Evolve Bank Custodial Agreement

1. You and any person that holds, whether individually, jointly or on behalf of another person, the Account, as defined in that certain Evolve Bank & Trust Customer Account Terms (the “Account Agreement”), hereby direct Evolve Bank & Trust and any of its designees, agents, representatives and affiliates (collectively, the “Bank,” “our,” “us” or “we”), as agent for you, to open and maintain in Bank’s Trust Department and/or with other depository institutions (each, an “Insured Depository Institution”) or the Federal Reserve Bank a deposit account or omnibus custody account (“Sub-Deposit Account”) in the name of Bank (for your benefit), and to deposit in the Sub-Deposit Account from time to time all or some moneys you may deliver to Bank from time to time for credit to the Account. Bank, in its sole discretion, may divide the Account into one or more separate Sub-Deposit Accounts to be managed by Bank. Bank will transfer funds it receives from you to or from each Sub-Deposit Account in its sole discretion, and will, in its sole discretion, determine the amount of funds to deposit in and withdraw from Sub-Deposit Account. All terms, provisions and agreements set forth in the Account Agreement are hereby incorporated herein by reference with the same force and effect as though fully set forth herein. To the extent that the terms set forth in this Custodial Account Authorization Agreement are inconsistent with the terms of the Account Agreement as it relates to the Sub-Account, the terms set forth in this Custodial Account Authorization Agreement shall apply. Terms not defined herein have the same meanings as set forth in the Account Agreement.
2. You hereby appoint Bank as your agent and custodian, subject to the terms set forth herein. We are not, however, acting as your financial adviser. See subsection A of Section V of the Account Agreement for additional information. The owner of the Sub-Deposit Account is Bank as agent and custodian for you. You will not be charged a fee for Bank’s placement of your funds or in connection with the Sub-Deposit Account. Bank performs all account deposits and withdrawals. Your funds in the Sub- Deposit Account will bear the interest rates and Annual Percentage Yield you have agreed to with Bank, if any. All payments with respect to the Sub-Deposit Account by the Insured Depository Institutions will be made to us, and we will credit the funds to your Account. Bank is hereby directed to invest and reinvest proceeds and other available moneys in the Account and Sub-Deposit Account. You further authorize us to collect for you all interest and other payments related to a Sub- Deposit Account, and to execute and deliver or file on your behalf all appropriate receipts, agreements, releases and other instruments, including whatever agreements may be required to establish and maintain the Sub-Deposit Account or to establish your ownership interest in the Sub-Deposit Account. Deposit accounts are FDIC insured per depositor, as determined under FDIC regulations, up to applicable FDIC limits. The funds deposited in the Sub-Deposit Account will be FDIC insured to the same extent as if such funds were held in the Account with us and shall be aggregated with deposits maintained in your Account with us. In other words, the depositing of your funds into the Sub-Deposit Account will not otherwise increase your FDIC deposit insurance coverage. Please see subsection J of Section III of the Account Agreement for additional information on determining the standard maximum deposit insurance amount.
3. The Sub-Deposit Account will be established at an Insured Depository Institution that has entered into agreements with Bank or the Bank’s Trust Department or Federal Reserve Bank. Your only rights with respect to the Sub-Deposit Account are to demand we repay you all amounts in your Account, including those transferred to the Sub-Deposit Account, and to terminate this Custodial Account Authorization Agreement, as set forth below. The Sub-Deposit Account may not be transferred to another institution, except by us or the Insured Depository Institution. You may terminate our role as your agent and custodian and our ability to deposit funds you provide us in the Sub-Deposit Account by providing us with thirty (30) days’ prior written notice, such notice to be sent to Evolve Bank & Trust 6000 Poplar Avenue, 2nd Floor, Memphis, TN 38119. Any termination will result in a return of funds in accordance with law and closing of your Account and any Sub-Deposit Account opened specifically for you.
4. When we open the Sub-Deposit Account and deposit or withdraw funds from the Sub-Deposit Account, you understand and agree that we are acting as your agent with respect to the Sub-Deposit Account, and we will ensure the records associated with the Sub-Deposit Account are in our name, as agent or custodian. You will not receive any written confirmation of the establishment of the Sub-Deposit Account or transfer of funds to or from the Sub-Deposit Account; instead, we will maintain records clearly indicating the transfer and beneficial ownership of the Sub-Deposit Account. You must immediately report to us any changes in Account ownership information that you originally provided to us in connection with the submission of your application for an Account.
5. Our placing of funds may reflect considerations of federal and state law, our funding needs and funding needs of Insured Depository Institutions, general economic conditions or other factors determined by us in our sole discretion. We will not place funds with more than one Insured Depository Institution. We may place funds to enhance our business objectives and for balance sheet management without any benefit to you, including increased FDIC deposit insurance coverage. Further, we may receive greater benefits when we place your funds with an Insured Depository Institution than if we otherwise maintained your funds with us. We are under no obligation to place your funds with an Insured Depository Institution.
6. A Sub-Deposit Account will be a deposit obligation of the Insured Depository Institution that maintains the Sub-Deposit Account; provided, this does not modify our obligation to repay all amounts you deposited in your Account.
7. We may provide your name, tax identification number and other pertinent identifying information to Insured Depository Institution, and other parties providing services in connection with the placement of your funds and the establishing and holding the Sub-Deposit Account. You hereby consent to such release of information. Nothing in this section shall be deemed to prevent us from disclosing information to a third party if required by law.
8. Although there are two or more accounts associated with your funds (the account maintained with us, referred to as the Account, and the Sub-Deposit Account), your Account is considered a single account for your deposits and withdrawals, as well as for tax reporting, balance requirement, service charge, monthly statement and FDIC deposit insurance purposes. The existence of the Sub-Deposit Account and any other account maintained by us pursuant to these Account Terms is for internal purposes and will not change the manner in which you use, obtain information about or earn interest (if any) on your Account. These transfers, including the placement transfer, will not appear on your monthly statement.
9. You, to the extent permitted by law, agree to indemnify Bank from and against any and all claims, losses and liabilities growing out of or resulting from this Custodial Account Authorization Agreement. The Bank shall promptly notify you of any claim, loss or liability as to which indemnification is sought. You shall have the right in each case at its sole expense to investigate, and the right in its sole discretion to defend or compromise any claim, loss or liability for which indemnification is sought. If any action, suit or proceeding is brought against Bank in connection with any claim, loss or liability that is subject to indemnity hereunder, you may and, upon Bank’s request will, at your expense resist and defend such action, suit or proceeding, or cause the same to be resisted or defended by counsel selected by the you and reasonably acceptable to Bank.
10. This Custodial Account Authorization Agreement shall remain in full force and effect until the Account Agreement terminates or as otherwise terminated by Bank in its sole discretion. This Custodial Account Authorization Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided, however, you may not assign this agreement to any person without Bank’s written consent.
11. Bank shall have the right in its sole and absolute discretion, and without limitation, at any time and from time-to-time to sweep funds from any deposit account or other transactional account established by you to a Program Bank.   The Bank List of available Program Banks into which the funds may be deposited is available on Bank’s website at: https://www.getevolved.com/openbanking/fdic-insured-sweep-program/ or by contacting Bank.  The Bank List may include one or more Program Banks that constitute Excess Banks; Bank may deposit funds at an Excess Bank without limit and without regard to Deposit Limit if funds sufficient to meet the Program Insurance Eligibility Limit have been placed at one or more Program Banks. If all of funds in your account are withdrawn from a Program Bank, the next time funds are available for deposit in a Program Bank, funds may be deposited in a different Program Bank.  You may at any time, with reasonable advance notice to Bank, designate a Program Bank as ineligible to receive Program Manager funds. In addition, you may at any time instruct Bank to remove its funds from a Program Bank, close the Sub-Deposit Accounts with the Program Bank and designate the Program Bank as ineligible to receive future deposits. Any funds from a closed Sub-Deposit Account will be deposited into Sub-Deposit Accounts at another Program Bank set forth on the Bank List, as amended by Evolve or Branch, or if no other Program Bank is eligible, the funds will be deposited into the Account. For example, if you maintain other accounts at a Program Bank on the list separate from the Deposit Custodial Program, you may wish to designate this Program Bank as ineligible to avoid the aggregation of funds in your account(s) held directly with funds deposited through the Deposit Custodial Program as the combination of funds may exceed the amount of available FDIC insurance coverage at that Program Bank.  If you designate all Program Banks as ineligible, Bank will return funds to your Account and may, in Bank’s discretion and in accordance with law, close your Account and any Sub-Deposit Account opened specifically for you.
12. FDIC Deposit Insurance. Bank will place your funds at Program Banks as your agent in a manner that enables up to $250,000 of your deposits or such other greater amount as may be disclosed to you by Bank from time to time to be eligible for FDIC insurance through the Deposit Custodial Program (such amount, the “Program Insurance Eligibility Limit”). Any other deposits you have at the Program Banks outside of the Deposit Custodial Program may reduce FDIC insurance coverage of your deposits through the Deposit Custodial Program. Moreover, if you have designated one or more Program Banks as ineligible to receive its funds, the amount of FDIC insurance for which your funds are eligible may be limited. The depositing of your funds into the Sub-Deposit Account may not increase your FDIC deposit insurance coverage, and may in fact reduce insurance coverage depending on any other deposits you may maintain at a Program Bank.
13. Changes to Bank List. One or more of the Program Banks included on the Bank List may be replaced with a Program Bank not previously included on the Bank List or a Program Bank may be deleted from the Bank List. All changes to the Program banks will be listed on the Bank website found at: https://www.getevolved.com/openbanking/fdic-insured-sweep-program/
14. An increase in the number of Program Banks in the future may not increase the potential FDIC coverage available in the Program and there can be no assurance that additional Program Banks will be added or your FDIC insurance coverage will increase. A decrease in the number of Program Banks in the future could decrease the potential FDIC coverage available in the Deposit Custodial Program.
15. You agree that deposits and withdrawals of its funds made after a change to the Bank List will occur as described below under “Deposit Procedures” and “Withdrawal Procedures,” respectively.
16. If a Program Bank at which your has funds in a Sub-Deposit Account(s) no longer makes the Sub-Deposit Account(s) available through the Deposit Custodial Program, Bank may move funds to another Program Bank on the Bank List on or about the day that the Program Bank leaves the Deposit Custodial Program or return funds to the Account.
17. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF TENNESSEE APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF TENNESSEE. IN THE EVENT THAT ANY PROVISION OF THIS AGREEMENT IS HELD BY A COURT OF COMPETENT JURISDICTION TO BE INVALID, UNENFORCEABLE OR VIOLATIVE OF ANY APPLICABLE LAW, IT SHALL BE DEEMED NULL AND VOID TO THE EXTENT THEREOF WITHOUT AFFECTING THE BALANCE OF THIS CUSTODIAL ACCOUNT AUTHORIZATION AGREEMENT.

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