EXHIBIT 40.1
CUSTODIAN-DEPOSITORY AGREEMENT
THIS AGREEMENT, made and executed this 18th day of April, 1996 by and
between National Presto Industries, Inc. whose principal offices are located at
0000 Xxxxx Xxxxxxxx Xxx; Xxx Xxxxxx, XX 00000 (hereinafter called CUSTOMER) and
Wachovia Bank of North Carolina, N.A. whose principal offices are located at 000
X. Xxxx Xxxxxx, Xxxxxxx-Xxxxx, XX 00000 (hereinafter called CUSTODIAN),
WITNESSETH THAT: the Customer desires to open an account with the
Custodian in order to avail itself of the safekeeping, income collection and
security settlement services offered by Custodian. Customer particularly wishes
to utilize the depository and book entry security transfer and delivery services
available through the Depository Trust Company (DTC) of which the Custodian is a
member. For these purposes, the Customer wishes to deposit with the Custodian
certain securities from time to time to be held by the Custodian for the account
of the Customer.
NOW THEREFORE, the Customer and the Custodian do mutually agree as
follows:
[SIGNATURE]
I
The Custodian agrees to receive the said securities and cash from the
Customer and to render the following services with respect thereto:
(1) Safekeeping of Assets - Receive and hold in safekeeping the securities
originally delivered and subsequently brought within the operation of this
agreement and to provide such safekeeping as appropriate for each security
in any one or more of the following ways:
(a) Physical Form - In Custodian's Trust Vault or at Custodian's Agent.
Should Custodian utilize an agent that holds Customer's assets in
their physical form, Custodian shall provide Customer with name of
that agent and address where Customer's assets are physically held.
(b) Government Issues - Federal Reserve Book Entry System
(c) Eligible "Book Entry" Issues - Depository Trust Company (DTC),
New York, New York
(2) Trade Settlement - The Custodian shall not be accountable for the Customer
dealings with Brokers, Dealers, or similar agents selected by the
Customer. The Custodian will act upon instructions received by the
Customer, provided the instructions are from an authorized officer,
employee or agent of the Customer in accordance with the Customer's
resolution. The Custodian may rely on instructions received from the
Customer via the Custodian's on-line system, recorded telephone, telex,
facsimile or any other teleprocess deemed acceptable by the Custodian and
pre-approved by the Customer. The Custodian will settle security
transactions, specifically, purchases and sales, on contractual settlement
[SIGNATURE]
date and the Customer's account will be debited or credited the net of the
day's transactions by an automated cash sweep of available funds or
individual transfers to or from an established DDA. For any funds not
subject to a daily sweep, the Custodian will ensure the Customer agrees
with the net daily settlement. It is the responsibility of the Custodian
to credit the Customer's account for a net credit, as it is the Customer's
responsibility to wire funds or make sufficient funds available to the
Custodian in an established Demand Deposit Account or Custodial Account to
cover any net debits on the day the net debit is incurred Acting in
accordance with the Customer's instructions, it is the Custodian's
responsibility to ensure that all incoming securities designated for the
Customer's account are in "good deliverable form." Securities that are
deemed not in "good deliverable form" by the Custodian will be rejected
back to the delivering institution. The Custodian will assume no
responsibility for these securities until they are received by the
Custodian, in "good deliverable form." From time to time, the Custodian
may contact the Customer for help in resolving trade-related problems. The
Custodian shall deliver, when so instructed by the Customer, securities in
"good deliverable form."
(3) Free Receipts and Deliveries - The Custodian will act upon the Customer's
instructions received in writing or on a recorded telephone line when
receiving securities into and delivering securities from the Customer's
account. The Custodian will credit the Customer's account on all free
receipts once it has been determined by the Custodian that the securities
are in "good deliverable form." The Custodian maintains the right to
reject securities presented for credit to the Customer's account if they
are not in "good deliverable form."
[SIGNATURE]
(4) Corporate Actions/Calls - Custodian will make notices available to the
Customer on all mandatory actions resulting in cash postings if Customer
holds respective assets in The Customer's safekeeping account at time of
notice. This notice will be sent two (2) days after Custodian receives
notification from its sources as identified below.
In regards to voluntary actions requiring a decision by an established
date, Custodian will notify Customer within two days after Custodian first
receives notice if Customer is a holder or two days after Customer
establishes a position either by purchase or original asset receipt.
Customer is responsible for supplying Custodian with instructions
regarding disposition prior to disposition deadlines and sufficiently in
advance to allow Custodian to perform its services. Custodian will not be
responsible for late instructions and will handle only on a best effort
basis.
Cash proceeds due will be credited in Fed Funds the same day good funds
are made available to Custodian.
Share positions will be adjusted on ex-date for splits and stock dividends
and on effective date for mergers.
Custodian utilizes the best available sources for Corporate Action/Call
notifications including but not limited to trustees, DTC, XCITEK,
Financial Daily Card Service, X. X. Xxxxxx Call Bond Service & Bond Buyer
Publication. However, none of these sources can guarantee total coverage.
Should an action occur for which Custodian, through no fault of its own,
fails to receive communication from trustee or published notice,
[SIGNATURE]
Custodian shall not be liable for failure to redeem any called bond or to
take any other action unless Customer gives Custodian actual written
notice in advance of any such call or action.
(5) Fractional Shares - Cash due for the sale of fractional shares will be
credited in Fed Funds the same day good funds are made available to
Custodian.
(6) Lottery - To handle partial calls as equitably as possible, Custodian uses
a lottery formula to determine percentage of participation since shares
held in a depository arrangement carry no individual ownership
designation.
Income postings - All income is credited in sameday (Fed) funds. The
Custodian will credit Customer's account on payable date plus two for
mortgage-backed securities unless otherwise indicated by Custodian. Income
for Collateralized Mortgage Obligations (CMO), floating/variable rate
instruments, Certificate of Deposit (CD), closely held issues/private
placements, and foreign issues will be credited as received from the
paying agent. All other issues are credited on payable date.
Effect Reconcilement With Depositories - Perform daily reconcilements with
Depositories of the account assets for both cash and security positions.
Daily cash and security transactions are available to the Customer through
the Custodian's On-Line Inquiry network. The Custodian will provide to the
Customer a monthly statement which includes, but is not limited to, a
listing of each transaction and an account
[SIGNATURE]
list of assets with market values. Custodian shall advise Customer within
twenty-four (24) hours of any failed transaction in which Customer is
participating.
(10) Provide Audits and controls - The Custodian will provide the Customer
opinion letters from DTC's independent audit firm and the Custodian's
independent audit firm which addresses the controls and procedures used in
the performance of the Custodian's duties.
II
The Customer agrees to deliver to the Custodian the said securities and
cash and to render instructions with respect thereto and to compensate the
Custodian for its services as follows:
) Render Instructions - To deliver timely and proper instructions with
respect to security transactions and any other matters covered by this
agreement. Proper instructions shall be deemed to include those sent to
the Custodian via written communication, Custodian's on-line system (as
approved for specific instructions) recorded telephone line, telex,
facsimile or any other teleprocess deemed acceptable by Custodian and
pre-approved by Customer. It is the Customer's responsibility to safeguard
their identification codes or other security devices the Custodian makes
available to the Customer for use on the Custodian's on-line system. The
Custodian, absent its negligence, or intentional acts of it, its
employees, agents or persons under its control, shall not be responsible
for any loss, liability or damage incurred by the Custodian or by the
Customer as a result of the Custodian acting upon instructions from
personnel then authorized in writing by Customer and using the proper
identification codes or security devices. For Customers utilizing the
Custodian on-
[SIGNATURE]
line system, the Custodian will not be responsible for the consequences
resulting from failure of the system to perform. It is understood if the
system is inoperable, the Customer will notify the Custodian, and the
Custodian agrees it will accept instructions via another method at no
additional charge to the Customer.
(2) Excuse Certain Delays or Non-Performance - To excuse the delay or
non-performance of a service or services under this agreement and to
extend the time for the performance of such service or services when such
delay in its performance or non-performance either in whole or in part is
due to causes or events beyond the Custodian's control, including and
without limitations; acts of God; interruption of power or other utility,
transportation or communication services; explosion, flood, accident or
fire; strike or other labor problem; legal action; or governmental order,
rule or regulation.
(3) Indemnify Certain Items - To indemnify and hold Custodian harmless from
and against any claims, loss, damages, liabilities, obligations, costs or
expenses (including attorney's fees) arising out of or in connection with
(a) transactions which occurred prior to the commencement of this
agreement;
(b) errors in the Customer's records or out-of-proof records as of
such date;
(c) errors which may occur due to Customer failure to provide
accurate and complete security descriptions for assets brought
into the operation of this agreement.
(d) any act done, permitted, suffered, or omitted by Custodian in
good faith and without negligence in accordance with this
agreement, in reliance upon
[SIGNATURE]
written instructions provided by any officer, employee, or
agent of the Customer who is duly authorized to give such
instructions;
(e) any act done or suffered by Custodian in good faith and
without negligence in connection with its performance under
this agreement, in reliance upon any information, instruction,
order indenture, stock certificate, power-of-attorney,
assignment, affidavit, other certificate or other instrument
reasonable believed by Custodian to be genuine or bearing the
signature of a person or persons then authorized in writing by
Customer to sign, countersign or execute the same.
(4) Custodian's Compensation - To pay the Custodian for services rendered
under this agreement in accordance with the fee schedule attached hereto
as Exhibit A. The fees as outlined on the attached Exhibit A shall be
fixed through December 31, 1998. Thereafter, fees shall be negotiated
between the parties to this Agreement.
III
The Custodian and Customer reserve the right to terminate this agreement,
in whole or part, upon thirty days written notice; and, upon such notice by the
Customer, the properties held hereunder, or such part thereof as the Customer
shall demand, will be delivered as directed upon proper receipt
[SIGNATURE]
IV
It is acknowledged and agreed that the information communicated by either
party to this agreement to the other will be regarded as having been disclosed
in confidence, except as disclosure may be required by a court of law or a
governmental agency, and that neither party will use such information except in
rendering the services covered by this agreement.
V
This agreement shall be governed by and construed in accordance with the
laws of the State of North Carolina.
[SIGNATURE]
VI
This Agreement, and the attached Amendment and Exhibit incorporated herein
by this reference, shall constitute the entire agreement between Custodian and
Customer. The attached Amendment shall be executed simultaneously with this
Agreement. Any changes, modifications or amendments to this Agreement shall be
in writing and executed by the authorized representative of Custodian and
Customer
IN WITNESS WHEREOF, the Customer and the Custodian have caused this
Agreement to be executed in their corporate names by their proper officers, on
the day and year first above written.
NATIONAL PRESTO INDUSTRIES, INC.
[SIGNATURE]
---------------
WACHOVIA BANK OF NORTH CARLONIA, N.A.
[SIGNATURE]
---------------
AMENDMENT
This Amendment is attached to and incorporated by this reference into the
Custodian-Depository Agreement between National Presto Industries, Inc.
(Customer) and Wachovia Bank (Custodian) dated the day of April, 1996
(Agreement). Should any terms and conditions of this Amendment conflict with
terms and conditions as contained within the Agreement, the terms and conditions
of this Amendment shall control.
The Agreement is amended as follows:
(1) Customer currently participates in Custodian's on-line system.
Consequently, notices regarding mandatory or voluntary actions concerning
Customer's securities shall be provided to Customer in accordance with
Custodian's customary notification via its on-line system.
(2) Custodian shall present to paying agents in time for prompt payment,
maturing obligations, redemptions, corporate actions, calls and puttable
securities which Customer has properly and timely instructed Custodian to
so tender and Custodian shall retain evidence of each such timely
presentation. Should Customer not receive payment in appropriate funds on
the payable date for any such instrument and should Custodian be unable to
provide evidence of its timely presentation, Custodian shall back value
Customer's account as if payment had been received on the payable date in
appropriate funds. To the extent payment is not received on a timely basis
despite Custodian's proper presentation, Custodian will assist Customer in
obtaining payment from the appropriate paying agency, however, Custodian
shall not be obligated to pursue a course of action selected by Customer.
[SIGNATURE]
(3) Custodian shall collect income payments from paying agents and credit
Customer's account accordingly. Custodian will assist Customer in its
efforts to obtain income payments and back valuations in those situations
where funds are not made available by paying agent on contractual payment
or income payment dates, however), Custodian shall not be obligated to
pursue a course of action selected by Customer.
(4) Custodian shall be liable for its own negligence, willful misconduct
or lack of good faith. Custodian shall purchase and maintain insurance
policies. Custodian shall provide Customer evidence of such insurance
coverage and provide Customer notice, within thirty (30) days, of any
significant change in that coverage.
It is understood that Custodian shall exercise no discretion with respect
to management of investment decisions for Customer's securities entrusted
to Custodian.
[SIGNATURE]
(5) Customer shall indemnify and defend Custodian or its nominees against
any claim or liability to which Custodian or its nominees may be subjected
solely by reason of Custodian or Custodian's nominees registration as
holders of record for securities beneficially owned by the Customer
The terms and conditions of this Amendment are hereby incorporated into
the Agreement between the Customer and Custodian. By their authorized signatures
below, the Customer and Custodian agree to the terms and conditions of this
Amendment
NATIONAL PRESTO INDUSTRIES, INC.
By: [SIGNATURE]
---------------
WACHOVIA BANK OF NORTH CAROLINA, NA
By: [SIGNATURE]
---------------
NATIONAL PRESTO INDUSTRIES INC.
Corporate Custody Services
Exhibit A
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ACCOUNT ADMINISTRATION and ASSET RESPONSIBILITY
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CONSOLIDATED ACCOUNT PERIODIC ASSET
ANNUAL RATE (minimum $3,600): ASSET VALUE ASSET VALUE FEE
PRORATION
0.7 bp first $ 250,000,000
0.7 bp next $ 250,000,000
0.7 bp next $ 500,000,000
0.7 bp over $ 1,000,000,000
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TRANSACTIONS
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PURCHASES, SALES, MATURITIES, OPTIONS, CALLS &
REORGANIZATIONS:
Depository Eligible @ 10.00
Ineligible Securities @ 25.00
Foreign Securities @ 50.00
Options/Futures @ 30.00
Corporate Actions @ 25.00
INCOME & PRINCIPAL COLLECTIONS:
Depository Eligible @ No Charge
Ineligible Securities @ No Charge
Foreign Securities @ 5.00
CMO/MBS P&I Payments @ 5.00
TRANSFERS:
Wires In @ 20.00
Wires Out @ 20.00
Book Entry Cash Transfer @ 5.00
Intra-Account Transfer @ 3.00
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ASSET HOLDINGS
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Depository Eligible (monthly per issue) @ 1.25
Ineligible Securities (monthly per issue) @ 1.75
Foreign Securities (monthly per issue) @ 5.00
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INFORMATION REPORTING
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Audit Confirmation @ 25.00
On-Line Access ($50.00 monthly per relationship) @ 50.00
Fax Reporting - Account balances/activity
(per occurrence) @ 15.00
Telephone Reporting - Account balances/activity
(per occurrence) @ 15.00
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Total:
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[WACHOVIA LOGO]
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AGREEMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, dated as of the
28th day of February, 2000 by and among NATIONAL PRESTO INDUSTRIES, INC., a
Corporation duly organized and existing under the laws of the State of Wisconsin
(the "Client"), WACHOVIA BANK, N.A., a national banking association duly
organized and existing under the laws of the United States of America
("Wachovia"), and STATE STREET BANK AND TRUST COMPANY, a banking and trust
company duly organized and existing under the laws of the Commonwealth of
Massachusetts ("State Street").
RECITALS:
WHEREAS, the Client and Wachovia entered into a custodian-depository
agreement between the Client and Wachovia (the "Custody Agreement");
WHEREAS, the Client desires to appoint State Street as Custodian to
succeed Wachovia in such capacity under the Custody Agreement; and
WHEREAS, State Street is willing to accept such appointment as Custodian
under the Custody Agreement;
NOW, THEREFORE, the Client, Wachovia and State Street for and in
consideration of the premises of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, hereby consent and
agree as follows:
ARTICLE I WACHOVIA
SECTION 1.01 Wachovia hereby resigns as Custodian under the Custody
Agreement pursuant to the appropriate sections of the Custody Agreement.
SECTION 1.02 Wachovia hereby assigns, transfers, delivers and confirms to
State Street all right, title and interest of Wachovia under the Custody
Agreement and all the rights, powers, duties and obligations of the Custodian
under the Custody Agreement. Wachovia shall execute and deliver such further
agreements and shall do such other things as State Street may reasonably require
as to more fully and certainly vest and confirm in State Street all the rights,
powers, duties and obligations hereby assigned, transferred, delivered and
confirmed to State Street as Custodian.
ARTICLE II THE CLIENT
SECTION 2.01 The Client accepts the resignation of Wachovia as Custodian,
under the Custody Agreement. Client further waives any applicable notice
requirement that may exist under the Custody Agreement.
SECTION 2.02 All conditions relating to the appointment of State Street
under the Custody Agreement have been met by the Client, and the Client hereby
appoints State Street as Custodian.
ARTICLE III XXXXX XXXXXX
XXXXXXX 0.00 Xxxxx Xxxxxx hereby represents and warrants to Wachovia and
to the Client that State Street is qualified to act as Custodian under the
Custody Agreement.
SECTION 3.02 State Street hereby accepts its appointment as Custodian
under the Custody Agreement and accepts the rights, powers, duties and
obligations of Wachovia as Custodian.
SECTION 3.03 State Street hereby accepts the existing fee schedule through
December 2001.
ARTICLE IV MISCELLANEOUS
SECTION 4.01 This Agreement and the resignation, appointment and
acceptance effected hereby shall be effective as of the opening of business on
March 27, 2000.
SECTION 4.02 This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina.
SECTION 4.03 This Agreement may be executed in any number of counterparts
each of which shall be an original, but such counterparts shall together
constitute but one and the same instrument.
IN WITNESS THEREOF, the parties hereto have caused this Agreement of
Resignation, Appointment and Acceptance to be duly executed and acknowledged and
their respective seals to be affixed hereunto and duly attested all as of the
day and year first above written.
NATIONAL PRESTO INDUSTRIES, INC
(SEAL By: /s/ Xxxxxx Xxxxx
--------------------
Name: Xxxxxx Xxxxx
Attest: [SIGNATURE] Title: President
---------------
Secretary
WACHOVIA BANK, N.A.
(SEAL] By: /s/ Xxxx X. Xxxxxx
--------------------
Name: Xxxx X. Xxxxxx
Attest: [SIGNATURE] Title: SVP-Group Executive
---------------
Secretary
STATE STREET BANK
AND TRUST COMPANY
(SEAL] By: /s/ Xxxx X. Xxxxxx
--------------------
Name: Xxxx X. Xxxxxx
Attest: [SIGNATURE] Title: Vice President
---------------
Secretary
September 19, 2000
-----------------------
(date)
Wachovia Bank, NA
000 Xxxxx Xxxx Xxxxxx
Xxxxxxx-Xxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Re: State Street Accounts
Dear Sir or Madam:
NATIONAL PRESTO INDUSTRIES, INC. ("Company") maintains at Wachovia Bank, NA
("Wachovia") certain Demand Deposit Accounts ("Accounts") as identified in
Schedule 1. Company also maintains at State Street Bank and Trust Company
("State Street") certain custody and/or trust accounts as identified in Schedule
2. In order to perform its duties with respect to these accounts in accordance
with the Consent Agreement dated February 28, 2000 and the Custodian-Depository
Agreement dated December 10, 0000, Xxxxx Xxxxxx requires access to the Accounts
and certain cash management services of Wachovia including the services
described in the attached Exhibit A.
Company authorizes State Street to initiate funds transfers among the Accounts
and to initiate wire transfers from time to time between the Accounts in
connection with servicing our custody and/or trust Accounts. Company authorizes
State Street to execute any supplemental agreements necessary relating to the
implementation of the cash management services described on Exhibit A including
but not limited to the Wachovia Connection Services Agreement attached hereto in
Exhibit B (Note: This agreement is included solely as an example of the
agreement between Wachovia and State Street). State Street shall delegate
authority to initiate and verify transactions and instructions regarding the
Accounts to such employees of State Street as State Street may designate from
time to time, and State Street shall establish limitations on their authority as
appropriate. State Street shall be solely responsible for closely supervising
its employees in exercising the authority granted in this letter, and State
Street shall ensure that no unauthorized or improper use of such authority
occurs.
State Street is further authorized to utilize any of Wachovia' cash management
services it considers appropriate to initiate transactions and access data with
respect to the Accounts to the extent necessary to perform its services,
including but not limited to originating funds transfers and internal book
transfers, originating Automated Clearing House debit transactions, and
accessing reports or any services described in Exhibit A. State Street shall
designate its employees who are authorized to implement, modify or terminate any
of the Wachovia cash management services.
Company also authorizes and directs Wachovia to accept instructions from State
Street and to rely upon files and data provided by State Street with respect to
the Accounts. State Street shall select one or more commercially reasonable
security procedures from among those offered by Wachovia to its customers for
the transmission and communication of instructions, transactions, and account
data.
In connection therewith, the undersigned agrees to indemnify and hold harmless
Wachovia and its affiliates for all loss or damage (including reasonable
attorneys' fees) suffered because of its reliance upon the instructions and acts
of State Street as our agent.
Sincerely,
NATIONAL PRESTO INDUSTRIES, INC.
By: /s/ Xxxxxx Xxxxx Attest: /s/ Xxxxx X. Xxxxx
----------------- -------------------------
Xxxxxx Xxxxx Xxxxx X. Xxxxx, Secretary
Secretary
Title: President
SCHEDULE 1
DEMAND DEPOSIT ACCOUNTS MAINTAINED AT
WACHOVIA BANK, NA
Account Number
8733-007236
SCHEDULE 2
CUSTODY AND/OR TRUST ACCOUNTS MAINTAINED AT
STATE STREET BANK AND TRUST
Account Number Account Name
00-00000-00 NATIONAL PRESTO INDUSTRIES, INC
