As filed with the Securities and Exchange Commission on August 13, 1999
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM N-8B-2
FILE NO. 811- 09409
REGISTRATION STATEMENT OF UNIT INVESTMENT TRUST
Pursuant to Section 8(b) of the
Investment Company Act of 1940
AMADEO TRUST
NOT THE ISSUER OF PERIODIC PAYMENT PLAN CERTIFICATES
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I. ORGANIZATION AND GENERAL INFORMATION
1. (a) Furnish name of the trust and the Internal Revenue Service
Employer Identification Number. (According to security
designation or otherwise, if the trust does not have or does
not transact business under any other designation.)
Amadeo Trust ("Trust").
Internal Revenue Service Employer Identification Number is:
62-1784725
(b) Furnish title of each class or series of securities issued by
the trust.
The Trust issues only one class of securities named "units of
beneficial interest" ("Unit").
2. Furnish name and principal business address and zip code and the
Internal Revenue Service Employer Identification Number of each
depositor of the trust.
Amadeo, Inc. ("Depositor")
Suite 650, 100 West Liberty Street
Reno, NV 89501
Internal Revenue Service Employer Identification Number is:
62-1784727
3. Furnish name and principal business address and zip code and the
Internal Revenue Service Employer Identification Number of each
custodian or trustee of the trust indicating for which class or
series of securities each custodian or trustee is acting.
Bank of America, N.A., as successor to NationsBank, N.A.
("Trustee")
NC1-007-19-02
100 North Tryon St.
Charlotte, NC 28255
Internal Revenue Service Employer Identification Number is:
57-0236115
U.S. Bank National Association ("USBNA")
U.S. Bank Corporate Trust Service
180 East Fifth Street
St. Paul, MN 55101
Internal Revenue Service Employer Identification Number is:
41-0417860
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4. Furnish name and principal business address and zip code and the
Internal Revenue Service Employer Identification Number of each
principal underwriter currently distributing securities of the
trust.
None. The Trust's initial offering of shares was pursuant to
Section 4(2) of the Securities Act of 1933 ("1933 Act"). The
Depositor is the owner of 100% of the interests of the Trust
("Units"). The Depositor will donate some of the Units to
certain charitable organizations.
5. Furnish name of state or other sovereign power, the laws of which
govern with respect to the organization of the trust.
State of New York.
6. (a) Furnish the date of execution and termination of any
indenture or agreement currently in effect under the terms of
which the trust was organized and issued or proposes to issue
securities. (If individual indentures or agreements are
entered into with security holders, so state and furnish the
date of the first such indenture or agreement.)
The Trust Indenture and Agreement
(the "Indenture") under the terms of
which the Trust was created, is
filed as Exhibit A(1) hereto. The
Indenture was entered into on June
30, 1999. The parties to the
Indenture are the Depositor, the
Trustee and Bank of America, N.A. in
its individual capacity ("BoA"). The
Indenture provides that in no event
shall the Trust continue beyond the
last business day ("Business Day")
of 2007. For purposes of the
Indenture, Business Day means any
day other than a Saturday, Sunday or
a day which in the State of North
Carolina or the states where the
principal corporate trust office of
the indenture trustee ("Indenture
Trustee") for the Notes deposited in
the Trust (reference is made to the
information provided in Item (11),
below, for the definition of the
term "Notes") or the Trust's
registrar and paying agent
("Registrar and Paying Agent") are
located is a legal holiday or a day
on which banking institutions are
authorized by law to close.
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An agreement ("Agreement") was also
entered into between the Depositor
and the Trust on June 30, 1999
pursuant to which the Depositor
conveyed to the Trust securities
which currently make up all the
underlying securities ("Securities")
of the Trust in exchange for
9,000,000 Units which currently
represent 100 % of the undivided
fractional interests in the Trust.
(b) Furnish the dates of execution and termination of any
indenture or agreement currently in effect pursuant to which
the proceeds of payments on securities issued or to be issued
by the trust are held by the custodian or trustee.
The Trustee entered into an Administrative Services
Agreement ("Administrative Agreement"), attached as
Exhibit A (2), with USBNA under which USBNA serves as a
sub-trustee to the trust and executes many of the duties
of the Trustee under the Indenture. The Administrative
Agreement was entered into on June 30, 1999, and will
terminate with the dissolution of the Trust. Reference
is also made to the information provided in Item (6)(a)
above.
7. Furnish in chronological order the following information with
respect to each change of name of the trust since January 1, 1930.
If the name has never been changed, so state.
The name of the trust has never been changed.
Former Name: None.
Approximate Date of Change: None.
8. State the date on which the fiscal year of the trust ends.
December 31.
MATERIAL LITIGATION
9. Furnish a description of any pending legal proceedings, material
with respect to the security holders of the trust by reason of
the nature of the claim or the amount thereof, to which the
trust, the depositor, or the principal underwriter is a party or
of which the assets of the trust are the subject, including the
substance of the claims involved in such proceeding and the title
of the proceeding. Furnish a similar statement with respect to
any pending administrative proceeding commenced by a governmental
authority or any such proceeding or legal proceeding known to be
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contemplated by a governmental authority. Include any proceeding
which, although immaterial itself, is representative of, or one
of, a group which in the aggregate is material.
None.
II. GENERAL DESCRIPTION OF THE TRUST AND SECURITIES OF THE TRUST AND
GENERAL INFORMATION CONCERNING THE SECURITIES OF THE TRUST AND THE
RIGHTS OF HOLDERS
10. Furnish a brief statement with respect to the following matters for
each class or series of securities issued by the trust:
(a) Whether the securities are of the registered or bearer
type.
Registered.
(b) Whether the securities are of the cumulative or distributive
type.
Distributive.
(c) The rights of security holders with respect to withdrawal or
redemption.
Reference is made to the information provided in Item
10(d), below.
(d) The rights of security holders with respect to conversion,
transfer, partial redemption, and similar matters.
(A) TRANSFER OF UNITS
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Each Unit issued by the Trust is offered under an
exemption from registration under the 1933 Act and,
therefore, may not be transferred to any person other
than the Depositor without an opinion of counsel
("Opinion") to the Trustee to the effect that the
transfer can be made without registration under the 1933
Act. The registered holder of a Unit ("Unitholder") may
transfer all or a portion of its Units a) to the
Depositor, if the Depositor is willing to purchase them;
or b) to another person in this case by executing or
causing its authorized attorney to execute a written
instrument or instruments of transfer in a form
satisfactory to the Trustee and delivering such
instrument or instruments together with the Opinion to
the Trustee at the Trustee's address listed in Item (3)
above ("Trustee's Office"). Upon receiving such items,
the Trustee (or if directed by the Trustee, the
Registrar and Paying Agent) will register the
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transferred Units in the name of the transferee. The
Trustee may treat the person in whose name any Unit is
registered upon the books of the Trustee or the
Registrar and Paying Agent as the owner of such Unit and
the Trustee shall not be affected by any notice to the
contrary, nor be liable to any person or in any way for
so deeming and treating the person in whose name any
Unit is so registered.
A sum sufficient to pay any tax or other governmental
charge that may be imposed in connection with any
transfer of Units must be paid by the Unitholder to the
Trustee.
All Units canceled pursuant to the Indenture will be
disposed of by the Trustee without liability on its
part.
(B) REDEMPTION REQUESTS
-------------------
All Unitholders must make their redemption requests in
writing to the Trustee at the Trustee's Office and may
do so by completing the form set forth as Appendix C to
the Indenture. Any proper request for redemption will be
effected by the Trustee on or before the seventh
calendar day following the Trustee's receipt of such a
request for redemption ("Redemption Date"). Subject to
payment by any redeeming Unitholder of any tax or other
governmental charges that may be imposed thereon, such
redemption is to be made by payment on the Redemption
Date of a single Unit's value multiplied by the number
of Units redeemed by the Unitholder ("Redemption Price")
calculated as of 4:00 p.m. EST on the day on which the
proper request for redemption is made. Unit redemption
requests received by the Trustee on any day after 4:00
p.m. EST will be treated by the Trustee as received on
the next day on which both the Trustee and the Registrar
and Paying Agent are open for business and will be
deemed to have been received on such day for redemption
at the Redemption Price computed on that day.
(C) DEPOSITOR'S OPTION TO PURCHASE UNITS FROM UNITHOLDERS
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Not later than the close of business on the day a proper
request for redemption in the manner provided for in
Item (10)(d)(B) above, by a Unitholder other than the
Depositor is received, the Trustee must notify the
Depositor of such request. The Depositor has the right
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to purchase such Units by notifying the Trustee of its
election to make such purchase as soon as practicable
thereafter but in no event subsequent to the close of
business on the day on which the request for redemption
of such Units was received. Such purchase shall be made
by payment for such Units by the Depositor to the
Unitholder not later than the close of business on the
Redemption Date of an amount equal to the Redemption
Price that would otherwise be payable by the Trustee to
such Unitholder.
Any Unit so purchased by the Depositor may at its option
be tendered to the Trustee for redemption at the
Trustee's Office in the manner provided in Item
(10)(d)(B) above.
(D) PAYMENT FOR REDEMPTIONS
-----------------------
If the Depositor does not elect to purchase a Unit or
Units tendered to the Trustee for redemption, or if a
Unit or Units are tendered by the Depositor for
redemption, that portion of the Redemption Price that
represents undistributed interest will be withdrawn from
the Trust's interest account ("Interest Account") to the
extent available and applied as payment of the
Redemption Price. The balance to be paid on any
redemption shall be withdrawn from the Trust's principal
account ("Principal Account") to the extent that funds
are available for such purpose and applied as payment of
the Redemption Price. If moneys in the Principal Account
are insufficient, the Trustee will sell such of the
Securities currently designated for such purposes by the
Depositor as the Trustee in its sole discretion shall
deem necessary and shall apply the proceeds as payment
of the Redemption Price. Given the minimum principal
amount in which certain Securities may be required to be
sold, the proceeds of such sales may exceed the amount
necessary for payment of Units redeemed. Such excess
proceeds shall be distributed pro rata to all remaining
Unitholders of record.
The Depositor will maintain with the Trustee a current
list of Securities held in the Trust designated to be
sold for the purpose of redemption of Units and not
purchased by the Depositor, provided that if the
Depositor for any reason fails to maintain such a list,
the Trustee, in its sole discretion, may designate a
current list of Securities for such purposes. The net
proceeds of any sales of Securities from such list
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representing principal will be credited to the Principal
Account and the proceeds of such sales representing
accrued interest, if any, but not accrued original issue
discount, if any, will be credited to the Interest
Account.
Sales of Securities shall be made in the manner the
Trustee determines will bring the best price obtainable
for the Trust provided, however, that sales will provide
the Trustee with funds in an amount sufficient and at
the time necessary in order for it to pay the Redemption
Price of Units tendered for redemption, regardless of
whether or not a better price could be obtained if the
Securities were sold without regard for the day on which
the proceeds of such sale would be received. The Trustee
will not be liable or responsible in any way for
depreciation or loss incurred by reason of any sale of
Securities made as described in this Item (10)(d)(D).
(E) SUSPENSION OF RIGHT OF REDEMPTION
---------------------------------
The Trustee may in its discretion, and must when so
directed by the Depositor, suspend the right of
redemption for Units or postpone the date of payment of
the Redemption Price beyond the Redemption Date: (1) for
any period during which the New York Stock Exchange is
closed other than customary weekend and holiday closings
or during which trading on the New York Stock Exchange
is restricted; (2) for any period during which an
emergency exists as a result of which disposal by the
Trust of the Securities is not reasonably practicable or
it is not reasonably practicable fairly to determine in
accordance with the Indenture the value of the
Securities; or (3) for such other period as the
Securities and Exchange Commission may by order permit,
and shall not be liable to any person or in any way for
any loss or damage that may result from any such
suspension or postponement.
(F) CANCELLATION OF UNITS
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The amount recorded in the registration books of the
Trust (or if directed by the Trustee, the books and
records of the Registrar and Paying Agent) representing
Units redeemed in the manner described in this Item
(10)(d) will be canceled by the Trustee (or the
Registrar and Paying Agent at the direction of the
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Trustee) and the Unit or Units evidenced by such records
shall be terminated by such redemptions.
(e) If the trust is the issuer of periodic payment plan certificates,
the substance of the provisions of any indenture or agreement with
respect to lapses or defaults by security holders in making
principal payments, and with respect to reinstatement.
Not applicable.
(f) The substance of the provisions of any indenture or agreement with
respect to voting rights, together with the names of any persons
other than security holders given the right to exercise voting
rights pertaining to the Trust's securities or the underlying
securities and the relationship of such persons to the Trust.
(A) AMENDMENTS TO INDENTURE
-----------------------
The Indenture may be amended by the Trustee/BoA or the
Depositor (collectively the "Parties") without the
consent of any of the Unitholders (a) to cure any
ambiguity or to correct or supplement any provision
contained in the Indenture that may be defective or
inconsistent with any other provision contained therein;
or (b) to make such other provision in regard to matters
or questions arising thereunder that does not adversely
affect in any material respect the interests of the
Unitholders; provided, however, that the Parties may not
amend the Indenture except as provided in the Indenture
so as to (1) increase the number of Units issuable
thereunder or (2) permit the deposit or acquisition
thereunder of Securities either in addition to or in
substitution for any of the Securities initially
deposited in the Trust.
(B) ELECTION OF TRUSTEE
-------------------
No Unitholder has any right to vote or in any manner
otherwise control the operation and management of the
Trust or the obligations of the Parties, except that
Unitholders will have the right to elect the Trustee
annually. Such election will be held each February, upon
30 days' written notice to Unitholders. The written
notice will set forth the material information regarding
the Trustee and the Trust and the mechanics for voting
the Units.
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(C) ACTIONS ON SECURITIES
---------------------
If the Trustee is notified at any time of any action to
be taken or proposed to be taken by holders of the
Securities (including but not limited to the making of
any demand, direction, request, giving of any notice,
consent or waiver or the voting with respect to any
amendment or supplement to any indenture, resolution,
agreement or other instrument under or pursuant to which
the Securities have been issued), the Trustee will
promptly notify the Depositor thereof and will take such
action, or refrain from taking any action as the
Depositor shall in writing direct; provided, however,
that if the Depositor does not, within five Business
Days of the Trustee's giving of such notice to the
Depositor, so direct the Trustee, the Trustee will take
action as it, in its sole discretion, deems advisable.
Neither the Depositor nor the Trustee will be liable to
any person for any action or failure to take action as
described by this Item (10)(f)(C).
(g) Whether security holders must be given notice of any change in:
(1) the composition of the assets in the trust.
Yes. Reference is made to the information provided
in Item (16) below.
(2) the terms and conditions of the securities issued by the
trust.
If the Depositor elects to cause the
Units to be registered under the 1933
Act, then the Depositor shall give
written notice to all Unitholders of its
intention to effect such registration and
the procedures such Unitholders shall
follow.
(3) the provisions of any indenture or agreement of the trust.
The Trustee must furnish written notification to all
outstanding Unitholders of the substance of any
amendment made to the Indenture.
(4) the identity of the depositor, trustee or custodian.
If the Trustee resigns, it must execute
an instrument in writing which it must
file with the Depositor and mail a copy
of such written instrument to each
Unitholder. Furthermore, if the
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Depositor removes the Trustee and
appoints a successor Trustee each
Unitholder of record must be notified.
Unitholders do not have to be notified of
changes in the identity of the Depositor.
(h) Whether the consent of security holders is required in order for
action to be taken concerning any change in:
(1) the composition of the assets of the trust.
Yes. Reference is made to the information provided
in Item (10)(f)(A).
(2) the terms and conditions of the securities issued by the
trust.
Yes. Reference is made to the information provided
in Item (10)(f)(A).
(3) the provisions of any indenture or agreement of the trust.
Yes. Reference is made to the information provided
in Item (10)(f)(A).
(4) the identity of the depositor, trustee or custodian.
Yes. Reference is made to the information provided
in Item (10)(f)(B).
(i) Any other principal feature of the securities issued by the trust or
any other principal right, privilege or obligation not covered by
subdivisions (a) to (g) or by any other items in this form.
None.
INFORMATION CONCERNING THE SECURITIES UNDERLYING THE TRUST'S SECURITIES
11. Describe briefly the kind or type of securities comprising the unit
of specified securities in which security holders have an interest.
The Trust's Securities are comprised of notes ("Notes"),
certificates ("Certificates"), replacement securities ("Replacement
Securities") and reinvestment securities ("Reinvestment
Securities"). Reference is made to the information provided in Item
(16)(B) below, for the definition of Replacement Securities and
Reinvestment Securities. The Notes consist of four classes of asset
backed securities ("Asset-Backed Securities") issued by Bank of
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America Auto Owner Trust 1999-A, a Delaware business trust ("SPV"):
(i) $2,750,000,000 principal amount of 5.305% Class A-1 Asset-Backed
Notes, (ii) $2,904,000,000 principal amount of 5.854% ClassA-2
Asset-Backed Notes, (iii) $2,410,000,000 principal amount of 6.410%
Class A-3 Asset-Backed Notes, and (iv) $508,231,929 principal amount
of 6.540% Class A-4 Asset-Backed Notes.
The certificates consist of two classes of Asset-Backed Securities
issued by the SPV: (i) $385,168,206 principal amount of 6.930% of
Class B Asset-Backed Certificates and (ii) Asset-Backed Residual
Certificates ("Asset-Backed Residual
Certificates").
12. If the trust is the issuer of periodic payment plan certificates and
if any underlying securities were issued by another investment
company, furnish the following information for each such company:
(a) Name of company.
(b) Name and principal business address of depositor.
(c) Name and principal business address of trustee or custodian.
(d) Name and principal business address of principal underwriter.
(e) The period during which the securities of such company have
been the underlying securities.
Not applicable.
INFORMATION CONCERNING LOADS, FEES, CHARGES AND EXPENSES
13. (a) Furnish the following information with respect to each
load, fee, expense or charge to which (1) principal payments,
(2) underlying securities, (3) distributions, (4) cumulated or
reinvested distributions or income, and (5) redeemed or
liquidated assets of the trust's securities are subject:
(A) the nature of such load, fee, expense or charge;
(B) the amount thereof;
(C) the name of the person to whom such amounts are paid and
his relationship to the trust; and
(D) the nature of the services performed by such person in
consideration for such load, fee, expense or charge.
BoA shall bear the expenses of establishing the Trust
and shall compensate the Depositor, Registrar and Paying
Agent, attorneys, accountants, auditors and other agents
excluding the sub-trustee for their services. The
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Trustee shall compensate any successor trustee or
sub-trustee that does not waive its fees. If the Trustee
does not pay any sub-trustee or successor trustee the
amounts that it agreed to pay, then the successor
trustee or sub-trustee shall be compensated at the
current market rate (which currently is estimated at
$8,500 per year). The successor trustee or sub-trustee
will be compensated first from cash available in the
Interest Account and then the Principal Account. If the
cash balances in the Interest and Principal Accounts are
insufficient to provide for amounts payable to any
successor trustee or sub-trustee, then the Trustee shall
have the power to sell (i) Securities of the Trust from
a current list of Securities designated to be sold by
the Depositor or (ii) if no such Securities have been so
designated, such Securities of the Trust as the Trustee
may see fit to sell in its own discretion, and to apply
the proceeds of any such sale in payment of the amounts
payable to any successor trustee or sub-trustee. Any
moneys payable to any successor trustee or sub-trustee
from the Trust for their compensation shall be secured
by a prior lien on the Trust.
(b) For each installment payment type of periodic payment plan
certificate of the trust, furnish the following information
with respect to sales load and other deductions from principal
payments.
Not applicable.
(c) State the amount of total deductions as a percentage of the
net amount invested for each type of security issued by the
trust. State each different sales charge available as a
percentage of the public offering price and as a percentage
of the net amount invested. List any special purchase plans
or methods established by rule or exemptive order that
reflect scheduled variations in, or elimination of, the
sales load and identify each class of individuals or
transactions to which such plans apply.
Not applicable.
(d) Explain fully the reasons for any difference in the price at
which securities are offered generally to the public, and the
price at which securities are offered for any class of
transactions to any class or group of individuals, including
officers, directors, or employees of the depositor, trustee,
custodian or principal underwriters.
Not applicable.
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(e) Furnish a brief description of any loads, fees, expenses or
charges not covered in Item (13)(a) which may be paid by
security holders in connection with the trust or its
securities.
Not applicable.
(f) State whether the depositor, principal underwriter,
custodian or trustee, or any affiliated person of the
foregoing may receive profits or other benefits not
included in answer to Item (13)(a) or (13)(d) through the
sale or purchase of the trust's securities or interests in
such securities, or underlying securities or interests in
underlying securities, and describe fully the nature and
extent of such profits or benefits.
No.
(g) State the percentage that the aggregate annual charges and
deductions for maintenance and other expenses of the trust
bear to the dividend and interest income from the trust
property during the period covered by the financial statements
filed herewith.
Not applicable.
INFORMATION CONCERNING THE OPERATIONS OF THE TRUST
14. Describe the procedure with respect to applications (if any) and the
issuance and authentication of the trust's securities, and state the
substance of the provisions of any indenture or agreement pertaining
thereto.
The Trust was created under the laws of the State of New York
pursuant to the Indenture dated June 30, 1999. On June 30,
1999, the Depositor deposited with the Trustee in trust,
pursuant to the Agreement, the Notes and Certificates
registered in the name of USBNA, as nominee for the Trust.
The Trustee was irrevocably authorized to effect registration
or transfer of the Securities to the name of the Trustee or to
the name of its nominee.
On June 30, 1999, simultaneously with the deposit of the Notes
and Certificates, the Trustee recorded or caused the Registrar
and Paying Agent to record on the books and records of the
Trust for the account of the Depositor the ownership of
9,000,000 Units which constituted all of the Units of the
Trust as of June 30, 1999. The Units are issued solely in
uncertificated form.
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The Trustee has caused the Registrar and Paying Agent to
maintain a register of the name and address of each Unitholder
and the number of Units held by them and a record of all
transfers and redemptions thereof.
15. Describe the procedure with respect to the receipt of payments from
purchasers of the trust's securities and the handling of the
proceeds thereof, and state the substance of the provisions of any
indenture or agreement pertaining thereto.
Not applicable.
16. Describe the procedure with respect to the acquisition of underlying
securities and the disposition thereof, and state the substance of
the provisions of any indenture or agreement pertaining thereto.
(A) INITIAL DEPOSIT OF SECURITIES
-----------------------------
On June 30, 1999 the Depositor deposited with the
Trustee in trust pursuant to the Agreement the Notes and
Certificates registered in the name of USBNA, as nominee
for the Trust. On June 30, 1999, simultaneously with the
deposit of the Notes and Certificates, the Trustee
recorded or caused the Registrar and Paying Agent to
record on the books and records of the Trust for the
account of the Depositor the ownership of 9,000,000
Units which constituted all of the Units of the Trust as
of June 30, 1999.
(B) PURCHASE OF REPLACEMENT AND REINVESTMENT SECURITIES
---------------------------------------------------
(a) The Trustee will, as directed in writing by the
Depositor, purchase, or enter into contracts
(which the Depositor shall have approved as
satisfactory in form and substance) to purchase
Replacement Securities, and shall pay for the
same with moneys held in the Principal Account
representing proceeds of the sale of Securities
pursuant to the conditions described in Item
(16)(C) and Item (16)(D) below, to the extent
that such proceeds are not required for the
purpose of redemption of Units or other charges
to the Principal Account then pending. In
giving such direction, the Depositor must
satisfy all of the following conditions in the
case of each such purchase or contract to
purchase:
(i) the Replacement Securities are
substantially similar to the Securities
in the Trust;
(ii) the Depositor has received an opinion of
counsel that such purchase will not
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adversely affect the status of the Trust
under the Investment Company Act of 1940, as
amended;
(iii) the Depositor has given such written
direction to the Trustee at least five
Business Days prior to the Record Date on
which the moneys to be used for the purpose
of Replacement Securities would otherwise be
distributed to the Unitholders. (See Item
(18)(a)(C) below for the definition of
Record Date); and
(iv) the nationally recognized statistical
rating organization or other comparable
person designated to rate the Notes and
Certificates ("Rating Agency") provides
written notification to various parties
involved in the issuance of the Notes and
Certificates that such action will not
result in a reduction or withdrawal of
the then current rating of the Notes or
the Class B Asset-Backed Certificates.
Within five Business Days of the deposit of any
Replacement Securities, the Depositor will send
each Unitholder a written notice of the deposit of
such Replacement Securities and the Securities
replaced by such Replacement
Securities.
(b) From June 30, 1999 until the Depositor notifies
the Trustee in writing that purchasing
Reinvestment Securities is impractical
("Reinvestment Period"), the Trustee will, as
directed in writing by the Depositor, purchase,
or enter into contracts (which the Depositor
shall have approved as satisfactory in form and
substance) to purchase, Reinvestment Securities
and will pay for the same with the moneys held
in the Principal Account representing the
payment or prepayment of principal on the
Securities to the extent that such proceeds are
not required for the purpose of redemption of
Units or other charges to the Principal Account
then pending. In giving such direction, the
Depositor shall satisfy all of the following
conditions in the case of each such purchase or
contract to purchase:
(i) the Reinvestment Securities are
substantially similar to the existing
Securities in the Trust;
(ii) the Depositor has received an opinion of
counsel that such purchase will not
adversely affect the status of the Trust
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under the Investment Company Act of 1940, as
amended; and
(iii) the Rating Agency provides written
notification to various parties involved in
the issuance of the Notes and Certificates
that such action will not result in a
reduction or withdrawal of the then current
rating of the Notes or the Class B
Asset-Backed Certificates.
The Trustee may purchase the Reinvestment
Securities for deposit in the Trust directly from
market makers in such Securities or may retain the
Depositor or other brokers to purchase the
Reinvestment Securities and pay them usual and
customary brokerage commissions for such
transactions. Within five Business Days of the
deposit of Reinvestment Securities, the Depositor
will send each Unitholder a written notice of the
deposit of such Reinvestment Securities and
identify the Securities from which the money for
Reinvestment Securities was derived.
Funds remaining in the Principal Account
subsequent to a purchase of Reinvestment
Securities will remain in such account until they
can be invested in additional Reinvestment
Securities. During the Reinvestment Period,
amounts in the Principal Account that the
Depositor determines (and so notifies the Trustee
in writing or via facsimile) are (a) unable to be
invested into Reinvestment Securities or (b)
required to be distributed for the Trust, to
maintain its status as a regulated investment
company as defined in Section 851 of the Internal
Revenue Code of 1986 ("RIC"), shall be distributed
on the next Distribution Date, to Unitholders of
record on the related Record Date. (See Item
(18)(a)(C) below for the definition of
Distribution Date).
When the Depositor determines that the
reinvestment of cash from the Principal Account
into Reinvestment Securities is no longer
practical, the Depositor shall notify the Trustee,
in writing, that the Reinvestment Period is
terminated. Upon termination of the Reinvestment
Period, unreinvested amounts remaining in the
Principal Account and amounts subsequently
credited to the Principal Account shall be
distributed in accordance with the procedure
described in Item (18)(a) below.
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<PAGE>
(C) SELLING SECURITIES OF THE TRUST
-------------------------------
If necessary, in order to maintain the sound investment
character of the Trust, the Depositor may direct the
Trustee to sell or liquidate Securities in the Trust at
such price and time and in such manner as shall be
determined by the Depositor, provided that the Depositor
has determined that either one or both of the following
conditions exist:
(a) there has been an event of default ("Event of
Default"). An Event of Default means
(i) default in the payment of any interest on
any Note when the same becomes due and
payable, and such default shall continue for
a period of five (5) days or more; or
(ii) default in the payment of the principal of
or any installment of the principal of any
Note when the same becomes due and payable;
or
(iii) certain defaults in the observance or
performance of any material covenant,
agreement, warranty or representation of the
SPV or its successor ("Issuer") made in an
indenture executed between the SPV and
Indenture Trustee dated June 1, 1999 ("SPV
Indenture") or in other writings delivered
pursuant to the SPV Indenture;
(iv) the filing of a decree or order for
relief by a court having jurisdiction in
the premises in respect of the Issuer or
any substantial part of the SPV Property
in an involuntary case under any
applicable federal or State bankruptcy,
insolvency or other similar law now or
hereafter in effect, or appointing a
receiver, liquidator, assignee,
custodian, trustee, sequestrator or
similar official of the Issuer or for any
substantial part of the property subject
to the security interest granted under
the SPV Indenture for the Notes, or
ordering the winding-up or liquidation of
the Issuer's affairs, and such decree or
order shall remain unstayed and in effect
for a period of sixty (60) consecutive
days; or
(v) the commencement by the Issuer of a
voluntary case under any applicable
federal or state bankruptcy, insolvency
17
<PAGE>
or other similar law now or hereafter in
effect, or the consent by the Issuer to
the entry of an order for relief in an
involuntary case under any such law, or
the consent by the Issuer to the
appointment or taking possession by a
receiver, liquidator, assignee,
custodian, trustee, sequestrator or
similar official of the Issuer or for any
substantial part of the property subject
to the security interest granted under
the SPV Indenture for the Notes, or the
making by the Issuer of any general
assignment for the benefit of creditors,
or the failure by the Issuer generally to
pay its debts as such debts become due,
or the taking of any action by the Issuer
in furtherance of any of the foregoing.
(b) the sale of Securities is necessary or advisable
in order to maintain the qualification of the
Trust as a RIC.
On receipt of such direction from the Depositor, upon
which the Trustee shall rely, the Trustee shall proceed
to sell or liquidate the specified Securities in
accordance with such direction.
If at any time the principal of or interest on any of
the Securities will be in default and not paid or
provision for payment thereof will not have been duly
made, after giving effect to any cure periods without
the Depositor's having directed the Trustee to sell such
Securities as described in this Item (16)(C), the
Trustee will notify the Depositor of such default. If
within thirty days after such notification the Depositor
has not given any instruction to sell or to hold or has
not taken any other action in connection with such
Securities, the Trustee will sell such Securities, and
the Trustee will not be liable or responsible in any way
for depreciation or loss incurred with respect to such
Securities or by reason of such sale.
(D) ADDITIONAL INSTANCES WHERE SECURITIES MAY BE SOLD
-------------------------------------------------
The Trustee will also have the power to sell Securities
to meet redemption requests and to cover compensation
for any successor trustee and sub-trustee as explained
in Item (10)(d)(D) and Item 13(a) above.
17. (a) Describe the procedure with respect to withdrawal or
by security holders.
Reference is made to the information provided in Item
(10)(d) above.
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<PAGE>
(b) Furnish the names of any persons who may redeem or repurchase,
or are required to redeem or repurchase, the Trust's
securities or underlying securities from security holders, and
the substance of the provisions of any indenture or agreement
pertaining thereto.
Reference is made to the information provided in Item
(10)(d)(C) above.
(c) Indicate whether repurchased or redeemed securities will be
canceled or may be resold.
Units repurchased by the Depositor may be resold if the
conditions, set forth in Item (10)(d)(A) above are met.
All redeemed Units will be canceled by the Trustee.
18. (a) Describe the procedure with respect to the receipt, custody
and disposition of the income and other distributable funds of
the trust and state the substance of the provisions of any
indenture or agreement pertaining thereto.
(A) COLLECTION OF INTEREST ON SECURITIES
------------------------------------
The Trustee will collect the interest on the Securities
in the Trust as such becomes payable (including all
interest accrued but unpaid prior to, June 30, 1999, on
the Securities and including that part of the proceeds
of the sale, liquidation, redemption or maturity of any
Securities that represents accrued interest thereon but
not accrued original issue discount, if any) and credit
such interest to the Interest Account.
(B) COLLECTION OF PRINCIPAL ON SECURITIES
-------------------------------------
All moneys other than amounts credited to the Interest
Account, received by the Trustee in respect of the
Securities in the Trust, will be credited to the
Principal Account.
The Trustee will give prompt written notice to the
Depositor of all amounts credited to or withdrawn from
the Principal Account and the balance in such account
after giving effect to such credit or withdrawal.
(C) DISTRIBUTIONS
-------------
On the 18th day of each month commencing with August
1999, or if such day is not a Business Day, the next
succeeding Business Day ("Distribution Date"), the
Trustee will pay to the Registrar and Paying Agent, and
will cause the Registrar and Paying Agent to distribute
19
<PAGE>
by mail or wire on each Distribution Date to or upon the
order of each Unitholder other than Amadeo, Inc. as of
the close of business on the preceding Record Date (as
defined below in this paragraph) at the post office
address or account, as applicable, appearing on the
registration books of the Trust, such Unitholder's pro
rata share of the distribution made on such Distribution
Date. On each Distribution Date, the Trustee shall pay
to Amadeo, Inc. directly by mail or wire its pro rata
share of the distribution made on such Distribution
Date. On the 3rd Business Day before each Distribution
Date ("Record Date") commencing in August 1999, the
Trustee will determine the distributions to be made on
the related Distribution Date, which will consist of the
cash balance of the Interest Account and of the
Principal Account calculated as of such Record Date,
provided that the Trustee will not be required to make a
distribution from the Principal Account unless the cash
balance thereof available for distribution will be
sufficient to distribute at least one cent per Unit.
In the computation of each such share, amounts of less
than one cent will be omitted. After any such
distribution provided for above, any cash balance
remaining in the Interest Account or the Principal
Account will be held in the same manner as other amounts
subsequently deposited in each of such accounts,
respectively.
If the Trustee determines that an event has occurred as
a result of which there has resulted an excess
distribution from the Interest Account, it will reduce
subsequent distributions therefrom so as to reconcile,
as promptly as practicable, the aggregate net income of
and distributions from such account.
For the purpose of distribution, the holders of record
on the registration books of the Trust at the close of
business on each Record Date will be conclusively
entitled to such distribution, and no liability will
attach to the Trustee by reason of payment to any such
registered Unitholder of record. Unitholders may receive
distribution, by means of check, draft, wire or other
proper instrument.
(D) DISTRIBUTION STATEMENTS
-----------------------
On each Record Date, the Trustee will furnish, to the
Registrar and Paying Agent, a statement of the amount
being distributed from each Principal and Interest
Account expressed as a dollar amount per Unit of the
20
<PAGE>
Trust. Appendix A to the Indenture contains an example
of how the form of such a statement should appear. The
Trustee will direct the Registrar and Paying Agent to
provide such information to each Unitholder on a per
Unit basis with each distribution from the Interest or
Principal Accounts, except that such information need
not be furnished to a Unitholder who has waived receipt
thereof in writing. If the issuer of any of the
Securities in the Trust fails to make payment when due
of any interest or principal on such Securities and such
failure results in a change in the amount that would
otherwise be distributed as a monthly distribution, the
Trustee will, with the first distribution from the Trust
following such failure, set forth, or cause the
Registrar and Paying Agent to set forth, in an
accompanying statement (a) the name of the issuer and
the Security, (b) the amount of the reduction in the
distribution per Unit resulting from such failure, (c)
the percentage of the aggregate principal amount of all
Securities that such Security represents and (d) to the
extent then determined, information regarding any
disposition or legal action with respect to such
Security.
(b) Describe the procedure, if any, with respect to the
reinvestment of distributions to security holders and state
the substance of the provisions of any indenture or agreement
pertaining thereto.
Reference is made to the information provided in Item
(16)(B)(b), above.
(c) If any reserves or special funds are created out of income or
principal, state with respect to each such reserve or fund the
purpose and ultimate disposition thereof, and describe the
manner of handling the same.
Not applicable.
(d) Submit a schedule showing the periodic and special
distributions which have been made to security holders
during the three years covered by the financial statements
filed herewith. State for each such distribution the
aggregate amount and amount per share. If distributions
from sources other than current income have been made,
identify each such other source and indicate whether such
distribution represents the return of principal payments to
security holders. If payments other than cash were made,
describe the nature thereof, the account charged and the
basis of determining the amount of such charge.
Not applicable.
21
<PAGE>
19. Describe the procedure with respect to the keeping of records and
accounts of the Trust, the making of reports and the furnishing of
information to security holders, and the substance of the provision
of any indenture or agreement pertaining thereto.
(A) RECORDS OF TRANSACTIONS OF TRUST, ANNUAL
ACCOUNTANT STATEMENTS AND STATE/FEDERAL REPORTS
-----------------------------------------------
The Trustee will, or may cause the Registrar and Paying
Agent to, keep proper books of record and account of all
the transactions of the Trust. Such books of record will
include a register of the name and address of every
Unitholder and of the number of Units held by them and a
record of all transfers and redemptions thereof. Such
register will be conclusive evidence as to who are the
holders of Units and are entitled to receive payment of
any distributions or otherwise to exercise or enjoy the
rights of Unitholders. Such books of record belong to
the Trust. Upon reasonable notice from a Unitholder,
such books and records of the Trust will be open to
inspection at the Trustee's Office by any Unitholder at
all reasonable times during the Trustee's usual business
hours.
The Trustee will cause audited statements as to the
assets and income of the Trust to be prepared on an
annual basis by independent public accountants selected
by the Depositor.
The Trustee will make such annual or other reports as
may from time to time be required under any applicable
state or federal statute or rule or regulation
thereunder.
(B) ANNUAL DISTRIBUTION STATEMENTS
------------------------------
Within sixty days after the last Business Day of each
calendar year, the Trustee will transmit (by regular or
electronic mail or facsimile), or cause the Registrar
and Paying Agent to transmit (by regular or electronic
mail or facsimile), to each person, who at any time
during such calendar year was a Unitholder, a statement
setting forth, with respect to such calendar year:
(a) as to the Interest Account:
(i) the amount of interest received on the
Securities (including amounts
representing interest received upon any
disposition of Securities, penalties for
failure to make timely payments on
Securities or liquidated damages for
default on breach of any condition or
term of the Securities),
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<PAGE>
(ii) the amounts distributed as part of the
monthly distributions, expressed both as a
total dollar amount and as a dollar amount
per Unit outstanding on the Record Dates for
such distributions, and amounts paid for
redemptions, and
(iii) the balance remaining after such
distributions and payments, expressed both
as a total dollar amount and as a dollar
amount per Unit outstanding on such last
Business Day;
(b) as to the Principal Account:
(i) payments of principal on Securities,
(ii) the dates of the sale, maturity, liquidation
or redemption of any of the Securities and
the net proceeds received therefrom,
excluding any portion thereof credited to
the Interest Account,
(iii) the amounts distributed as part of the
monthly distributions, expressed both as a
total dollar amount and as a dollar amount
per Unit outstanding on the Record Dates for
such distributions, amounts paid for
purchases of Replacement Securities or
Reinvestment Securities and amounts paid for
redemptions, and
(iv) the balance remaining after such
distributions and deductions, expressed both
as a total dollar amount and as a dollar
amount per Unit outstanding on the last
Business Day of such calendar year.
(c) the following information:
(i) a list of the Securities as of such last
Business Day,
(ii) the number of Units outstanding on such last
Business Day,
(iii) the value of each individual Unit as based
on the last evaluation of the Trust made
during such calendar year, and
(iv) such other information as the Trustee may
deem appropriate.
23
<PAGE>
This information will be presented in substantially the
form attached as Appendix B to the Indenture.
See Exhibit 1.
Reference is also made to the information provided in Item
(10)(g)(3), Item (10)(g)(4), Item (16)(B)(a), Item (16)(B)(b)
and Item (18)(a)(D) above, and Item (20)(b)(A) and Item
(24)(B) below regarding other reports and information that
must be provided to Unitholders.
20. State the substance of the provisions of any indenture or agreement
concerning the trust with respect to the following:
(a) Amendments to such indenture or agreement.
(A) Reference is made to the information provided in Item
10(f)(A) and Item (10)(g)(3) above.
(B) The transfer agent agreement ("Transfer Agent
Agreement"), attached as Exhibit A(4), entered into
among ChaseMellon L.L.C. ("ChaseMellon"), NationsBank,
N.A. in its individual capacity, the Trustee and
Depositor ("Transfer Agent Parties") which appoints
ChaseMellon to serve as Registrar and Paying Agent may
only be amended by the Transfer Agent Parties.
(C) The Administrative Agreement may be amended by USBNA and
the Trustee provided that such amendment will not
materially and adversely affect the interests of any
Unitholder.
(b) The extension or termination of such indenture or agreement.
(A) TERMINATION OF THE INDENTURE
----------------------------
The Trust will terminate upon the maturity, redemption,
sale or other disposition as the case may be of the last
Security held in the Trust unless sooner terminated and
may be terminated at any time by the written consent of
all of the Unitholders; provided that, in no event will
the Trust continue beyond the last Business Day of 2007.
Written notice of any termination will be given by the
Trustee, or the Trustee will cause the Registrar and
Paying Agent to give notice, to each Unitholder at his
address appearing on the registration books of the
Trustee. Within a reasonable period of time after the
termination of the Trust, the Trustee will fully
liquidate the Securities of the Trust then held, if any,
and will:
(a) distribute to each Unitholder such Unitholder's
pro rata share of the balance of the Interest
Account;
24
<PAGE>
(b) distribute to each Unitholder such Unitholder's
pro rata share of the balance of the Principal
Account; and
(c) furnish, or cause the Registrar and Paying Agent
to furnish, to each such Unitholder a final
distribution statement as of the date of the
computation of the amount distributable to
Unitholders, setting forth the data and
information in substantially the form and manner
described in Item 19(B) above.
The Trustee will be under no liability with respect to
moneys held by it in the Interest and Principal Accounts
upon termination except to hold the same in trust
without interest until disposed of in accordance with
the terms of the Indenture.
(B) TERMINATION OF THE TRANSFER AGENT AGREEMENT
-------------------------------------------
The Transfer Agent Agreement will continue in force
until the earliest of (1) the resignation of
ChaseMellon, (2) the receipt by ChaseMellon of a notice
of termination in accordance with the terms of the
Transfer Agent Agreement or (3) the dissolution of the
Trust.
(C) TERMINATION OF THE ADMINISTRATIVE AGREEMENT
-------------------------------------------
The Administrative Agreement shall continue in force
until the dissolution of the Trust.
(c) The removal or resignation of the trustee or custodian, or the
failure of the trustee or custodian to perform its duties,
obligations and functions.
(A) RESIGNATION OR REMOVAL OF THE TRUSTEE
-------------------------------------
(a) The Trustee may resign and be discharged of the
Trust, by executing an instrument in writing
resigning as Trustee and filing the same with
the Depositor and mailing a copy to all
Unitholders then of record, not less than sixty
days (60) before the date specified in such
instrument when, subject to Item (20)(c)(A)(e)
below, such resignation is to take effect.
Upon receiving such notice of resignation, the
Depositor will promptly appoint a successor
Trustee, by written instrument, in duplicate,
one copy of which shall be delivered to the
resigning Trustee and one copy to the successor
Trustee. If at any time the Trustee becomes
incapable of acting, or is adjudged a bankrupt
or insolvent, or a receiver of the Trustee or
of its property is appointed, or any public
25
<PAGE>
officer takes charge or control of the Trustee
or of its property or affairs for the purposes
of rehabilitation, conservation or liquidation,
then in any such case the Depositor may (or if
the Trustee is not re-elected as described in
Item (10)(f)(B), the Depositor will) remove the
Trustee and appoint a successor Trustee by
written instrument, in duplicate, one copy of
which will be delivered to the Trustee so
removed and one copy to the successor Trustee;
provided that a copy of such notice is mailed
by the Depositor to each Unitholder then of
record.
(b) Any successor Trustee appointed will execute
and deliver to the Depositor and to the
resigning or removed Trustee an instrument
accepting such appointment, and such successor
Trustee without any further act, deed or
conveyance will become vested with all the
rights, powers, duties and obligations of its
predecessor under the Indenture as if
originally named Trustee in the Indenture and
will be bound by all the terms and conditions
of the Indenture. Upon the request of such
successor Trustee, the Depositor and the
retiring Trustee shall, upon payment of any
amounts due the retiring Trustee, or provision
therefor to the satisfaction of such retiring
Trustee, execute and deliver an instrument
acknowledged by it transferring to such
successor Trustee all the rights and powers of
the retiring Trustee; and the retiring Trustee
will transfer, deliver and pay over to the
successor Trustee all Securities and moneys at
the time held by it pursuant to the Indenture,
together with all necessary instruments of
transfer and assignment or other documents
properly executed necessary to effect such
transfer and such of the records or copies
maintained by the retiring Trustee in the
administration of the Trust as may be requested
by the successor Trustee, and will thereupon be
discharged from all duties and responsibilities
under the Indenture.
(c) In case at any time the Trustee resigns and no
successor Trustee has been appointed and
accepted appointment within thirty days (30)
after notice of resignation has been received
by the Depositor, the retiring Trustee may
apply to a court of competent jurisdiction for
the appointment of a successor Trustee. Such
court may thereupon, after such notice, if any,
as it may deem proper and prescribe, appoint a
successor Trustee.
26
<PAGE>
(d) Any corporation into which any Trustee of the
Trust may be merged or with which it may be
consolidated, or any corporation resulting from
any merger or consolidation to which any Trustee
will be a party, will automatically be the
successor Trustee under the Indenture.
(e) Any resignation or removal of the Trustee and
appointment of a successor Trustee will not become
effective until acceptance of appointment by the
successor trustee as provided in Item
(20)(c)(A)(b) and Item
(20)(A)(c) above.
(B) RESIGNATION AND REMOVAL OF USBNA AS SUB-TRUSTEE
-----------------------------------------------
(a) The Administrative Agreement will continue in
force until the dissolution of the Trust, upon
which event the Administrative Agreement will
automatically terminate.
(b) Subject to Item (20)(c)(B)(e) below, USBNA may
resign from its duties under the Administrative
Agreement by providing the Trustee with at least
sixty (60) days' prior written notice. If a
successor sub-trustee does not take office within
sixty (60) days after the retiring sub-trustee
resigns or is removed, the retiring sub-trustee
may petition any court of competent jurisdiction
for the appointment of a successor sub-trustee.
(c) Subject to Item (20)(c)(B)(e) below, the Trustee
may remove USBNA without cause by providing USBNA
with at least sixty (60) days' prior written
notice.
(d) Subject to Item (20)(c)(B)(e) below, at the sole
option of the Trustee, USBNA may be removed
immediately upon written notice of termination
from the Trustee to USBNA if any of the following
events occur:
(i) USBNA defaults in the performance of any of
its duties under the Administrative Agreement
and, after receiving notice of such default,
does not cure such default within ten (10)
days (or, if such default cannot be cured in
such time, does not give, within ten (10)
days, such assurance of cure as will be
reasonably satisfactory to the Trustee);
(ii) the entry of a decree or order by a court or
agency or supervisory authority of competent
jurisdiction for the appointment of a
conservator, receiver, liquidator or trustee
27
<PAGE>
for USBNA in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets
and liabilities, or similar proceedings, or
for the winding up or liquidation of its
affairs, and any such decree or order
continues unstayed and in effect for a period
of sixty (60) consecutive days; or
(iii) the consent by USBNA to the appointment of a
conservator, receiver, liquidator or trustee
or similar official in any insolvency,
readjustment of debt, marshalling of assets
and liabilities, or similar proceedings of or
relating to USBNA or relating substantially
to all of its property, the admission in
writing by USBNA of its inability to pay its
debts generally as they become due, the
filing by USBNA of a petition to take
advantage of any applicable insolvency or
reorganization statute, the making by USBNA
of an assignment for the benefit of its
creditors of the voluntary suspension by
USBNA of payment of its obligations.
USBNA has agreed that if any of the events
specified in clause (ii) or (iii) of this Item
20(c)(B)(d) occur, it will give written notice of
them to the Trustee within seven (7) days after
the happening of the event.
(e) No resignation or removal of USBNA will be
effective until (i) a successor sub-trustee
will have been appointed by the Trustee and
(ii) such successor sub-trustee will have
agreed in writing to be bound by the terms of
the Administrative Agreement in the same manner
as USBNA is bound under the Administrative
Agreement.
(C) QUALIFICATION OF TRUSTEE, SUB-TRUSTEE AND SUCCESSOR
TRUSTEE
-------
The Trustee, any sub-trustee and any successor Trustee
or successor sub-trustee will be a corporation organized
and doing business under the laws of the United States
or any state thereof, which is authorized under such
laws to exercise corporate trust powers and having at
all times an aggregate capital, surplus and undivided
profits of not less than $50,000,000.
(d) The appointment of a successor trustee and the procedure if a
successor trustee is not appointed.
28
<PAGE>
Reference is made to the information provided in Item
(20)(c) above.
(e) The removal or resignation of the depositor, or the failure of
the depositor to perform its duties, obligations and
functions.
If at any time the Depositor fails to undertake or
perform any of its duties under the Indenture or the
Depositor becomes incapable of acting or is adjudged a
bankrupt or insolvent, or a receiver of such Depositor
or of its property is appointed, or any public officer
takes charge or control of such Depositor or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation, then in any such case, the
Trustee may: (1) appoint a successor depositor who must
fulfill all of the duties of such Depositor, must be
satisfactory to the Trustee, and which will be paid by
BoA at such amounts as the parties may agree or (2)
terminate and liquidate the Trust in the manner
described in Item (20)(b).
(f) The appointment of a successor depositor and the procedure if
a successor depositor is not appointed.
Reference is made to the information provided in Item
(20)(e) above.
21. (a) State the substance of the provisions of any indenture or
agreement with respect to loans to security holders.
Not applicable.
(b) Furnish a brief description of any procedure or arrangement by
which loans are made available to security holders by the
depositor, principal underwriter, trustee or custodian, or any
affiliated person of the foregoing. The following items should
be covered:
(1) The name of each person who makes such agreements or
arrangements with security holders.
(2) The rate of interest payable on such loans.
(3) The period for which loans may be made.
(4) Costs or charges for default in repayment at maturity.
(5) Other material provisions of the agreement or
arrangement.
Not applicable.
29
<PAGE>
(c) If such loans are made, furnish the aggregate amount of loans
outstanding at the end of the last fiscal year, the amount of
interest collected during the last fiscal year allocated to
the depositor, principal underwriter, trustee or custodian or
affiliated person of the foregoing and the aggregate amount of
loans in default at the end of the last fiscal year covered by
financial statements filed herewith.
Not applicable.
22. State the substance of the provisions of any indenture or agreement
with respect to limitations on the liabilities of the depositor,
trustee or custodian, or any other party to such indenture or
agreement.
(A) LIABILITY OF DEPOSITOR
----------------------
The Depositor is a fiduciary with respect to the
Unitholders including but not limited to in all dealings
with the sale and purchase of the Securities. Provided
that the Depositor has fulfilled its fiduciary duties,
the Depositor will have no liability to the Unitholders
for any action taken or for refraining from the taking
of any action in good faith pursuant to the Indenture or
for errors in judgment, but will be liable only for its
own negligence, lack of good faith or willful
misconduct. The Depositor may rely in good faith on any
paper, order, notice, list, affidavit, receipt, opinion,
endorsement, assignment, draft or any other document of
any kind prima facie properly executed and submitted to
it by the Trustee, Registrar and Paying Agent, counsel,
or any other persons pursuant to this Indenture and in
furtherance of its duties.
(B) LIABILITY OF TRUSTEE
--------------------
The liabilities of Trustee are defined as follows:
(a) The Trustee will be under no liability for any
action taken in good faith on any appraisal,
paper, order, list, demand, request, consent,
affidavit, notice, opinion, direction,
evaluation, endorsement, assignment,
resolution, draft or other document whether or
not of the same kind prima facie properly
executed, or for the disposition of moneys,
Securities, or Units pursuant to the Indenture,
or in respect of any evaluation of the net
asset value of the Trust or the Units which it
30
<PAGE>
is required to make or is required or permitted
to have made by others under the Indenture or
otherwise, except by reason of its own
negligence, lack of good faith or willful
misconduct, provided that the Trustee shall not
in any event be liable or responsible for any
evaluation made by the Depositor. The Trustee
may construe any of the provisions of the
Indenture, if they appear to be ambiguous or
inconsistent with any other provisions of the
Indenture, and any such construction made by
the Trustee in good faith will be binding upon
all effected parties.
(b) The Trustee will not be responsible for or in
respect of the recitals in the Indenture, the
validity or sufficiency of the Indenture or for
the due execution of the Indenture by the
Depositor, and the Trustee will in no event
assume or incur any liability, duty or
obligation to any Unitholder or the Depositor
other than as expressly provided for in the
Indenture. The Trustee will not be responsible
for or in respect of the validity of any
signature by or on behalf of the Depositor.
(c) The Trustee will not be under any obligation to
appear in, prosecute or defend any action, that
in its opinion may involve it in expense or
liability, unless as often as required by the
Trustee, it will be furnished with reasonable
security and indemnity against such expense or
liability, and any pecuniary cost of the
Trustee from such actions will be paid by BoA.
(d) The Trustee may employ attorneys, accountants,
auditors and other agents and will not be
answerable for the default or misconduct of any
attorneys, accountants, auditors and other
agents if they have been selected with
reasonable care. The Trustee may employ a
Registrar and Paying Agent and sub-trustees and
shall be answerable for the default or
misconduct of any such Registrar or Paying
Agent or sub-trustee as if it committed such
action or omissions itself. The Trustee shall
be fully protected in respect of any action
under the Indenture taken, or suffered, in good
faith by the Trustee, in accordance with the
opinion of its counsel.
(e) In no event will the Trustee be liable for any
taxes or other governmental charges imposed
upon or in respect of the Securities or upon
31
<PAGE>
the interest thereon or upon it as Trustee or
upon or in respect of the Trust that it may be
required to pay under any present or future law
of the United States or of any other taxing
authority having jurisdiction in the premises.
The Trust will be reimbursed and indemnified by
BoA for all such taxes and charges and for any
expenses, including counsel fees, that the
Trust may sustain or incur with respect to such
taxes or charges.
(f) The Trustee, except by reason of its own
negligence or willful misconduct, will not be
liable for any action taken or suffered to be
taken by it in good faith and believed by it to be
authorized or within the discretion or rights or
powers conferred upon it by the Indenture.
(C) LIABILITY OF CHASEMELLON
------------------------
In the absence of gross negligence or intentional
misconduct on its part, ChaseMellon will not be liable
for any action taken, suffered, or omitted by it or for
any error of judgment made by it in the performance of
its duties under the Transfer Agent Agreement. In no
event will ChaseMellon be liable for special, indirect,
punitive, incidental or consequential loss or damages of
any kind whatsoever (including but not limited to lost
profits), even if ChaseMellon has been advised of the
possibility of such damages. Any liability of
ChaseMellon will be limited to the amount of fees paid
to ChaseMellon under the Transfer Agent Agreement.
(D) LIABILITY OF USBNA
------------------
USBNA will be liable for its own negligent action, its
own negligent failure to act or its own willful
misconduct except that USBNA will not be liable for
errors of judgment made in good faith by certain of its
employees unless it is proven that USBNA or its
employees were negligent in ascertaining the pertinent
facts.
(E) LIABILITY OF HOLDER OF ASSET-BACKED RESIDUAL
CERTIFICATES
------------
The Trust as holder of the Asset-Backed Residual
Certificate is obligated for the debts of the SPV
(except for payments on the Notes and the Certificates)
to the same extent as if it were a partner under
Delaware partnership law.
32
<PAGE>
23. Describe any bonding arrangement for officers, directors, partners
or employees of the depositor or principal underwriter of the trust,
including the amount of coverage and the type of bond.
Bank of America Corporation has customary Financial
Institution Bond insurance. This covers financial loss
suffered by it or its subsidiaries, including the Trust, as a
result of employee infidelity, loss of property (money,
securities, negotiable and non-negotiable instruments) on its
premises or in transit through robbery, burglary or larceny.
It also covers forgery or alteration of negotiable
instruments, including loss of securities, acquired, sold or
delivered by the bank for its own account or for the account
of others.
24. State the substance of any other material provisions of any
indenture or agreement concerning the trust or its securities and a
description of any other material functions or duties of the
depositor, trustee or custodian not stated in Item 10 or Items 14 to
23, inclusive.
(A) EVALUATION OF THE VALUE OF THE UNITS
------------------------------------
(a) The Trustee shall determine the net asset value of
the Trust at 4:00 p.m. EST on: (1) June 30, 1999,
(2) the last Business Day of each month, (3) each
day on which a proper request for redemption is
received by the Trustee, and (4) any other
Business Day desired by the Trustee or requested
by the Depositor.
(b) Each determination of the Trust's net asset
value will take into account and separately
itemize: (1) the cash on hand in the Trust
(exclusive of cash held for distribution to
Unitholders, and required for redemption of
Units requested, as of a date prior to the date
of determination) or moneys in the process of
being collected in respect of interest coupons
or securities matured or called for redemption
prior to maturity, (2) the value of each class
of the Securities in the Trust and (3) any and
all other assets and liabilities of the Trust
as determined in accordance with generally
accepted accounting principles consistently
applied.
(c) Except as provided in Item (24)(A)(d) below,
for each determination of the net asset value
of the Trust, the value of the Notes and Class
B Asset-Backed Certificates will be based on
current valuations obtained from one or more
independent pricing services that has been
approved, for purposes of providing ratings on
33
<PAGE>
obligations collateralized or supported by
securities that are comparable to such
securities by a Rating Agency ("Notes Approved
Pricing Service"). The Notes Approved Pricing
Service must be selected in good faith by the
Trustee, and must value the Notes and Class B
Asset-Backed Certificates based on the last
reported sales price and, if there have not
been any recent sales, a matrix methodology
that derives market values based on reported
sales prices or market quotations for
securities that, taking into account the terms
of and the recent prepayment, default and other
performance information relating to such
securities, are comparable to the Notes and
Class B Asset-Backed Certificates ("Notes
Approved Pricing Methodology"). If, for any
such determination of the net asset value, the
Trustee obtains valuations with respect to the
same class of Securities from more than one
Approved Pricing Service, the value of those
Securities shall be the arithmetic average of
the valuations so obtained.
Furthermore, the value of the Asset-Backed
Residual Certificate, will be obtained from the
Public and Structured Finance Services division of
Ernst & Young LLP or, if they are no longer
willing or able to value the Asset-Backed Residual
Certificate, another recognized, independent
pricing source selected in good faith by the
Trustee ("Residual Approved Pricing Service").
The Residual Approved Pricing Service must value
the Securities constituting the Asset-Backed
Residual Certificate based on the last reported
sales price and if there have not been a recent
sale such fair value methodology, using
fundamental analytical data and techniques and
taking into account the terms of and the recent
prepayment, default and other performance
information relating to such Securities, as the
Approved Pricing Service determines in good faith
will reflect the amount that the Trust might
reasonably expect to receive upon a current sale
of such Securities. If for any such determination
of the net asset value the Trustee obtains
valuations with respect to the Asset-Backed
Residual Certificate from more than one Residual
Approved Pricing Service, the value of the
Asset-Backed Residual Certificate shall be the
arithmetic average of the valuations so obtained.
34
<PAGE>
Notwithstanding the foregoing, however, in
connection with any determination of the net asset
value of the Trust that is not made as of a day on
which redemption of any Unit is properly
requested, the Trustee may utilize the most recent
valuation of the Securities constituting the
Residual Approved Pricing Methodology provided
that (1) such valuation is not more than twelve
months old and (2) the Trustee believes in good
faith that any change in the value of that class
of Asset-Backed Residual Certificate since the
date of the most recent valuation would not result
in a material change in the net asset value of the
Trust.
(d) Notwithstanding the foregoing procedures for
determining the net asset value of the Trust, the
determination of the Trust's net asset value as of
June 30, 1999, shall be based on the Trustee's
good faith evaluation of the value of the
Securities held in the Trust, plus the amount of
any cash held in the Trust.
(B) TRANSFER AGENT AGREEMENT
------------------------
A Transfer Agent Agreement has been entered into among
the Transfer Agent Parties on June 30, 1999, which
appoints ChaseMellon to serve as the Registrar and
Paying Agent. Under the Transfer Agent Agreement,
ChaseMellon has the following duties, among others, to:
(a) record and register the ownership position of the
Units in the Trust; (b) mail to each Unitholder all
notices and statements as directed by the Trustee or any
sub-trustee; (c) mail monthly distribution statements
and principal and interest payments to each Unitholder;
and (d) perform various account maintenance functions,
unit issuance functions and paying agency functions.
(C) ADMINISTRATIVE SERVICES AGREEMENT
---------------------------------
An Administrative Services Agreement was entered into on
June 30, 1999 between USBNA and the Trustee. Under the
Administrative Services Agreement, USBNA will execute
the following duties of the Trustee: (a) obtain the
price of, and calculate the market value of, the Notes
and the Class B Asset-Backed Certificates and furnish
such information to the Trustee; (b) hold the Securities
in the Trust as custodian; (c) hold the Interest Account
and the Principal Account and invest their funds in
interim investments; (d) furnish prompt written notice
to the Depositor of all amounts credited to or withdrawn
35
<PAGE>
from the Principal Account; (e) make distributions; (f)
calculate the amount to be distributed from the Interest
Account and the Principal Account per Unit of the Trust,
and furnish such information to ChaseMellon; and (g)
maintain books of account and records relating to the
services it provides.
III. ORGANIZATION, PERSONNEL AND AFFILIATED PERSONS OF DEPOSITOR
ORGANIZATION AND OPERATIONS OF DEPOSITOR
25. State the form of organization of the depositor of the trust, the
name of the state or other sovereign power under the laws of which
the depositor was organized and the date of organization.
The Depositor, Amadeo, Inc., is a Delaware corporation
incorporated on June 30, 1999 whose business purpose is to
engage in any lawful act or activity for which a corporation
may be organized under the General Corporation Law of
Delaware. Amadeo, Inc. is a wholly owned subsidiary of Bank of
America, N.A., a federally chartered institution providing a
full range of financial services.
26. (a) Furnish the following information with respect to all fees
received by the Depositor of the trusts in connection with the
exercise of any functions or duties concerning securities of
the trust during the period covered by the financial
statements filed herewith.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
Aggregate
gross
Year Total payments Amount of sales Amount of Amount of Amount of amount of
by security loan received administration management other fees load, fees,
holders fees received fees received received etc. received
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Not applicable. Not applicable. Not applicable. Not applicable. Not applicable. Not applicable. Not applicable.
</TABLE>
(b) Furnish the following information with respect to any fee or
any participation in fees received by the depositor from any
underlying investment company or any affiliated person or
investment advisor of such company:
(1) The nature of such fee or participation.
(2) The name of the person making payment.
36
<PAGE>
(3) The nature of the services rendered in consideration for
such fee or participation.
(4) The aggregate amount received during the last fiscal
year covered by the financial statements filed herewith.
Not applicable.
27. Describe the general character of the business engaged in by the
depositor including a statement as to any business other than
that of depositor of the trust. If the depositor acts or has
acted in any capacity with respect to any investment company or
companies other than the trust, state the name or names of such
company or companies, their relationship, if any, to the trust,
and the nature of the depositor's activities therewith. If the
depositor has caused to act in such named capacities, state the
date of and circumstances surrounding such cessation.
Reference is made to the information provided in answers to
Item (16) and Item (25).
OFFICIALS AND AFFILIATED PERSONS OF DEPOSITOR
28. (a) Furnish as at latest practicable date the following
information with respect to the depositor of the trust, with
respect to each officer, director, or partner of the
depositor, and with respect to each natural person directly or
indirectly owning, controlling or holding with power to vote
5% or more of the outstanding voting securities of the
depositor.
As at July 31, 1999
--------------------------------------------------------------------
Name, principal business address and nature of relationship or
affiliation with Depositor of the Trust:
Officers of the depositor:
Paulette M. Mehas, President
100 W Liberty St.
Reno, Nevada 89501-1962
Terry P. Norbury, Treasurer
315 Montgomery St.
San Francisco, CA 94104-1866
Edward J. Stark, Secretary
730 15th Street NW
Washington, DC 20005-1012
37
<PAGE>
Deborah C. Lovelett, Vice President
100 N Tryon St
Charlotte, NC 28255
Terry K. McAfee, Vice President
100 W. Liberty St.
Reno, Nevada 89501-1962
Leslie Roulias, Vice President
100 W. Liberty St.
Reno, Nevada 89501-1962
Brent C. Andersen, Assistant Treasurer, Tax
401 N. Tryon St.
Charlotte, NC 28255
Gary S. Williams, Assistant Treasurer, Tax
401 N. Tryon St.
Charlotte, NC 28255
Rick M. Wacula, Assistant Secretary
555 California St.
San Francisco, CA 94104
Marlene A. Sharland, Assistant Secretary
555 California St.
San Francisco, CA 94104
Christine M. Sokitch, Assistant Secretary
555 California St.
San Francisco, CA 94104
Directors of the depositor:
Paulette M. Mehas
100 W. Liberty St.
Reno, NV 89501
Susan R. Faulkner
100 N. Tryon Street
Charlotte, NC 28255
John E. Mack
100 N. Tryon Street
Charlotte, NC 28255
38
<PAGE>
Marty Neilson
800 Fifth Avenue
Seattle, WA 98104
Robert Smeath (independent director)
6140 Plumas Street
Reno, NV 89509
--------------------------------------------------------------------
Ownership of all securities of the depositor:
Bank of America, N.A. is the beneficial and record
owner of all the securities of the Depositor.
Reference is also made to Item (25).
Ownership of securities of the trust:
One beneficial owner, Amadeo, Inc., owns 100% of the
outstanding beneficial interests of Amadeo Trust.
Other companies of which each of the persons named above
is presently an officer, director or partner.
Robert J. Smeath is a retired CPA and works at
Kafoury, Armstrong & Co. on a contract basis. He is
on the Board of Directors at:
Luce & Son, Inc.
JV Investments, Inc.
Wolf Pack Endowment
Athletic Association - University of Nevada
Silver REIT Co.
(b) Furnish a brief statement of the business experience during the last
five years of each officer, director or partner of the depositor.
Paulette M. Mehas, Vice President and Fixed Income Portfolio Manager
of Bank of America Corporate Treasury (for past five years)
Terry P. Norbury, Senior Vice President of Corporate Treasury, Bank
of America (for past five years)
39
<PAGE>
Edward J. Stark, Senior Vice President, Corporate Secretary's Office
of Bank
of America (since 1993)
Deborah C. Lovelett, Vice President, Bank of America Finance Group
(for past five years)
Terry K. McAfee, Senior Manager, Finance with Bank of America (for
past 19 months), Controller, Accounting Manager of Porsche Cars North
America (for the previous 4 years)
Leslie Roulias, 11/97 to present: Senior Financial Analyst, Bank of
America, Corporate Treasury, 7/96-7/97 Analyst, American Express
Financial Advisors, 1992-1996 Business School Student, University
of Nevada, Reno
Brent Andersen, Senior Vice President, Corporate Tax Department,
Bank of America (for past five years)
Gary S. Williams, Senior Vice President and Director of Corporate
Tax, Bank of America (for past five years)
Rick M. Wacula, Vice President and Assistant Secretary
(1997-current), Vice President, Community Development (1994-1997)
Marlene A. Sharland, Vice President and Assistant Secretary of Bank
of America, N.A. (for past five years)
Christine M. Sokitch, Assistant Vice President and Assistant
Secretary, Bank of America (3/98-present), Senior Paralegal, Bank of
America (10/90-2/98)
Paulette M. Mehas, Vice President and Fixed Income Portfolio Manager
of Bank of America Corporate Treasury (for past five years)
Susan R. Faulkner, Senior Vice President, Finance, Bank of America
(for past five years)
John E. Mack, Senior Vice President, Corporate Treasury, Bank of
America (for past five years)
Marty Neilson, Executive Vice President of Dealer Financial Services
of Bank of America (past two years), Executive Vice President of
Financial Services of Seafirst Bank (an affiliate of Bank of America)
(previous three years)
Robert Smeath has been working on a contract basis at Kafoury,
Armstrong & Co. (since April 1999); Partner at the firm (previous five
years)
40
<PAGE>
29. Furnish as at latest practicable date the following information with
respect to each company which directly or indirectly owns, controls
or holds with power to vote 5% or more of the outstanding voting
securities of the depositor.
Reference is made to the information contained in Item
(28)(a).
CONTROLLING PERSONS
30. Furnish as at latest practicable date the following information with
respect to any person, other than those covered by Items 28, 29 and
42, who directly or indirectly controls the depositor.
Not applicable.
COMPENSATION OF OFFICERS AND DIRECTORS OF DEPOSITOR
COMPENSATION OF OFFICERS OF DEPOSITOR
31. Furnish the following information with respect to the remuneration
for services paid by the depositor during the last fiscal year
covered by financial statements filed herewith:
(a) directly to each of the officers or partners of the depositor
directly receiving the three highest amounts of remuneration.
(b) directly to all officers or partners of the depositor as a
group exclusive of persons whose remuneration is included
under Item 31(a), stating separately the aggregate amount paid
by the depositor itself and the aggregate amount paid by all
the subsidiaries.
(c) indirectly or through subsidiaries to each of the officers or
partners of the depositor.
Not applicable.
COMPENSATION OF DIRECTORS
32. Furnish the following information with respect to the remuneration
for services, exclusive of remuneration reported under Item 31, paid
by the depositor during the last fiscal year covered by financial
statements filed herewith:
(a) The aggregate direct remuneration to directors; and
(b) Indirectly or through subsidiaries to directors.
Not applicable.
41
<PAGE>
COMPENSATION TO EMPLOYEES
33. (a) Furnish the following information with respect to the
aggregate amount of remuneration for services of all employees
of the depositor (exclusive of persons whose remuneration is
reported in Items 31 and 32) who received remuneration in
excess of $10,000 during the last fiscal year covered by
financial statements filed herewith from the depositor and any
of its subsidiaries.
(b) Furnish the following information with respect to the
remuneration for services paid directly during the last
fiscal year covered by financial statements filed herewith
to the following classes of persons (exclusive of those
persons covered by Item 33(a)): (1) Sales managers, branch
managers, district managers and other persons supervising
the sale of registrant's securities; (2) Salesmen, sales
agents, canvassers and other persons making solicitations
but not in supervisory capacity; (3) Administrative and
clerical employees; and (4) Others (Specify). If a person
is employed in more than one capacity, classify according
to predominant type of work.
Not applicable.
COMPENSATION TO OTHER PERSONS
34. Furnish the following information with respect to the aggregate
amount of compensation for services paid any person (exclusive of
persons whose remuneration is reported in Items 31, 32 and 33),
whose aggregate compensation in connection with services rendered
with respect to the trust in all capacities exceeded $10,000 during
the last fiscal year covered by financial statements filed herewith
from the depositor and any of its subsidiaries.
Not applicable.
IV. DISTRIBUTION AND REDEMPTION OF SECURITIES
DISTRIBUTION OF SECURITIES
35. Furnish the names of the states in which sales of the trust's
securities (A) are currently being made, (B) are presently proposed
to be made, and (C) have been discontinued, indicating by
appropriate letter the status with respect to each state.
(A) No sales of the Trust's securities are currently being made
nor are sales as units presently proposed to be made.
42
<PAGE>
36. If sales of the trust's securities have at any time since January 1,
1936, been suspended for more than a month, describe briefly the
reasons for such suspension.
Not applicable.
37. (a) Furnish the following information with respect to each
instance where, subsequent to January 1, 1937, any federal or
state governmental officer, agency, or regulatory body denied
authority to distribute securities of the trust, excluding a
denial which was merely a procedural step prior to any
determination by such officer, etc. and which denial was
subsequently rescinded.
(1) Name of officer, agency or body.
(2) Date of denial.
(3) Brief statement of reason given for denial.
Not applicable.
(b) Furnish the following information with regard to each instance
where subsequent to January 1, 1937, the authority to
distribute securities of the trust has been revoked by any
federal or state governmental officer, agency or regulatory
body.
(1) Name of officer, agency or body.
(2) Date of revocation.
(3) Brief statement of reason given for revocation.
Not applicable.
38. (a) Furnish a general description of the method of distribution of
securities of the trust.
Reference is made to Item (10)(d)(A) and Item (35).
(b) State the substance of any current selling agreement between
each principal underwriter and the trust or the depositor,
including a statement as to the inception and termination
dates of the agreement, any renewal and termination
provisions, and any assignment provisions.
Not applicable.
43
<PAGE>
(c) State the substance of any current agreements or arrangements
of each principal underwriter with dealers, agents, salesman,
etc., with respect to commissions and overriding commissions,
territories, franchises, qualifications and revocations. If
the trust is the issuer of periodic payment plan certificates,
furnish schedules of commissions and the bases thereof. In
lieu of a statement concerning schedules of commissions, such
schedules of commissions may be filed as Exhibit A(3)(C).
Not applicable.
INFORMATION CONCERNING PRINCIPAL UNDERWRITER
39. (a) State the form of organization of each principal underwriter
of securities of the trust, the name of the state or other
sovereign power under the laws of which each underwriter was
organized and the date of organization.
Not applicable.
(b) State whether any principal underwriter currently distributing
securities of the trust is a member of the National
Association of Securities Dealers, Inc.
Not applicable.
40. (a) Furnish the following information with respect to all fees
received by each principal underwriter of the trust from the
sale of securities of the trust and any other functions in
connection therewith exercised by such underwriter in such
capacity or otherwise during the period covered by the
financial statements filed herewith.
Not applicable.
(b) Furnish the following information with respect to any fee or
any participation in fees received by each principal
underwriter from any underlying investment company or any
affiliated person or investment advisor of such company
(1) The nature of such fee or participation.
(2) The name of the person making payment.
(3) The nature of the services rendered in consideration for
such fee or participation.
(4) The aggregate amount received during the last fiscal
year covered by the financial statements filed herewith.
Not applicable.
44
<PAGE>
41. (a) Describe the general character of the business engaged in
by each principal underwriter, including a statement as to any
business other than the distribution of securities of the
trust. If a principal underwriter acts or has acted in any
capacity with respect to any investment company or companies
other than the trust, state the name or names of such company
or companies, their relationship, if any, to the trust and the
nature of such activities. If a principal underwriter has
ceased to act in such named capacity, state the date of and
the circumstances surrounding such cessation.
Not applicable.
(b) Furnish as at latest practicable date the address of each
branch office of each principal underwriter currently selling
securities of the trust and furnish the name and residence
address of the person in charge of such office.
Not applicable.
(c) Furnish the number of individual salesmen of each principal
underwriter through whom any of the securities of the trust
were distributed for the last fiscal year of the trust covered
by the financial statements filed herewith and furnish the
aggregate amount of compensation received by such salesmen in
such year.
Not applicable.
42. Furnish as at latest practicable date the following information with
respect to each principal underwriter currently distributing
securities of the trust and with respect to each of the officers,
directors or partners of such underwriter.
Not applicable.
43. Furnish, for the last fiscal year covered by the financial
statements filed herewith, the amount of brokerage commissions
received by any principal underwriter who is a member of a national
securities exchange and who is currently distributing the securities
of the trust or effecting transactions for the trust in the
portfolio securities of the trust.
Not applicable.
45
<PAGE>
OFFERING PRICES OF ACQUISITION VALUATION OF SECURITIES OF THE TRUST
44. (a) Furnish the following information with respect to the method
of valuation used by the trust for the purpose of determining
the offering price to the public of securities issued by the
trust or the evaluation of shares or interests in the
underlying securities acquired by the holder of a periodic
payment plan certificate.
(1) The source of quotations used to determine the value of
portfolio securities.
(2) Whether opening, closing, bid, asked or any other price
is used.
(3) Whether price is as of the day of sale or as of any
other time.
(4) A brief description of the methods used by registrant
for determining other assets and liabilities including
accrual for expenses and taxes (including taxes on
unrealized appreciation).
(5) Other items which registrant adds to the net asset value
in computing offering price of its securities.
(6) Whether adjustments are made for fractions:
(i) before adding distributor's
compensation (load) and
(ii) after adding distributor's compensation (load).
Reference is made to the information provided in
Item (24)(A).
(b) Furnish a specimen schedule showing the components of the
offering price of the trust's securities as at the latest
practicable date.
Not applicable.
(c) If there is any variation in the offering price of the trust's
securities to any person or classes of persons other than
underwriters, state the nature and amount of such variation
and indicate the person or classes of persons to whom such
offering is made.
Not applicable.
45. Furnish the following information with respect to any suspension of
the redemption rights of the securities issued by the trust during
the three fiscal years covered by the financial statements filed
herewith:
(a) By whose action redemption rights were suspended.
46
<PAGE>
(b) The number of days' notice given to security holders prior to
suspension of redemption rights.
(c) Reason for suspension.
(d) Period during which suspension was in effect
Not applicable.
REDEMPTION VALUATION OF SECURITIES OF THE TRUST
46. (a) Furnish the following information with respect to the method
of determining the redemption or withdrawal valuation of
securities issued by the trust:
(1) The source of quotations used to determine the value of
portfolio securities.
(2) Whether opening, closing, bid, asked or any other price
is used.
(3) Whether price is as of the date of sale or as of any
other time.
(4) A brief description of the methods used by registrant
for determining other assets and liabilities including
accruals for expenses and taxes (including taxes on
unrealized appreciation).
(5) Other items which registrant deducts from the net asset
value in computing redemption value of its securities.
(6) Whether adjustments are made for fractions.
Reference is made to the information provided in Item (10)(d)
and Item (24)(A).
(b) Furnish a specimen schedule showing the components of the
redemption price to the holders of the trust's securities as
at the latest practicable date.
Not applicable.
47
<PAGE>
PURCHASE AND SALE OF INTERESTS IN UNDERLYING SECURITIES FROM AND TO SECURITY
HOLDERS
47. Furnish a statement as to the procedure with respect to the
maintenance of a position in the underlying securities or
interests in the underlying securities, the extent and nature
thereof and the person who maintains such a position. Include a
description of the procedure with respect to the purchase of
underlying securities or interests in the underlying securities
from security holders who exercise redemption or withdrawal
rights and the sale of such underlying securities and interests
in the underlying securities to other security holders. State
whether the method of valuation of such underlying securities or
interests in underlying securities differs from that set forth in
Items 44 and 46. If any item of expenditure included in the
determination of the evaluation is not or may not be actually
incurred or expended, explain the nature of such item and who may
benefit from the transaction.
Reference is made to information provided in answers to Item
(10)(d), Item (14) and Item (16) above.
V. INFORMATION CONCERNING THE TRUSTEE OR CUSTODIAN
48. Furnish the following information as to each trustee or custodian of
the trust:
(a) Name and principal business address.
(b) Form of organization.
(c) State or other sovereign power under the laws of which the
trustee or custodian was organized.
(d) Name of governmental supervising or examining authority.
The Trustee is Bank of America, N.A., a national banking
association with its principal executive office located at 100
North Tryon St., Charlotte, NC 28255. The Trustee is subject
to supervision by the Office of the Comptroller of the
Currency, the Federal Deposit Insurance Corporation and the
Board of Governors of the Federal Reserve System.
U.S. Bank National Association is a national banking
association with its principal executive office located at 180
East Fifth Street, St. Paul, MN 55101. USBNA is subject to
supervision by the Office of the Comptroller of the Currency.
49. State the basis for payment of fees or expenses of the trustee or
custodian for services rendered with respect to the trust and its
securities, and the aggregate amount thereof for the last fiscal
48
<PAGE>
year. Indicate the person paying such fees or expenses. If any fees
or expenses are prepaid, state the unearned amount.
Reference is made to the information provided in answer to
Item (13)(a)(D), above.
Bank of America, N.A. is responsible for paying USBNA's
fees (currently $6,000 annually).
50. State whether the trustee or custodian or any other person has or
may create a lien on the assets of the trust and, if so, give full
particulars, outlining the substance of the provisions of any
indenture or agreement with respect thereto.
Reference is made to information provided in answer to Item
(13)(a)(D) above.
VI. INFORMATION CONCERNING INSURANCE OF HOLDERS OF SECURITIES
51. Furnish the following information with respect to insurance of
holders of securities:
(a) The name and address of the insurance company.
(b) The types of policies and whether individual or group
policies.
(c) The types of risks insured and excluded.
(d) The coverage of the policies.
(e) The beneficiaries of such policies and the uses to which the
proceeds of the policies must be put.
(f) The terms and manner of cancellation and of reinstatement.
(g) The method of determining the amount of premium to be paid by
holders of securities.
(h) The amount of aggregate premiums paid to the insurance company
during the last fiscal year.
(i) Whether any person other than the insurance company receives
any part of such premiums, the name of each such person and
the amounts involved, and the nature of the services rendered
therefor.
(j) The substance of any other material provisions of any
indenture or agreement of the trust relating to insurance.
Not Applicable.
49
<PAGE>
VII. POLICY OF REGISTRANT
52. (a) Furnish the substance of the provisions of any indenture or
agreement with respect to the conditions upon which and the
method of selection by which particular portfolio securities
must or may be eliminated from assets of the trust or must or
may be replaced by other portfolio securities. If an
investment advisor or other person is to be employed in
connection with such selection, elimination or substitution,
state the name of such person, the nature of any affiliation
to the depositor, trustee or custodian and any principal
underwriter, and the amount of remuneration to be received for
such services. If any particular person is not designated in
the indenture or agreement, describe briefly the method of
selection of such person.
Reference is made to the information provided in answer
to Item (16) above.
(b) Furnish the following information with respect to each
transaction involving the elimination of any underlying
security during the period covered by the financial statements
filed herewith:
(1) Title of security.
(2) Date of elimination.
(3) Reasons for elimination.
(4) The use of the proceeds from the sale of the eliminated
security.
(5) Title of security substituted, if any.
(6) Whether depositor, principal underwriter, trustee or
custodian or any affiliated person of the foregoing were
involved in the transaction.
(7) Compensation or remuneration received by each such
person directly or indirectly as a result of the
transaction.
Not applicable.
(c) Describe the policy of the trust with respect to the
substitution and elimination of the underlying securities of
the trust with respect to:
(1) The grounds for elimination and substitution.
50
<PAGE>
(2) The type of securities which may be substituted for any
underlying security.
(3) Whether the acquisition of such substituted security or
securities would constitute the concentration of
investment in a particular industry or group of
industries or would conform to a policy of concentration
of investment in a particular industry or group of
industries.
(4) Whether such substituted securities may be the
securities of another investment company.
(5) The substance of the provisions of any indenture or
agreement which authorize or restrict the policy of the
registrant in this regard.
Reference is made to the information provided in
answer to Item (16) above.
(d) Furnish a description of any policy (exclusive of policies
covered by paragraphs (a) and (b) herein) of the trust which
is deemed a matter of fundamental policy and which is elected
to be treated as such.
Not applicable.
REGULATED INVESTMENT COMPANY
53. (a) State the taxable status of the trust.
(b) State whether the trust qualified for the last taxable year as
a regulated investment company as defined in Section 851 of
the Internal Revenue Code of 1954, and state its present
intention with respect to such qualifications during the
current taxable year.
The Trust was not in existence during the last taxable
year; however, the Trust has elected to qualify as a
RIC as defined in Section 851 of the Internal Revenue
Code of 1954.
51
<PAGE>
VIII. FINANCIAL AND STATISTICAL INFORMATION
54. If the trust is not the issuer of periodic payment plan certificates
furnish the following information with respect to each class or
series of its securities:
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------
As at the end of each of registrant's past 10 fiscal years
- -------------------------------------------------------------------------------------------------
Year Total number of shares Asset value per share Dividends paid per
(if other than cash,
explain)
<S> <C> <C> <C>
Not applicable. Not applicable. Not applicable.
- -------------------------------------------------------------------------------------------------
</TABLE>
(Items 55, 56, 57 and 58 are inapplicable since they relate
only to periodic payment plan certificates.)
52
<PAGE>
FINANCIAL STATEMENTS
FINANCIAL STATEMENTS OF THE TRUST
(a) FINANCIAL STATEMENTS REQUIRED
The following financial statements shall be filed for the
trust:
(1) A statement of condition as of the close
of the last fiscal year, and
(2) Statements of income and other distributable funds for
the three fiscal years preceding the date of the statement
of condition filed.
Not applicable.
FINANCIAL STATEMENTS OF THE DEPOSITOR
There shall be filed for each such person:
(1) A balance sheet as of the end of its last fiscal year.
(2) A profit and loss statement and a statement of surplus for the fiscal year
ending as of the date of the balance sheet filed.
Not applicable.
53
<PAGE>
SIGNATURE PAGE
Pursuant to the requirements of the Investment Company Act of 1940, as
amended, the Depositor of the Registrant has caused this Registration Statement
Amadeo, Inc., to be duly signed on behalf of the Registrant in the City of
Reno, State of Nevada, on this 13th day of August, 1999.
[SEAL] AMADEO TRUST
(Name of Registrant)
By: AMADEO, INC.,
(Name of Depositor or Trustee
or Custodian)
By:/s/ Paulette M. Mehas
---------------------------
Name: Paulette M. Mehas
Title: President
ATTEST:
/s/ Terry K. McAfee
- ----------------------------
Name: Terry K. McAfee
Title: Vice President
<PAGE>
AMADEO TRUST
EXHIBIT INDEX
A. (1) Trust Indenture Agreement for Amadeo Trust
(2) Administrative Agreement between NationsBank, N.A. and U.S.
National Bank
(3) Not applicable.
(4) Service Agreement for Transfer Agent Services among NationsBank,
N.A. Amadeo, Inc. and ChaseMellon Shareholder Services, L.L.C.
(5) Not applicable.
(6) (a) Certificate of Incorporation of Amadeo, Inc.
(b) Bylaws of Amadeo, Inc.
(7) Not applicable.
(8) Not applicable
(9) Agreement between Amadeo, Inc. and Amadeo Trust
(10) Not applicable.
(B) Not applicable.
Exhibit 1
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
TRUST INDENTURE AND AGREEMENT
FOR
AMADEO TRUST
Effective: June 30, 1999
Among
AMADEO, INC.
As Depositor
and
NATIONSBANK, N.A.
As Trustee
and
NATIONSBANK, N.A.
in its individual capacity
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
AMADEO TRUST
TRUST INDENTURE AND AGREEMENT
TABLE OF CONTENTS
ARTICLE I....................................................................1
DEFINITIONS..................................................................1
SECTION 1.01........................................................1
ARTICLE II...................................................................5
DEPOSIT OF SECURITIES AND ACCEPTANCE OF TRUST................................5
SECTION 2.01. DEPOSIT OF SECURITIES:...............................5
SECTION 2.02. ACCEPTANCE OF TRUST:.................................5
SECTION 2.03. ISSUANCE OF UNITS:...................................5
ARTICLE III..................................................................6
ADMINISTRATION OF TRUST......................................................6
SECTION 3.01. INITIAL COST:........................................6
SECTION 3.02. INTEREST ACCOUNT:....................................6
SECTION 3.03. PRINCIPAL ACCOUNT:...................................6
SECTION 3.04. DISTRIBUTIONS:.......................................6
SECTION 3.05. DISTRIBUTION STATEMENTS:.............................7
SECTION 3.06. SALE OF SECURITIES:..................................8
SECTION 3.07. COUNSEL:.............................................9
SECTION 3.08. NOTICE AND SALE BY TRUSTEE:..........................9
SECTION 3.09. TRUSTEE NOT REQUIRED TO AMORTIZE:....................9
SECTION 3.10. LIABILITY OF DEPOSITOR:..............................9
SECTION 3.11. NOTICE TO DEPOSITOR:................................10
SECTION 3.12. REPLACEMENT AND REINVESTMENT SECURITIES:............10
<PAGE>
ARTICLE IV..................................................................12
REDEMPTION, PURCHASE OR TRANSFER OF UNITS...................................12
SECTION 4.01. DETERMINATION OF NET ASSET VALUE:...................12
SECTION 4.02. REDEMPTIONS BY TRUSTEE;
PURCHASES BY DEPOSITOR:............................................13
SECTION 4.03. TRANSFER OF UNITS:..................................14
SECTION 4.04. COMPENSATION OF DEPOSITOR:..........................15
ARTICLE V...................................................................15
TRUSTEE.....................................................................15
SECTION 5.01. TRUSTEE'S LIABILITIES, RIGHTS AND DUTIES:...........15
SECTION 5.02. BOOKS, RECORDS AND REPORTS;
REGISTER OF SHARES:................................................17
SECTION 5.03. INDENTURE AND LIST OF SECURITIES ON FILE:...........17
SECTION 5.04. COMPENSATION:.......................................17
SECTION 5.05. REMOVAL AND RESIGNATION OF TRUSTEE;
SUCCESSOR:.........................................................18
SECTION 5.06. QUALIFICATIONS OF TRUSTEE:..........................19
ARTICLE VI..................................................................19
RIGHTS OF UNITHOLDERS.......................................................19
SECTION 6.01. BENEFICIARIES OF TRUST:.............................19
SECTION 6.02. RIGHTS, TERMS AND CONDITIONS:.......................19
ARTICLE VII.................................................................20
ADDITIONAL COVENANTS; MISCELLANEOUS PROVISIONS..............................20
SECTION 7.01. AMENDMENTS:.........................................20
SECTION 7.02. TERMINATION:........................................20
SECTION 7.03. CONSTRUCTION:.......................................21
SECTION 7.04. WRITTEN NOTICE:.....................................21
SECTION 7.05. SEVERABILITY:.......................................21
SECTION 7.06. DISSOLUTION OF DEPOSITOR NOT TO TERMINATE
INDENTURE OR TRUST:................................................21
<PAGE>
SECTION 7.07. REGISTRATION OF UNITS:..............................21
SECTION 7. 08. LIMITATION OF LIABILITY:...........................22
SECTION 7. 09. SUCCESSORS TO NATIONBANK, N.A:.....................22
This Table of Contents does not constitute part of the Indenture.
<PAGE>
AMADEO TRUST
TRUST INDENTURE AND AGREEMENT
Dated: June 30, 1999
This Trust Indenture and Agreement by and among Amadeo, Inc., a Delaware
corporation, as Depositor, NationsBank, N.A., a national banking association, as
Trustee, and NationsBank, N.A., in its individual capacity, sets forth in full
the provisions governing this Trust.
WITNESSETH THAT:
In consideration of the promises and of the mutual agreements herein
contained, the Depositor and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Whenever used in this Indenture the following words and
phrases, unless the context clearly indicates otherwise, shall have the
following meanings:
(1) "APPROVED PRICING SERVICE" shall mean: (a) with respect to Securities
constituting the Notes and the Class B Asset-Backed Certificates, an independent
pricing service that has been approved, for purposes of providing ratings on
obligations collateralized or supported by securities that are comparable to
such Securities, by a Rating Agency; and (b) with respect to Securities
constituting the Residual Certificate, the Public and Structured Finance
Services division of Ernst & Young LLP or if they are no longer willing or able
to value such Securities, another recognized, independent pricing source
selected in good faith by the Trustee.
(2) "APPROVED PRICING METHODOLOGY" shall mean, if there have been recent
sales of Securities, the last reported sales price, and if there have not been
any such recent sales: (a) with respect to Securities constituting the Notes and
the Class B Asset-Backed Certificates, a matrix methodology that derives market
values based on reported sales prices or market quotations for securities that,
taking into account the terms of and the recent prepayment, default and other
performance information relating to such Securities, are comparable to such
Securities; and (b) with respect to Securities constituting the Residual
Certificate, such fair value methodology, using fundamental analytical data and
techniques and taking into account the terms of and the recent prepayment,
default and other performance information relating to such Securities, as the
Approved Pricing Service determines in good faith will reflect the amount that
the Trust might reasonably expect to receive upon a current sale of such
Securities.
<PAGE>
(3) "BUSINESS DAY" shall mean any day other than a Saturday, Sunday or a
day which in the State of North Carolina or the states where the principal
corporate trust office of the Indenture Trustee or the Registrar and Paying
Agent are located is a legal holiday or a day on which banking institutions are
authorized by law to close.
(4) "CERTIFICATES" shall mean the Class B Asset-Backed Certificates and
the Residual Certificate.
(5) "CLASS A-1 ASSET-BACKED NOTES" shall mean $2,750,000,000 principal
amount of 5.305% Class A-1 Asset-Backed Notes issued by the SPV.
(6) "CLASS A-2 ASSET-BACKED NOTES" shall mean $2,904,000,000 principal
amount of 5.854% Class A-2 Asset-Backed Notes issued by the SPV.
(7) "CLASS A-3 ASSET-BACKED NOTES" shall mean $2,410,000,000 principal
amount of 6.410% Class A-3 Asset-Backed Notes issued by the SPV.
(8) "CLASS A-4 ASSET-BACKED NOTES" shall mean $508,231,929 principal
amount of 6.540% Class A-4 Asset-Backed Notes issued by the SPV.
(9) "CLASS B ASSET-BACKED CERTIFICATES" shall mean $385,168,206 principal
amount of 6.930% Class B Asset-Backed Certificates issued by the SPV.
(10) "DATE OF DEPOSIT" shall mean June 30, 1999.
(11) "DEPOSITOR" shall mean Amadeo, Inc., a Delaware corporation, and its
successors in interest, or any successor depositor as hereinafter provided for.
(12) "DISTRIBUTION DATE" shall mean the 18th day of each month in which a
monthly distribution is to be made, or if such day is not a Business Day, the
next succeeding Business Day.
(13) "EVALUATION TIME" shall mean 4:00 p.m. EST on each day specified in
Section 4.01.
(14) "EVENT OF DEFAULT" shall have the meaning specified in Section 5.01
of the SPV Indenture.
(15) "INDENTURE" shall mean this Trust Indenture and Agreement, as
amended, from time to time.
(16) "INDENTURE TRUSTEE" shall mean U.S. Bank National Association, a
national banking association, as Indenture Trustee under the SPV Indenture, or
any successor Indenture Trustee under the SPV Indenture.
(17) "INTEREST ACCOUNT" shall mean a separate account or sub-account for
the Trust, to which the Trustee shall credit any interest it collects on the
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<PAGE>
Securities in the Trust as such interest becomes payable. For purposes of this
Indenture, any distributions the Trust receives on the Residual Certificates
shall be deemed to be interest.
(18) "MANDATORY TERMINATION DATE" shall mean the last Business Day of
2007.
(19) "NATIONSBANK, N.A." shall mean NationsBank, N.A. in its individual
capacity and not in its capacity as Trustee.
(20) "NOTES" shall mean the Class A-1, Class A-2, Class A-3 and Class A-4
Asset-Backed Notes, collectively.
(21) "OWNER TRUSTEE" shall mean Wilmington Trust Company, a Delaware
banking corporation, not in its individual capacity but solely as Owner Trustee
under the SPV Trust Agreement, or any successor Owner Trustee under the SPV
Trust Agreement.
(22) "PRINCIPAL ACCOUNT" shall mean a separate account or sub-account for
the Trust, to which shall be credited Securities of the Trust and all moneys,
other than amounts credited to the Interest Account, received by the Trustee in
respect of the Securities of the Trust.
(23) "RATING AGENCY" shall mean each of the nationally recognized
statistical rating organizations designated by the Seller to provide a rating on
the Notes or the Class B Asset-Backed Certificates that is then rating the Notes
or Class B Asset-Backed Certificates. If no such organization is in existence,
"Rating Agency" shall mean a nationally recognized statistical rating
organization or other comparable person designated by the Seller, notice of
which shall be give to the Indenture Trustee, the Owner Trustee and the SPV
Servicer.
(24) "RECORD DATE" shall mean the 3rd Business Day before the Distribution
Date.
(25) "REDEMPTION DATE" shall mean the date on which any proper request for
redemption of Units shall be effected by the Trustee, which date shall be on or
before the seventh calendar day following the Trustee's receipt of a proper
request for redemption.
(26) "REDEMPTION PRICE" shall mean cash equivalent to the Unit Value,
determined by the Trustee as of the Evaluation Time next calculated following
the Trustee's receipt of a proper request for redemption, multiplied by the
number of Units redeemed by a Unitholder.
(27) "REGISTRAR AND PAYING AGENT" shall mean ChaseMellon Shareholder
Services L.L.C. or such other entity duly appointed by the Trustee.
(28) "REINVESTMENT PERIOD" shall mean the time from the Date of Deposit
for the Trust until the Depositor notifies the Trustee in writing that
purchasing Reinvestment Securities is impractical.
(29) "REINVESTMENT SECURITIES" shall mean obligations to be acquired and
held as part of the Trust during the Reinvestment Period pursuant to Section
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<PAGE>
3.12 and which will constitute Securities of the Trust. Reinvestment Securities
will be priced in the same manner as the Securities under Section 4.01 of this
Indenture.
(30) "REPLACEMENT SECURITIES" shall mean obligations to be held as
Securities as part of the Trust pursuant to Section 3.12, purchased with moneys
held in the Principal Account representing proceeds of Securities pursuant to
Section 3.06 or 3.08, or proceeds from the sale of Securities pursuant to
Section 4.02 to the extent that such proceeds are not required for the purpose
of redemption of Units. Replacement Securities will constitute Securities of the
Trust and will be priced in the same manner as the Securities under Section 4.01
of this Indenture.
(31) "RESIDUAL CERTIFICATE" shall have the same meaning as the term is
defined in the SPV Indenture.
(32) "RIC" shall mean a "regulated investment company," as defined in
Section 851 of the Internal Revenue Code of 1986, as amended.
(33) "SALE AND SERVICING AGREEMENT" shall mean the Sale and Servicing
Agreement, dated as of June 1, 1999, by and between the SPV and NationsBank,
N.A., as Seller and SPV Servicer.
(34) "SECURITIES" shall mean the Notes, Class B Asset-Backed Certificates
and Residual Certificate.
(35) "SELLER" shall mean NationsBank, N.A. and any successor as seller
under the Sale and Servicing Agreement.
(36) "SPV" shall mean Bank of America Auto Owner Trust 1999-A, a Delaware
business trust.
(37) "SPV SERVICER" shall mean NationsBank, N.A. and any successor
servicer as permitted under the Sale and Servicing Agreement.
(38) "SPV INDENTURE" shall mean the trust indenture by and between the SPV
and the Indenture Trustee, dated as of June 1, 1999.
(39) "SPV TRUST AGREEMENT" shall mean the Amended and Restated Trust
Agreement dated as of June 1, 1999 by and between the Seller, as depositor, and
the Owner Trustee.
(40) "TRUST" shall mean the separate trust created by this Indenture,
known as "Amadeo Trust," which shall consist of all the Securities and cash held
pursuant and subject to this Indenture, together with all undistributed interest
received or accrued thereon and any undistributed cash realized from the sale,
redemption, liquidation, or maturity thereof.
(41) "TRUSTEE" shall mean NationsBank, N.A., a national banking
association, or any successor trustee as hereinafter provided for.
-4-
<PAGE>
(42) "TRUSTEE'S OFFICE" shall mean the office located at NC1-007-19-02,
100 North Tryon Street, Charlotte, NC 28255, Attn: Specialty Accounting, or any
other office that the Trustee may from time to time designate as the principal
office where its unit trust business shall be conducted.
(43) "UNIT" in respect of the Trust shall mean a fractional undivided
ownership interest in the Trust equal to the fraction the numerator of which is
one and the denominator of which initially is 9,000,000, decreased by the number
of any such Units redeemed as provided in Section 4.02.
(44) "UNITHOLDER" shall mean the registered holder of any Unit recorded on
the books of the Trust, who as such shall be deemed a beneficiary of the Trust
to the extent of his pro rata share thereof.
(45) "UNIT VALUE" shall mean the current net asset value of the Trust
divided by the number of outstanding Units of the Trust.
Words importing a singular number shall include the plural number in each
case and vice versa, and words importing a person shall include corporations and
associations, as well as natural persons.
The words "HEREIN," "HEREBY," "HEREWITH," "HEREOF," "HEREINAFTER,"
"HEREUNDER," "HEREINABOVE," "HEREAFTER," "HERETOFORE" and similar words or
phrases of reference and association shall refer to this Indenture in its
entirety.
ARTICLE II
DEPOSIT OF SECURITIES AND ACCEPTANCE OF TRUST
SECTION 2.01. DEPOSIT OF SECURITIES:
(a) The Depositor, on the Date of Deposit, has deposited with the
Trustee, in trust, the Securities registered in the name, or on behalf of, the
Trust or duly endorsed in blank or accompanied by all necessary instruments of
assignment and transfer in proper form to be held, administered and applied by
the Trustee as herein provided.
(b) The Trustee is hereby irrevocably authorized to effect
registration or transfer of the Securities to or on behalf of the Trust or its
nominee.
SECTION 2.02. ACCEPTANCE OF TRUST: The Trustee hereby accepts the
Trust herein created for the use and benefit of the Unitholders, subject to
the terms and conditions of this Indenture.
SECTION 2.03. ISSUANCE OF UNITS: The Trustee hereby acknowledges receipt
of the deposit referred to in Section 2.01 and simultaneously with the receipt
of said deposit shall record (or shall instruct the Registrar and Paying Agent
-5-
<PAGE>
to record) on the books and records of the Trust for the account of the
Depositor the ownership of 9,000,000 Units which will constitute all of the
Units of the Trust on the Date of Deposit. The Units shall be issued solely in
uncertificated form.
ARTICLE III
ADMINISTRATION OF TRUST
SECTION 3.01. INITIAL COST: The expenses incurred in establishing the
Trust, including the cost of preparing and printing the registration statement
regarding the Units, supplemental literature, this Indenture, and other
documents relating to the Trust, state blue sky fees, the costs of determining
the net asset value of the portfolio, the audit of the Trust, and legal and
other out-of-pocket expenses related thereto shall be borne by NationsBank, N.A.
in its individual capacity.
SECTION 3.02. INTEREST ACCOUNT: The Trustee shall collect the interest on
the Securities, including all distributions on the Residual Certificates in the
Trust as such becomes payable (including all interest accrued but unpaid prior
to the Date of Deposit of the Securities hereunder and including that part of
the proceeds of the sale, liquidation, redemption or maturity of any Securities
that represents accrued interest thereon but not accrued original issue
discount, if any) and credit such interest to the Interest Account.
SECTION 3.03. PRINCIPAL ACCOUNT: The Securities in the Trust and all
moneys other than amounts credited to the Interest Account, received by the
Trustee in respect of the Securities in the Trust, shall be credited to the
Principal Account.
The Trustee shall give prompt written notice to the Depositor of all
amounts credited to or withdrawn from the Principal Account and the balance in
such account after giving effect to such credit or withdrawal.
SECTION 3.04. DISTRIBUTIONS: As of each Record Date, commencing in August
1999, the Trustee shall determine the distributions to be made on the related
Distribution Date, which shall consist of the cash balance of the Interest
Account and of the Principal Account calculated as of such Record Date, provided
that the Trustee shall not be required to make a distribution from the Principal
Account unless the cash balance thereof available for distribution shall be
sufficient to distribute at least one cent per Unit. On each Distribution Date,
commencing in August 1999, the Trustee shall pay to the Registrar and Paying
Agent, and shall cause the Registrar and Paying Agent to distribute by mail or
wire on each Distribution Date to or upon the order of each Unitholder other
than Amadeo, Inc. as of the close of business on the preceding Record Date at
the post office address or account, as applicable, appearing on the registration
books of the Trust, such Unitholder's pro rata share of the distribution made on
such Distribution Date. On each Distribution Date, the Trustee shall pay to
Amadeo, Inc. directly by mail or wire its pro rata share of the distribution
made on such Distribution Date.
-6-
<PAGE>
In the computation of each such share, amounts of less than one cent shall
be omitted. After any such distribution provided for above, any cash balance
remaining in the Interest Account or the Principal Account shall be held in the
same manner as other amounts subsequently deposited in each of such accounts,
respectively.
If the Trustee determines that an event has occurred as a result of which
there has resulted an excess distribution from the Interest Account, it shall
reduce subsequent distributions therefrom so as to reconcile, as promptly as
practicable, the aggregate net income of and distributions from such account.
For the purpose of distribution as herein provided, the holders of record
on the registration books of the Trust at the close of business on each Record
Date shall be conclusively entitled to such distribution, and no liability shall
attach to the Trustee by reason of payment to any such registered Unitholder of
record. Nothing herein shall be construed to prevent the payment of amounts from
the Interest Account and the Principal Account to individual Unitholders by
means of check, draft, wire or other proper instrument, provided that the
appropriate statement of such distribution shall be furnished therewith as
provided in Section 3.05 hereof.
SECTION 3.05. DISTRIBUTION STATEMENTS: On each Record Date, the Trustee
shall furnish, in substantially the form set forth in Appendix A to this
Indenture, to the Registrar and Paying Agent, a statement of the amount being
distributed from each Principal and Interest Account expressed as a dollar
amount per Unit of the Trust. The Trustee shall direct the Registrar and Paying
Agent to provide such information to each Unitholder on a per Unit basis with
each distribution from the Interest or Principal Accounts, except that such
information need not be furnished to a Unitholder who has waived receipt thereof
in writing. If the issuer of any of the Securities in the Trust shall fail to
make payment when due of any interest or principal on such Securities and such
failure results in a change in the amount that would otherwise be distributed as
a monthly distribution, the Trustee shall, with the first distribution from the
Trust following such failure, set forth, or cause the Registrar and Paying Agent
to set forth, in an accompanying statement (a) the name of the issuer and the
Security, (b) the amount of the reduction in the distribution per Unit resulting
from such failure, (c) the percentage of the aggregate principal amount of all
Securities that such Security represents and (d) to the extent then determined,
information regarding any disposition or legal action with respect to such
Security.
Within sixty days after the last Business Day of each calendar year, the
Trustee shall transmit (by regular or electronic mail or facsimile), or cause
the Registrar and Paying Agent to transmit (by regular or electronic mail or
facsimile), to each person who at any time during such calendar year was a
Unitholder a statement setting forth, with respect to such calendar year:
(A) as to the Interest Account:
(1)the amount of interest received on the Securities (including
amounts representing interest received upon any disposition of
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Securities, penalties for failure to make timely payments on
Securities or liquidated damages for default on breach of any
condition or term of the Securities),
(2)the amounts distributed pursuant to Section 3.04, expressed both
as a total dollar amount and as a dollar amount per Unit
outstanding on the Record Dates for such distributions, and
amounts paid for redemptions pursuant to Section 4.02, and
(3)the balance remaining after such distributions and payments,
expressed both as a total dollar amount and as a dollar amount
per Unit outstanding on such last Business Day;
(B) as to the Principal Account:
(1)payments of principal on Securities,
(2)the dates of the sale, maturity, liquidation or redemption of
any of the Securities and the net proceeds received therefrom,
excluding any portion thereof credited to the Interest Account,
(3)the amounts distributed pursuant to Section 3.04, expressed both
as a total dollar amount and as a dollar amount per Unit
outstanding on the Record Dates for such distributions, amounts
paid for purchases of Replacement Securities or Reinvestment
Securities and amounts paid for redemptions pursuant to Section
4.02, and
(4)the balance remaining after such distributions and deductions,
expressed both as a total dollar amount and as a dollar amount
per Unit outstanding on the last business day of such calendar
year.
(C) the following information:
(1) a list of the Securities as of such last Business Day,
(2) the number of Units outstanding on such last Business Day,
(3) the Unit Value based on the last evaluation of the Trust made
during such calendar year, and
(4) such other information as the Trustee may deem appropriate.
This information shall be presented in substantially the form attached as
Appendix B to this Indenture.
SECTION 3.06. SALE OF SECURITIES: If necessary, in order to maintain the
sound investment character of the Trust, the Depositor may direct the Trustee to
sell or liquidate Securities in the Trust at such price and time and in such
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manner as shall be determined by the Depositor, provided that the Depositor has
determined that either one or both of the following conditions exist:
(a) there has been an Event of Default as defined in the SPV
Indenture; and
(b) the sale of Securities is necessary or advisable in order
to maintain the qualification of the Trust as a RIC.
On receipt of such direction from the Depositor, upon which the Trustee
shall rely, the Trustee shall proceed to sell or liquidate the specified
Securities in accordance with such direction. The Trustee shall not be liable or
responsible in any way for depreciation or loss incurred by reason of any sale
made pursuant to any such direction or by reason of the failure of the Depositor
to give any such direction, and in the absence of such direction the Trustee
shall have no duty to sell or liquidate any Securities under this Section 3.06
except to the extent otherwise required by Section 3.08.
SECTION 3.07. COUNSEL: The Depositor may employ from time to time as it
may deem necessary a firm of attorneys for any legal services that may be
required in connection with the disposition of Securities pursuant to Section
3.06. The fees and expenses of such counsel shall be paid by NationsBank, N.A.
SECTION 3.08. NOTICE AND SALE BY TRUSTEE: If at any time the principal of
or interest on any of the Securities shall be in default and not paid or
provision for payment thereof shall not have been duly made, after giving effect
to any cure periods without the Depositor's having directed the Trustee to sell
such Securities pursuant to Section 3.06, the Trustee shall notify the Depositor
of such default. If within thirty days after such notification the Depositor has
not given any instruction to sell or to hold or has not taken any other action
in connection with such Securities, the Trustee shall sell such Securities
forthwith, and the Trustee shall not be liable or responsible in any way for
depreciation or loss incurred with respect to such Securities or by reason of
such sale.
SECTION 3.09. TRUSTEE NOT REQUIRED TO AMORTIZE: Nothing in this Indenture
or otherwise shall be construed to require the Trustee to make any adjustments
between the Interest and Principal Accounts of the Trust by reason of any
premium or discount in respect of any of the Securities.
SECTION 3.10. LIABILITY OF DEPOSITOR: The Depositor shall be a fiduciary
with respect to the Unitholders, including but not limited to, in all its
dealings with the sale and purchase of Securities. Provided that the Depositor
has fulfilled its fiduciary duties, the Depositor shall have no liability to the
Unitholders for any action taken or for refraining from the taking of any action
in good faith pursuant to this Indenture or for errors in judgment, but shall be
liable only for its own negligence, lack of good faith or willful misconduct.
The Depositor may rely in good faith on any paper, order, notice, list,
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affidavit, receipt, opinion, endorsement, assignment, draft or any other
document of any kind prima facie properly executed and submitted to it by the
Trustee, the Registrar and Paying Agent, counsel, or any other persons pursuant
to this Indenture and in furtherance of its duties.
SECTION 3.11. NOTICE TO DEPOSITOR: If the Trustee is notified at any time
of any action to be taken or proposed to be taken by holders of the Securities
(including but not limited to the making of any demand, direction, request,
giving of any notice, consent or waiver or the voting with respect to any
amendment or supplement to any indenture, resolution, agreement or other
instrument under or pursuant to which the Securities have been issued), the
Trustee shall promptly notify the Depositor thereof and shall thereupon take
such action, or refrain from taking any action as the Depositor shall in writing
direct; provided, however, that if the Depositor does not, within five Business
Days of the Trustee's giving of such notice to the Depositor, so direct the
Trustee, the Trustee shall take such action as it, in its sole discretion, shall
deem advisable. Neither the Depositor nor the Trustee shall be liable to any
person for any action or failure to take action with respect to this Section
3.11.
SECTION 3.12. REPLACEMENT AND REINVESTMENT SECURITIES:
(a) The Trustee shall, as directed in writing by the Depositor,
purchase, or enter into contracts (which the Depositor shall have approved as
satisfactory in form and substance) to purchase Replacement Securities, and
shall pay for the same with moneys held in the Principal Account representing
proceeds of Securities pursuant to Section 3.06 or 3.08 or proceeds from the
sale of Securities pursuant to Section 4.02 to the extent that such proceeds are
not required for the purpose of redemption of Units or other charges to the
Principal Account then pending. In giving such direction, the Depositor must
satisfy all of the following conditions in the case of each such purchase or
contract to purchase:
(1) the Replacement Securities are substantially
similar to the Securities in the Trust;
(2) the Depositor has received an opinion of counsel that such
purchase will not adversely affect the status of the Trust under
the Investment Company Act of 1940, as amended;
(3) the Depositor has given such written direction to the Trustee at
least five Business Days prior to the Record Date preceding the
Distribution Date on which the moneys to be used for the
purchase of such Replacement Securities would otherwise be
distributed; and
(4) each Rating Agency shall have been given prior notice thereof
and have notified the Seller, the SPV Servicer, the Owner
Trustee, and the Indenture Trustee in writing that such action
will not result in a reduction or withdrawal of the then current
rating of the Notes or the Class B Asset-Backed Certificates.
Within five Business Days of the deposit of any Replacement Securities the
Depositor shall send each Unitholder a written notice of the deposit of such
Replacement Securities and the Securities replaced by such Replacement
Securities.
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(b) During the Reinvestment Period the Trustee shall, as directed in
writing by the Depositor, purchase, or enter into contracts (which the Depositor
shall have approved as satisfactory in form and substance) to purchase,
Reinvestment Securities and shall pay for the same with the moneys held in the
Principal Account representing the payment or prepayment of principal on the
underlying Securities to the extent that such proceeds are not required for the
purpose of redemption of Units or other charges to the Principal Account then
pending. In giving such direction, the Depositor shall satisfy all of the
following conditions in the case of each such purchase or contract to purchase:
(1) the Reinvestment Securities are substantially
similar to the Securities in the Trust;
(2) the Depositor has received an opinion of counsel that such
purchase will not adversely affect the status of the Trust under
the Investment Company Act of 1940, as amended; and
(3) each Rating Agency shall have been given prior notice thereof
and have notified the Seller, the SPV Servicer, the Owner
Trustee, and the Indenture Trustee in writing that such action
will not result in a reduction or withdrawal of the then current
rating of the Notes or the Class B Asset-Backed Certificates.
The Trustee may purchase the Reinvestment Securities for deposit in the
Trust directly from market makers in such Securities or may retain the Depositor
or other brokers to purchase the Reinvestment Securities and pay them usual and
customary brokerage commissions for such transactions. Within five Business Days
of the deposit of Reinvestment Securities, the Depositor shall send each
Unitholder a written notice of the deposit of such Reinvestment Securities and
identify the Securities from which the money for Reinvestment Securities was
derived.
Funds remaining in the Principal Account subsequent to a purchase of
Reinvestment Securities will remain in such account until they can be invested
in additional Reinvestment Securities. During the Reinvestment Period, amounts
in the Principal Account that the Depositor determines (and so notifies the
Trustee in writing or via facsimile) are (a) unable to be invested into
Reinvestment Securities or (b) required to be distributed for the Trust to
maintain its status as a RIC shall be distributed on the next Distribution Date,
to Unitholders of record on the related Record Date.
When the Depositor determines that the reinvestment of cash from the
Principal Account into Reinvestment Securities is no longer practical, the
Depositor shall notify the Trustee, in writing, that the Reinvestment Period is
terminated. Upon termination of the Reinvestment Period, unreinvested amounts
remaining in the Principal Account and amounts subsequently credited to the
Principal Account shall be distributed in accordance with Section 3.04.
(c) The Trustee shall not be liable or responsible in any way for
depreciation or loss incurred by reason of any purchase made pursuant to any
direction of the Depositor provided in this Section 3.12, and in the absence of
such direction the Trustee shall have no duty to make any purchase. The
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Depositor shall not be liable for errors of judgment in respect of actions taken
or omitted to be taken, pursuant to this Section 3.12; provided, however, that
this provision shall not protect the Depositor against any liability to which it
would otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties or by reason of its reckless
disregard of its obligations and duties hereunder.
ARTICLE IV
REDEMPTION, PURCHASE OR TRANSFER
OF UNITS
SECTION 4.01. DETERMINATION OF NET ASSET VALUE:
(a) The Trustee shall determine the net asset value of the Trust as
of the Evaluation Time on: (1) the Date of Deposit, (2) the last Business Day of
each month, (3) each day on which a proper request for redemption is received by
the Trustee, and (4) any other Business Day desired by the Trustee or requested
by the Depositor.
(b) Each determination of the Trust's net asset value shall take
into account and separately itemize: (1) the cash on hand in the Trust
(exclusive of cash held for distribution to Unitholders, and required for
redemption of Units requested, as of a date prior to the date of determination)
or moneys in the process of being collected in respect of interest coupons or
securities matured or called for redemption prior to maturity, (2) the value of
each class of the Securities in the Trust and (3) any and all other assets and
liabilities of the Trust as determined in accordance with generally accepted
accounting principles consistently applied.
(c) Except as provided in (d) below, for each determination of the
net asset value of the Trust, the value of each class of Securities shall be
based on current valuations obtained from one or more Approved Pricing Services,
selected in good faith by the Trustee, that value the Securities using an
Approved Pricing Methodology. If, for any determination of net asset value, the
Trustee obtains valuations with respect to the same class of Securities from
more than one Approved Pricing Service, the value of those Securities shall be
the arithmetic average of the valuations so obtained. Notwithstanding the
foregoing, however, in connection with any determination of the net asset value
of the Trust that is not made as of a day on which redemption of any Unit is
properly requested, the Trustee may utilize the most recent valuation of the
Securities constituting the Residual Certificates obtained in accordance with
the first sentence of this paragraph, provided that (1) such valuation is not
more than twelve months old and (2) the Trustee believes in good faith that any
change in the value of that class of Securities since the date of the most
recent valuation would not result in a material change in the net asset value of
the Trust.
(d) Notwithstanding the foregoing procedures for determining the net
asset value of the Trust, the determination of the Trust's net asset value as of
the Date of Deposit shall be based on the Trustee's good faith evaluation of the
value of the Securities held in the Trust, plus the amount of any cash held in
the Trust.
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SECTION 4.02. REDEMPTIONS BY TRUSTEE; PURCHASES BY DEPOSITOR: All
Unitholders must make their redemption requests in writing to the Trustee at the
Trustee's Office and may do so by completing the form set forth as Appendix C to
this Indenture. Any proper request for redemption made in the manner provided
for above shall be effected by the Trustee on the Redemption Date. Subject to
payment by any redeeming Unitholder of any tax or other governmental charges
that may be imposed thereon, such redemption is to be made by payment on the
Redemption Date of the Redemption Price. Unit redemption requests received by
the Trustee on any day after an Evaluation Time will be treated by the Trustee
as received on the next day on which both the Trustee and the Registrar and
Paying Agent are open for business and will be deemed to have been received on
such day for redemption at the Redemption Price computed on that day.
If a proper request for redemption is made as provided in this Section
4.02, the Trustee may in its discretion, and shall when so directed by the
Depositor, suspend the right of redemption for Units or postpone the date of
payment of the Redemption Price beyond the Redemption Date: (1) for any period
during which the New York Stock Exchange is closed other than customary weekend
and holiday closings or during which trading on the New York Stock Exchange is
restricted; (2) for any period during which an emergency exists as a result of
which disposal by the Trust of the Securities is not reasonably practicable or
it is not reasonably practicable fairly to determine in accordance herewith the
value of the Securities; or (3) for such other period as the Securities and
Exchange Commission may by order permit, and shall not be liable to any person
or in any way for any loss or damage that may result from any such suspension or
postponement.
Not later than the close of business on the day a proper request for
redemption in the manner provided for in this Section 4.02 by a Unitholder other
than the Depositor is received, the Trustee shall notify the Depositor of such
request. The Depositor shall have the right to purchase such Units by notifying
the Trustee of its election to make such purchase as soon as practicable
thereafter but in no event subsequent to the close of business on the day on
which the request for redemption of such Units was received. Such purchase shall
be made by payment for such Units by the Depositor to the Unitholder not later
than the close of business on the Redemption Date of an amount equal to the
Redemption Price that would otherwise be payable by the Trustee to such
Unitholder.
Any Unit so purchased by the Depositor may at its option be tendered to
the Trustee for redemption at the Trustee's Office in the manner provided in the
first paragraph of this Section 4.02.
If the Depositor does not elect to purchase a Unit or Units tendered to
the Trustee for redemption, or if a Unit or Units are tendered by the Depositor
for redemption, that portion of the Redemption Price that represents
undistributed interest shall be withdrawn from the Interest Account to the
extent available and applied as payment of the Redemption Price. The balance to
be paid on any redemption shall be withdrawn from the Principal Account to the
extent that funds are available for such purpose and applied as payment of the
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Redemption Price. If moneys in the Principal Account are insufficient, the
Trustee shall sell such of the Securities held in the Trust currently designated
for such purposes by the Depositor as the Trustee in its sole discretion shall
deem necessary and shall apply the proceeds as payment of the Redemption Price.
Given the minimum principal amount in which certain Securities may be required
to be sold, the proceeds of such sales may exceed the amount necessary for
payment of Units redeemed. Such excess proceeds shall be distributed pro rata to
all remaining Unitholders of record.
The Depositor shall maintain with the Trustee a current list of Securities
held in the Trust designated to be sold for the purpose of redemption of Units
and not purchased by the Depositor, provided that if the Depositor for any
reason fails to maintain such a list, the Trustee, in its sole discretion, may
designate a current list of Securities for such purposes. The net proceeds of
any sales of Securities from such list representing principal shall be credited
to the Principal Account and the proceeds of such sales representing accrued
interest, if any, but not accrued original issue discount, if any, shall be
credited to the Interest Account.
Sales of Securities shall be made in the manner the Trustee determines
will bring the best price obtainable for the Trust, provided, however, that
sales shall be made in the manner the Trustee determines, will provide the
Trustee with funds in an amount sufficient and at the time necessary in order
for it to pay the Redemption Price of Units tendered for redemption, regardless
of whether or not a better price could be obtained if the Securities were sold
without regard for the day on which the proceeds of such sale would be received.
The Trustee shall not be liable or responsible in any way for depreciation or
loss incurred by reason of any sale of Securities made pursuant to this Section
4.02.
The amount recorded in the registration books of the Trust (or if directed
by the Trustee, the books and records of the Registrar and Paying Agent)
representing Units redeemed pursuant to this Section 4.02 shall be canceled by
the Trustee (or the Registrar and Paying Agent at the direction of the Trustee)
and the Unit or Units evidenced by such records shall be terminated by such
redemptions.
When directed by the Depositor, the Trustee shall employ the Depositor as
its agent for the purpose of executing the sale of Securities. The Depositor
will verify the Trust's ownership of any Security prior to entering into a
contract for its sale. The Trustee shall have no liability for loss or
depreciation resulting from the Depositor's negligence or misconduct as such
agent.
SECTION 4.03. TRANSFER OF UNITS: The Units are offered under an exemption
from registration under the Securities Act of 1933 and therefore may not be
transferred to any person other than the Depositor without an opinion of counsel
to the Trustee to the effect that the transfer can be made without registration
under that Act. Upon receipt by the Trustee at the Trustee's Office of a written
instrument or instruments of transfer in a form satisfactory to the Trustee and
executed by the Unitholder or his authorized attorney, together with the opinion
referred to in the first sentence of this Section 4.03, the Trustee (or if
directed by the Trustee, the Registrar and Paying Agent) shall register the
transferred Units in the name of the transferee. If the Units are registered
under the Securities Act of 1933 pursuant to Section 7.07, the above-referenced
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opinion shall not be required in order for the Trustee (or if directed by the
Trustee, the Registrar and Paying Agent) to effect the transfer of Units. The
Trustee shall treat the person in whose name any Unit is registered upon the
books of the Trust as the owner of such Unit for all purposes hereunder, and the
Trustee shall not be affected by any notice to the contrary, nor be liable to
any person or in any way for so deeming and treating the person in whose name
any Unit shall be so registered.
A sum sufficient to pay any tax or other governmental charge that may be
imposed in connection with any such transfer shall be paid by the Unitholder to
the Trustee.
All Units canceled pursuant to this Indenture shall be disposed of by the
Trustee without liability on its part.
SECTION 4.04. COMPENSATION OF DEPOSITOR: For services performed under this
Indenture in evaluating and for maintaining surveillance over the Securities in
the Trust and other services performed at the Trustee's request, the Depositor
shall be paid by NationsBank, N.A. in such amounts as the two parties shall
agree.
ARTICLE V
TRUSTEE
SECTION 5.01. TRUSTEE'S LIABILITIES, RIGHTS AND DUTIES: The Trustee
shall in its discretion undertake such action as it may deem necessary at any
and all times to protect the Trust and the rights and interests of the
Unitholders pursuant to the terms of this Indenture, provided, however, that the
expenses and costs of such actions, undertakings or proceedings shall be paid by
NationsBank, N.A. In addition to and notwithstanding the other duties, rights,
privileges and liabilities of the Trustee as otherwise set forth herein, the
liabilities, rights and duties of the Trustee are further defined as follows:
(a) The Trustee shall be under no liability for any action taken in
good faith on any appraisal, paper, order, list, demand, request, consent,
affidavit, notice, opinion, direction, evaluation, endorsement, assignment,
resolution, draft or other document whether or not of the same kind prima facie
properly executed, or for the disposition of moneys, Securities, or Units
pursuant to this Indenture, or in respect of any evaluation which it is required
to make or is required or permitted to have made by others under this Indenture
or otherwise, except by reason of its own negligence, lack of good faith or
willful misconduct, provided that the Trustee shall not in any event be liable
or responsible for any evaluation made by the Depositor. The Trustee may
construe any of the provisions of this Indenture, insofar as the same may appear
to be ambiguous or inconsistent with any other provisions hereof, and any
construction of any such provisions hereof by the Trustee in good faith shall be
binding upon the parties hereto.
(b) The Trustee shall not be responsible for or in respect of the
recitals herein, the validity or sufficiency of this Indenture or for the due
execution hereof by the Depositor, and the Trustee shall in no event assume or
incur any liability, duty or obligation to any Unitholder or the Depositor other
than as expressly provided for herein. The Trustee shall not be responsible for
or in respect of the validity of any signature by or on behalf of the Depositor.
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(c) The Trustee shall not be under any obligation to appear in,
prosecute or defend any action, that in its opinion may involve it in expense or
liability, unless as often as required by the Trustee, it shall be furnished
with reasonable security and indemnity against such expense or liability, and
any pecuniary cost of the Trustee from such actions shall be paid by
NationsBank, N.A. The Trustee shall in its discretion undertake such action as
it may deem necessary at any and all times to protect the Trust and the rights
and interests of the Unitholders pursuant to the terms of this Indenture;
provided, however, that the expenses and costs of such actions, undertakings or
proceedings shall be paid by NationsBank, N.A.
(d) The Trustee may employ attorneys, accountants, auditors and
other agents and shall not be answerable for the default or misconduct of any
attorneys, accountants, auditors and other agents if they have been selected
with reasonable care. The Trustee may employ a Registrar and Paying Agent and
sub-trustees and shall be answerable for the default or misconduct of any such
Registrar or Paying Agent or sub-trustee as if it committed such action or
omissions itself. The Trustee shall be fully protected in respect of any action
under this Indenture taken, or suffered, in good faith by the Trustee, in
accordance with the opinion of its counsel. The fees and expenses charged by
such Registrar and Paying Agent, attorneys, accountants, auditors or other
agents excluding the sub-trustee shall be paid by NationsBank, N.A. Any
sub-trustee shall be compensated as provided in Section 5.04.
(e) If at any time the Depositor fails to undertake or perform any
of the duties that by the terms of this Indenture are required to be undertaken
or performed by it, or the Depositor becomes incapable of acting or is adjudged
a bankrupt or insolvent, or a receiver of the Depositor or of its property is
appointed, or any public officer takes charge or control of the Depositor or of
its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then in any such case, the Trustee may (1) remove such Depositor
and appoint a successor Depositor who shall act hereunder in all respects in
place of the Depositor, which successor shall be paid by NationsBank, N.A. such
amounts as the parties may agree or (2) terminate and liquidate the Trust in the
manner provided in Section 7.02.
(f) In no event shall the Trustee be liable for any taxes or other
governmental charges imposed upon or in respect of the Securities or upon the
interest thereon or upon it as Trustee hereunder or upon or in respect of the
Trust that it may be required to pay under any present or future law of the
United States or of any other taxing authority having jurisdiction in the
premises. The Trust shall be reimbursed and indemnified by NationsBank, N.A. for
all such taxes and charges and for any expenses, including counsel fees, that
the Trust may sustain or incur with respect to such taxes or charges.
(g) Notwithstanding anything in this Indenture to the contrary, no
payment to the Depositor or to any principal underwriter (as defined in the
Investment Company Act of 1940, as amended) for the Trust or to any affiliated
person (as so defined) or agent of the Depositor or such underwriter shall be
allowed the Trustee as an expense except for payment of such reasonable amounts
as the Securities and Exchange Commission may prescribe as compensation for
performing bookkeeping and other administrative services of a character normally
performed by the Trustee.
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(h) The Trustee, except by reason of its own negligence or willful
misconduct, shall not be liable for any action taken or suffered to be taken by
it in good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture.
SECTION 5.02. BOOKS, RECORDS AND REPORTS; REGISTER OF SHARES: The Trustee
shall, or may instruct the Registrar and Paying Agent to, keep proper books of
record and account of all the transactions of the Trust. Such books of record
shall include a register of the name and address of every Unitholder and of the
number of Units held by them and a record of all transfers and redemptions
thereof. Such register shall be conclusive evidence as to who are the holders of
Units and are entitled to receive payment of any distributions or otherwise to
exercise or enjoy the rights of Unitholders. Such books of record shall be
deemed to belong to the Trust. Upon reasonable notice from a Unitholder, such
books and records of the Trust shall be open to inspection at the Trustee's
Office by any Unitholder at all reasonable times during the Trustee's usual
business hours. The Trustee shall cause audited statements as to the assets and
income of the Trust to be prepared on an annual basis by independent public
accountants selected by the Depositor.
The Trustee shall make such annual or other reports as may from time to
time be required under any applicable state or federal statute or rule or
regulation thereunder.
SECTION 5.03. INDENTURE AND LIST OF SECURITIES ON FILE: The Trustee shall
keep a certified copy or duplicate original of this Indenture on file in the
Trustee's Office available for inspection at all reasonable times during the
Trustee's usual business hours by any Unitholder, together with a current list
of the Securities in the Trust.
SECTION 5.04. COMPENSATION: For services performed under this Indenture,
the Trustee agrees to waive its fees. The Trustee shall pay any sub-trustee or
successor trustee that does not agree to waive its fees the market rate for the
services the sub-trustee or successor trustee provide to the Trust. NationsBank,
N.A. also shall pay for any and all expenses of the Trust as expressly set forth
in this Indenture, including but not limited to, the fees of counsel retained by
the Trustee in connection with its activities hereunder and disbursements
incurred hereunder and any extraordinary services performed by the Trustee
hereunder relating to the Trust. The Trustee shall be indemnified by
NationsBank, N.A. and held harmless against any loss or liability accruing to it
without negligence, bad faith or willful misconduct on its part, arising out of
or in connection with the acceptance or administration of the Trust, including
the costs and expenses (including counsel fees) of defending itself against any
claim of liability in the premises. If the Trustee does not pay any sub-trustee
or successor trustee the amounts that it agreed to pay, then the sub-trustee or
successor trustee shall be compensated from cash available in the Interest
Account and then the Principal Account. If the cash balances in the Interest and
Principal Accounts are insufficient to provide for amounts payable pursuant to
this Section 5.04, the Trustee shall have the power to sell (i) Securities of
the Trust from the current list of Securities designated to be sold pursuant to
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Section 4.02 hereof or (ii) if no such Securities have been so designated, such
Securities of the Trust as the Trustee may see fit to sell in its own
discretion, and to apply the proceeds of any such sale in payment of the amounts
payable pursuant to this Section 5.04. The Trustee shall not be liable or
responsible in any way for depreciation or loss incurred by reason of any sale
of Securities made pursuant to this Section 5.04. Any moneys payable to any
sub-trustee or successor trustee pursuant to this Section shall be secured by a
prior lien on the Trust.
SECTION 5.05. REMOVAL AND RESIGNATION OF TRUSTEE; SUCCESSOR:
(a) The Trustee may resign and be discharged of the trust created by
this Indenture, by executing an instrument in writing resigning as Trustee and
filing the same with the Depositor and mailing a copy thereof to all Unitholders
then of record, not less than sixty days before the date specified in such
instrument when, subject to Section 5.05(e), such resignation is to take effect.
Upon receiving such notice of resignation, the Depositor shall promptly appoint
a successor Trustee as hereinafter provided, by written instrument, in
duplicate, one copy of which shall be delivered to the resigning Trustee and one
copy to the successor Trustee. If at any time the Trustee becomes incapable of
acting, or is adjudged a bankrupt or insolvent, or a receiver of the Trustee or
of its property is appointed, or any public officer takes charge or control of
the Trustee or of its property or affairs for the purposes of rehabilitation,
conservation or liquidation, then in any such case the Depositor may (or if the
Trustee is not re-elected pursuant to Section 6.02(c) shall) remove the Trustee
and appoint a successor Trustee by written instrument, in duplicate, one copy of
which shall be delivered to the Trustee so removed and one copy to the successor
Trustee; provided that a copy of such instrument is mailed by the Depositor to
each Unitholder then of record.
(b) Any successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Depositor and to the resigning or removed Trustee
an instrument accepting such appointment, and such successor Trustee without any
further act, deed or conveyance shall become vested with all the rights, powers,
duties and obligations of its predecessor hereunder with like effect as if
originally named Trustee herein and shall be bound by all the terms and
conditions of this Indenture. Upon the request of such successor Trustee, the
Depositor and the retiring Trustee shall, upon payment of any amounts due the
retiring Trustee, or provision therefor to the satisfaction of such retiring
Trustee, execute and deliver an instrument acknowledged by it transferring to
such successor Trustee all the rights and powers of the retiring Trustee; and
the retiring Trustee shall transfer, deliver and pay over to the successor
Trustee all Securities and moneys at the time held by it hereunder, together
with all necessary instruments of transfer and assignment or other documents
properly executed necessary to effect such transfer and such of the records or
copies thereof maintained by the retiring Trustee in the administration hereof
as may be requested by the successor Trustee, and shall thereupon be discharged
from all duties and responsibilities under this Indenture.
(c) In case at any time the Trustee resigns and no successor Trustee
has been appointed and accepted appointment within thirty days after notice of
resignation has been received by the Depositor, the retiring Trustee may
forthwith apply to a court of competent jurisdiction for the appointment of a
successor Trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, appoint a successor Trustee.
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<PAGE>
(d) Any corporation into which any Trustee hereunder may be merged
or with which it may be consolidated, or any corporation resulting from any
merger or consolidation to which any Trustee hereunder shall be a party, shall
be the successor Trustee under this Indenture without the execution or filing of
any paper, instrument or further act to be done on the part of the parties
hereto, anything herein, or in any agreement relating to such merger or
consolidation, by which any such Trustee may seek to retain certain powers,
rights and privileges theretofore obtaining for any period of time following
such merger or consolidation, to the contrary notwithstanding.
(e) Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to this Section shall not become effective until
acceptance of appointment by the successor trustee as provided in subsection (b)
or (c) hereof.
SECTION 5.06. QUALIFICATIONS OF TRUSTEE: The Trustee, any sub-trustee and
any successor Trustee or sub-trustee shall be a corporation organized and doing
business under the laws of the United States or any state thereof, which is
authorized under such laws to exercise corporate trust powers and having at all
times an aggregate capital, surplus and undivided profits of not less than
$50,000,000.
ARTICLE VI
RIGHTS OF UNITHOLDERS
SECTION 6.01. BENEFICIARIES OF TRUST: By the purchase or acceptance
of any Unit a Unitholder shall be deemed to have assented to and to be bound
by the terms and conditions of this Indenture.
SECTION 6.02. RIGHTS, TERMS AND CONDITIONS: In addition to the other
rights and powers set forth in the other provisions and conditions of this
Indenture, the Unitholders shall have the following rights and powers and shall
be subject to the following terms and conditions:
(a) A Unitholder may at any time prior to the termination of the
Trust tender his Units to the Trustee for redemption in accordance with Section
4.02.
(b) The death or incapacity of any Unitholder shall not operate to
terminate this Indenture or the Trust, nor entitle his legal representatives or
heirs to claim an accounting or to take any action or proceeding in any court of
competent jurisdiction for a partition or winding up of the Trust, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or any of
them. Each Unitholder expressly waives any right he may have under any rule of
law, or the provisions of any statute, or otherwise, to require the Trustee at
any time to account, in any manner other than as expressly provided in this
Indenture, in respect of the Securities or moneys from time to time received,
held and applied by the Trustee hereunder.
(c) No Unitholder shall have any right to vote or in any manner
otherwise control the operation and management of the Trust or the obligations
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<PAGE>
of the parties hereto, provided that Unitholders shall have the right to elect
the Trustee annually. Such election will be held each February, upon 30 days'
written notice to Unitholders. The written notice shall set forth the material
information regarding the Trustee and the Trust and the mechanics for voting the
Units. If the Trustee is not re-elected, the Depositor shall remove the Trustee
pursuant to Section 5.05. Notwithstanding the foregoing, nothing herein shall be
construed so as to constitute the Unitholders from time to time as partners or
members of an association; nor shall any Unitholder ever be under any liability
to any third persons by reason of any action taken by the parties to this
Indenture, or any other cause whatsoever.
ARTICLE VII
ADDITIONAL COVENANTS; MISCELLANEOUS PROVISIONS
SECTION 7.01. AMENDMENTS: This Indenture may be amended from time to time
by the parties hereto or their respective successors, without the consent of any
of the Unitholders (a) to cure any ambiguity or to correct or supplement any
provision contained herein that may be defective or inconsistent with any other
provision contained herein or (b) to make other provision in regard to matters
or questions arising hereunder that does not adversely affect in any material
respect the interests of the Unitholders; provided, however, that the parties
hereto may not amend this Indenture so as to (1) increase the number of Units
issuable hereunder above the amount issued pursuant to Section 2.03, or such
lesser amount as may be outstanding at any time during the term of this
Indenture, or (2) subject to Section 3.12, permit the deposit or acquisition
hereunder of obligations or other securities either in addition to or in
substitution for any of the Securities.
Promptly after the execution of any such amendment the Trustee shall
furnish written notification to all the outstanding Unitholders of the substance
of such amendment.
SECTION 7.02. TERMINATION: The Trust shall terminate upon the maturity,
redemption, sale or other disposition as the case may be of the last Security
held in the Trust, unless sooner terminated as hereinbefore specified, and may
be terminated at any time by the written consent of all of the Unitholders;
provided that, in no event shall the Trust continue beyond the Mandatory
Termination Date. Written notice of any termination shall be given by the
Trustee, or the Trustee shall cause the Registrar and Paying Agent to give
notice, to each Unitholder at his address appearing on the registration books of
the Trustee. Within a reasonable period of time after the termination of the
Trust, the Trustee shall fully liquidate the Securities of the Trust then held,
if any, and shall:
(a) distribute to each Unitholder such holder's pro rata share of
the balance of the Interest Account;
(b) distribute to each Unitholder such Unitholder's pro rata share
of the balance of the Principal Account; and
(c) furnish, or cause the Registrar and Paying Agent to furnish, to
each such Unitholder a final distribution statement as of the date of the
-20-
<PAGE>
computation of the amount distributable to Unitholders, setting forth the data
and information in substantially the form and manner provided for in Section
3.05.
The amounts to be so distributed to each Unitholder shall be the pro rata
shares of the balances of the Interest and Principal Accounts, respectively,
represented by such Unitholder's Units.
The Trustee shall be under no liability with respect to moneys held by it
in the Interest and Principal Accounts upon termination except to hold the same
in trust without interest until disposed of in accordance with the terms of this
Indenture.
SECTION 7.03. CONSTRUCTION: This Indenture is executed and delivered in
the State of New York, and all laws or rules of construction of such State shall
govern the rights of the parties hereto and the Unitholders and the
interpretation of the provisions hereof.
SECTION 7.04. WRITTEN NOTICE: Any notice, demand, direction or instruction
to be given to the Depositor hereunder shall be in writing and shall be duly
given if mailed or delivered to the Depositor at 100 West Liberty Street, Suite
650, Reno, NV 89501, with a copy to Andrea B. Goldenberg, Legal Department, Bank
of America Corporate Center, 100 North Tryon Street, Charlotte, NC 28255,
NC1-007-20-01, or at such other address as shall be specified by the Depositor
to the Trustee in writing. Any notice, demand, direction or instruction to be
given to the Trustee herein shall be in writing and shall be duly given if
mailed or delivered to the Trustee's Office or such other address as shall be
specified to the Depositor by the Trustee in writing. Any notice to be given to
the Unitholders shall be duly given if mailed or delivered to each Unitholder at
his address appearing on the registration books of the Trustee.
SECTION 7.05. SEVERABILITY: If any covenant, agreement, provision or term
of this Indenture is held contrary to any express provision of law or contrary
to policy of express law, though not expressly prohibited, or against public
policy, or for any reason whatsoever is held invalid, then such covenant,
agreement, provision or term shall be deemed severable from the remaining
covenants, agreements, provisions and terms of this Indenture and shall in no
way affect their validity or enforceability or the rights of the Unitholders.
SECTION 7.06. DISSOLUTION OF DEPOSITOR NOT TO TERMINATE INDENTURE OR
TRUST: The dissolution of the Depositor from or for any cause whatsoever shall
not operate to terminate this Indenture or the Trust insofar as the duties and
obligations of the Trustee are concerned.
SECTION 7.07. REGISTRATION OF UNITS: The Depositor may elect to cause the
Units to be registered under the Securities Act of 1933. Upon such election, the
Depositor shall give written notice ("Notice") to all Unitholders of its
intention to effect such registration, which Notice shall specify the procedures
such Unitholders shall follow. The Depositor shall direct the Trust in effecting
the registration of the Units. NationsBank, N.A. shall bear the expenses of such
registration. The Depositor and/or the Trustee is authorized to sign the
registration statement on behalf of the Trust for any such registration.
-21-
<PAGE>
SECTION 7. 08. LIMITATION OF LIABILITY: No Unitholder (in its
capacity as Unitholder) shall be liable for any obligations, debts or claims
assumed by, or asserted against, the Trust. The Trustee shall notify any
party to whom the Trust has, or in the future may have, any obligation or
debt of the existence of this provision.
SECTION 7. 09. SUCCESSORS TO NATIONBANK, N.A. Any corporation into
which NationsBank, N.A. may be merged or with which it may be consolidated,
or any corporation resulting from any merger or consolidation to which
NationsBank, N.A. shall be a party shall automatically replace NationsBank,
N.A. as party to this Indenture and shall be required to fulfill all of the
duties of NationsBank, N.A. under this Indenture without the execution or
filing of any paper, instrument or further act to be done on the part of the
parties hereto.
IN WITNESS WHEREOF, the Depositor, the Trustee, and NationsBank, N.A. have
caused this Indenture to be executed by its duly authorized officers as of the
date first above written.
AMADEO, INC., Depositor
By: /s/ Brent Anderson
-----------------------------------
Brent Anderson
Senior Vice President
NATIONSBANK, N.A., Trustee
By: /s/ Suzanne W. Castleberry
-----------------------------------
Suzanne W. Castleberry
Vice President
-22-
<PAGE>
NATIONSBANK, N.A., in its individual
capacity
By: /s/ Paulette M. Mehas
-----------------------------------
Paulette M. Mehas
Vice President
-23-
<PAGE>
APPENDIX A
MONTHLY DISTRIBUTION STATEMENT
------------------------------
[DATE]
ChaseMellon Shareholder Services L.L.C.
235 Montgomery Street
23rd Floor
San Francisco, California 94104
To ChaseMellon Shareholder Services L.L.C.:
Pursuant to Section 3.05 of the Trust Indenture and Agreement dated June
30, 1999 among Amadeo, Inc., as Depositor, NationsBank, N.A., as Trustee, and
NationsBank, N.A., in its individual capacity ("Trust Agreement"), below are the
amounts being distributed on [SPECIFIC DATE] from the Principal and Interest
Accounts of Amadeo Trust, a trust organized under the laws of the State of New
York on June 30, 1999.
When you distribute to each Unitholder its pro rata share of the Interest
or Principal Accounts, please provide to each Unitholder a statement of the per
unit dollar amount being distributed for each Account.
Per Unit Distributions Per Unit Distributions
from from
Interest Account Principal Account
- -------------------------------------------------------------
$ $
Capitalized terms used in this letter and not otherwise defined have the
meanings established in the Trust Agreement.
<PAGE>
APPENDIX B
ANNUAL DISTRIBUTION STATEMENT
-----------------------------
AMADEO TRUST
ANNUAL REPORT
To the holders of:
AMADEO TRUST
In accordance with the terms of the Trust Indenture and Agreement,
NationsBank, N.A., as trustee, submits the following statement for calendar year
ended as of December 31, [ ].
INTEREST ACCOUNT
1. Interest Received on Securities $
2. Less--
(A) Interest paid pursuant to $
Section 3.04
(See Schedule 1)
(B) To Unitholders upon redemption $
of Units
pursuant to Section 4.02
(C) Fees and Expenses for Trustees and $______ $_____
Miscellaneous
3. Plus balance in account as of close $_____
of preceding year
4. Available for distribution $_____
5. Balance on hand $
6. Per Unit Value-- (BAL. ON HAND-- UNITS $
OUTSTANDING)
<PAGE>
PRINCIPAL ACCOUNT
1. Balance in account as of close of preceding year $
year
2. Less-- Principal Paid: Unit Redemptions $
3. Plus Proceeds of obligations eliminated - $
(SEE SCHEDULE 2 FOR LIST AND REASON FOR
ELIMINATION)
4. Plus Payment of principal on securities
$-----------
5. Available for distribution $
6. Less distributions made during year - $
(SEE SCHEDULE 1)
7. Less amounts paid for purchases of $
replacement securities
8. Less amounts paid for purchases of
reinvestment securities $____________
9. Balance on Hand $
10. Per Unit Value (BAL. ON HAND - UNITS $
OUTSTANDING )
PORTFOLIO AS OF DECEMBER 31, [_____]
PAR VALUE
AMOUNT HELD DESCRIPTION OF SECURITIES COUPON MATURITY DATE
PRINCIPAL AMOUNT OF SECURITIES ON DEPOSIT ____________
TOTAL UNITS OUTSTANDING ____________
VALUE OF EACH UNIT AS OF _________ ____________
<PAGE>
SCHEDULE 1
PRINCIPAL ACCOUNT
DISTRIBUTIONS PER UNIT DURING 1999:
PAYABLE DATE MONTHLY DISTRIBUTIONS TOTAL
PER UNIT DISTRIBUTIONS
$ $
$ $
$ $
$ $
$ $
$ $
------------------- --------------
TOTAL $ $
INTEREST ACCOUNT
DISTRIBUTIONS PER UNIT DURING 1999:
PAYABLE DATE MONTHLY DISTRIBUTIONS TOTAL
PER UNIT DISTRIBUTIONS
$ $
$ $
$ $
$ $
$ $
$ $
------------------- --------------
TOTAL $ $
<PAGE>
SCHEDULE 2
SECURITIES REMOVED FROM PORTFOLIO
DATE OF SALE, DESCRIPTION OF SECURITIES REASON PAR VALUE NET
MATURITY, PROCEEDS
LIQUIDATION OR (EXCLUDING
REDEMPTION AMOUNTS
CREDITED
TO
INTEREST
ACCOUNT)
<PAGE>
APPENDIX C
REDEMPTION FORM
---------------
NATIONSBANK, N.A.
NC1-007-19-02
100 NORTH TRYON STREET
CHARLOTTE, NC 28255
ATTN: SPECIALTY ACCOUNTING
[DATE]
----------------------
To NationsBank, N.A.:
I am a Unitholder in Amadeo Trust, a trust formed under the laws of the
State of New York on June 30, 1999, writing to request a redemption. Pursuant to
the Section 4.02 of the Trust Indenture and Agreement dated June 30, 1999 among
Amadeo, Inc., as Depositor, NationsBank N.A., as Trustee, and NationsBank, N.A.,
in its individual capacity ("Trust Agreement"), below is the requisite
information:
(a) My tax identification number is:
(b) My name and address is:
(c) Please redeem [INSERT NUMBER]of Units and send the redemption
proceeds:
by [mail to the address above]
[wire PLEASE COMPLETE ACCOUNT INFORMATION]
Capitalized terms used in this letter and not otherwise defined have the
meanings established in the Trust Agreement.
-----------------------------
Name
Date:
Signature Notarized
Exhibit 2
ADMINISTRATIVE SERVICES AGREEMENT
This ADMINISTRATIVE SERVICES AGREEMENT, dated as of June 30, 1999 (as from
time to time amended, supplemented or otherwise modified and in effect, this
"Agreement"), is by and between NationsBank, N.A., as trustee of Amadeo Trust
(the "Trustee"), and U.S. Bank National Association, as administrative agent
(the "Administrative Agent").
WHEREAS, the Trustee is a party to the Trust Indenture and Agreement dated
as of June 30, 1999 between Amadeo, Inc. as Depositor, and NationsBank, N.A., as
Trustee (the "Trust Agreement");
WHEREAS, the Trustee desires to have the Administrative Agent perform
certain duties of the Trustee under the Trust Agreement and to provide such
additional services consistent with the terms of this Agreement and the Trust
Agreement as the Trustee may from time to time request; and
WHEREAS, the Administrative Agent has the capacity to provide the services
required hereby and is willing to perform such services for the Trustee on the
terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto, intending to be legally bound, agree
as follows:
Section 1. DEFINITIONS AND USAGE. Except as otherwise specified herein or
as the context may otherwise require, capitalized terms used but not otherwise
defined herein are defined in the Trust Agreement, which also contain rules as
to usage that shall be applicable herein.
Section 2. DUTIES OF THE ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall take such actions as are required to be
taken by the Trustee with respect to the following matters under the Trust
Agreement (references are to sections of the Trust Agreement):
(i) obtain the pricing of the Notes and the Class B Certificates,
calculating the market value of the Notes and Class B Certificates on the
basis of such pricing and furnishing such information (showing the
calculations therefor in reasonable detail) to the Trustee (Section 4.01);
(ii) the holding of the Securities in the Trust as custodian
(Section 2.01);
(iii) the holding of the Interest Account and the Principal Account
and the investment of funds therein in interim investments (Sections 3.02
and 3.03);
<PAGE>
(iv) the furnishing of prompt written notice to the Depositor of all
amounts credited to or withdrawn from the Principal Account and the
balance in such account after giving effect to such credit or withdrawal
(Section 3.03);
(v) the making of distributions to the Registrar and Paying Agent
(Section 3.04); and
(vi) the calculation of the amount to be distributed from the
Interest Account and the Principal Account per Unit of the Trust, and the
furnishing of such information to the Registrar and Paying Agent (Section
3.05).
(b) The Administrative Agent, as co-paying agent with the Registrar and
Paying Agent, shall retain, with respect to distributions pursuant to Section
3.04 of the Trust Agreement, the portion thereof due to Amadeo, Inc. and pay
such amounts directly to Amadeo, Inc. on the applicable Distribution Date.
Amounts distributed to Amadeo, Inc. shall be paid by wire transfer to the
following account:
Amadeo Inc.
DDA account number 000659795264
ABA number 053000196
Bank NationsBank, N.A.
City Charlotte
State North Carolina
or such other account identified in a notice from the Trustee to the
Administrative Agent. The contact person at the Registrar and Paying agent
is
Chase Mellon
Sharon Magidson
Tel: 415-743-1422
Fax: 415-989-5241
or such other person identified by the Trustee in a notice to the
Administrative Agent.
(c) In carrying out the foregoing duties or any of its other obligations
under this Agreement, the Administrative Agent may enter into transactions or
otherwise deal with any of its Affiliates; provided, however, that the terms of
any such transactions or dealings shall be in accordance with any directions
received from the Trustee and shall be, in the Administrative Agent's opinion,
as applicable, no less favorable to the Trust than would be available from
unaffiliated parties.
Section 3. DUTY OF TRUSTEE, FEE. The Trustee hereby informs the
Administrative Agent that the initial number of Units is 9,000,000, of which
9,000,000 are owned by Amadeo Inc. The Trustee shall promptly inform the
Administrative Agent of any decrease in the number of Units and the number of
2
<PAGE>
Units owned by Amadeo Inc. The Trustee will pay the Administrative Agent the fee
set forth in a separate side letter.
Section 4. RECORDS. The Administrative Agent shall maintain appropriate
books of account and records relating to services performed hereunder, which
books of account and records shall be accessible for inspection by the Trustee
and any Unitholder at any time during normal business hours.
Section 5. PROTECTIONS OF ADMINISTRATIVE AGENT. With respect to its
duties hereunder, the Administrative Agent shall be entitled to the same
protections afforded the Indenture Trustee under the Indenture dated as of June
1, 1999 between Bank of America Auto Owner Trust 1999-A and U.S. Bank National
Association, as Indenture Trustee.
Section 6. ADDITIONAL INFORMATION TO BE FURNISHED TO THE TRUSTEE. The
Administrative Agent shall furnish to the Trustee from time to time such
additional information regarding the assets of the Trust and within the
Administrative Agent's knowledge as the Trustee shall reasonably request.
Section 7. INDEPENDENCE OF THE ADMINISTRATIVE AGENT. For all purposes of
this Agreement, the Administrative Agent shall be an independent contractor and
shall not be subject to the supervision of the Trustee with respect to the
manner in which it accomplishes the performance of its obligations hereunder.
Unless expressly authorized by the Trustee, the Administrative Agent shall have
no authority to act for or represent the Trust or the Trustee in any way and
shall not otherwise be deemed an agent of the Trust or the Trustee.
Section 8. NO JOINT VENTURE. Nothing contained in this Agreement, with
respect to the Administrative Agent, the Trust or the Trustee (i) shall confer
on any of them status as members of any partnership, joint venture, association,
syndicate, unincorporated business or other separate entity, (ii) shall be
construed to impose any liability as such on any of them or (iii) shall be
deemed to confer on any of them any express, implied or apparent authority to
incur any obligation or liability on behalf of the others.
Section 9. OTHER ACTIVITIES OF ADMINISTRATIVE AGENT. Nothing herein shall
prevent any of the Administrative Agent or its Affiliates from engaging in other
businesses or, in its sole discretion, from acting in a similar capacity as an
Administrative Agent for any other person or entity even though such person or
entity may engage in business activities similar to those of the Trust or the
Trustee.
Section 10. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATIVE
AGENT.
(a) This Agreement shall continue in force until the dissolution of the
Trust, upon which event this Agreement shall automatically terminate.
3
<PAGE>
(b) Subject to paragraph (e) of this Section 10, the Administrative Agent
may resign its duties hereunder by providing the Trustee with at least sixty
(60) days' prior written notice. If a successor Administrative Agent does not
take office within sixty (60) days after the retiring Administrative Agent
resigns or is removed, the retiring Administrative Agent may petition any court
of competent jurisdiction for the appointment of a successor Administrative
Agent.
(c) Subject to paragraph (e) of this Section 10, the Trustee may remove
the Administrative Agent without cause by providing the Administrative Agent
with at least sixty (60) days' prior written notice.
(d) Subject to paragraph (e) of this Section 10, at the sole option of the
Trustee, the Administrative Agent may be removed immediately upon written notice
of termination from the Trustee to the Administrative Agent if any of the
following events shall occur:
(i) the Administrative Agent shall default in the performance of any
of its duties under this Agreement and, after receiving notice of such
default, shall not cure such default within ten (10) days (or, if such
default cannot be cured in such time, shall not give, within ten (10)
days, such assurance of cure as shall be reasonably satisfactory to the
Trustee);
(ii) the entry of a decree or order by a court or agency or
supervisory authority of competent jurisdiction for the appointment of a
conservator, receiver, liquidator or trustee for the Administrative Agent
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets
and liabilities, or similar proceedings, or for the winding up or
liquidation of its affairs, and any such decree or order continues
unstayed and in effect for a period of sixty (60) consecutive days; or
(iii) the consent by the Administrative Agent to the appointment of
a conservator, receiver, liquidator or trustee or similar official in any
insolvency, readjustment of debt, marshalling of assets and liabilities,
or similar proceedings of or relating to the Administrative Agent or
relating to substantially all of its property, the admission in writing by
the Administrative Agent of its inability to pay its debts generally as
they become due, the filing by the Administrative Agent of a petition to
take advantage of any applicable insolvency or reorganization statute, the
making by the Administrative Agent of an assignment for the benefit of its
creditors or the voluntary suspension by the Administrative Agent of
payment of its obligations.
The Administrative Agent agrees that if any of the events specified in
clause (ii) or (iii) of this Section 9(d) shall occur, it shall give written
notice thereof to the Trustee within seven (7) days after the happening of such
event.
(e) No resignation or removal of the Administrative Agent pursuant to this
Section 10 shall be effective until (i) a successor Administrative Agent shall
have been appointed by the Trustee and (ii) such successor Administrative Agent
4
<PAGE>
shall have agreed in writing to be bound by the terms of this Agreement in the
same manner as the Administrative Agent is bound hereunder.
Section 11. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL. Promptly upon
the effective date of termination of this Agreement pursuant to Section 10(a) or
the resignation or removal of the Administrative Agent pursuant to Section 10(b)
or 10(c), respectively, the Administrative Agent shall be entitled to be paid
all fees and reimbursable expenses accruing to it to the date of such
termination, resignation or removal. The Administrative Agent shall forthwith
upon such termination pursuant to Section 10(a) deliver to the Trustee all
property and documents of or relating to the Trust then in the custody of the
Administrative Agent (including, without limitation, the Securities). In the
event of the resignation or removal of the Administrative Agent pursuant to
Section 10(b) or 10(c), respectively, the Administrative Agent shall cooperate
with the Trustee and take all reasonable steps requested to assist the Trustee
in making an orderly transfer of the duties of the Administrative Agent.
Section 12. NOTICES. Any notice, report or other communication given
hereunder shall be in writing and addressed as follows:
(a) If to the Trustee, to:
NationsBank, N.A.
100 North Tryon Street
NC1-007-19-02
Charlotte, North Carolina 28255
Attention: Debbie Lovelett
Telephone: (704) 386-7763
Telecopy: (704) 388-9049
(b) If to the Administrative Agent, to:
U.S. Bank National Association
180 E. 5th Street
SPFT 0210
St. Paul, MN 55101
Attention: Amadeo Trust
Telephone: (651) 244-0727
Telecopy: (651) 244-0089
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, or hand-delivered
to the address of such party as provided above.
5
<PAGE>
Section 13. AMENDMENTS. This Agreement may be amended from time to time by
a written amendment duly executed and delivered by the parties hereto; provided,
that such amendment will not materially and adversely affect the interests of
any Unitholder.
Section 14. SUCCESSORS AND ASSIGNS. This Agreement may not be assigned by
the Administrative Agent unless such assignment is previously consented to in
writing by the Trustee. An assignment with such consent and satisfaction, if
accepted by the assignee, shall bind the assignee hereunder in the same manner
as the Administrative Agent is bound hereunder. Notwithstanding the foregoing,
this Agreement may be assigned by the Administrative Agent without the consent
of the Trustee to a corporation or other organization that is a successor (by
merger, consolidation or purchase of assets) to the Administrative Agent;
provided that such successor organization executes and delivers to the Trustee
an agreement in which such corporation or other organization agrees to be bound
hereunder by the terms of said assignment in the same manner as the
Administrative Agent is bound hereunder. Subject to the foregoing, this
Agreement shall bind any successors or assigns of the parties hereto.
Section 15. GOVERNING LAW. This agreement shall be construed in accordance
with the laws of the State of New York, and the obligations, rights and remedies
of the parties hereunder shall be determined in accordance with such laws.
Section 16. HEADINGS. The Section headings hereof have been inserted
for convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
Section 17. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which when so executed shall be an original, but all of
which together shall constitute but one and the same agreement.
Section 18. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 19. NOT APPLICABLE TO NATIONSBANK, N.A. IN OTHER CAPACITIES.
Nothing in this Agreement shall affect any right or obligation NationsBank,
N.A. may have in any other capacity.
Section 20. LIMITATION OF LIABILITY OF TRUSTEE.
Notwithstanding anything contained herein to the contrary, this instrument
has been countersigned by NationsBank, N.A. not in its individual capacity but
solely in its capacity as Trustee of the Trust and in no event shall
NationsBank, N.A. in its individual capacity or any Unitholder have any
6
<PAGE>
liability for the representations, warranties, covenants, agreements or other
obligations of the Trustee hereunder, as to all of which recourse shall be had
solely to the assets of the Trust.
Section 21. NONPETITION COVENANTS. Notwithstanding any prior termination
of this Agreement, the Administrative Agent and the Trustee shall not, prior to
the date which is one year and one day after the termination of this Agreement,
acquiesce, petition or otherwise invoke or cause the Trust to invoke the process
of any court or government authority for the purpose of commencing or sustaining
a case against the Trust under any federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Trust or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Trust.
7
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
NATIONSBANK, N.A.,
not in its individual capacity but solely
as Trustee
By: /s/ Suzanne Castleberry
-------------------------------------
Name: Suzanne Castleberry
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as Administrative Agent
By: /s/ Eve Kaplan
---------------------------------------
Name: Eve Kaplan
Title: Vice President
8
EXHIBIT 4
[LOGO] CHASEMELLON
SHAREHOLDER SERVICES
SERVICE AGREEMENT
FOR
TRANSFER AGENT SERVICES
TO
AMADEO TRUST
<PAGE>
THIS TRANSFER AGENT AGREEMENT among Amadeo, Inc. , a Delaware corporation
("Depositor"), NationsBank, N.A. as Trustee (the "Trustee"), NationsBank N.A.,
individually ("NationsBank") and ChaseMellon Shareholder Services, L.L.C., a New
Jersey limited liability company ("ChaseMellon"), is dated as of June 30, 1999.
1. APPOINTMENT. The Trustee hereby appoints ChaseMellon as its transfer
agent, registrar and paying agent and ChaseMellon accepts such appointment in
accordance with the following terms and conditions for the units representing
fractional undivided interests in and ownership of the Amadeo Trust (the
"Trust"), all as more fully described in EXHIBIT A hereto (the "Units").
2. TERMS OF AGREEMENT.
(a) This Agreement shall commence on the date hereof and shall continue
until the earliest of (1) the resignation of ChaseMellon in accordance
with Section 2(b), (ii) receipt by ChaseMellon of a notice of termination
in accordance with Section 2(c) and (iii) receipt by ChaseMellon of a
notice from the Trustee that the Trust has terminated in accordance with
the Trust Indenture and Agreement for Amadeo Trust, effective as of June
30, 1999, as may from time to time be amended or supplemented, between the
Depositor and Trustee under which the Trust was created (the "Trust
Documents").
(b) ChaseMellon may resign at any time upon giving at least 30 days
written notice to the Depositor and the Trustee; provided, however, that
no such resignation shall become effective until the appointment of
ChaseMellon's successor hereunder. If no successor is appointed within 30
days after the date of resignation, ChaseMellon may petition a court of
competent jurisdiction for the appointment of a successor.
(c) The Trustee may terminate this Agreement and the appointment of
ChaseMellon as transfer agent, registrar and paying agent at any time upon
giving 30 days written notice to ChaseMellon. In the event this Agreement
is terminated by the Trustee, Trustee's notice must include instructions
as to the disposition of records, as well as any additional documentation
reasonably requested by ChaseMellon. Except as otherwise expressly
provided in this Agreement, the respective rights and duties of the
Trustee, the Sponsor and ChaseMellon under this Agreement shall cease upon
termination of the appointment.
3. DUTIES OF CHASEMELLON.
(a) ChaseMellon will provide the services listed in EXHIBIT B hereto, in
the performance of its duties as transfer agent, registrar, and paying
agent.
(b) In addition to the services provided for on EXHIBIT B hereto,
ChaseMellon agrees to do the following:
(i) Record and register the ownership positions of the Units in the
Trust in book entry form;
(ii) Mail to each holder of a Unit as of the close of business on such
record date as shall be designated in written instructions from the
Trustee (or any administrative agent appointed by the Trustee (the
"Administrative Agent") as reflected on the books and records
<PAGE>
maintained by ChaseMellon ("Unitholders"), within 3 business days
after the date of its receipt of such instructions, all notices or
statements delivered to ChaseMellon by the Trustee or the
Administrative Agent, with written instructions to ChaseMellon to
deliver such notices or statements to Unitholders; and
(iii) The Trustee or the Administrative Agent will provide to
ChaseMellon a Distribution Statement, substantially in the form
attached hereto as Exhibit E, on the third business day prior to, but
not including, the 18th day of each month, or if such day is not a
business day, the next business day (the "Payment Date"). In
accordance with the Distribution Statement, ChaseMellon will send to
each Unit holder checks for principal, interest and other amounts, if
any, on each Payment Date, provided that ChaseMellon receives from the
Trustee (or the Administrative Agent) on the above referenced payment
date immediately available funds in an amount necessary to make such
payments. Each check stub will state the amount of principal or
interest or such other amounts.
4. REPRESENTATIONS AND WARRANTIES OF CLIENT. The Depositor and the Trustee each
represents, warrants and covenants to ChaseMellon that:
(a) the Units issued and outstanding on the date hereof have been duly
authorized, validly issued and are fully paid and are non-assessable;
(b) the Units issued and outstanding on the date hereof are not
required to be registered and have not been registered under the
Securities Act of 1933, as amended, or the Securities Exchange Act of
1934, as amended;
(c) the Trust is duly registered as an investment company under the
Investment Company Act of 1940, as amended, and is and will continue
to be in compliance with such Act;
(d) to our knowledge, all taxes, if any, which were payable upon or in
respect of the original issuance of the Units issued and outstanding
on the date hereof have been paid;
(e) the execution and delivery of this Agreement, does not violate the
terms and conditions of the Trust Documents, any applicable federal
laws of the United States of America or the laws of the State of New
York, any order or decree affecting the Trust of any New York or
federal court or public authority having jurisdiction or any contract,
agreement or undertaking to which the Trust is a party or by which it
is bound; and
(f) this Agreement is a valid and binding agreement of each of the
parties hereto (other than ChaseMellon) and is enforceable against the
Depositor, the Trustee, the Trust, and NationsBank, N.A., in
accordance with its terms, except as the enforceability thereof may be
limited by the effect of bankruptcy, insolvency, fraudulent transfer,
reorganization, receivership, moratorium, and other similar laws
affecting the rights and remedies of creditors generally and by
general principles of equity (whether applied by a court of law or
equity); and
(g) the Depositor and the Trustee agree to provide or cause to be
provided to ChaseMellon the documentation and notifications listed in
EXHIBIT C hereto.
-2-
<PAGE>
5. COMPENSATION AND EXPENSES. NationsBank and the Trustee jointly and severally
agrees to compensate ChaseMellon for its services hereunder in accordance with
the fee schedules listed in EXHIBIT D hereto. Such fees may be adjusted by the
annual percentage of change in the latest Consumer Price Index of All Urban
Consumers (CPI-U) for the Northeast region, 1982-84=100, as published by the
U.S. Department of Labor, Bureau of Labor Statistics. In accordance with EXHIBIT
D hereto, NationsBank and the Trustee jointly and severally agree to reimburse
ChaseMellon for all reasonable expenses, disbursements or advances incurred by
it in accordance herewith. All amounts owned to ChaseMellon hereunder are due
upon receipt of the invoice. Delinquent payments are subject to a late payment
charge of one and one half percent (1.5%) per month commencing forty-five (45)
days from the invoice date. Nations Bank and the Trustee jointly and severally
agree to reimburse ChaseMellon for any attorney's fees and any other costs
associated with collecting delinquent payments. ChaseMellon may suspend
transfers and/or terminate this Agreement upon written notice if (i) NationsBank
or the Trustee fails to pay fees hereunder or (ii) any proceeding in bankruptcy,
reorganization, receivership or insolvency is commenced by or against either
NationsBank, N.A. or the Trust, or either NationsBank, N.A. or the Trust shall
become insolvent, or shall cease paying its obligations as they become due or
makes any assignment for the benefit of its creditors.
6. SCOPE OF AGENCY.
(a) ChaseMellon shall act solely as agent for the Trustee under this
Agreement and owes no duties hereunder to any other person. ChaseMellon
undertakes to perform the duties and only the duties that are specifically
set forth in this Agreement, and no implied convenants or obligations
shall be read into this Agreement against ChaseMellon.
(b) ChaseMellon may rely upon, and shall be protected in acting or
refraining from acting upon, (i) any communication from the Trustee; (ii)
any communication from any co-Transfer Agent or from any Registrar (other
than ChaseMellon), co-Registrar, or Administrative Agent, and ; (iii) any
other written instruction, notice, request, direction, consent, report,
certificate, or other instrument, paper or document believed by
ChaseMellon to be genuine and to have been signed or given by the proper
party or parties. In addition, ChaseMellon is authorized to refuse to make
any transfer it deems improper.
(c) ChaseMellon may consult with counsel (including internal counsel)
whose advice shall be full and complete authorization and protection in
respect of any action taken, suffer or omitted by it hereunder in good
faith and in reliance thereon.
(d) Any instructions given by the Trustee to ChaseMellon orally, as
permitted by any provision of this Agreement, shall be confirmed in
writing by the Trustee as soon as practicable. ChaseMellon shall not be
liable or responsible and shall be fully authorized and protected for
acting, or failing to act, in accordance with any oral instructions which
do not conform with the written confirmation received in accordance with
this Section 6(d).
(e) ChaseMellon shall not be obligated to take any legal action hereunder;
if, however, ChaseMellon determines to take any legal action hereunder,
and,
-3-
<PAGE>
where the taking of such legal action might in ChaseMellon's judgment
subject or expose ChaseMellon to any expense or liability, ChaseMellon
shall not be required to act unless ChaseMellon shall have been furnished
with an indemnity satisfactory to ChaseMellon.
7. INDEMNIFICATION. NationsBank, N.A. and the Trustee jointly and severally
agree to indemnify ChaseMellon for, and hold it harmless against, any loss,
liability, claim or expense ("Loss") arising out of or in connection with its
duties under this Agreement, including the costs and expenses of defending
itself against any Loss, except to the extent that such Loss shall have been
determined by a court of competent jurisdiction to be a result of ChaseMellon's
gross negligence or intentional misconduct.
8. LIMITATION OF LIABILITY.
(a) In the absence of gross negligence or intentional misconduct on its
part, ChaseMellon shall not be liable for any action taken, suffered, or
omitted by it or for any error of judgment made by it in the performance
of its duties under this Agreement. In no event will ChaseMellon be liable
for special, indirect, punitive, incidental or consequential loss or
damages of any kind whatsoever (including but not limited to lost
profits), even if ChaseMellon has been advised of the possibility of such
damages. Any liability of ChaseMellon will be limited to the amount of
fees paid to ChaseMellon hereunder.
(b) In the event any question or dispute arises with respect to
ChaseMellon's duties hereunder, ChaseMellon shall not be required to act
or be held liable or responsible for its failure or refusal to act until
the questions or dispute has been (i) judicially settled (and, if
appropriate, either may file a suit in interpleader or for a declamatory
judgment for such purpose) by final judgment rendered by a court of
competent jurisdiction that is binding on all parties interested in the
matter and is no longer subject to review or appeal, or (ii) settled by a
written document in form and substance satisfactory to ChaseMellon and
executed by the Depositor and the Trustee. In addition, ChaseMellon may
require for such purpose, but shall not be obligated to require, the
execution of such written settlement by parties that may have an interest
in the settlement.
9. FORCE MAJEURE. ChaseMellon shall not be liable for any failures, delays or
losses, arising directly or indirectly out of conditions beyond its reasonable
control, including, but not limited to, acts of government, exchange or market
ruling, suspension of trading, work stoppages or labor disputes, civil
disobedience, riots, rebellions, electrical or mechanical failure, computer
hardware or software failure, communications facilities failures including
telephone failure, war, fires, earthquakes, storms, floods, acts of God or
similar occurrences.
10. NOTICES. All notices, demands and other communications shall be in writing
and sent or delivered to the addresses indicated on the signature page hereof.
Notice will be effective on the date that it is received.
-4-
<PAGE>
11. MISCELLANEOUS.
(a) AMENDMENTS. This Agreement may not be amended or modified in any
manner except by a written agreement signed by ChaseMellon, NationsBank,
the Depositor and the Trustee.
(b) GOVERNING LAW. This Agreement shall be governed by, construed and
interpreted in accordance with the laws of the State of New York, without
regard to principles of conflicts of law.
(c) SURVIVAL OF TERMS. The obligations under Section 5, 7 and 8 shall
survive the termination of this Agreement.
(d) ASSIGNMENT. This Agreement may not be assigned, or otherwise
transferred, in whole or in part, by any party without the prior written
consent of each other party, which no other party will unreasonably
withhold, condition or delay. Any attempted assignment in violation of the
foregoing will be void.
(e) HEADINGS. The headings contained in this Agreement are for the
purposes of convenience only and are not intended to define or limit the
contents of this Agreement.
(f) SEVERABILITY. Whenever possible, each provision of this Agreement will
be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement is found to violate
the law, it will be severed from the rest of the Agreement and ignored.
(g) COUNTERPARTS. This Agreement may be executed manually in any number of
counterparts, each of which such counterparts, when so executed and
delivered, shall be deemed an original, and all such counterparts when
taken together shall constitute one and the same original instrument.
(h) ENTIRE AGREEMENT. This Agreement constitutes the entire understanding
of the parties with respect to the subject matter hereof and merges of
prior written or oral communications, understandings, and agreements with
respect to the subject matter of this Agreement. The parties acknowledge
that the Exhibits hereto are an integral part of this Agreement.
(i) BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give any person or entity other than ChaseMellon, the
Depositor and the Trustee any legal or equitable right, remedy or claim
under this Agreement; but this Agreement shall be for the sole and
exclusive benefit of ChaseMellon and the Trustee.
-5-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized officers as of the day and year above written.
AMADEO, INC.
BY: /s/ BRENT C. ANDERSON
--------------------------------
NAME: BRENT C. ANDERSON
--------------------------------
TITLE: SENIOR VICE PRESIDENT
--------------------------------
ADDRESS: 100 W. LIBERTY STREET, SUITE 650
--------------------------------
RENO, NV 89501
--------------------------------
ATTN: ________________________________
NATIONSBANK, N.A., AS TRUSTEE
BY: /s/ SUZANNE W. CASTLEBERRY
---------------------------------
NAME: SUZANNE W. CASTLEBERRY
---------------------------------
TITLE: VICE PRESIDENT
---------------------------------
ADDRESS: 100 N. TRYON STREET
---------------------------------
CHARLOTTE, NC 28255
---------------------------------
NC1-007-19-02
---------------------------------
ATTN: SPECIALTY ACCOUNTING
---------------------------------
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
BY: /s/ SHARON MAGIDSON
---------------------------------
NAME: SHARON MAGIDSON
---------------------------------
TITLE: VICE PRESIDENT
---------------------------------
ADDRESS: 235 MONTGOMERY STREET
---------------------------------
23RD FLOOR
---------------------------------
SAN FRANCISCO, CA
---------------------------------
ATTN: _________________________________
NATIONSBANK, N.A., INDIVIDUALLY
BY: /s/ PAULETTE MEHAS
---------------------------------
NAME: PAULETTE MEHAS
---------------------------------
TITLE: VICE PRESIDENT
---------------------------------
ADDRESS: 100 N. TRYON STREET
---------------------------------
CHARLOTTE, NC 28255
---------------------------------
ATTN: NC1-007-20-01
---------------------------------
-6-
<PAGE>
A-1
[LOGO] CHASEMELLON
SHAREHOLDER SERVICES EXHIBIT A
UNITS SUBJECT TO THE AGREEMENT
NUMBER OF
AUTHORIZED UNITS
NUMBER OF ISSUED AND
UNITS AUTHORIZED UNITS OUTSTANDING
- --------------------------------------------------------------------------------
A-1
<PAGE>
[LOGO] CHASEMELLON
SHAREHOLDER SERVICES EXHIBIT B
SERVICES TO BE PROVIDED
ACCOUNT MAINTENANCE FUNCTIONS
o Opening new accounts
o Posting debits and credits
o Planning and releasing stop transfer notations
o Consolidating accounts
o Coding accounts requiring special handling (e.g. "bad address," "do not
mail," "VIP," etc.)
o Processing address changes
o Responding to Unitholder correspondence
o Providing a general 800 phone number for Unitholder inquiries
o Obtaining and posting Taxpayer Identification Number Certifications
pursuant to IDTCA regulations
o Maintaining closed accounts for the purpose of research and tax
reporting
o Purging closed accounts that meet selective criteria
o Providing unlimited on-line access to Unitholder records
o Training on system access
UNIT ISSUANCE FUNCTIONS
o Maintaining mail and window facilities for the receipt of transfer
requests
o Examining issuance or transfer requests to ensure that proper authority
is being exercised
o Verifying that Units issued equal the amount surrendered
o Verifying that no stop orders are held against the transferred Units
o Registering new book entry positions
o Recording canceled book entry positions
o Processing restricted and legal transfers upon presentment of appropriate
supporting documentation
o Preparing Daily Transfer or Management Summary Journals
o Distribution of Initial Transaction Statement
PAYING AGENCY FUNCTIONS
o Preparing and mailing checks
o Preparing and wiring funds, if instructed and appropriate arrangements
are made with ChaseMellon
o Reconciling checks
o Preparing payment register in list or microfiche form
o Withholding and filing taxes for non-resident aliens and others
o Filing federal tax information returns
B-1
<PAGE>
o Processing "B" and "C" Notices received from the IRS
o Mailing required statements (Form 1099) to registered Unitholders, if
requested by the Trustee and necessary forms have been delivered to
ChaseMellon
o Maintaining stop files and issuing replacement checks
o Maintaining payment orders and addresses
o Maintaining records to support escheat filings
o Distribution of Distribution Statement (unless receipt has been waived by
a Unitholder)
OTHER SERVICES
o Preparing Unitholder listings and labels
B-2
<PAGE>
[LOGO] CHASEMELLON
SHAREHOLDER SERVICES
EXHIBIT C
DOCUMENTS AND NOTIFICATIONS TO BE DELIVERED TO CHASEMELLON
UPON EXECUTION OF THIS AGREEMENT
Upon execution and delivery of the Agreement, the depositor and the Trustee
shall provide ChaseMellon with the following:
1. A copy of the Certificate of Incorporation of the Depositor, and all
amendments thereto, certified by the Secretary of State of the state of
incorporation and the Certificate of Formation of the Trust, and all amendments
thereto, certified by the Secretary of State of its state of formation.
2. A copy of the By-laws of Depositor, as amended to date, and as duly certified
by the Secretary of Depositor under the corporate seal, and a fully executed
counterpart of each Trust Document, each as amended to date, and as duly
certified by an authorized officer of the Trustee.
3. A certificate of the Secretary or an Assistant Secretary of the Depositor,
under its corporate seal, and a certificate of a duly authorized officer of the
Trustee, stating with respect to the Depositor or the Trust, as the case may be,
that:
a) this Agreement has been executed and delivered pursuant to the
authority of the Depositor's Board of Directors or the Trustee:
b) the attached list of existing agreements pursuant to which Units
have been reserved for future issuance specifying the number of reserved
Units subject to each such existing agreement and the substitute
provisions thereof, is true and complete, or no Units have been reserved
for future issuance;
c) each Unitholder list provided is true and complete or no Units are
outstanding;
d) that no units are listed on any stock exchange;
e) there are no co-Transfer Agents, Registrars (other than ChaseMellon)
or co-Registrars for any of the Units;
f) the officer(s) of the Depositor and the Trustee, who executed this
Agreement as well as any certificates or papers delivered to ChaseMellon
pursuant to this Agreement, were validly elected to, and this incumbents
of, the offices they purported to hold at the time of such execution and
delivery, and that their signatures on all documentation are genuine; and
C-1
<PAGE>
g) the appointment of U.S. Bank, National Association, as
Administrative Agent and as Co-Paying Agent and upon which is subscribed a
certificate of an officer of the Depositor or the Trustee, as the case may
be, other than the officer executing the certificate, stating that the
person who executed the certificate was validly elected to, and is the
Secretary or an Assistant Secretary of the Depositor or an authorized
officer of the Trustee, as the case may be, and that his signature on the
certificate is genuine.
4. A Unitholder list, preferably in machine readable format, certified as
true and complete by the person preparing the list, for the issued and
outstanding Units, setting forth as to each holder, his/her name and address,
tax identification number certified by the Unitholder pursuant to requirements
of the Internal Revenue Code applicable regulations, the number of Units held,
and the existence of any stop orders or other transfer restrictions.
5. Opinion of counsel for the Depositor and the Trustee, addressed to
ChaseMellon, substantially to the effect that:
a) the issuance of the Units has been duly authorized by the Trust, and
when issued in compliance with the Trust Agreement and following the
deposit referred to in Section 2.01 of the Trust Agreement, the Units will
be fully paid and are non-assessable;
b) the issuance of the Units in accordance with the Trust Agreement does
not require registration under the Securities Act of 1933, as amended, or
under the Securities Exchange Act of 1934, as amended;
c) The Trust is duly registered as an investment company under the
Investment Company Act of 1940, as amended;
d) To the knowledge of counsel, no taxes are required to be paid by the
Trust in respect of the issuance of the Units; and
e) the execution and delivery of this Agreement do not violate the terms
and conditions of the Trust Agreement, any law covered by such opinion of
counsel, to the knowledge of counsel, any order or decree affecting the
Trust of any New York or federal court of public authority having
jurisdiction, or to the knowledge of counsel, any contract, agreement or
undertaking to which the Trust is a party or by which it is bound and this
Agreement is enforceable against the Depositor, the Trustee, the Trust and
NationsBank, N.A. in accordance with its terms, except as limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, receivership,
moratorium, and other similar laws affecting the enforcement of creditors'
rights generally and by general principles of equity (whether applied by a
court of law or equity).
7. A completed Internal Revenue Service Form 2678.
C-2
<PAGE>
NOTIFICATION OF CHANGES
The Depositor and the Trustee shall promptly notify ChaseMellon of the
following:
1. Any change in the name of the Depositor, the Trustee or the Trust, any
amendment of the certificate of incorporation or by-laws of any of the
foregoing, the Trust Documents or any other agreement, document or instrument
under which the Trust is organized or governed;
2. Any change in the title of the Units from that set forth in Column 1 of
Schedule A hereto;
3. Any change in the Number of Authorized Units from that set forth in Column
2 of Schedule A hereto;
4. Any change in existing agreements or any entry into new agreements changing
the Number of Authorized Units;
5. Any change in the number of outstanding Units subject to stop orders or
other transfer limitations;
6. The listing or delisting of any Units on any stock exchange;
7. The registration of the issuance of any Units under the Securities Act of
1933, as amended, or the registration of the Units under the Securities Exchange
Act of 1934, as amended;
8. The appointment after the date hereof of any co-Transfer Agent, Registrar
(other than ChaseMellon), any co-Registrar or Administrative Agent for any of
the Units;
9. The merger of the Depositor, the Trustee or the Trust into, or the
consolidation of the Depositor, the Trustee or the Trust with, or the sale or
other transfer of the assets of the Depositor, the Trustee or the Trust
substantially as an entirety to, another person; or the merger or consolidation
of another person into or with the Depositor, the Trustee or the Trust; and
10. Any other change in the affairs of the Depositor, the Trustee or the Trust
of which ChaseMellon must have knowledge to perform properly in duties under
this Agreement.
C-3
<PAGE>
[LOGO] CHASEMELLON
SHAREHOLDER SERVICES EXHIBIT D
FEE SCHEDULE
Fees Are Not Subject to Increase: FIRST TWO (2) YEARS
-------------------
SERVICE FEES
------------
FLAT MONTHLY FEE $1500.00
The above fee will be charged for all services listed in Exhibit B and will be
subject to the following allowances:
Number of open accounts maintained 1000
Number of mailings per year (two enclosures) 14
Number of book-entry credits (annual) 500
Number of Unitholder telephone inquires (monthly) 25
Number of Unitholders Written Inquires 25
Number of lists, labels, reports, analyses (annual) 4
To the extent the above allowances are exceeded, the following fees will apply:
For each account maintained (per year) $4.50
For each book-entry credits posted $1.50
For each Unitholder telephone inquiry $6.25
For each Unitholder written inquiry $5.00
Mailings See Attached
Lists/Labels/Analyses See Attached
EXPENSES AND OTHER CHARGES
--------------------------
FEES AND OUT OF POCKET EXPENSES. All charges and fees, out of pocket costs,
expenses and disbursements of ChaseMellon are due and payable by the Trustee
or NationsBank, N.A. upon receipt of an invoice from ChaseMellon.
The cost of stationary and supplies, such as transfer sheets, distribution
checks, etc., together with any disbursement for telephone, postage, mail
insurance, travel for annual meeting, link-up charges for ADP/IECA, tape charges
from DTC, etc. Are billed in addition to the above fees.
For companies who participate in the Direct Registration System (DRS),
ChaseMellon will provide a "sell" feature for liquidation of book-entry Units
D-1
<PAGE>
held on behalf of a Unitholder. Upon receipt of a sell request by the registered
Unitholder, The Chase Manhattan Bank or Mellon Bank, N.A. will process this
request and remit the proceeds to the Unitholder in the form of a check (less
the appropriate fees). The charge for each such sale is $15.00 plus $0.12 per
Unit.
INITIAL FEE. A fee of $2000.00 will be imposed for any additional activities
associated with the acceptance of appointments involving initial public
offerings (IPO'S), secondary offerings or closings. The initial fee will cover
the issuance of Units to up to 200 Unitholders. A fee of $2.00 per Unitholder
will be assessed for each Unitholder over this threshold.
TERMINATION FEE. In the event the Trustee terminates this Agreement, the Trustee
or NationsBank, N.A. shall pay ChaseMellon a fee of one dollar ($1.00) per
registered Unitholder account then maintained on ChaseMellon's records, subject
to a minimum fee of two thousand five hundred dollars ($2,500.00). This fee,
subject to change upon written notification to the Trustee by ChaseMellon, is
separate from any other amounts payable to ChaseMellon incidental to such
termination, such as, the cost to produce and ship records, reports and unused
certificate stock to a successor agent. It is also separate from any other fees
for services under this Agreement, which would be accrued and payable to
ChaseMellon prior to such termination. ChaseMellon may withhold the Trust's
records and reports from a successor agent pending the payment in full of its
fees and expenses owed under this Agreement.
CONVERSION. There is usually no charge for converting the Trust's files to
ChaseMellon's system with the exception of outstanding check history from the
current agent's file. A review of the current rules and formats will be made to
determine if any situation exists which will require extraordinary effort to
complete the conversion. Any charge will be discussed with the Trustee prior to
work commencing.
LEGAL, TECHNOLOGICAL EXPENSES. Certain legal expenses may be incurred in
resolving matters not anticipated in the normal course of business. This may
result in a separate charge to cover ChaseMellon's expenses in resolving such
matters, provided that any legal expenses charged by ChaseMellon shall be
reasonable.
In the event any Federal regulation and/or state or local law are enacted which
require ChaseMellon to make any technological improvements and/or modifications
to its current system, the Trustee or NationsBank, N.A. shall reimburse
ChaseMellon, on a pro rata basis proportionate to the Trusts' registered
Unitholder base, for the costs associated with making such required
technological improvements and/or modifications.
OTHER SERVICES. Fees for any services not specified will be based on
ChaseMellon's standard fees at the time of the request or, if no standard fees
have been established, an appraisal of the work to be performed.
D-2
<PAGE>
LISTS/LABELS/ANALYSES
FEE SCHEDULE
LISTS
Per name listed $0.05
LABELS
Per label printed $0.05
ANALYSES
Per name passed on data base $.0.02
Per name listed in report $0.05
(MINIMUM charge for each of the above services will be $250.)
OUT-OF-POCKET EXPENSES
Any expenses of this nature, which include but are not limited to telephone,
facsimile transmissions, postage, insurance, messenger, stationery, etc., will
be billed in addition to the above stated fees.
D-3
<PAGE>
MAILING SERVICES
FEE SCHEDULE
ADDRESSING
Addressing mailing medium (per name) $0.05
AFFIXING
Affixing labels (per labels $0.035
INSERTING
Inserting Enclosures (Machine)
1st Enclosures (per piece) $0.05
Inserting Enclosures (Manual)
Charge will be determined
based on analysis
of work to be
performed.
(MINIMUM charge for any mailing will be $250.)
OUT-OF-POCKET EXPENSES
Any expenses of this nature, which include but are not limited to telephone,
facsimile transmissions, postage, insurance, messenger, stationary, etc., will
be billed in addition to the above stated fees.
D-4
<PAGE>
EXHIBIT E
MONTHLY DISTRIBUTION STATEMENT
------------------------------
[DATE]
ChaseMellon Shareholder Services L.L.C.
235 Montgomery Street
23rd Floor
San Francisco, California 94104
To ChaseMellon Shareholder Services L.L.C.:
Pursuant to Section 3.05 of the Trust Indenture and Agreement dated June 30,
1999 among Amadeo, Inc., as Depositor, NationsBank, N.A., as Trustee, and
NationsBank, N.A., in its individual capacity ("Trust Agreement"), below are the
amounts being distributed on [SPECIFIC DATE] from the Principal and Interest
Accounts of Amadeo Trust, a trust organized under the laws of the State of New
York on June 30, 1999.
When you distribute to each Unitholder its pro rata share of the Interest or
Principal Accounts, please provide to each Unitholder a statement of the per
unit dollar amount being distributed for each Account.
Per Unit Distributions Per Unit Distributions
from from
Interest Account Principal Account
- -------------------------------------------------------------
$ $
Capitalized terms used in this letter and not otherwise defined have the
meanings established in the Trust Agreement.
E-1
Exhibit (6)(a)
--------------
CERTIFICATE OF INCORPORATION
OF
AMADEO, INC.
---------------------------------
ARTICLE ONE
NAME; REGISTERED AGENT; INCORPORATOR
Section 1.01. The name of the corporation is Amadeo, Inc. (the
"Corporation").
Section 1.02. The name and address of the Corporation's registered office
in the State of Delaware is c/o The Corporation Trust Company, Corporation Trust
Center, 1209 Orange Street, Wilmington, Delaware 19801.
Section 1.03. The incorporator of the Corporation is NationsBank, N.A.,
whose mailing address is 100 North Tryon Street, Charlotte, North Carolina
28255.
ARTICLE TWO
PURPOSE OF CORPORATION
Section 2.01. Subject to Section 2.02, the purpose of the Corporation is
to engage in any lawful act or activity for which a corporation may be organized
under the General Corporation Law of Delaware.
Section 2.02. Notwithstanding Section 2.01, the purpose of the Corporation
is limited to:
(a) accepting as a contribution from NationsBank, N.A., the notes
and certificates (the "Asset Backed Securities") issued by Bank of America
Auto Owner Trust 1999-A;
(b) entering into and performing its obligations under the Trust
Indenture and Agreement for Amadeo Trust with NationsBank, N.A., as
Trustee, and conveying the Asset Backed Securities to Amadeo Trust in
exchange for all of the units of beneficial interest in Amadeo Trust;
(c) donating one unit each of Amadeo Trust to each of approximately
125 charitable organizations;
(d) holding, selling, pledging (including for the benefit of one or
more affiliates) or otherwise transferring its units in Amadeo Trust;
<PAGE>
(e) if the Corporation elects, registering the units of Amadeo Trust
under the Securities Act of 1933, as amended; and
(f) engaging in activities and entering into agreements incidental
to and necessary or convenient to accomplish any of such purposes.
The Corporation shall at all times be Independent (defined below).
Section 2.03. "Independent" means that the Corporation shall require the
unanimous consent of its entire board of directors (without any vacancies),
including the affirmative vote of at least one Independent Director (as such
term is defined in Section 4.01) before the Corporation may approve, permit or
take, or cause any action to be taken, to (i) dissolve or liquidate, in whole or
in part, or institute proceedings to have itself adjudicated bankrupt or
insolvent; (ii) consent to the institution of bankruptcy or insolvency
proceedings against it; (iii) file a petition seeking, or consent to,
reorganization or relief under any applicable federal or state law relating to
bankruptcy; (iv) consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator or other similar official as to the Corporation or a
substantial part of its property; (v) make any assignment for the benefit of its
creditors; (vi) admit in writing its inability to pay its debts generally as
they become due; (vii) institute, or join in any institution of, any bankruptcy,
insolvency, liquidation, reorganization or arrangement proceedings or other
proceedings under any federal or state bankruptcy or similar law, against any
entity in which the Corporation holds an ownership interest; or (viii) take any
corporate action in furtherance of the actions set forth in clauses (i) through
(vii) of this paragraph.
ARTICLE THREE
CAPITAL STOCK
Section 3.01. The Corporation shall have one class of stock designated as
Common Stock, and the total number of shares of stock of that class that the
Corporation shall have authority to issue is 1,000 shares of stock, par value
$10.00 per share. No shareholder shall have any preemptive right to acquire
additional shares of the Corporation.
ARTICLE FOUR
INDEPENDENT DIRECTORS
Section 4.01. The Corporation shall at all times, except as noted
hereafter, have at least one director (each, an "Independent Director") who is
not (i) a director, officer or employee of any affiliate of the Corporation
(other than any limited or special purpose corporation or limited liability
company similar to the Corporation); (ii) a person related to any officer or
director of any affiliate of the Corporation; (iii) a direct or indirect holder
of more than 10% of any voting securities of any affiliate of the Corporation;
or (iv) a person related to a direct or indirect holder of more than 10% of any
voting securities of any affiliate of the Corporation. In the event of the
death, incapacity, resignation or removal of one or more Independent Directors,
such that the
<PAGE>
number of Independent Directors is reduced below one, the board of directors of
the Corporation (the "Board of Directors") shall promptly appoint one or more
Independent Directors such that the Corporation has at least one Independent
Director. The Board of Directors shall not vote on any matter other than the
appointment of an Independent Director unless and until at least one Independent
Director has been duly appointed to serve on the Board of Directors.
ARTICLE FIVE
LIMITATIONS ON ACTIONS BY THE CORPORATION
Section 5.01. Notwithstanding any other provision of this certificate of
incorporation of the Corporation (the "Certificate") or any provision of law,
the Corporation shall not do any of the following:
(a) engage in any business or activity other than as set forth in
Article Two hereof;
(b) without the unanimous affirmative vote of the entire Board of
Directors (without any vacancies), which must include the affirmative vote
of at least one Independent Director, (i) dissolve or liquidate, in whole
or in part, or institute proceedings to be adjudicated bankrupt or
insolvent; (ii) consent to the institution of bankruptcy or insolvency
proceedings against it; (iii) file a petition seeking or consent to
reorganization or relief under any applicable federal or state law
relating to bankruptcy; (iv) consent to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator or other similar official as
to the Corporation or a substantial part of its property; (v) make any
assignment for the benefit of creditors; (vi) admit in writing its
inability to pay its debts generally as they become due; (vii) institute,
or join in any institution of, any bankruptcy, insolvency, liquidation,
reorganization or arrangement proceedings or other proceedings under any
federal or state bankruptcy or similar law, against any entity in which
the Corporation holds an ownership interest; or (viii) take any corporate
action in furtherance of the actions set forth in clauses (i) through
(vii); provided, however, that no director may be required by any
shareholder of the Corporation to consent to the institution of bankruptcy
or insolvency proceedings against the Corporation so long as it is
solvent; or
(c) without the unanimous affirmative vote of the entire Board of
Directors (without any vacancies), merge or consolidate with any other
corporation, company or entity, sell all or substantially all of its
assets or acquire all or substantially all of the assets, capital stock or
other ownership interest of any other corporation, company or entity
(other than Amadeo Trust).
ARTICLE SIX
INTERNAL AFFAIRS
Section 6.01. The Corporation shall insure at all times that (i) it
maintains separate corporate records and books of account from those of
NationsBank, N.A.
<PAGE>
and all of its affiliates, and (ii) none of the Corporation's assets will be
commingled with those of NationsBank, N.A. or any of its affiliates.
ARTICLE SEVEN
AMENDMENTS
Section 7.01. The Corporation reserves the right at any time, and from
time to time, to amend, alter, change or repeal any provision contained in this
Certificate, and other provisions authorized by the laws of the State of
Delaware may be added in the manner now or hereafter prescribed by law; and all
rights, preferences and privileges of whatsoever nature conferred on any person
by this Certificate in its present form or as hereafter amended are granted
subject to the rights reserved in this Article. The Corporation shall not amend,
alter, change or repeal any provision of Article Two or Articles Four through
Seven (the "Restrictive Articles"), except by unanimous vote of the Board of
Directors (before receipt of payment for stock) or the shareholders (subsequent
to the receipt of payment for stock), as the case may be, and provided, further,
that the Corporation shall not amend or change any Article so as to be
inconsistent with the Restrictive Articles, except by unanimous vote of the
Board of Directors (before receipt of payment for stock) or the shareholders
(subsequent to the receipt of payment for stock).
Section 7.02. The shareholders entitled to vote shall have the power to
adopt new bylaws or amend or repeal existing bylaws. The Board of Directors
shall also have the power to adopt new bylaws, or amend or repeal existing
bylaws, but such power shall not divest or otherwise limit the power of the
shareholders entitled to vote to adopt, amend or repeal any bylaws.
ARTICLE EIGHT
LIABILITY OF DIRECTORS FOR MONETARY DAMAGES
Section 8.01. The liability of the directors of the Corporation for
monetary damages shall be eliminated to the fullest extent permissible under
Delaware law.
ARTICLE NINE
MISCELLANEOUS
Section 9.01. Unless and except to the extent otherwise provided in the
bylaws of the Corporation, the election of directors of the Corporation need not
be by written ballot.
<PAGE>
The undersigned incorporator hereby acknowledges that this Certificate is
his act and deed on this 30th day of June, 1999.
NATIONSBANK, N.A.
Sole Incorporator
By: /s/ Paulette M. Mehas
------------------------------
Name: Paulette M. Mehas
Title: Vice President
Exhibit (6)(b)
--------------
BYLAWS
OF
AMADEO, INC.
(a Delaware Corporation)
--------------------
1
OFFICES
1 1 PRINCIPAL EXECUTIVE OFFICE. The principal executive office of Amadeo,
Inc. (the "Corporation") shall be at 100 West Liberty, Suite 650 D, Reno, Nevada
89501, or such other location that the board of directors (the "Board of
Directors" or the "Board") shall fix from time to time.
1 2 OTHER OFFICES. The Corporation may also have offices at such other
places both within and without the State of Delaware as the Board of Directors
or the President may from time to time determine or the business of the
Corporation may require.
2
SHAREHOLDERS
2 1 ANNUAL MEETINGS. An annual meeting of shareholders shall be held for
the election of directors at such date, time and place, either within or without
the State of Delaware, as may be designated by resolution of the Board of
Directors from time to time, but, in any event, such meeting shall be held
within 20 weeks of the last day of the fiscal year of the Corporation. Any other
proper business may be transacted at the annual meeting.
2 2 SPECIAL MEETINGS. Special meetings of shareholders for any purpose or
purposes may be called at any time by the Board of Directors, or by a committee
of the Board of Directors that has been duly designated by the Board of
Directors and whose powers and authority, as expressly provided in a resolution
of the Board of Directors, include the power to call such meetings, but such
special meetings may not be called by any other person or persons.
2 3 NOTICE OF MEETINGS. Whenever shareholders are required or permitted to
take any action at a meeting, a written notice of the meeting shall be given
that shall state the place, date and hour of the meeting and, in the case of a
special meeting, the purpose or purposes for which the meeting is called. Unless
otherwise provided by law, the certificate of incorporation of the Corporation
(the "Certificate of Incorporation") or these Bylaws, the written notice of any
meeting shall be given not less than 10 nor more than 60 days before the date of
the meeting to each shareholder entitled to vote at such meeting. If mailed,
such notice shall be deemed to be given when deposited in the United States
<PAGE>
mail, postage prepaid, directed to the shareholder at its address as it appears
on the records of the Corporation.
2 4 ADJOURNMENTS. Any meeting of shareholders, annual or special, may
adjourn from time to time to reconvene at the same or some other place, and
notice need not be given of any such adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken. At the
adjourned meeting the Corporation may transact any business which might have
been transacted at the original meeting. If the adjournment is for more than 30
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, notice of the adjourned meeting shall be given to each shareholder of
record entitled to vote at the meeting.
2 5 QUORUM. Except as otherwise provided by law, the Certificate of
Incorporation or these Bylaws, at each meeting of shareholders the presence in
person or by proxy of the holders of shares of stock having a majority of the
votes which could be cast by the holders of all outstanding shares of stock
entitled to vote at the meeting shall be necessary and sufficient to constitute
a quorum. In the absence of a quorum, the shareholders so present may, by
majority vote, adjourn the meeting from time to time in the manner provided in
Section 2.04 until a quorum shall attend. Shares of its own stock belonging to
the Corporation or to another corporation, if a majority of the shares entitled
to vote in the election of directors of such other corporation is held, directly
or indirectly, by the Corporation, shall neither be entitled to vote nor be
counted for quorum purposes; provided, however, that the foregoing shall not
limit the right of the Corporation to vote stock, including but not limited to
its own stock, held by it in a fiduciary capacity.
2 6 ORGANIZATION. Meetings of shareholders shall be presided over by the
Chairman of the Board, if any, or in his absence by the Vice Chairman of the
Board, if any, or in his absence by the President, or in his absence by a Vice
President, or in the absence of the foregoing persons by a chairman designated
by the Board of Directors, or in the absence of such designation by a chairman
chosen at the meeting. The Secretary shall act as secretary of the meeting, but
in his absence the chairman of the meeting may appoint any person to act as
secretary of the meeting. The chairman of the meeting shall announce at the
meeting of shareholders the date and time of the opening and the closing of the
polls for each matter upon which the shareholders will vote.
2 7 VOTING; PROXIES. Except as otherwise provided by the Certificate of
Incorporation, each shareholder entitled to vote at any meeting of shareholders
shall be entitled to one vote for each share of stock held by him which has
voting power upon the matter in question. Each shareholder entitled to vote at a
meeting of shareholders or to express consent or dissent to corporate action in
writing without a meeting may authorize another person or persons to act for him
by proxy, but no such proxy shall be voted or acted upon after three years from
its date, unless the proxy provides for a longer period. A proxy shall be
irrevocable if it states that it is irrevocable and if, and only as long as, it
is coupled with an interest sufficient in law to support an irrevocable power. A
shareholder may revoke any proxy which is not irrevocable by attending the
<PAGE>
meeting and voting in person or by filing an instrument in writing revoking the
proxy or by delivering a proxy in accordance with applicable law bearing a later
date to the Secretary of the Corporation. Voting at meetings of shareholders,
unless otherwise required by law, need not be conducted by inspectors of
election unless so determined by the holders of shares of stock having a
majority of the votes which could be cast by the holders of all outstanding
shares of stock entitled to vote thereon which are present in person or by proxy
at such meeting. At all meetings of shareholders for the election of directors a
plurality of the votes cast shall be sufficient to elect. All other elections
and questions shall, unless otherwise provided by law, the Certificate of
Incorporation or these Bylaws, be decided by the vote of the holders of shares
of stock having a majority of the votes which could be cast by the holders of
all shares of stock outstanding and entitled to vote thereon.
2 8 FIXING DATE FOR DETERMINATION OF SHAREHOLDERS OF RECORD. In order that
the Corporation may determine the shareholders entitled to notice of or to vote
at any meeting of shareholders or any adjournment thereof, or to express consent
to corporate action in writing without a meeting, or entitled to receive payment
of any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors and which
record date, in the case of (i) determination of shareholders entitled to vote
at any meeting of shareholders or adjournment thereof, shall, unless otherwise
required by law, not be more than 60 nor less than 10 days before the date of
such meeting; (ii) determination of shareholders entitled to express consent to
corporate action in writing without a meeting, shall not be more than 10 days
from the date upon which the resolution fixing the record date is adopted by the
Board of Directors; and (iii) any other action, shall not be more than 60 days
prior to such other action. If no record date is fixed, the record date for
determining (i) shareholders entitled to notice of or to vote at a meeting of
shareholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held; (ii) shareholders
entitled to express consent to corporate action in writing without a meeting
when no prior action of the Board of Directors is required by law, shall be the
first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation in accordance with
applicable law, or, if prior action by the Board of Directors is required by
law, shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action; and (iii) shareholders
for any other purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto. A determination of
shareholders of record entitled to notice of or to vote at a meeting of
shareholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
<PAGE>
2 9 LIST OF SHAREHOLDERS ENTITLED TO VOTE. The Secretary shall prepare and
make, at least 10 days before every meeting of shareholders, a complete list of
the shareholders entitled to vote at the meeting, arranged in alphabetical
order, and showing the address of each shareholder and the number of shares
registered in the name of each shareholder. Such list shall be open to the
examination of any shareholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least 10 days prior to the meeting,
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or if not so specified, at the
place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof and may be
inspected by any shareholder who is present. Upon the willful neglect or refusal
of the directors to produce such a list at any meeting for the election of
directors, they shall be ineligible for election to any office at such meeting.
The stock ledger shall be the only evidence as to who are the shareholders
entitled to examine the stock ledger, the list of shareholders or the books of
the Corporation, or to vote in person or by proxy at any meeting of
shareholders.
2 10 ACTION BY CONSENT OF SHAREHOLDERS. Unless otherwise restricted by the
Certificate of Incorporation, any action required or omitted to be taken at any
annual or special meeting of the shareholders may be taken without a meeting,
without prior notice and without a vote, if a consent or consents in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted and shall be delivered by hand or by
certified or registered mail, return receipt requested, to the Corporation by
delivery to its registered office in the State of Delaware, its principal place
of business, or an officer or agent of the Corporation having custody of the
book in which proceedings of meetings of shareholders are recorded. Every
written consent shall bear the date of signature of each shareholder who signs
the consent and no written consent shall be effective to take the corporate
action referred to therein unless, within 60 days of the earliest dated consent
delivered in the manner required by this Section to the Corporation, written
consents signed by a sufficient number of holders to take action are delivered
to the Corporation by delivery to its registered office in the State of
Delaware, its principal place of business or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
shareholders are recorded. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
shareholders who have not consented in writing and who, if the action had been
taken at a meeting, would have been entitled to notice of the meeting if the
record date for such meeting had been the date that written consents signed by a
sufficient number of holders to take the action were delivered to the
Corporation as provided in this Section.
2 11 CONDUCT OF MEETINGS. The Board of Directors may adopt by resolution
such rules and regulations for the conduct of the meeting of shareholders as it
shall deem appropriate. Except to the extent inconsistent with such rules and
regulations as adopted by the Board of Directors, the chairman of any meeting of
shareholders shall have the right and authority to prescribe such rules,
regulations and procedures and to do all such acts as, in the judgment of such
<PAGE>
chairman, are appropriate for the proper conduct of the meeting. Such rules,
regulations or procedures, whether adopted by the Board of Directors or
prescribed by the chairman of the meeting, may include, without limitation, the
following: (i) the establishment of an agenda or order of business for the
meeting; (ii) rules and procedures for maintaining order at the meeting and the
safety of those present; (iii) limitations on attendance at or participation in
the meeting to shareholders of record of the Corporation, their duly authorized
and constituted proxies or such other persons as the chairman of the meeting
shall determine; (iv) restrictions on entry to the meeting after the time fixed
for the commencement thereof; and (v) limitations on the time allotted to
questions or comments by participants. Unless and to the extent determined by
the Board of Directors or the chairman of the meeting, meetings of shareholders
shall not be required to be held in accordance with the rules of parliamentary
procedure.
3
BOARD OF DIRECTORS
3 1 NUMBER; QUALIFICATIONS. The Board of Directors shall consist of not
less than three nor more than seven members, the number thereof to be determined
from time to time by resolution of the Board of Directors. Directors need not be
shareholders. The Board of Directors shall initially be comprised of five
directors.
3 2 ELECTION; RESIGNATION; REMOVAL; VACANCIES. The Board of Directors
shall initially consist of the persons named as directors by the incorporator of
the Corporation, and each director so elected shall hold office until the first
annual meeting of shareholders or until his successor is elected and qualified.
At the first annual meeting of shareholders and at each annual meeting
thereafter, the shareholders shall elect directors, each of whom shall hold
office for a term of one year or until his successor is elected and qualified.
Any director may resign at any time upon written notice to the Corporation. Any
director, or the entire Board of Directors, may be removed, with or without
cause, by the holders of a majority of the shares then entitled to vote. Any
newly created directorship or any vacancy occurring in the Board of Directors
for any cause may be filled by a majority of the remaining members of the Board
of Directors, even if such majority is less than a quorum, or by a plurality of
the votes cast at a meeting of shareholders, and each director so elected shall
hold office until the expiration of the term of office of the director he has
replaced or until his successor is elected and qualified.
3 3 REGULAR MEETINGS. Regular meetings of the Board of Directors may be
held at such places within or without the State of Delaware and at such times as
the Board of Directors may from time to time determine, and if so determined,
notices thereof need not be given.
3 4 SPECIAL MEETINGS. Special meetings of the Board of Directors may be
held at any time or place within or without the State of Delaware whenever
called by the President, any Vice President, the Secretary or by any member of
the Board of Directors. Notice of a special meeting of the Board of Directors
<PAGE>
shall be given by the person or persons calling the meeting at least 24 hours
before the special meeting.
3 5 TELEPHONIC MEETINGS PERMITTED. Members of the Board of Directors or of
any Committee (as such term in defined in Section 4.01) may participate in a
meeting thereof by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this Section shall
constitute presence in person at such meeting.
3 6 QUORUM; VOTE REQUIRED FOR ACTION. At all meetings of the Board of
Directors, a majority of the whole Board of Directors shall constitute a quorum
for the transaction of business. Except in cases in which the Certificate of
Incorporation or these Bylaws otherwise provide, the vote of a majority of the
directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors.
3 7 ORGANIZATION. Meetings of the Board of Directors shall be presided
over by the Chairman of the Board, if any, or in his absence by the Vice
Chairman of the Board, if any, or in his absence by the President, or in their
absence by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
3 8 INFORMAL ACTION BY DIRECTORS. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors, or of any Committee (as
such term is defined in Section 4.01), may be taken without a meeting if all
members of the Board of Directors or such Committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or such Committee.
4
COMMITTEES
4 1 COMMITTEES. The Board of Directors may designate one or more
committees (each, a "Committee") to consist of one or more of the directors of
the Corporation. The Board may designate one or more directors as alternate
members of any Committee, who may replace any absent or disqualified members at
any meeting of the Committee. In the absence or disqualification of a member of
a Committee, the member or members present at any meeting and not disqualified
from voting, whether or not such member or members constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Any Committee
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers which may
require it; but no such Committee shall have power or authority in reference to
the following matters: (i) approving or adopting, or recommending to the
<PAGE>
shareholders, any action or matters expressly required by the Delaware General
Corporation Law to be submitted to shareholders for approval or (ii) adopting,
amending or repealing any Bylaw of the Corporation.
4 2 COMMITTEE RULES. Unless the Board of Directors otherwise provides,
each Committee may make, alter and repeal rules for the conduct of its business.
In the absence of such rules, each Committee shall conduct its business in the
same manner as the Board of Directors conducts its business pursuant to Article
Three of these Bylaws.
5
OFFICERS
5 1 EXECUTIVE OFFICERS; ELECTION; QUALIFICATIONS; TERM OF OFFICE;
RESIGNATION; REMOVAL; VACANCIES. The Board of Directors shall elect a President
and Secretary, and it may, if it so determines, choose a Chairman of the Board
and a Vice Chairman of the Board from among its members. The Board of Directors
may also choose one or more Vice Presidents, one or more Assistant Secretaries,
a Treasurer and one or more Assistant Treasurers. Each such officer shall hold
office until the first meeting of the Board of Directors after the annual
meeting of shareholders next succeeding his election, and until his successor is
elected and qualified or until his earlier resignation or removal. Any officer
may resign at any time upon written notice to the Corporation. The Board of
Directors may remove any officer with or without cause at any time. Any number
of offices may be held by the same person. Any vacancy occurring in any office
of the Corporation by death, resignation, removal or otherwise may be filled for
the unexpired portion of the term by the Board of Directors at any regular or
special meeting.
5 2 POWERS AND DUTIES OF EXECUTIVE OFFICERS. The officers of the
Corporation shall have such powers and duties in the management of the
Corporation as may be prescribed in a resolution by the Board of Directors and,
to the extent not so provided, as generally pertain to their respective offices,
subject to the control of the Board of Directors. The Board of Directors may
require any officer, agent or employee to give security for the faithful
performance of his duties.
6
STOCK
6 1 CERTIFICATES. Every holder of stock shall be entitled to have a
certificate signed by or in the name of the Corporation by the Chairman or Vice
Chairman of the Board of Directors, if any, or the President or a Vice
President, and by the Treasurer or an Assistant Treasurer, or the Secretary or
an Assistant Secretary, of the Corporation certifying the number of shares in
the Corporation owned by him. Any of or all the signatures on the certificate
may be by facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar before such
<PAGE>
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of issue.
6 2 LOST, STOLEN OR DESTROYED STOCK CERTIFICATES; ISSUANCE OF NEW
CERTIFICATES. The Corporation may issue a new certificate of stock or
uncertificated shares in the place of any certificate theretofore issued by it
and alleged to have been lost, stolen or destroyed, and the Corporation may
require the owner or the legal representative of the owner of such certificate
to give the Corporation a bond sufficient to indemnify the Corporation against
any claim that may be made against it on account of the alleged loss, theft or
destruction of such certificate or the issuance of such new certificate or
uncertificated shares.
7
INDEMNIFICATION
7 1 RIGHT TO INDEMNIFICATION. The Corporation shall indemnify and hold
harmless, to the fullest extent permitted by applicable law, any person who was
or is made or is threatened to be made a party or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "Proceeding"), by reason of the fact that he or a person for
whom he is the legal representative is or was a director, officer, agent or
employee of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust, enterprise or nonprofit entity,
including service with respect to employee benefit plans, against all expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person (collectively, "Expenses"). The
Corporation shall indemnify any such person in connection with a Proceeding (or
part thereof) initiated by such person only if the Proceeding (or part thereof)
was authorized by the Board of Directors.
7 2 PREPAYMENT OF EXPENSES. The Corporation may, in its discretion, pay
the Expenses incurred in defending any Proceeding in advance of its final
disposition; provided, however, that the payment of Expenses incurred by a
director or officer in advance of the final disposition of the Proceeding shall
be made only upon receipt of an undertaking by the director or officer to repay
all amounts advanced should it be ultimately determined that the director or
officer is not entitled to be indemnified under this Article or otherwise.
7 3 NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any person by this
Article shall not be exclusive of any other rights which such person may
have or hereafter acquire under the Certificate of Incorporation, these
Bylaws, any agreement, a vote of shareholders or disinterested directors,
or otherwise, both as to action in such person's official capacity and as
to action in another capacity while holding such office.
7 4 OTHER INDEMNIFICATION. The Corporation's obligation, if any, to
indemnify any person who was or is serving at its request as a director,
<PAGE>
officer, employee or agent of another corporation, limited liability company,
partnership, joint venture, trust, enterprise or nonprofit entity shall be
reduced by any amount such person may collect as indemnification from such other
corporation, limited liability company, partnership, joint venture, trust,
enterprise or nonprofit enterprise.
7 5 AMENDMENT OR REPEAL. Any repeal or modification of the foregoing
provisions of this Article shall not adversely affect any right or protection
hereunder of any person in respect of any act or omission occurring prior to the
time of such repeal or modification.
8
MISCELLANEOUS
8 1 FISCAL YEAR. The fiscal year of the Corporation shall be January 1
through December 31.
8 2 SEAL. The corporate seal shall have the name of the Corporation
inscribed thereon and shall be in such form as may be approved from time to time
by the Board of Directors.
8 3 WAIVER OF NOTICE OF MEETINGS OF SHAREHOLDERS, DIRECTORS AND
COMMITTEES. Any written waiver of notice, signed by the person entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at nor the purpose of any
regular or special meeting of the shareholders, directors or a Committee need be
specified in any written waiver of notice.
8 4 INTERESTED DIRECTORS: QUORUM. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, limited liability company, partnership,
association or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the director or officer is
present at or participates in the meeting of the Board of Directors or a
Committee that authorizes the contract or transaction, or solely because his or
their votes are counted for such purpose, if (i) the material facts as to his
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the Committee, and the Board of Directors
or Committee in good faith authorizes the contract or transaction by the
affirmative vote of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; (ii) the material facts as to his
relationship or interest and as to the contract or transaction are disclosed or
are known to the shareholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the shareholders;
or (iii) the contract or transaction is fair as to the Corporation as of the
<PAGE>
time it is authorized, approved or ratified by the Board of Directors, a
Committee or the shareholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a Committee that authorizes the contract or transaction.
8 5 FORM OF RECORDS. Any records maintained by the Corporation in the
regular course of its business, including its stock ledger, books of account and
minute books, may be kept on or be in the form of punch cards, magnetic tape,
photographs, microphotographs or any other information storage device, provided
that the records so kept can be converted into clearly legible form within a
reasonable time.
* * * * *
Exhibit 9
AGREEMENT
This Agreement dated June 30, 1999 (the "Agreement"), is between Amadeo,
Inc., a Delaware corporation ("Amadeo") and Amadeo Trust, a New York trust
("Trust").
WHEREAS, Amadeo is the owner of the following securities issued by Bank of
America Auto Owner Trust 1999-A:
$2,750,000,000 initial principal balance of the 5.305% Class A-1
Asset-Backed Notes;
$2,904,000,000 initial principal balance of the 5.854% Class A-2
Asset-Backed Notes,
$2,410,000,000 initial principal balance of the 6.410% Class A-3
Asset-Backed Notes,
$508,231,929 initial principal balance of the 6.540% Class A-4
Asset-Backed Notes (collectively, the "NOTES"),
$385,168,206 initial principal balance of 6.930% Class B
Asset-Backed Certificates (the "CERTIFICATE"); and
the Residual Certificate (the Notes, Certificate and Residual
Certificate, collectively, the "SECURITIES"); and
WHEREAS, Amadeo desires to contribute the Securities to the Trust in
exchange for 9,000,000 Units of the Trust, representing 100% of the undivided
fractional interests in the Trust;
NOW, THEREFORE, in consideration of the premises herein, and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Section 1. Capitalized terms used in this Agreement and not otherwise
defined have the same meanings assigned to such terms in the Trust Indenture and
Agreement dated June 30, 1999 among NationsBank, N.A., as trustee, Amadeo, as
depositor, and NationsBank, N.A., in its individual capacity.
Section 2. Amadeo hereby conveys free and clear fee title to the
Securities to the Trust, free and clear of all liens, encumbrances and any other
interests.
Section 3. Amadeo represents that it is acquiring the Units for investment
purposes and not with a view to sale or public distribution.
<PAGE>
Section 4. THIS AGREEMENT SHALL BE GOVERNED BY, AND BE CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the day
and year first above written.
AMADEO, INC.
By: /s/ Paulette M. Mehas
-----------------------------------------
Name: Paulette M. Mehas
Title: President
AMADEO TRUST
By: NationsBank, N.A., Trustee
By: /s/ Suzanne W. Castleberry
-----------------------------------------
Name: Suzanne W. Castleberry
Title: Vice President
2
