EXHIBIT 10.4
CMS-TM- AGENCY AGREEMENT
FARMERS AND MERCHANTS BANK AND TRUST OF WATERTOWN
This Agreement is entered into this _________ day of ______, _______, by and
between _____________________________ (hereinafter referred to as "Customer"
whether one or more) and Farmers and Merchants Bank and Trust of Watertown, 00
Xxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxx Xxxxxx 00000, (hereinafter referred to
as "Bank"), and establishes an agency account with Bank's Trust Department as
follows:
1. DEPOSITS AND INVESTMENTS. Customer shall from time to time deposit
checks or money in checking account # ________ at Bank (the "Checking
Account"). At the conclusion of each business weekday, the balance of
funds in the Checking Account which are deemed collected under normal
banking procedures employed by Bank and its data processor in excess
of $________ ("Minimum Balance") shall be transferred in increments of
$_________ (the "Minimum Transfer Amount") from customer's Checking
Account by Bank into another account in Customer's name at Bank (the"
Agency Account"). Customer hereby directs that the entirety of the
funds in the CMS-TM- Agency Account be invested on a daily basis by
Bank's Trust Department, as agent for Customer in repurchase
agreements of Bank collateralized by a poof of securities which are
direct or indirect obligations of the United States Government or are
obligations of or guaranteed by agencies of United States Government.
The repurchase agreements shall be in the form attached hereto and
incorporated by this reference. In the event that said repurchase
agreement not be offered by the Bank, for whatever reason. Customer
hereby authorizes Bank's Trust Department to select a money market
fund for investment of Customer's funds; in which case the Bank's
Trust Department shall give written notice to Customer of such
selection and Customer agrees to be bound by and be deemed to have
approved such selection until such time as Bank's Trust Department
receives Customer's written objection to such selection. Bank shall
have no liability for the selection of such money market fund except
due to its gross negligence or willful misconduct. Customer expressly
authorizes Bank's Trust Department to make any and all purchases and
sales of any investments permitted hereunder as Customer's agent in
the nominee name of Bank's Trust Department.
2. INSUFFICIENT MINIMUM BALANCE. If at any time Customer's balance of
collected funds in its Checking Account falls below the Minimum
Balance, Customer directs Bank's Trust Department to sell or redeem
investments and to automatically transfer funds in increments of the
Minimum Transfer Amount from the CMS-TM- Agency Account to the
Checking Account.
3. INCOME AND INTEREST. Bank's Trust Department shall collect and
receive the interest and other income from the investments made in the
CMS-TM- Agency Account and shall credit these earnings to the CMS-TM-
Agency Account on a monthly basis.
4. SERVICE CHARGES: MINIMUM BALANCES. The Bank reserves the right to
make such service charges and to impose and change minimum balance
requirements as may, from time to time, be prescribed by its rules
governing the types of accounts described herein.
5. REPRESENTATIONS.
(a) INDIVIDUAL/FIDUCIARY. Customer, if an individual or fiduciary,
represents, covenants and warrants that he/she/they has/have full
right, power and authority and is/are of legal age to enter into
this Agreement. If more than one individual has executed this
Agreement as Customer, they agree that they are owners of the
Checking Account and CMS-TM- Agency Account, funds placed
therein, and the deposits and investments therein joint tenants
with rights of survivorship, and not as tenants in common, and
the Bank is authorized to pay out, honor checks, or otherwise
disburse on the order of either. During the lifetime of both,
and after the death of either, said accounts and the funds and
investments thereof shall be the property of and payable to the
order of the survivor.
(b) CORPORATION/PARTNERSHIP. The Customer represents, covenants, and
warrants that:
(1) The Customer, if a corporation or partnership, is duly
organized and existing, in good standing under the laws of
the State under which it was incorporated or exists, and has
the power to own its property and to carry on its business
as now being conducted, and is duly qualified to do business
and is in good standing in the State of South Dakota and in
each jurisdiction in which the character of the properties
owned by it therein or in which the transaction of its
business makes such qualification necessary.
(2) The Customer has full power and authority to enter into this
Agreement and no consent or approval or any public authority
or of any other person or entity is required as a condition
to the validity and enforceability of this Agreement.
2
(3) This Agreement constitutes the valid and legally binding
obligations of the Customer and is enforceable in accordance
with its terms.
6. APPLICABLE LAWS. This Agreement shall be deemed to be a contract made
under and pursuant to the laws of the State of South Dakota and the
rights of the parties hereto shall be controlled, interpreted, and
determined in accordance with the laws of the State of South Dakota
and any rules and regulations applicable to banks in South Dakota.
7. SUCCESSORS, ETC. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their heirs, personal
representatives, successors and assigns.
8. DEATH/DISSOLUTLON.
(a) INDIVIDUAL/FIDUCIARY. If Customer is an individual, the
authority of Bank to act as agent hereunder shall not be affected
by Customer's disability or incapacity, and the authority granted
herein shall continue during any period while Customer is
disabled or incapacitated. Furthermore, all such authority shall
continue after Customer's death, and notice of such death shall
have been received by a trust officer of the Bank so that Bank
has actual knowledge that Customer has died. Any action taken in
good faith by Bank during any period while it is uncertain
whether Customer is alive, before said Bank receives actual
knowledge of customer's death, or, in any event, taken during any
period while customer is disabled or incapacitated, shall be
valid as if Customer were alive, competent, and not disabled. If
Customer is a fiduciary, Customer warrants that his/her/their
authority shall continue until written notice to the contrary is
delivered to an officer of Bank's Trust Department.
(b) CORPORATION/PARTNERSHIP. If Customer is a Corporation or
Partnership, the authority of Bank to act as agent hereunder
shall not be affected by Customer's dissolution or should
Customer cease doing business for any reason. Furthermore, all
such authority shall continue after Customer's dissolution or
cessation of business, until notice of such dissolution or
cessation of business shall have been received by a trust officer
of the Bank so that Bank has actual knowledge that Customer has
dissolved or ceased doing business. Any action taken by Bank
during any period while it is uncertain of the customer's status
shall be valid as if Customer
3
were viable.
9. TERMINATION. Either Bank or Customer may cancel this Agreement at any
time by written notice mailed to the address of the other party listed
herein.
10. CHANGE OF TERMS. The terms and conditions of this Agreement may be
changed by Bank by mailing to Customer at their address listed herein
notification of the new terms and conditions at least 30 days prior to
the date on which such new terms and conditions are to become
effective.
11. INVESTMENT ACCOUNT NOT AN FDIC INSURED DEPOSIT. THE MONIES IN THE
CMS-TM- AGENCY ACCOUNT ARE NOT DEPOSITS AND ARE NOT INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION. Neither the value of the
investments purchased or the rate of return are guaranteed by the Bank
and Customer agrees that the Bank shall not be responsible for any
decline in the value of the investments or variation in the rate of
return.
12. INVESTMENT DECISION SOLELY BY CUSTOMER. Customer acknowledges that
this Agreement has been made voluntarily after full and careful review
of the program, including but not limited to the disclosures and terms
in the form of repurchase agreement attached hereto, and that Customer
has relied solely on his/her/their/its knowledge in entering into the
Agreement and making the deposits and investments authorized herein,
and has not relied on any statement made by the Bank or any of its
officers, directors, employees, agents, servants, or independent
contractors concerning this investment. The sole duty of the Bank
with respect to this Agreement and the agency relationship with the
Customer is to execute purchases and redemptions of investments as the
Customer may order pursuant to the terms of this Agreement.
Furthermore, Customer agrees that the Bank shall not be liable on
account of any action, omission, information, or recommendation in
connection with the investment of the Customer except for the Bank's
gross negligence or willful misconduct.
4
13. SUPERSEDES PRIOR AGREEMENT. This Agreement supersedes any prior
CMS-TM- Agency Account Agreement.
CUSTOMER: ACCEPTED:
Name(s) Farmers & Merchants Bank &
----------------------------- Trust of Watertown
By: By:
--------------------------------- ------------------------------------
Title: Title:
------------------------------ ---------------------------------
Address: ACKNOWLEDGED:
----------------------------
Farmers & Merchants Bank &
------------------------------------ Trust of Watertown - Trust
Department
------------------------------------
Telephone: By:
-------------------------- -----------------------------------
Taxpayer Identification Number: Title:
----- --------------------------------
5
