-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QEXuluPLXTCQtVLPREinhTWvm0yNrhRlHLQAlw/3P27mBz5tAqlrB1GIcUMjq8mL yxWylO9o+bfOKMASFArKPg== 0000922996-99-000035.txt : 19991028 0000922996-99-000035.hdr.sgml : 19991028 ACCESSION NUMBER: 0000922996-99-000035 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 19991027 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: PREFERRED INCOME MANAGEMENT FUND INC CENTRAL INDEX KEY: 0000895422 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 954405635 STATE OF INCORPORATION: MD FISCAL YEAR END: 1130 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-46927 FILM NUMBER: 99734284 BUSINESS ADDRESS: STREET 1: C/O FLAHERTY & CRUMRINE INC STREET 2: 301 E COLORADO BLVD STE 720 CITY: PASADENA STATE: CA ZIP: 91101 BUSINESS PHONE: 8187957300 MAIL ADDRESS: STREET 1: 301 COLORADO BLVD STREET 2: STE 720 CITY: PASADENA STATE: CA ZIP: 91101 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ERNEST HOREJSI TRUST NO 1B CENTRAL INDEX KEY: 0001091477 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 122 SOUTH PHILLIPS AVENUE CITY: SIOUX FALLS STATE: SD ZIP: 67402 MAIL ADDRESS: STREET 1: 122 SOUTH PHILLIPS AVENUE CITY: SIOUX FALLS STATE: SD ZIP: 67402 SC 13D/A 1 AMENDMENT NO. 22 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Schedule 13D Under the Securities Exchange Act of 1934 (Amendment No. 22)* Boulder Total Return Fund, Inc. (Name of Issuer) Common Stock (Title of Class of Securities) 101541 100 (CUSIP Number) Thomas R. Stephens, Esq. Bartlit Beck Herman Palenchar & Scott 511 Sixteenth Street, Suite 700 Denver, Colorado 80202 (303) 592-3100 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) October 25, 1999 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of ss.ss.240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See ss.240.13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP No. 101541 100 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) Stewart R. Horejsi 2. Check the Appropriate Box if a Member of a Group (See Instructions) (A) (B) 3. SEC Use Only 4. Source of Funds (See Instructions) Not applicable 5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) 6. Citizenship or Place of Organization United States Number of 7. Sole Voting Power 0 Shares Bene- ficially 8. Shared Voting Power 257,811 Owned by Each Reporting 9. Sole Dispositive Power 0 Person With 10. Shared Dispositive Power 257,811 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 257,811 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) X 13. Percent of Class Represented by Amount in Row (11) 2.7% 14. Type of Reporting Person (See Instructions) IN CUSIP No. 101541 100 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) Lola Brown Trust No. 1B 2. Check the Appropriate Box if a Member of a Group (See Instructions) (A) (B) 3. SEC Use Only 4. Source of Funds (See Instructions) WC OO 5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) 6. Citizenship or Place of Organization Kansas Number of 7. Sole Voting Power 1,028,001 Shares Bene- ficially 8. Shared Voting Power Owned by Each Reporting 9. Sole Dispositive Power 1,028,001 Person With 10. Shared Dispositive Power 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 1,028,001 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) 13. Percent of Class Represented by Amount in Row (11) 10.9% 14. Type of Reporting Person (See Instructions) OO CUSIP No. 101541 100 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) Ernest Horejsi Trust No. 1B 2. Check the Appropriate Box if a Member of a Group (See Instructions) (A) (B) 3. SEC Use Only 4. Source of Funds (See Instructions) WC OO 5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) 6. Citizenship or Place of Organization Kansas Number of 7. Sole Voting Power 2,468,503 Shares Bene- ficially 8. Shared Voting Power 0 Owned by Each Reporting 9. Sole Dispositive Power 2,468,503 Person With 10. Shared Dispositive Power 0 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 2,468,503 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) 13. Percent of Class Represented by Amount in Row (11) 26.2% 14. Type of Reporting Person (See Instructions) OO CUSIP No. 101541 100 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) Badlands Trust Company 2. Check the Appropriate Box if a Member of a Group (See Instructions) (A) (B) 3. SEC Use Only 4. Source of Funds (See Instructions) WC OO 5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) 6. Citizenship or Place of Organization South Dakota Number of 7. Sole Voting Power 12,735 Shares Bene- ficially 8. Shared Voting Power 159,677 Owned by Each Reporting 9. Sole Dispositive Power 12,735 Person With 10. Shared Dispositive Power 159,677 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 172,412 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) 13. Percent of Class Represented by Amount in Row (11) 1.8% 14. Type of Reporting Person (See Instructions) CO CUSIP No. 101541 100 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) Evergreen Atlantic LLC 2. Check the Appropriate Box if a Member of a Group (See Instructions) (A) (B) 3. SEC Use Only 4. Source of Funds (See Instructions) OO 5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) 6. Citizenship or Place of Organization Colorado Number of 7. Sole Voting Power 257,811 Shares Bene- ficially 8. Shared Voting Power 0 Owned by Each Reporting 9. Sole Dispositive Power 257,811 Person With 10. Shared Dispositive Power 0 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 257,811 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) 13. Percent of Class Represented by Amount in Row (11) 2.7% 14. Type of Reporting Person (See Instructions) OO CUSIP No. 101541 100 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) Stewart West Indies Trust 2. Check the Appropriate Box if a Member of a Group (See Instructions) (A) (B) 3. SEC Use Only 4. Source of Funds (See Instructions) Not applicable 5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) 6. Citizenship or Place of Organization South Dakota Number of 7. Sole Voting Power 78,470 Shares Bene- ficially 8. Shared Voting Power 0 Owned by Each Reporting 9. Sole Dispositive Power 78,470 Person With 10. Shared Dispositive Power 0 15. Aggregate Amount Beneficially Owned by Each Reporting Person: 78,470 16. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) 17. Percent of Class Represented by Amount in Row (11) 0.8% 18. Type of Reporting Person (See Instructions) OO CUSIP No. 101541 100 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) Susan L. Ciciora Trust 2. Check the Appropriate Box if a Member of a Group (See Instructions) (A) (B) 3. SEC Use Only 4. Source of Funds (See Instructions) Not applicable 5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) 6. Citizenship or Place of Organization South Dakota Number of 7. Sole Voting Power 54,132 Shares Bene- ficially 8. Shared Voting Power 0 Owned by Each Reporting 9. Sole Dispositive Power 54,132 Person With 10. Shared Dispositive Power 0 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 54,132 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) 13. Percent of Class Represented by Amount in Row (11) 0.6% 14. Type of Reporting Person (See Instructions) OO CUSIP No. 101541 100 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) John S. Horejsi Trust 2. Check the Appropriate Box if a Member of a Group (See Instructions) (A) (B) 3. SEC Use Only 4. Source of Funds (See Instructions) Not applicable 5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) 6. Citizenship or Place of Organization South Dakota Number of 7. Sole Voting Power 27,075 Shares Bene- ficially 8. Shared Voting Power 0 Owned by Each Reporting 9. Sole Dispositive Power 27,075 Person With 10. Shared Dispositive Power 0 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 27,075 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) 13. Percent of Class Represented by Amount in Row (11) 0.3% 14. Type of Reporting Person (See Instructions) OO CUSIP No. 101541 100 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) Evergreen Trust 2. Check the Appropriate Box if a Member of a Group (See Instructions) (A) (B) 3. SEC Use Only 4. Source of Funds (See Instructions) Not applicable 5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) 6. Citizenship or Place of Organization South Dakota Number of 7. Sole Voting Power 19,273 Shares Bene- ficially 8. Shared Voting Power 0 Owned by Each Reporting 9. Sole Dispositive Power 19,273 Person With 10. Shared Dispositive Power 0 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 19,273 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) 13. Percent of Class Represented by Amount in Row (11) 0.2% 14. Type of Reporting Person (See Instructions) OO CUSIP No. 101541 100 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) Stewart R. Horejsi Trust No. 2 2. Check the Appropriate Box if a Member of a Group (See Instructions) (A) (B) 3. SEC Use Only 4. Source of Funds (See Instructions) Not applicable 5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) 6. Citizenship or Place of Organization Kansas Number of 7. Sole Voting Power 0 Shares Bene- ficially 8. Shared Voting Power 172,412 Owned by Each Reporting 9. Sole Dispositive Power 0 Person With 10. Shared Dispositive Power 172,412 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 172,412 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) X 13. Percent of Class Represented by Amount in Row (11) 1.8% 14. Type of Reporting Person (See Instructions) OO Amendment No. 22 to Statement on Schedule 13D This amended and restated statement on Schedule 13D relates to the Common Stock, $.01 par value per share of Boulder Total Return Fund, Inc., formerly Preferred Income Management Fund Incorporated, a Maryland corporation (the "Company"). Items 1, 2, 3, 4, 5 and 7 of this statement, previously filed by (i) Horejsi, Inc. ("HI"), the Lola Brown Trust No. 1B (the "Brown Trust"), Badlands Trust Company ("Badlands") and the Ernest Horejsi Trust No. 1B (the "Ernest Trust"), each as the direct beneficial owner of Shares, and (ii) Stewart R. Horejsi and the Stewart R. Horejsi Trust No. 2 (the "SRH Trust"), by virtue of the relationships described previously in this statement, are hereby amended, or amended and restated, as set forth below. Item 1. Security and Issuer Item 1 is amended and restated as follows: This Statement relates to the Common Stock, $.01 par value per share (the "Shares") of Boulder Total Return Fund, Inc., formerly Preferred Income Management Fund Incorporated, a Maryland corporation (the "Company"). The principal executive offices of the Company are located at 1680 38th Street, Suite 800, Boulder, Colorado 80301. Item 2. Identity and Background Item 2 is amended and restated as follows: (a) This Statement is filed by the Ernest Trust, the Brown Trust, Evergreen Atlantic LLC ("Evergreen Atlantic"), the Stewart West Indies Trust (the "West Indies Trust"), the Susan L. Ciciora Trust (the "Susan Trust"), the John Horejsi Trust (the "John Trust"), the Evergreen Trust ("Evergreen Trust") and Badlands, each as the direct beneficial owner of Shares, (ii) by virtue of certain relationships described in this Statement, by the SRH Trust and Stewart R. Horejsi (collectively, the "Reporting Persons"). By signing this Statement, each Reporting Person agrees that this Statement is filed on its or his behalf. As a result of the transactions described below, this Statement is no longer filed on behalf of HI. The trustees of the Ernest Trust are Badlands, Susan L. Ciciora and Larry L. Dunlap. Such trustees may be deemed to control the Ernest Trust and may be deemed to possess indirect beneficial ownership of the Shares held by the Ernest Trust. However, none of the trustees, acting alone, can vote or exercise dispositive authority over Shares held by the Ernest Trust. Accordingly, Badlands, Ms. Ciciora and Mr. Dunlap disclaim beneficial ownership of the Shares beneficially owned, directly or indirectly, by the Ernest Trust. The trustees of the Brown Trust are Badlands, Ms. Ciciora and Mr. Dunlap. Such trustees may be deemed to control the Brown Trust and may be deemed to possess indirect beneficial ownership of the Shares held by the Brown Trust. However, none of the trustees, acting alone, can vote or exercise dispositive authority over Shares held by the Brown Trust. Accordingly, Badlands, Ms. Ciciora and Mr. Dunlap disclaim beneficial ownership of the Shares beneficially owned, directly or indirectly, by the Brown Trust. The manager of Evergreen Atlantic is Mr. Horejsi. The members of Evergreen Atlantic are the Evergreen Trust, the Susan Trust, the West Indies Trust and the John Trust. Mr. Horejsi may be deemed to control Evergreen Atlantic and may be deemed to possess indirect beneficial ownership of the Shares held by Evergreen Atlantic. The trustee of the West Indies Trust is Badlands, which may be deemed to control the West Indies Trust and may be deemed to possess indirect beneficial ownership of the Shares held by the West Indies Trust. The trustee of the Susan Trust is Badlands, which may be deemed to control the Susan Trust and may be deemed to possess indirect beneficial ownership of the Shares held by the Susan Trust. The trustee of the John Trust is Badlands, which may be deemed to control the John Trust and may be deemed to possess indirect beneficial ownership of the Shares held by the John Trust. The trustees of the Evergreen Trust are Badlands, Stephen C. Miller and Mr. Dunlap. Such trustees may be deemed to control the Evergreen Trust and may be deemed to possess indirect beneficial ownership of the Shares held by the Evergreen Trust. However, none of the trustees, acting alone, can vote or exercise dispositive authority over Shares held by the Evergreen Trust. Accordingly, Badlands, Mr. Miller and Mr. Dunlap disclaim beneficial ownership of the Shares beneficially owned, directly or indirectly, by the Evergreen Trust. The directors of Badlands are Ms. Ciciora, Mr. Dunlap, Mr. Miller, Robert Ciciora, who is the brother-in-law of Ms. Ciciora, Ann M. Hartmann and Carol Jorgensen. The executive officers of Badlands are Ms Hartmann, President and Secretary, Mr. Miller, Vice President and Assistant Secretary, and Laura Rhodenbaugh, Cashier. The SRH Trust is the sole stockholder of Badlands. The trustees of SRH Trust are Badlands, Mr. Ciciora and Robert H. Kastner. Such trustees may be deemed to control the SRH Trust and may be deemed to possess indirect beneficial ownership of the Shares held by Badlands. However, none of the trustees, acting alone, can vote or exercise dispositive authority over Shares held, directly or indirectly, by Badlands. Accordingly, Badlands, Mr. Ciciora and Mr. Kastner disclaim beneficial ownership of the Shares indirectly beneficially owned by the SRH Trust. As a result of his advisory role with the other Reporting Persons, Mr. Horejsi may be deemed to have indirect beneficial ownership over the Shares directly beneficially owned by the other Reporting Persons. However, Mr. Horejsi disclaims beneficial ownership of the Shares directly beneficially held by the other Reporting Persons. Mr. Horejsi is a beneficiary of the Ernest Trust and the Brown Trust. (b) The business address of each of the Ernest Trust, the Brown Trust, the West Indies Trust, the Susan Trust, the John Trust, Badlands, and the SRH Trust is 122 South Phillips Avenue, Suite 220, Sioux Falls, South Dakota 57104. The business address of Evergreen Atlantic is 1680 38th Street, Suite 800, Boulder, Colorado 80301. The business address of the Evergreen Trust is 122 South Phillips Avenue, Suite 220, Sioux Falls, South Dakota 57104. The business address of Mr. Horejsi is 200 South Santa Fe, Salina, Kansas 67402. The business address of Ms. Ciciora is 2911 Oakbrook Hills Road, Oakbrook, Illinois 60523. The business address of Mr. Dunlap is 223 N. Santa Fe, Salina KS 67402. The business address of Mr. Miller is at 1680 38th Street, Suite 800, Boulder, Colorado 80301. The business address of Mr. Ciciora is 731 Dorchester Drive, Bolingbrook, IL 60440. The business address of Ms. Hartmann and Ms. Jorgensen is 122 South Phillips Avenue, Suite 220, Sioux Falls, South Dakota 57104. The business address of Ms. Rhodenbaugh is 200 South Santa Fe, Salina, Kansas 67402. The business address of Mr. Kastner is 127 South 8th Street, Salina, Kansas 67401. (c) The Ernest Trust is an irrevocable grantor trust that was organized in Kansas for the benefit of Ernest Horejsi's issue. The Brown Trust is an irrevocable trust organized by Lola Brown for the benefit of her issue. Evergreen Atlantic is a Colorado limited liability company. The West Indies Trust is an irrevocable grantor trust organized by Stewart Horejsi for the benefit of his issue. The Susan Trust is an irrevocable grantor trust organized by Susan Ciciora for the benefit of her issue, siblings, and the issue of her siblings. The John Trust is an irrevocable grantor trust organized by John Horejsi for the benefit of his issue, siblings, and the issue of his siblings. The Evergreen Trust is an irrevocable grantor trust organized by Stewart Horejsi under the laws of Bermuda for the benefit of his issue. The SRH Trust is an irrevocable grantor trust organized by Mr. Horejsi for the benefit of his children. Badlands is a corporation organized to act as a private trust company to administer the Ernest Trust, the SRH Trust, the Brown Trust, the Evergreen Trust, the West Indies Trust, the Susan Trust, the John Trust as well as other family trusts affiliated with the Horejsi family. Mr. Horejsi is a private investor and a director of the Company. Mr. Horejsi is the investment manager for and controls Stewart Investment Advisers, Ltd., a sub-investment advisor of the Company. Ms. Ciciora is Mr. Horejsi's daughter and a trustee of several affiliated trusts. Mr. Miller is President of the Company. Mr. Dunlap is a trustee of several other trusts affiliated with the Horejsi family. Mr. Kastner owns and operates a plumbing business in Salina, Kansas. Ms. Rhodenbaugh is Secretary of the Company and an officer of several other businesses which are affiliated with the Horejsi family. Ms. Hartmann is the President and a director of Badlands. Ms Jorgensen is an insurance agent. (d) None of the Reporting Persons has been convicted in a criminal proceeding in the past five years (excluding traffic violations or similar misdemeanors). (e) During the past five years, none of the Reporting Persons was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which such person was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws of finding any violation with respect to such laws. (f) The Ernest Trust is a trust organized under the laws of Kansas and now domiciled in South Dakota. The Brown Trust is a trust organized under the laws of Kansas and now domiciled in South Dakota. Evergreen Atlantic is a Colorado limited liability company. The West Indies Trust is a trust organized under the laws of South Dakota. The Susan Trust is a trust organized under the laws of South Dakota. The John Trust is a trust organized under the laws of South Dakota. The Evergreen Trust is a trust organized under the laws of Bermuda and now domiciled in South Dakota. Badlands is a South Dakota corporation. The SRH Trust is a trust organized under the laws of Kansas and now domiciled in South Dakota. Mr. Horejsi, the executive officers and directors of Badlands and the individual trustees of the Reporting Persons are all citizens of the United States. Item 3. Source and Amount of Funds or Other Consideration. No change except for the addition of the following: The Shares transferred by HI and Evergreen Atlantic as set forth in Item 5(c) were transferred by HI as a distribution to its shareholders in connection with its liquidation and by Evergreen Atlantic as a distribution to its members. No funds were required in connection with such distributions. The total amount of funds required by the Ernest Trust to purchase the Shares as reported in Item 5(c) was $14,412,261. Such funds were provided by the Ernest Trust's cash on hand, intertrust advances from the Brown Trust, and margin borrowings under an account maintained by the Ernest Trust with Merrill Lynch, Pierce, Fenner & Smith Incorporated. Intertrust advances bear interest at short term applicable federal rates and are due monthly. The Ernest Trust's margin borrowings from Merrill Lynch bear interest at the federal funds rate plus one half of one percent and are due on demand. Such margin borrowings are based on the collateral in the account maintained by the Ernest Trust. The foregoing description of the Ernest Trust's account agreement with Merrill Lynch is qualified in its entirety by reference to the cash management account agreement attached as Exhibit 14. Item 4. Purpose of Transaction. No change except for the addition of the following: On each of September 28 and September 29, 1999, in connection with its liquidation, HI transferred certain of its Shares to its shareholders. On September 28, Evergreen Atlantic transferred certain of its Shares to its members in order to reduce its holdings of Shares. The Ernest Trust acquired the Shares reported in Item 5(c) from the Brown Trust in order to increase its equity ownership of the Company. Depending upon their evaluation of the Company's investments and prospects, and upon future developments (including, but not limited to, performance of the Shares in the market, the effective yield on the Shares, availability of funds, alternative uses of funds, and money, stock market and general economic conditions), any of the Reporting Persons or other entities that may be deemed to be affiliated with the Reporting Persons may from time to time purchase Shares, and any of the Reporting Persons or other entities that may be deemed to be affiliated with the Reporting Persons may from time to time dispose of all or a portion of the Shares held by such person, or cease buying or selling Shares. Any such additional purchases or sales of the Shares may be in open market or privately-negotiated transactions or otherwise. The Reporting Persons have no present intention of acquiring additional Shares. The Reporting Persons may be deemed to control the Company. Item 5. Interest in Securities of the Issuer. (a) Item 5(a) is amended and restated as follows: The Ernest Trust is the direct beneficial owner of 2,468,503 Shares, or approximately 26.2% of the 9,416,743 Shares outstanding (the "Outstanding Shares") as of July 22, 1999, according to information contained in the Company's July 23, 1999 special meeting proxy statement. The Brown Trust is the direct beneficial owner of 1,028,001 Shares, or approximately 10.9% of the Outstanding Shares. Evergreen Atlantic is the direct beneficial owner of 257,811 Shares, or approximately 2.7% of the Outstanding Shares. The West Indies Trust is the direct beneficial owner of 78,470 Shares, or approximately 0.8% of the Outstanding Shares. The Susan Trust is the direct beneficial owner of 54,132 Shares, or approximately 0.6% of the Outstanding Shares. The John Trust is the direct beneficial owner of 27,075 Shares, or approximately 0.3% of the Outstanding Shares. The Evergreen Trust is the direct beneficial owner of 19,273 Shares, or approximately 0.2% of the Outstanding Shares. Badlands is the direct beneficial owner of 12,735 Shares, or approximately 0.1% of the Outstanding Shares. By virtue of the relationships reported in this Statement, Badlands may be deemed to be the indirect beneficial owner of the 159,677 Shares directly beneficially held by the West Indies Trust, the Susan Trust and the John Trust, or approximately 1.7% of the Outstanding Shares. By virtue of the relationships reported in this Statement, the SRH Trust may be deemed to be the indirect beneficial owner of the 172,412 Shares directly beneficially held by Badlands, the West Indies Trust, the Susan Trust and the John Trust, or approximately 1.8% of the Outstanding Shares. By virtue of the relationships reported in this statement, Mr. Horejsi may be deemed to be the indirect beneficial owner of the 257,811 Shares directly beneficially held by Evergreen Atlantic, or approximately 2.7% of the Outstanding Shares. In addition, Mr. Horejsi may be deemed to share indirect beneficial ownership of the Shares directly beneficially owned by the other Reporting Persons. Except as set forth above with respect to Evergreen Atlantic, Mr. Horejsi disclaims all such beneficial ownership. By virtue of the relationships and transactions described in this statement, the Reporting Persons may be deemed to constitute a group. Except as specifically set forth above in connection with Badlands (with respect to the West Indies Trust, the Susan Trust and the John Trust), the SRH Trust (with respect to Badlands, the West Indies Trust, the Susan Trust and the John Trust) and Mr. Horejsi (with respect to Evergreen Atlantic), each Reporting Person disclaims beneficial ownership of Shares directly beneficially owned by the other Reporting Persons. (b) Item 5(b) is amended and restated as follows: Each Reporting Person has the direct power to vote and direct the disposition of the Shares held by it. By virtue of the relationships described in this Statement, Badlands (with respect to the West Indies Trust, the Susan Trust and the John Trust), the SRH Trust (with respect to Badlands, the West Indies Trust, the Susan Trust and the John Trust) and Mr. Horejsi (with respect to Evergreen Atlantic) may be deemed to share the indirect power to vote and direct the disposition of the Shares held by certain of the Reporting Persons as described above. The trustees of each of the Ernest Trust, the Brown Trust and the Evergreen Trust may be deemed to share the indirect power to vote and direct the disposition of the Shares held by such trusts, but each of the trustees of such trusts disclaims all such beneficial ownership. The trustees of the SRH Trust may be deemed to share the indirect power to vote and direct the disposition of the Shares held by Badlands, the West Indies Trust, the Susan Trust and the John Trust, but each of the trustees of the SRH Trust disclaims all such beneficial ownership. The directors of Badlands may be deemed to share the indirect power to vote and direct the disposition of the Shares held by Badlands, the West Indies Trust, the Susan Trust, and the John Trust, but each of such directors disclaims all such beneficial ownership. (c) No change except for the addition of the following: On September 28, 1999, HI distributed a total of 500,000 Shares to its shareholders, of which 201,900 Shares were distributed to the Brown Trust, 119,150 Shares were distributed to the Ernest Trust, and 178,950 Shares were distributed to Evergreen Atlantic. On September 28, 1999, Evergreen Atlantic distributed a total of 178,950 Shares to its members, of which 78,470 Shares were distributed to the West Indies Trust, 54,132 Shares were distributed to the Susan Trust, 27,075 Shares were distributed to the John Trust, and 19,273 Shares were distributed to the Evergreen Trust. On September 29, 1999, HI distributed a total of 1,571,430 Shares to its shareholders, of which 826,101 Shares were distributed to the Brown Trust, 487,518 Shares were distributed to the Ernest Trust, and 257,811 Shares were distributed to Evergreen Atlantic. On October 25, 1999, the Ernest Trust acquired a total of 1,583,765 Shares from the Brown Trust in a privately negotiated transaction at a price of $9.10 per Share. (d) Item 5(d) is amended and restated as follows: Each Reporting Person has the right to receive and the power to direct the receipt of dividends from, and proceeds from the sale of, the Shares held by it. By virtue of the relationships described in this Statement, Badlands (with respect to the West Indies Trust, the Susan Trust and the John Trust), the SRH Trust (with respect to Badlands, the West Indies Trust, the Susan Trust and the John Trust) and Mr. Horejsi (with respect to Evergreen Atlantic) may be deemed to share the indirect right to receive and the power to direct the receipt of dividends from, and proceeds from the sale of, the Shares held by certain of the Reporting Persons as described above. The trustees of each of the Ernest Trust, the Brown Trust and the Evergreen Trust may be deemed to share the right to receive and the power to direct the receipt of dividends from, and proceeds from the sale of, the Shares held by such trusts, but each of the trustees of such trusts disclaims all such beneficial ownership. The trustees of the SRH Trust may be deemed to share the indirect right to receive and the power to direct the receipt of dividends from, and proceeds from the sale of, the Shares held by Badlands, the West Indies Trust, the Susan Trust and the John Trust, but each of the trustees of the SRH Trust disclaims all such beneficial ownership. The directors of Badlands may be deemed to share the indirect right to receive and the power to direct the receipt of dividends from, and proceeds from the sale of, the Shares held by Badlands, the West Indies Trust, the Susan Trust, and the John Trust, but each of such directors disclaims all such beneficial ownership. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. No change except for the addition of the following: The Ernest Trust is a party to Cash Management Account Agreement with Merrill Lynch, Pierce, Fenner & Smith Incorporated. Margin borrowings under the agreement bears interest at the federal funds rate plus one half of one percent and are due upon demand. Margin borrowings from Merrill Lynch are based on the collateral in the account maintained by the Ernest Trust. As of September 30, 1999, approximately $12.3 million in borrowings were outstanding under such account. The foregoing summary of the Ernest Trust's agreement with Merrill Lynch is qualified in its entirety by reference to the attached Exhibit 14, which is incorporated herein by this reference. Item 7. Material to be Filed as Exhibits. No change except for the addition of the following: Exhibit 13 Joint Filing Agreement Exhibit 14 Cash Management Account Agreement between Ernest Horejsi Trust No. 1B and Merrill Lynch, Pierce, Fenner & Smith Incorporated Signature After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Date: October 26, 1999 /s/ Stewart R. Horejsi Stewart R. Horejsi, individually and as manager of Evergreen Atlantic LLC /s/ Stephen C. Miller Stephen C. Miller, as Vice President of Badlands Trust Company, trustee of the Ernest Horejsi Trust No. 1B, the Lola Brown Trust No. 1B, the Stewart R. Horejsi Trust No. 2, the Susan Ciciora Trust, the John Horejsi Trust, the Stewart West Indies Trust, and the Evergreen Trust. Exhibit 13 Joint Filing Agreement In accordance with Rule 13d-1(f) under the Securities Exchange Act of 1934, as amended, the undersigned hereby (i) agree to the joint filing with all other Reporting Persons (as such term is defined the statement on Schedule 13D described below) on behalf of each of them of a statement on Schedule 13D (including amendments thereto) with respect to the Common Stock, par value $.01 per share, of Boulder Total Return Fund, Inc. and (ii) agree that this Agreement be included as an Exhibit to such joint filing. This Agreement may be executed in any number of counterparts all of which taken together shall constitute one and the same instrument. In witness whereof, the undersigned hereby execute this Agreement this 26th day of October, 1999. /s/ Stewart R. Horejsi Stewart R. Horejsi, individually and as manager of Evergreen Atlantic LLC /s/ Stephen C. Miller Stephen C. Miller, as Vice President of Badlands Trust Company, trustee of the Ernest Horejsi Trust No. 1B, the Lola Brown Trust No. 1B, the Stewart R. Horejsi Trust No. 2, the Susan Ciciora Trust, the John Horejsi Trust, the Stewart West Indies Trust, and the Evergreen Trust. Exhibit 14 CASH MANAGEMENT ACCOUNT(R) AGREEMENT INTRODUCTION This Agreement contains the terms governing the Cash Management Account(R) financial service ("CMA(R) Service"). I will read this Agreement and keep it for my records because I know that by signing the CMA Application and Agreement form or the CMA SubAccount_ Application and Agreement form (the "Application and Agreement form(s)") I am agreeing to its terms. DEFINITIONS In this Agreement, "I," "me," "my" or "accountholder" means each person who signs the CMA Application and Agreement form or the CMA SubAccount Application and Agreement form. "You," "your" or "MLPF&S" means Merrill Lynch, Pierce, Fenner & Smith Incorporated. "MLB&T" means Merrill Lynch Bank & Trust Co. "BANK ONE" means BANK ONE, COLUMBUS, N.A. "MLNF" means Merrill Lynch National Financial. "CHASE" means the Chase Manhattan Bank, N.A. MLB&T, MLNF, CHASE and BANK ONE are referred to collectively as "Banks." The "Issuer" means MLB&T or MLNF, whichever issues the Visa Cards from time to time. "Card/Check Account" means the account(s) established for me by the Banks. "Checks" means checks issued to me by BANK ONE for use with my Card/Check Account. "Card" or "Cards" means one or more Classic Visa(R) cards issued to me for use with my Card/Check Account. Unless the context requires otherwise, "Card" or "Cards" also means one or more CMA Visa Gold Program cards issued to me for use with my Card/Check Account if I subscribe to and am approved for the CMA Visa Gold Program. The name of the issuer will appear on the Card. The Card(s) issued to me if I subscribe to the CMA Visa Gold Program will also be referred to as the"Visa Gold Program Card(s)." "Money Funds" means the CMA money market funds. "Money Accounts" means the Money Funds and any FDIC-insured money market deposit accounts opened for me through the Insured Savings_ Account program. For purposes of this Agreement, "securities and other property" means, but is not limited to, money, securities, financial instruments and commodities of every kind and nature and related contracts and options. This definition includes securities or other property currently or hereafter held, carried or maintained by you or by any of your affiliates, in your possession and control, or in the possession and control of any such affiliate, for any purpose, in and for any of my accounts now or hereafter opened, including any account in which I may have an interest. DESCRIPTION OF THE CMA(R) SERVICE 1. The CMA Service consists of: (1) an MLPF&S securities account (referred to as the "Securities Account"), which is either a cash account, or with the Investor CreditLine_ service, a margin account, (2) a choice of Money Accounts, (3) if applicable, a Card/Check Account provided by the Banks and (4) in applicable, optional CMA services as described in the Cash Management Account Program Description. DESCRIPTION OF THE CMA MASTER FINANCIAL_ SERVICE 2. The CMA Master Financial_ Service consists of: (1) a master account ("Master CMA Account") established with the full CMA Service as described above and (2) one or more related CMA SubAccounts established by or with the consent of a Master CMA Accountholder. Each CMA SubAccount is entitled to partial CMA service consisting of: (1) a Securities Account, which is either a cash account or, with the Investor CreditLine Service, a margin account, (2) a choice of Money Accounts and (3) optional CMA services to the extent eligible. A CMA SubAccount is not eligible for a Card/Check Account. CMA SUBACCOUNT_ AUTHORIZATIONS 3. By signing the CMA SubAccount Application and Agreement form, each CMA SubAccountholder designates the Master CMA Accountholder as his or her agent for the purpose of receiving monthly CMA account statements and any notices or other communications and authorizes MLPF&S to mail them to the address designated by the Master CMA Accountholder from time to time. If applicable, each CMA SubAccountholder also authorizes MLPF&S (subject to account eligibility requirements) to accept telephonic instructions from the Master CMA Accountholder for the transfer of funds through the CMA Funds Transfer Service to such CMA SubAccount from the Master CMA Account and/or from such CMA SubAccount to the Master CMA Account, as selected in the CMA SubAccount Application and Agreement form. In the event any erroneous transfers are made, the Master CMA Accountholder and the SubAccountholder authorize MLPF&S to initiate appropriate corrections. The foregoing authorizations shall remain in full force and effect until written notice of revocation is delivered to MLPF&S, after which the CMA SubAccount shall remain subject to the terms of this Agreement to the extent it receives the CMA Service in accordance with the policies of MLPF&S. AGREEMENT REGARDING CASH, MONEY ACCOUNT BALANCES AND OTHER ASSETS AND FEES 4. Available free credit balances in my Securities Account will automatically be invested or deposited at least once a week into the Money Account that I have designated as my Primary Money Account. I understand that you may reasonably withhold access to my Money Account balances until you are satisfied that checks credited to my Securities Account have been collected. You may satisfy amounts that I owe in connection with my CMA Service account (such as debit balances in the Securities Account, amounts owing in my Card/Check Account, or investments or deposits made for me that are later reversed), from the assets in my Money Accounts (including funds obtained by redeeming Money Funds shares) or from my Securities Account (including, if applicable, by making loans to me). Certain fees, including an annual fee, which are subject to change, will be charged to my account for the financial services provided to me. REPRESENTATIONS, ADDITIONAL TERMS AND AMENDMENTS 5. I have received a copy of the Money Funds' prospectuses, the Insured Savings Account Fact Sheet and the Cash Management Account Program Description. These documents shall be referred to in this Agreement as the "Documents." The Documents contain additional terms governing the CMA Service. I agree that these Documents are incorporated into this Agreement as though they were fully set out in the Agreement. Subject to applicable law, you and the Banks also have the right to amend the Documents by so notifying me in writing. Unless the context otherwise requires, the term "Agreement" shall include the Documents, as amended from time to time. I agree that you and the Banks shall have the right to amend this Agreement, by modifying or rescinding any of its existing provisions or by adding any new provision, at any time by sending notice of the amendment to me. Any such amendment shall be effective as of a date to be established by you and the Banks, subject to applicable law. I understand there may be additional documentation required by applicable law or the policies and procedures of MLPF&S or the Banks. I agree to promptly comply with any such requests for additional documents. HEADINGS ARE DESCRIPTIVE 6. The heading of each provision of this Agreement is for descriptive purposes only and shall not be deemed to modify or qualify any of the rights or obligations set forth in each such provision. JOINT ACCOUNTS AND JOINT AND SEVERAL LIABILITY 7. If more than one person signs this Agreement, each person shall be an accountholder and their obligations under this Agreement shall be joint and several. The legal ownership of the account shall be in such form as the accountholders shall designate in the Application and Agreement form and as reflected in the account title. In the event no designation is made, MLPF&S is authorized to deal with the accountholders as tenants in common (without rights of survivorship). Notwithstanding the choice of law provisions of Paragraph 11, which shall govern the contractual obligations of the parties under this Agreement, the legal ownership of the account shall be governed by and interpreted under the internal laws of the state of permanent residence of accountholders who are U.S. citizens. Non-resident aliens agree that the form of joint ownership designated for the account shall be governed (notwithstanding the laws of any other jurisdiction to the contrary) by the internal laws of the State of New York and, for purposes of determining all matters with regard to the account, agree to submit to the jurisdiction of the courts of New York and the Federal Courts in the Southern District of New York and consent to service of process by certified mail to the account's address of record. All accountholders agree that each accountholder has authority to transact any business on behalf of the account as fully and completely as if each accountholder were the sole owner of the account. Subject to MLPF&S policies, MLPF&S may accept orders and instructions, written or oral, with respect to the account from each accountholder, without notice to any other accountholder, for the receipt, transfer and withdrawal of funds by check, wire transfer or otherwise and for the purchase, sale, exchange, transfer or other disposition of securities and other property (including margin transactions and short sales if the accountholders have selected the Investor CreditLine service). All accountholders further agree that all securities and other property that MLPF&S may be holding for any of them, either in this account or otherwise, shall be subject to a lien for the discharge of the obligations of this account to MLPF&S, such lien to be in addition to any rights and remedies MLPF&S may otherwise have. In the event of the death of an accountholder, divorce of married accountholders, assignment of an accountholder's interest or other event that causes a change in ownership of the account, all accountholders or the surviving accountholder(s) as the case may be shall immediately give MLPF&S written notice thereof, and MLPF&S may, in such event, take such action, including requiring such documents or imposing such restrictions on the account, as MLPF&S may deem necessary in the circumstances. The estate of a deceased accountholder and a departing accountholder by assignment or divorce shall remain liable, jointly and severally, with the remaining or surviving accountholder(s), for any obligations of the account arising before MLPF&S receives such notice, or incurred in liquidation of the account or the adjustment of the interests of the accountholders. In the event of any such change in ownership of the account, MLPF&S is authorized to divide or retitle the account in accordance with the form of legal ownership of the account as reflected on the records of MLPF&S, or by written instructions of the remaining or surviving accountholder(s), or by obtaining a court order, as MLPF&S may reasonably determine is appropriate in the circumstances. Unless agreed otherwise among the account holders in a writing provided to MLPF&S, joint accounts designed "with right of survivorship" (e.g., JTWROS) shall vest the interest of a deceased accountholder in the surviving accountholder(s) and accounts designated "without right of survivorship" (e.g., TIC) shall entitle the estate of a deceased accountholder and the surviving accountholder(s) to equal shares of the account. All accountholders agree to indemnify MLPF&S against any liability, loss or expense incurred from acting in accordance with this Agreement in the event of a change in ownership of the account. All statements, notices or other communications sent or given to one accountholder by MLPF&S shall be considered notice to all accountholders. In the event MLPF&S receives inconsistent instructions from two or more accountholders, reasonably believes instructions received from one accountholder are not mutually agreeable to all accountholders, or receives a court order with respect to the account, MLPF&S may, but is not obligated to, restrict activities in the account, require that all instructions be in writing signed by all accountholders, suspend or terminate the CMA Service and/or file an interpleader action in an appropriate court at the expense of the accountholders. TERMINATION OF THE CMA SERVICE 8. The Banks, you or I may terminate my subscription to the CMA Service, including the use of my Checks or Cards, if applicable, at any time. I shall remain responsible for authorized charges which arise before or after termination. If my subscription is terminated, you may redeem all my Money Fund shares and, unless I advise you otherwise, withdraw all my Money Account deposit balances. Also, I shall promptly return all unused Checks and any Cards to you or the Banks. My failure to do so may result in a delay in your complying with my instructions regarding the disposition of my assets with you. CREDIT INFORMATION 9. I authorize you, each of your affiliates, and the Banks, to request a consumer report about me from one or more consumer reporting agencies for the purposes of considering my subscription to the CMA Service, reviewing or collecting any account opened for me, or for any other legitimate business purpose. Upon my request, you will inform me of the name and address of each consumer reporting agency from which you obtained a consumer report, if any, in connection with my subscription or accounts. I also authorize you, each of your affiliates, and the Banks to share any information you may have or obtain about me for any legitimate business purpose. AGREEMENT TO ARBITRATE CONTROVERSIES WITH MLPF&S 10. o Arbitration is final and binding on the parties. o The parties are waiving their right to seek remedies in court, including the right to jury trial. o Pre-arbitration discovery is generally more limited than and different from court proceedings. o The arbitrators' award is not required to include factual findings or legal reasoning and any party's right to appeal or to seek modification of rulings by the arbitrators is strictly limited. o The panel of arbitrators will typically include a minority of arbitrators who were or are affiliated with the securities industry. I agree that all controversies which may arise between us, including but not limited to those involving any transaction or the construction, performance, or breach of this or any other agreement between us, whether entered into prior, on or subsequent to the date hereof, shall be determined by arbitration. Any arbitration under this Agreement shall be conducted only before the New York Stock Exchange, Inc., the American Stock Exchange, Inc., or an arbitration facility provided by any other exchange, the National Association of Securities Dealers, Inc., or the Municipal Securities Rulemaking Board, and in accordance with its arbitration rules then in force. I may elect in the first instance whether arbitration shall be conducted before the New York Stock Exchange, Inc., the American Stock Exchange, Inc., other exchanges, the National Association of Securities Dealers, Inc., or the Municipal Securities Rulemaking Board, but if I fail to make such election, by registered letter or telegram addressed to you at the office where I maintain my account, before the expiration of five days after receipt of a written request from you to make such election, then you may make such election. Judgment upon the award of the arbitrators may be entered in any court, state or federal, having jurisdiction. No person shall bring a putative or certified class action to arbitration, nor seek to enforce any pre-dispute arbitration agreement against any person who has initiated in court a putative class action; or who is a member of a putative class who has not opted out of the class with respect to any claims encompassed by the putative class action until: (i) The class certification is denied; (ii) The class is decertified; or (iii) The customer is excluded from the class by the court. Such forbearance to enforce an agreement to arbitrate shall not constitute a waiver of any rights under this Agreement to the extent stated herein. APPLICABLE LAWS 11. This Agreement, with respect to all portions of the CMA Service, including interest charges on loans you may make to me, will be governed by and interpreted under the laws of the State of New York. The terms of my agreement with MLB&T are governed by the federal and New Jersey law. The terms of my agreement with MLNF are governed by federal and Utah law. The terms of my agreement with CHASE, including those relating to finance charges on overdrafts, are governed by federal and New York law. The terms of my agreement with BANKONE are governed by Ohio law. PRESUMPTION OF RECEIPT OF COMMUNICATIONS 12. Communications may be sent to me at my address or at such other address as I give you in writing. All communications so sent, whether by mail, telegraph, messenger or otherwise, will be considered to have been given to me personally upon such sending, whether or not I actually receive them. EXTRAORDINARY EVENTS 13. I agree that you and the Banks shall not be liable for loss caused directly or indirectly by government restrictions, exchange or market rulings, suspension of trading, war, strikes or other conditions beyond your and the Banks control. SEPARABILITY 14. If any provision of this Agreement is held to be invalid, illegal, void or unenforceable , by reason of any law, rule, administrative order or judicial decision, such determination will not affect the validity of the remaining provisions of this Agreement. LIABILITY FOR COSTS OF COLLECTION 15. To the extent permitted by the laws of the State of New York, I agree to pay you the reasonable costs and expenses of collection including attorney's fees, for any debit balance and any unpaid deficiency, that I owe. APPLICABLE RULES AND REGULATIONS 16. All transactions in my Securities Account shall be subject to the constitution, rules, regulations, customs and usages of the exchange or market and its clearing house, if any, on which such transactions are executed by you or your agents, including your subsidiaries and affiliates. Paragraphs 17 though 25 below apply only if I request that my Securities Account be established with the Investor Credit line Service. COLLATERAL REQUIREMENTS AND CREDIT CHARGES 17. I will maintain such securities and other property in my accounts as you shall require from time to time. In accordance with your usual custom, the monthly debit balance of such accounts shall be charged interest at a rate permitted by the laws of the State of New York. Unless I pay the interest charged to my Securities Account at the close of a charge period, it will be added to the opening balance for the next charge period. Interest will the be charged upon the entire opening balance of that next charge period which will, therefore include any such unpaid interest from the previous charge period. CALLS FOR ADDITIONAL COLLATERAL-LIQUIDATION RIGHTS 18. a. You should have the right require additional Collateral: (1) in accordance with your general policies regarding your maintenance requirements for the Investor CreditLine service, as such may be modified amended or supplemented from time to time; or (2) if in your discretion you consider it necessary for your protection at an earlier or later point in time than called for by said general policies; or (3) in the event that a petition in bankruptcy or for appointment of a receiver is filed by or against me; or (4) if an attachment is levied against my accounts; or (5) in the event of my death. b. If I do not provide you with additional collateral as you may require in accordance with (a)(1) or (2), or should an event described in (a) (3), (4) or (5) occur ( whether or not you elect to require additional collateral), you shall have the right: (1) to sell any or all securities and other property in my accounts with you or with any of your affiliates, whether carried individually or jointly with others; (2) to buy any or all securities and other property which may be short in such accounts; and (3) to cancel any open orders and to close any or all outstanding contracts. You may exercise any or all of your rights under (b)(1), (2) and (3) without further demand for additional collateral, or notice of sale or purchase, or other notice or advertisement. Any such sales or purchases may be made at your discretion on any exchange or other market where such business is usually transacted, or at public auction or private sale, and you may be the purchaser of your own account. I understand that your giving of any prior demand or call or prior notice of the time and place of such sale or purchase shall not be considered a waiver of your right to sell or buy without any such demand, call or notice as provided in this Agreement. PURPOSE OF CREDIT 19. I understand and agree that any credit extended by you to me in connection with my Securities Account is primarily for investment or business purposes REPRESENTATIONS AS TO BENEFICIAL OWNERSHIP AND CONTROL 20. I represent that, with respect to securities against which credit is or may be extended by you: (a) I am not the beneficial owner of more than three percent (3%) of the number of outstanding shares of any class equity securities, and (b) I do not control, am not controlled by and am not under common control with the issuer of any such securities. In the event that any of the foregoing representatives is inaccurate or becomes inaccurate I will promptly so advise you in writing. SECURITY INTEREST IN FAVOR OF MLPF&S 21. All securities and other property shall be subject to a lien for the discharge of all my indebtedness and any other obligations that I may owe to you, and are to be held by you as security for the payment of any such obligations or indebtedness to you in any account you maintain for me, including any accounts in which I may have an interest. You shall have the right to transfer securities and other property so held by you from or to any other of such accounts whenever in your judgment you consider such a transfer necessary for your protection. In enforcing your lien, you shall have the discretion to determine which securities and property are to be sold and which contracts are to be closed. PAYMENT OF INDEBTEDNESS UPON DEMAND 22. I shall at all times be liable for the payment upon demand of any debit balance or other obligations owing in any of my accounts with you. I shall be liable to you for any deficiency remaining in any such accounts in the event of the liquidation thereof, in whole or in part, by you or by me. I will pay such obligations and indebtedness upon demand. PLEDGE OF SECURITIES AND OTHER PROPERTY 23. Within the limitations imposed by applicable laws, rules and regulations, all securities and other property may be pledged and repledged by you from time to time, without notice to me, either separately or in common with other such securities and other property, for any amount due in my accounts, of for any greater amount. You may do so without retaining in your possession or under your control for delivery a like amount of similar securities or other property. LENDING AGREEMENT 24. In return for your extension or maintenance of any credit in my account, I acknowledge and agree that the securities in my account together with all attended rights of ownership, may be lent to you or lent out to others to the extent not prohibited by applicable laws, rules and regulations. In connection with such securities loans, you may receive and retain certain benefits to which I will not be entitled. I understand that, in certain circumstances such loans could limit my ability to exercise voting rights, in whole or part, with respect to the securities lent. REPRESENTATION AS TO CAPACITY TO ENTER INTO AGREEMENT 25. I represent that no one except the person(s) signing this Agreement has an interest in my account or accounts with you. If a natural person, I represent that I am of full age, am not an employee of any exchange, nor of any corporation of which any exchange owns a majority of the capital stock, nor of a member of any exchange, nor of a member firm or member corporation registered on any exchange nor of a bank, trust company, insurance company or any corporation, firm or individual engaged in the business of dealing either as broker or as principal in securities, bills of exchange, acceptances or other forms of commercial paper. If any of the foregoing representations is inaccurate or becomes inaccurate, I will promptly so advise you in writing. Paragraphs 26 through 34 below do not apply to CMA SubAccounts. Paragraphs 26 through 31 below apply only when the Card/Check Account is used, including when Checks and/or Cards are obtained. CARD OWNERSHIP 26. I certify that all information I have provided in the CMA Application and Agreement, including in the CMA Check and Visa information form, is true and correct and that you and the Banks may rely on and verify such information. The card remains the property of the issuer and may be canceled by the issuer at any time without prior notice. LIABILITY 27. I will be liable for all authorized transactions arising through the use of the Card(s) and checks in connection with my Card/Check Account. I will be responsible, on a continuing basis, for the safekeeping of my Card(s) and Checks and shall not permit unauthorized persons to have access to my Card(s) or Checks. I will also be responsible for reviewing my CMA Monthly Statement in order to discover and report to MLPF&S the possible unauthorized use of my Card(s) or Checks. I agree to notify MLPF&S immediately if I believe or have reason to believe that my Card(s) or Checks have been or may be used by an unauthorized person. Unless limited by law, I will be responsible for any and all losses and damages that arise from any breach of my undertakings to safeguard my Card(s) and Checks, to review my CMA Monthly statement for possible unauthorized activity and to promptly report such to MLPF&S. I also agree to pay the reasonable costs and expenses of collection of any unpaid balance due, including any accrued finance charges, as a result of any overdraft(s), including but not limited to attorneys fees, to the extent allowed by law, involved in such collection. I understand that the banks have not taken a security interest in any of the assets in my Securities Account or Money Accounts pursuant to this Agreement. PURCHASING POWER 28. I agree that I will not incur charges to my Card/Check account in excess of my Purchasing Power. The Purchasing Power for my Card/Check Account will be the total of any available free credit balance in my Securities Account, the available balances in my Money Accounts, and, if applicable, the available loan value of my securities in my Securities Account. I understand that my Purchasing Power my fluctuate from day to day. TRANSACTIONS EXCEEDING PURCHASING POWER 29. I understand that I will be in default if I incur charges in my Card/Check Account that exceed my Purchasing Power. If I am in default, you may, among other things terminate my subscription to the CMA Service. If I exceed my Purchasing Power, Chase may accept the transaction amount exceeding my Purchasing Power and an overdraft, and advance funds to you or the Banks in the amount exceeding my Purchasing Power. If CHASE does so, I will be notified and agree that I will immediately pay CHASE the amount of the overdraft and any applicable finance charge which is computed as described in this section. In each overdraft statement cycle, finance charges are figured by applying a Daily Periodic Rate to the Average Daily Balance of overdrafts and multiplying the resulting figure by the number of days in that statement cycle. The Average Daily Balance of overdrafts is calculated each day by starting with the beginning balance of amounts I owe, adding any new overdrafts and subtracting any payments or credits received that day and unpaid finance charges. This gives CHASE the daily balance of overdrafts. The Average Daily Balance is calculated by adding all of the daily balances of overdrafts in that statement cycle and dividing the total by the number of days in the overdraft statement cycle. The Daily Periodic Rate that is applied is disclosed in the Cash Management Account Program Description and is Subject to change upon notice. Finance charges accrue from the date CHASE accepts an overdraft until the day payment is made. Any payments that I make will be applied, as of the day of receipt by CHASE, first to any accrued and unpaid finance charges and then to the balance of overdrafts in the order in which the were incurred. OVERDRAFT NOTICES 30. If CHASE extends an overdraft to me, I will be notified in writing. The initial overdraft notice will inform me of the overdraft(s), which is due and payable by me immediately, together with any accrued finance charges Subsequent overdraft notices from CHASE will detail, among other disclosures, any overdraft(s) plus finance charges imposed on such overdraft(s), payments and credits and the balance due. ACCOUNT INJURIES 31. I understand that inquires and error allegations concerning my Card/Check Account, any overdraft notices and my monthly statement should be directed through MLPF&S. Paragraphs 32 through 34 below apply only if I subscribe to the CMA Visa Gold Program AGREEMENT TO THE CMA VISA GOLD PROGRAM 32. In addition to the following paragraphs, I understand that paragraphs 1 through 16, 26 through 31 and, if my account is established with the investor CreditLine service, 17 through 25 also apply to the CMA Visa Gold Program. In the event I am applying for the CMA Visa Gold Program but I am not approved for the participation in that program, I apply for and authorize the issuance of one more Classic Visa cards and checks for use with my CMA account. In addition, if upon expiration of the Visa Gold Program Card(s) issued to me, I do not qualify for reissue of such Card(s), I apply for and authorize the issuance of Classic Visa Card(s) and checks. If a Classic Visa Card(s) and Checks are issued to me, I understand that this Agreement, with the exception of paragraphs 32 through 34 remain in full force and effect. LIMITATIONS AND DIRECT DEBITING OF MY ACCOUNT 33. I agree to pay MLNF for the Card purchases posted to my Card/Check Account. I authorize MLPF&S to pay MLNF from the assets in my Money Accounts ( including by redeeming Money Fraud shares or withdrawing ISA account balances, if any), and/or from my Securities Account (including, if applicable, by making loans to me). On my behalf, MLPF&S will pay MLNF, pursuant to the terms of this Agreement and the Documents, on the fourth Wednesday of each month for all Card purchases posted to my Card/Check Account for that monthly period. However, if MLNF has not received and accepted my signed Statement of Purpose form (Federal Reserved Form FR U-1), I understand that the entire amount of the charges posted to my Card/Check account will be debited from my account once the sum of my Visa card purchases exceeds $100,000 in any monthly cycle. In addition, any subsequent charges not exceeding $100,000 posted to my Card/Check account during the same monthly cycle will be paid by direct debit to my account on the fourth Wednesday of the month. I acknowledge that I have the right under applicable federal law to receive advance notice to the varying amounts of the debit described above but waive my right to do so, as long as the amount does not exceed five hundred thousand dollars. If I choose, I may elect to have this payment made by another means which is not otherwise incompatible with MLPF&S' operations. If I choose to have this payment made by such other means I will notify MLPF&S in writing of my desire to do so. AGREEMENT NOT TO DISPOSE OF ASSETS 34. By subscribing to the CMA Visa Gold Program I agree that I will not dispose of my assets in my CMA Service account or any other account I may have with wither MLPF&S or MLNF, if such disposal will negatively affect my ability to pay MLNF for Card transactions. However, I may continue to trade securities in my Securities Account. -----END PRIVACY-ENHANCED MESSAGE-----