EXHIBIT 99 (k)(1)
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT dated as of this ____ day of September,
1998 (this "Agreement"), by and between The Bank of New York, a New York banking
corporation (the "Administrator"), and NAB Exchangeable Preferred Trust (such
trust and the trustees thereof acting in their capacity as such being referred
to herein as the "Trust"), a business trust created pursuant to the Business
Trust Act of the State of Delaware (Chapter 38, Title 12, of the Delaware Code,
12 Del.C. (Sections 3801 et seq.)), and governed by an Amended and Restated
Trust Agreement, by and among ML IBK Positions, Inc., as sponsor, Xxxxx X.
Xxxxxx, as depositor, the Trustees named therein and the Holders from time to
time, dated as of September 10, 1998 (the "Trust Agreement").
W I T N E S S E T H
WHEREAS, the Trust is a non-diversified, closed-end management
investment company, as defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act"), created for the purposes of issuing
Trust Units Exchangeable for Preference Shares-SM- ("TrUEPrS-SM-") in
accordance with the terms and conditions of the Trust Agreement and investing
the proceeds thereof in and holding __% Mandatorily Redeemable Debt
Securities due 2047 (the "Debt Securities") issued by Cuzzano (UK) Company, a
special purpose unlimited company incorporated under the laws of England and
Wales and domiciled in the United Kingdom (the "U.K. Company");
WHEREAS, the Trust desires to engage the services of the Administrator
to assume certain duties and responsibilities of the Trustees under the Trust
Agreement and the Investment Company Act and to undertake certain services on
behalf of and subject to the supervision of the Trustees as provided herein; and
WHEREAS, the Administrator is qualified and willing to assume such
duties and responsibilities and to undertake to render such services, subject to
the supervision of the Trustees, on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1. DEFINITIONS. Capitalized terms not otherwise defined herein shall
have the respective meanings specified in the Trust Agreement.
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-SM- Service xxxx of Xxxxxxx Xxxxx & Co., Inc.
ARTICLE II
ENGAGEMENT OF ADMINISTRATOR
2.1 ENGAGEMENT. The Trust hereby engages the Administrator, and the
Administrator hereby agrees to be so engaged, to provide or cause the provision
of the services hereinafter enumerated.
2.2 SERVICES OF ADMINISTRATOR. Subject to the supervision of the
Trustees, the Administrator shall on behalf of the Trust take the actions set
forth in Sections 2.06 and 2.07 of the Trust Agreement, to the extent such
responsibilities can lawfully be delegated to the Administrator; provided,
however, that the Administrator shall not (i) render investment advisory
services to the Trust as defined in the Investment Company Act or the Investment
Advisers Act of 1940, as amended; (ii) have the power of the Trustees to sell
the TrUEPrS; or (iii) have the power to select the independent public
accountants for the Trust. Additionally, the Administrator shall be responsible
for rendering the following services to the Trust:
(a) pay, or cause the Paying Agent (as defined herein) to pay,
Xxxxxxx Xxxxx & Co, Inc. ("Xxxxxxx Xxxxx"), out of the facility fee
paid on the Issue Date to the Trust by the U.K. Company in connection
with the investment by the Trust in the Debt Securities, but in no
event out of the Trust Estate, certain fees and expenses of the Trust
incurred by Xxxxxxx Xxxxx in connection with the offering of the
TrUEPrS and the organization of the Trust (the "Reimbursed Up-Front
Expenses") pursuant to the Trust Reimbursement Agreement as specified
in Schedule I hereof;
(b) pay, or cause the Paying Agent to pay, out of the facility
fee to be paid on the Issue Date to the Administrator by the U.K.
Company in connection with the investment by the Trust in the Debt
Securities, but in no event out of the Trust Estate, the fees and
expenses of the Trust incurred in connection with the offering of the
TrUEPrS and the organization of the Trust other than Reimbursed
Up-Front Expenses and certain fees and expenses of the Trust for the
quarterly dividend period ending December 31, 1998 ("Other Up-Front
Expenses") as specified in Schedule II hereof;
(c) pay, or cause the Paying Agent to pay, all demands, bills
and invoices for ongoing fees and expenses of the Trust (the "Ongoing
Expenses") incurred by or on behalf of the Trust, including those
specified in Schedule III for the quarterly dividend period commencing
December 31, 1998, out of moneys payable to the Administrator pursuant
to the Trust Expense Agreement, but in no event out of the Trust
Estate;
(d) instruct the Paying Agent on behalf of the Trust to take
the actions set forth in Sections 2.06, 2.07, 7.02 and 7.03 and Article
III of the Trust Agreement and to otherwise perform the duties of the
Paying Agent referred to in the Trust Agreement;
(e) calculate on a quarterly basis the Trust's Estimated
Expense and Cash Balance (each as defined in the Expense and Indemnity
Agreement, dated as of September __, 1998 (the "Expense and Indemnity
Agreement"), among the Trust, the U.K. Company, the Jersey Subsidiary,
the Jersey Holding Company, the Jersey
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Charitable Trust and the NAB Affiliate) and provide such calculations
to the U.K. Company and the NAB Affiliate pursuant to Section 5 of the
Expense and Indemnity Agreement;
(f) with the approval of the Trustees, engage legal and other
professional advisors, other than the Trust's independent accountants
as provided in clause 2.2 (iii) above, to perform services on behalf of
the Trust;
(g) give notice to the U.K. Company and the NAB Affiliate of
any claim for fees and expenses, including any indemnification
expenses, pursuant to Sections 2 and 3 of the Expense and Indemnity
Agreement, and pay, or cause the Paying Agent to pay, all demands,
bills and invoices for such fees and expenses incurred by or on behalf
of the Trust, out of moneys paid to the Administrator pursuant to the
Expense and Indemnity Agreement, but in no event out of the Trust
Estate;
(h) (i) cause the legal and other professional advisors
engaged pursuant to Section 2.2(f) to prepare and mail, file or
publish, or, as appropriate, direct the Paying Agent to prepare and
mail, file or publish, any notices, proxies, reports, statements and
other communications required to be mailed or published pursuant to the
Trust Agreement and the Investment Company Act,
(ii) keep (or cause to be kept) all the books and
records of the Trust (other than those to be kept by the
Paying Agent), and
(iii) cause the legal and other professional advisors
engaged pursuant to Section 2.2(f) to prepare and, as
necessary, file any and all reports, returns and other
documents as required under the Investment Company Act, the
Securities Act of 1933, as amended (the "Securities Act"), the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or the Internal Revenue Code of 1986, as amended, or,
as reasonably requested by the Trustees, under any other
applicable laws, rules or regulations or otherwise; provided,
however, that responsibility for the adequacy and accuracy of
any such reports, returns and other documents shall be that of
the Trustees and provided, further, that the Administrator
shall have no liability for the adequacy or accuracy of such
reports, returns and other documents;
(i) at the request of the Trust and upon being furnished with
such reasonable security and indemnity against any related expense or
liability as the Administrator may require, institute and prosecute, in
accordance with the instructions of the Trust, legal or other
appropriate proceedings to enforce any and all rights and remedies of
the Trust;
(j) review on behalf of the Trust all notices, reports,
certificates and other documents regarding the TrUEPrS and the Debt
Securities;
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(k) make or cause to be made all necessary arrangements with
respect to meetings of Trustees and meetings of Holders, including,
without limitation, the preparation of notices, proxies and minutes,
subject to the approval of the Trust;
(l) in conjunction with the Trust, determine and publish (or
cause to be determined and published), in such manner as the Trust
shall direct in writing, the Trust's net asset value in accordance with
Section 7.02(c) of the Trust Agreement and the Trust's policy as set
forth in the Prospectus; and
(m) as soon as reasonably practicable after the applicable
Exchange Event, if any, notify DTC and publish (or cause to be
published) a notice in The Wall Street Journal or another daily
newspaper of national circulation in the United States stating the
Exchange Date, whether American Depositary Receipts or cash, as
applicable, will be delivered in exchange for the TrUEPrS and such
other information as the Administrator deems advisable.
2.3 CERTAIN RIGHTS OF THE ADMINISTRATOR. In connection with the
performance of its duties under this Agreement, the Administrator shall not be
liable to the Trust, the Trustees or any Holder (i) for any action taken or for
refraining from taking any action hereunder except in the case of its willful
misfeasance, bad faith, gross negligence or the reckless disregard of its duties
hereunder, (ii) with respect to any action taken or omitted to be taken by it in
good faith in accordance with the directions of the Trust or of any Trustee or
(iii) in connection with the performance of its duties under Section 2.2(l)
hereof, for good faith reliance upon information furnished by third parties
selected by the Administrator with due care. The Administrator shall under no
circumstances be liable for any punitive, exemplary, indirect or consequential
damages. The Administrator may consult with counsel and the written advice of
such counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon. The Administrator may perform its duties and exercise its
rights hereunder either directly or by or through agents or attorneys appointed
with due care by it but shall be liable for the acts and omissions of such
persons to the same extent as if the functions had been performed by the
Administrator itself (except to the extent that the Trustees shall have directed
the Administrator to retain such persons in which event the Administrator shall
not be liable for such persons' acts or omissions). Without limiting the
generality of the preceding sentence, the Administrator (i) may select and
employ independent accountants acceptable to the Trustees (other than the
independent public accountants referred to in clause (iii) of the first sentence
of Section 2.2 of this Agreement and Section 2.05(d) of the Trust Agreement) to
keep the financial books and records of the Trust, to prepare the financial
statements of the Trust and to prepare Trust tax returns, and (ii) may select
and engage attorneys acceptable to the Trustees to prepare annual, semi-annual
and periodical reports, notices of meetings and proxy statements, annual reports
to holders of the TrUEPrS and other documents required under the Investment
Company Act, the Securities Act or the Exchange Act. The Administrator shall not
be liable and shall be fully protected in acting upon any writing or document
reasonably believed by it to be genuine and to have been given, signed or made
by the proper person or persons and shall not be held to have any notice of any
change of authority of any person until receipt of written notice thereof from a
Trustee.
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2.4 POWER OF ATTORNEY. The Trust hereby appoints the Administrator,
acting through any duly appointed officer, as its attorney-in-fact and agent for
the purpose of performing the duties prescribed in Sections 2.2(h)(iii) and
2.2(k).
2.5 DELIVERY OF CERTAIN DOCUMENTS. The Trust will deliver to the
Administrator, promptly following the execution hereof: (a) a complete conformed
copy of the registration statement of the Trust under the Securities Act and the
Investment Company Act, including all amendments, exhibits and schedules
thereto; and (b) the XXXXX access codes (Central Index Key, CIK Confirmation
Code, Password and Password Modification Access Code) employed to file such
registration statement.
ARTICLE III
COMPENSATION OF ADMINISTRATOR
3.1 COMPENSATION. (a) For services to be rendered by the Administrator
pursuant to this Agreement, as custodian under the Custodian Agreement, dated as
of September 10, 1998 (the "Custodian Agreement"), between the Administrator, as
custodian, and the Trust, and as paying agent, transfer agent and registrar (the
"Paying Agent") under the Paying Agent Agreement, dated as of September __,
1998, between the Administrator, as the Paying Agent, and the Trust, the
Administrator shall receive its compensation only from the facility fee referred
to in Section 2.2(b) hereof and from the payments under the Trust Expense
Agreement and the Expense and Indemnity Agreement and shall have no recourse to
the Trust Estate for its compensation.
(b) In connection with the performance of the services referred to in
Section 3.1(a), the Administrator, as such or in any other capacity, shall not
be required to advance, expend or risk its own funds or otherwise incur or
become exposed to financial liability in the performance of its duties hereunder
or under the other agreements referred to in Section 3.1(a).
3.2 ADDITIONAL SERVICES. If and to the extent that the Trust shall
request the Administrator to render services for the Trust, other than those to
be rendered by the Administrator hereunder, and if the Administrator agrees to
render such services, such additional services shall be compensated separately
on terms to be agreed upon between the Administrator and the Trust from time to
time.
ARTICLE IV
TERMINATION
4.1 TERMINATION.
(a) This Agreement shall terminate immediately upon written notice of
termination from the Trust to the Administrator if any of the following events
shall occur:
(i) if the Administrator shall violate any provision of this
Agreement, the Trust Agreement, or the Investment Company Act, and
after notice of such violation, shall not cure such violation within 30
days; or
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(ii) if the Administrator shall be adjudged bankrupt or
insolvent by a court of competent jurisdiction, or an order shall be
made by a court of competent jurisdiction for the appointment of a
receiver, liquidator, or trustee of the Administrator, or of all or
substantially all of its property by reason of the foregoing, or
approving any petition filed against the Administrator for its
reorganization, and such adjudication or order shall remain in force or
unstayed for a period of 30 days; or
(iii) if the Administrator shall institute proceedings for
voluntary bankruptcy, or shall file a petition seeking reorganization
under the Federal bankruptcy laws, or for relief under any law for the
relief of debtors, or shall consent to the appointment of a receiver of
the Administrator or of all or substantially all of its property, or
shall make a general assignment for the benefit of its creditors, or
shall admit in writing its inability to pay its debts generally as they
become due; or
(iv) upon the voluntary or involuntary dissolution of the
Administrator or the merger or consolidation of the Administrator with
any other entity.
If any of the events specified in clauses (ii), (iii) or (iv) of this
Section 4.1(a) shall occur, the Administrator shall give immediate written
notice thereof to the Trust.
(b) Notwithstanding anything to the contrary contained herein, this
Agreement shall terminate immediately (i) upon termination of the Trust
Agreement, (ii) upon termination of the Paying Agent Agreement, (iii) upon
termination of the Custodian Agreement or (iv) upon the resignation or removal
of the Custodian and no successor Custodian is appointed pursuant to Section 9
or 10 of the Custodian Agreement.
(c) The Trust may remove the Administrator, or the Administrator may
resign, and thereby terminate this Agreement without penalty upon 60 days prior
written notice to the other party hereto; provided that no termination of this
Agreement pursuant to this Section 4.1(c) or otherwise shall be effective unless
a successor Administrator shall have been appointed and shall have accepted the
duties of the Administrator. If, within 30 days after notice by the
Administrator to the Trust of termination of this Agreement, no successor
Administrator shall have been selected and accepted the duties of the
Administrator, the Administrator may apply to a court of competent jurisdiction
for the appointment of a successor Administrator.
4.2 EFFECT OF TERMINATION. The Administrator shall forthwith upon
termination of this Agreement deliver to the Trust any records or other property
of the Trust then in the possession or custody of the Administrator. Any
obligation to indemnify the Administrator pursuant to Section 6.6 shall survive
the termination of this Agreement.
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ARTICLE V
RECORDS AND REPORTS
5.1 BOOKS AND RECORDS; INSPECTION AND COPYING. The Administrator shall
keep, or cause to be kept, appropriate, and reasonably detailed and accurate,
books and records of all its activities pursuant to this Agreement. The Trust or
any of its designated agents, shall have the right to inspect such books and
records during the Administrator's normal business hours upon reasonable
request, and to make copies of the same at the expense of the Trust.
5.2 ACCESS TO INFORMATION. The Administrator shall make available to
the Trust and its designated agents, all information it receives and compiles
with respect to the TrUEPrS and the Debt Securities, the moneys available to the
Trust, the financial condition of the Trust and all other relevant matters
concerning the Trust.
ARTICLE VI
MISCELLANEOUS
6.1 BINDING EFFECT; SUCCESSORS AND ASSIGNS. Any corporation into which
the Administrator may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Administrator shall be a party, shall be the
successor Administrator hereunder and under the Trust Agreement without the
execution or filing of any paper, instrument or further act to be done on the
part of the parties hereto, provided that such corporation meets the
requirements set forth in the Trust Agreement. This Agreement shall be binding
on and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
6.2 ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties with respect to the matters contained herein and supersedes
all prior agreements or understandings, whether oral or written. This Agreement
shall not be amended, changed, modified, or discharged, in whole or in part,
except by an instrument in writing signed by both parties hereto, or their
respective successors or permitted assigns.
6.3 NOTICES. All notices, demands, reports, statements, approvals or
consents given by any party under this Agreement shall be directed as follows
(or to such other address for a particular party as shall be specified by such
party in a like notice given pursuant to this Section 6.3):
The Trust: NAB Exchangeable Preferred Trust
c/o Puglisi & Associates
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
0
Xxx Xxxxxxxxxxxxx: Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
The NAB Affiliate: National Australia Group Europe Limited
0 Xxxxxx Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx
Telephone: ____________
Telecopier: ____________
The U.K. Company: Cuzzano (UK) Company
x/x Xxxxxxxxxx & Xxxxxx
Xxx Xxxx Xxxxxx
Xxxxxx XX0X 0XX
Telecopier: 00-000-000-0000
Attention: Company Secretary
Except as otherwise specifically provided herein, all notices, reports
and other communications provided for hereunder shall be in writing and, unless
some other method of giving such notice, report or other communication is
accepted by the party to whom it is to be given or is required by the Trust
Agreement or the Investment Company Act, shall be deemed to have been duly given
if either (i) personally delivered (including delivery by courier service or by
Federal Express or any other nationally recognized overnight delivery service
for next day delivery in the United States) to the offices set forth above, in
which case they shall be deemed received on the first Business Day by which
delivery shall have been made to said offices, (ii) transmitted by any standard
form of telecommunication to the offices set forth above, in which case they
shall be deemed received on the first Business Day by which a standard
confirmation that such transmission occurred is received by the transmitting
party (unless such confirmation states that such transmission occurred after
5:00 P.M. on such first Business Day, in which case delivery shall be deemed to
have been received on the immediately succeeding Business Day), or (iii) sent by
certified or registered mail, return receipt requested to the offices set forth
above, in which case they shall be deemed received when receipted for unless
acknowledgment of receipt is refused (in which case delivery shall be deemed to
have been received on the first Business Day on which such acknowledgment is
refused).
6.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE.
6.5 NON-ASSIGNABILITY. This Agreement and the rights and obligations of
the parties hereunder may not be assigned or delegated by either party without
the prior written consent of the other party.
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6.6 INDEMNIFICATION. The Trust shall indemnify and hold the
Administrator harmless from and against any loss, damages, cost, liability or
claim incurred by reason of any inaccuracy in information furnished to the
Administrator by the Trustees, or any act or omission in the course of,
connected with or arising out of any services to be rendered hereunder, and any
reasonable expense (including the reasonable costs of investigation, preparation
for and defense of legal and/or administrative proceedings related to a claim
against it and reasonable attorneys' fees and disbursements) incurred in
connection with any such loss, damages, cost, liability or claim, provided that
the Administrator shall not be indemnified and held harmless from and against
any such loss, damages, cost, liability, claim or reasonable expense incurred by
reason of its willful misfeasance, bad faith, or gross negligence in the
performance of its duties, or its reckless disregard of its duties and
obligations hereunder. Notwithstanding the foregoing, it is understood that (i)
the Trust shall not, in respect of the legal expenses of the Administrator in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel), (ii) the Trust shall not be liable for any settlement of
any proceeding effected without the written consent of the Trust, but if settled
with such consent or if there be a final judgment for the third party claimant,
the Trust agrees to indemnify the Administrator from and against any loss or
liability by reason of such settlement or judgment, (iii) the Trust may not pay
any amounts to the Administrator under this Section 6.6 from the Trust Estate
and (iv) the Trust shall not be liable for any loss, damages, cost, liability or
claim or any expense (including the reasonable costs of investigation,
preparation for and defense of legal and/or administrative proceedings related
to a claim against the Administrator and reasonable attorneys' fees and
disbursements) in an amount in excess of the amount received by the Trust under
the Trust Expense Agreement and the Expense and Indemnity Agreement in
connection with such loss, damages, cost, liability or claim.
6.7 PROVISIONS OF LAW TO CONTROL. This Agreement shall be subject to
the applicable provisions of the Investment Company Act and the rules and
regulations of the Commission thereunder. To the extent that any provisions
herein contained conflict with any applicable provisions of the Investment
Company Act or such rules and regulations, the latter shall control.
6.8 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
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IN WITNESS WHEREOF the parties have hereunto executed this
Administration Agreement as of the day and year first above written.
NAB EXCHANGEABLE PREFERRED TRUST
By:
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Xxxxxx X. Xxxxxxx,
as Managing Trustee
THE BANK OF NEW YORK
By:
----------------------------
Name:
Title:
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SCHEDULE I
Reimbursed Up-Front Expenses
Item Amount
---- ------
SEC Registration Fee $135,700.00
NASD Fee 30,500.00
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Total $166,200.00
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SCHEDULE II
Other Up-Front Expenses
Item Amount
---- ------
NYSE Original Listing Fee $ 86,300.00
NYSE Continuing Listing Fee 10,000.00
Printing:
N-2 125,000.00
Trust Securities Certificates 1,600.00
Legal Fees:
Xxxxx & Wood LLP
Xxxxxxxx & Xxxxxxxx 10,000.00
Xxxxxxxx, Xxxxxx & Finger 30,000.00
Xxxxx, Xxxxxx & Xxxxxx 15,000.00
Accountants' Fee:
McGladrey & Xxxxxx LLP 0.00
Deloitte & Touche LLP 5,000.00
PricewaterhouseCoopers 10,000.00
Rating Agency Fees
Moody's 10,000.00
Standard & Poors 20,000.00
Administrative Fees:
Initial Acceptance Fee 7,500.00
Payable in Advance on Closing 5,000.00
Trustees' Fees Payable in Advance 3,000.00
Blue Sky Fees 2,000.00
Fee for Tombstone Advertisement 25,000.00
CT Corporation
Fee for certified copies of certain certificates 259.00
Fee for process agent 170.00
Fee for process agent (annual fees payable in advance) 6,402.00
RL&F Service Corp (Delaware agent) 100.00
Security Interest UCC Filing Fees 1,000.00
Miscellaneous:
Fees 40,000.00
Expenses 10,000.00
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Total $ 423,331.00
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SCHEDULE III
On-Going Expenses
1/1/99 -3/31/99
Service Provider Description of Services Date Payable Amount
---------------- ----------------------- ------------ ------
New York Stock Exchange Continuing Listing Fee January 1, 1999 $ 24,260.00
Xxxxx & Xxxx LLP Legal Fees December 31, 1998 30,000.00
McGladrey & Xxxxxx LLP Accountant's Fee December 31, 1998 4,000.00
Deloitte & Touche LLP Independent Public December 31, 1998 3,750.00
Accountant's Fee
Standard & Poor's Ratings Group Rating Agency Fees December 31, 1998 1,250.00
Bank of New York Administrator's Fee December 31, 1998 10,000.00
Bank of New York Paying Agent's Fee December 31, 1998 1,250.00
Bank of New York Custodian's Fee December 31, 1998 2,500.00
Bank of New York Depositary's Fee December 31, 1998 2,500.00
Bank of New York Collateral Agent's Fee December 31, 1998 2,500.00
Trustees Trustees Fees December 31, 1998 3,000.00
RL&F Service Corp Delaware Registered Agent --
Bank of New York Mailing of Reports to December 31, 1998 3,750.00
Shareholders
Other Miscellaneous December 31, 1998 5,000.00
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Total $ 93,760.00
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