the Company terminates the offering at any time prior to the Closing Date and delivers written notice to the Escrow Agent of such termination (the "Termination Notice"), the Escrow Agent shall return the Escrowed Funds which are collected funds as directed in writing by the Company to the respective subscribers in amounts equal to the subscription amount theretofore paid by each of them. All uncleared checks representing Escrowed Funds which are not collected funds as of the Initial Closing Date shall be collected by the Escrow Agent, and together with all related subscription documents thereof shall be delivered to the Company by the Escrow Agent, unless the Escrow Agent is otherwise specifically directed in writing by the Company.


4. DISTRIBUTION OF INTEREST. Any interest earned on the Escrowed
------------------------ Funds shall be distributed to subscribers simultaneous with any release of Escrowed Funds to such subscribers based on the proportion which the amount of collected funds held in escrow for the benefit of each


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subscriber and the number of days such collected funds have been held bears to the total of the daily collected balances of Escrowed Funds during the term of this Agreement. Any interest earned on Escrowed Funds released to the Company pursuant to Section 3(a) shall also be released to the Company, and no subscriber shall have any right to receive such interest.


5. FEES OF ESCROW AGENT. The Company shall pay the Escrow Agent an
-------------------- annual fee of $1,500.00 for its services hereunder. In addition, the Company will pay a service charge of $5.00 per subscriber. All of these fees are payable upon the release of the Escrowed Funds, and the Escrow Agent is hereby authorized to deduct such fees from the Escrowed Funds prior to any release thereof pursuant to Section 3 hereof.


6. LIABILITY OF ESCROW AGENT.
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(a) Escrow Agent undertakes to perform only such duties as are expressly set forth herein, and no additional duties or obligations shall be implied hereunder. In performing its duties under this Agreement, or upon the claimed failure to perform any of its duties hereunder, Escrow Agent shall not be liable to anyone for any damages, losses or expenses which may be incurred as a result of Escrow Agent so acting or failing to so act; provided, however, Escrow Agent shall not be relieved from liability for damages arising out of its proven gross negligence or willful misconduct under this Agreement. Escrow Agent shall in no event incur any liability with respect to (i) any action taken or omitted to be taken in good faith upon advice of legal counsel, which may be counsel to any party hereto, given with respect to any question relating to the duti ...