EXECUTION COPY
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Exhibit 1.1
CHEVY CHASE AUTO RECEIVABLES TRUST 2001-2
Auto Receivables Backed Notes
UNDERWRITING AGREEMENT
September 20, 2001
Credit Suisse First Boston Corporation,
as Representative of the Underwriters
identified on Schedule 1
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. INTRODUCTION. Chevy Chase Bank, F.S.B., a federally chartered stock savings
bank ("Chevy Chase"), has authorized the issuance and sale of the Class A-1
2.77313% Asset Backed Notes (the "Class A-1 Notes"), Class A-2 2.97% Asset
Backed Notes (the "Class A-2 Notes"), Class A-3 3.80% Asset Backed Notes
(the "Class A-3 Notes"), Class A-4 4.44% Asset Backed Notes (the "Class A-4
Notes", and collectively with the Class A-1 Notes, the Class A-2 Notes and
the Class A-3 Notes, the "Class A Notes") and Class B 5.16% Asset Backed
Notes (the "Class B Notes", and together with the Class A Notes, the
"Notes") issued by Chevy Chase Auto Receivables Trust 2001-2 (the "Trust").
2. THE NOTES. The Notes will represent obligations of the Trust, and will be
secured by the pledge of assets of the Trust, consisting, among other
things, of (i) simple interest retail installment sales contracts and
installment loans (the "Receivables") secured by new and used automobiles,
light duty trucks and vans (the "Vehicles") financed thereby, (ii) amounts
due or received thereunder on or after September 1, 2001 (the "Cut-Off
Date"), and (iii) security interests in the Vehicles financed thereby. The
Notes will be issued pursuant to an Indenture, dated as of September 1, 2001
(the "Indenture") between the Trust and U.S. Bank National Association, as
indenture trustee (the "Indenture Trustee"), and a Sale and Servicing
Agreement, dated as of September 1, 2001 (the "Sale and Servicing
Agreement") among the Trust, Chevy Chase, as seller and as servicer, and the
Indenture Trustee. The Indenture Trustee will have access to a Reserve
Account to be established for the benefit of the holders of the Notes. The
Notes will be issued in an aggregate principal amount of $403,332,000.
Capitalized terms used but not defined herein shall have the meanings given
to them in the Indenture and the Sale and Servicing Agreement.
Chevy Chase hereby agrees with the Underwriters named in Schedule 1 hereto
(the "Underwriters") as follows:
3. REPRESENTATIONS AND WARRANTIES OF CHEVY CHASE. Chevy Chase represents and
warrants to, and agrees with, each of the Underwriters that:
[Underwriting Agreement]
(a) A Registration Statement on Form S-3 (No. 333-36242) relating to the Notes,
including a form of Prospectus, has been filed with the Securities and
Exchange Commission (the "Commission") and either (i) has been declared
effective under the Securities Act of 1933 (the "Act") and is not proposed
to be amended or (ii) is proposed to be amended by amendment or post-
effective amendment. If Chevy Chase does not propose to amend such
Registration Statement or if any post-effective amendment to such
Registration Statement has been filed with the Commission prior to the
execution and delivery of this Agreement, such Registration Statement or
such post-effective amendment, as the case may be, has been declared
effective by the Commission. For purposes of this Agreement, "Effective
Time" means (i) if Chevy Chase has advised Credit Suisse First Boston
Corporation, as representative of the Underwriters (the "Representative"),
that it does not propose to amend such Registration Statement, the date and
time as of which such Registration Statement, or the most recent post-
effective amendment thereto (if any) filed prior to the execution and
delivery of this Agreement, was declared effective by the Commission, or
(ii) if Chevy Chase has advised the Representative that it proposes to file
an amendment or post-effective amendment to such Registration Statement,
the date and time as of which such Registration Statement, as amended by
such amendment or post-effective amendment, as the case may be, is declared
effective by the Commission. "Effective Date" means the date of the
Effective Time. Such Registration Statement, as amended at the Effective
Time, including all material incorporated by reference therein and
including all information, if any, deemed to be a part of such Registration
Statement as of the Effective Time pursuant to Rule 430A(b) under the Act,
is referred to herein as the "Registration Statement". The term "Base
Prospectus" means the prospectus included in the Registration Statement, as
such Base Prospectus has been amended or supplemented subsequent to the
Effective Time by any Prospectus filed with the Commission pursuant to Rule
424(b)(2), (3), (4) or (5). The term "Prospectus Supplement" means the
preliminary prospectus supplement dated September 9, 2001 and the
prospectus supplement dated September 20, 2001, both specifically relating
to the Notes, as both were filed with the Commission pursuant to Rule 424
under the Act (together the "Prospectus Supplement"). The Base Prospectus
and the Prospectus Supplement, together with all material incorporated by
reference in such Base Prospectus or such Prospectus Supplement, is
hereinafter referred to as the "Prospectus."
(b) If the Effective Time is prior to the execution and delivery of this
Agreement: (i) on the Effective Date, the Registration Statement conformed,
and on the date of this Agreement the Registration Statement conforms, in
all material respects with the requirements of the Act and the rules and
regulations of the Commission ("Rules and Regulations") and did not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and (ii) on the date of this Agreement, the Prospectus
conforms, and at the time of filing of the Prospectus pursuant to Rule
424(b) and at the Closing Date, the Prospectus will conform, in all
material respects to the requirements of the Act and the Rules and
Regulations and the Prospectus does not include, and will not include, as
of the date of this Agreement and at the Closing Date, respectively, any
untrue statement of a material fact, and does not omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. If
the Effective Time is subsequent to the execution and delivery of this
Agreement, on the Effective Date the Registration Statement and the
Prospectus will conform in all material respects to the
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requirements of the Act and the Rules and Regulations, and (i) the
Registration Statement will not include any untrue statement of a material
fact or will not omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and (ii)
the Prospectus will not include an untrue statement of a material fact or
will not omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The two preceding sentences do not apply to
statements in or omissions from the Registration Statement or Prospectus
based upon written information furnished to Chevy Chase by any Underwriters
through the Representative specifically for use therein, it being
understood the only such information is that described as such in Section
9(b). The conditions to the use by Chevy Chase of a Registration Statement
on Form S-3 under the Act, as set forth in the General Instructions to Form
S-3, have been satisfied with respect to the Registration Statement and the
Prospectus. There are no contracts or documents which were required to be
filed as exhibits to the Registration Statement pursuant to the Act or the
Rules and Regulations on or prior to the Effective Date which have not been
so filed on or prior to the Effective Date or that were required to be
filed as exhibits to the Registration Statement pursuant to the Act or the
Rules and Regulations which have not been filed as exhibits to reports
filed under the Exchange Act that are incorporated by reference into the
Registration Statement.
(c) Since the respective dates as of which information is given in the
Prospectus, or the Prospectus as amended and supplemented, there has not
been any material adverse change in the general affairs, management, or
results of operations of Chevy Chase or of its subsidiaries otherwise than
as set forth or contemplated in the Prospectus or the Prospectus as amended
and supplemented, nor has there been any adverse change in the general
affairs, management, or results of operations of any other affiliate of
Chevy Chase which could have a material adverse effect on the general
affairs, management or results of operations of Chevy Chase or its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus
or the Prospectus as amended and supplemented.
(d) Chevy Chase is a federally chartered stock savings bank duly organized and
validly existing under the laws of the United States of America, and has
full corporate power, authority and legal right to own its properties and
conduct its business as such properties are presently owned and such
business is presently conducted, and to execute, deliver and perform its
obligations under this Agreement, the Sale and Servicing Agreement and the
Trust Agreement dated as of September 1, 2001, as amended and restated by
the Amended and Restated Trust Agreement, dated as of September 27, 2001
(as amended and restated, the "Trust Agreement"), and to cause the Notes to
be issued. Chevy Chase has conducted and is conducting its business so as
to comply in all material respects with all applicable statutes and
regulations, including, without limitation, all regulations, decisions,
directives and orders of the Office of Thrift Supervision. Chevy Chase is
duly qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification.
(e) (i) There are no legal, governmental or regulatory proceedings pending to
which Chevy Chase is a party or to which any of its property is subject,
which, if determined adversely to Chevy Chase, would individually or in the
aggregate have a material adverse effect on the performance by Chevy Chase
of this Agreement, the Sale and Servicing Agreement or the
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Trust Agreement or the consummation of the transactions contemplated
hereunder or thereunder and (ii) to the best of its knowledge, no such
proceedings are threatened or contemplated by governmental or regulatory
authorities or threatened by others.
(f) This Agreement has been duly authorized and validly executed and delivered
by Chevy Chase and, assuming the due authorization, execution and delivery
by the other parties hereto, constitutes a valid and binding agreement of
Chevy Chase, enforceable against Chevy Chase in accordance with its terms,
except to the extent that (i) the enforceability hereof may be subject to
insolvency, reorganization, moratorium, receivership, conservatorship, or
other similar laws, regulations or procedures of general applicability now
or hereafter in effect relating to or affecting creditors' or other
obligees' rights generally or the rights of creditors or obligees of
federally chartered stock savings banks, the deposits of which are insured
by the Federal Deposit Insurance Corporation (the "FDIC"), (ii) the remedy
of specific performance and injunctive and other forms of equitable relief
may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought and (iii) rights to
indemnification and contribution under this Agreement may be limited by
state or federal securities laws or the policies underlying such laws.
(g) The Sale and Servicing Agreement and the Trust Agreement have been duly
authorized by Chevy Chase and, when executed and delivered by Chevy Chase
and assuming the due authorization, execution and delivery of the Sale and
Servicing Agreement and the Trust Agreement by the other parties thereto,
will constitute valid and binding obligations of Chevy Chase enforceable
against Chevy Chase in accordance with their respective terms, except to
the extent that (i) the enforceability thereof may be subject to
insolvency, reorganization, moratorium, receivership, conservatorship, or
other similar laws, regulations or procedures of general applicability now
or hereafter in effect relating to or affecting creditors' or other
obligees' rights generally or the rights of creditors or obligees of
federally chartered stock savings banks, the deposits of which are insured
by the FDIC, (ii) the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses and to
the discretion of the court before which any proceeding therefor may be
brought and (iii) rights to indemnification and contribution may be limited
by state or federal securities laws or the policies underlying such laws.
(h) The issuance and delivery of the Notes, the consummation of any other of
the transactions contemplated herein, in the Sale and Servicing Agreement
and the Trust Agreement or the fulfillment of the terms of this Agreement,
the Sale and Servicing Agreement and the Trust Agreement, do not and will
not conflict with or violate any term or provision of the Charter or By-
laws of Chevy Chase, any statute, order or regulation applicable to Chevy
Chase of any court, regulatory body, administrative agency or governmental
body having jurisdiction over Chevy Chase and do not and will not conflict
with, result in a breach or violation or the acceleration of or constitute
a default under or result in the creation or imposition of any lien, charge
or encumbrance upon any of the property or assets of Chevy Chase pursuant
to the terms of, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which Chevy Chase is a party or by which
Chevy Chase may be bound or to which any of the property or assets of Chevy
Chase may be subject except for conflicts, violations, breaches,
accelerations and defaults which would not, individually or in the
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aggregate, be materially adverse to Chevy Chase or materially adverse to
the transactions contemplated by this Agreement.
(i) Xxxxxx Xxxxxxxx LLP is an independent public accountant with respect to
Chevy Chase as required by the Act and the Rules and Regulations.
(j) The Notes have been duly authorized, and when the Notes are issued and
delivered pursuant to the Indenture, the Notes will have been duly issued
and delivered and will be entitled to the benefits provided by the
Indenture and the Sale and Servicing Agreement, subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium and other laws affecting the rights of creditors
generally, and to general principles of equity (regardless of whether the
entitlement to such benefits is considered in a proceeding in equity or at
law), and will conform in substance to the description thereof contained in
the Registration Statement and the Prospectus, and will in all material
respects be in the form contemplated by the Indenture and the Sale and
Servicing Agreement.
(k) No consent, approval, authorization, order, registration or qualification
of or with any court or governmental agency or body of the United States is
required for the issuance and sale of the Notes, or the consummation by
Chevy Chase of the other transactions contemplated by this Agreement, the
Indenture, the Sale and Servicing Agreement or the Trust Agreement, except
the registration under the Act of the Notes and such consents, approvals,
authorizations, registrations or qualifications as may have been obtained
or effected or as may be required under securities or Blue Sky laws in
connection with the purchase and distribution of the Notes by the
Underwriters.
(l) Chevy Chase possesses all material licenses, certificates, authorizations
or permits issued by the appropriate state, Federal or foreign regulatory
agencies or bodies necessary to conduct the business now conducted by it
and as described in the Prospectus and Chevy Chase has not received notice
of proceedings relating to the revocation or modification of any such
license, certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would materially and adversely affect the conduct of its business,
operations, financial condition or income.
(m) At the time of execution and delivery of the Sale and Servicing Agreement,
Chevy Chase (i) will not have assigned to any person any of its right,
title or interest in the Receivables or in the Sale and Servicing Agreement
or the Notes and (ii) will have the power and authority to sell the
Receivables to the Trust and to sell the Notes to the Underwriters, and
upon execution and delivery of the Sale and Servicing Agreement by the
Trust and the Indenture Trustee and payment of the consideration set forth
therein, the Trust will have acquired beneficial ownership of all of Xxxxx
Xxxxx'x right, title and interest in and to the Receivables, and upon
delivery to the Underwriters of the Notes the Underwriters will have good
and marketable title to the Notes.
(n) As of the Cut-Off Date, the Receivables will meet the eligibility criteria
described in the Prospectus.
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(o) The Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended, and the Trust is not, and immediately following the
issuance and sale of the Notes will not be, required to be registered as
an "investment company" under the Investment Company Act of 1940, as
amended (the "1940 Act"), as in effect on the date hereof.
(p) Chevy Chase has authorized the conveyance of the Receivables to the
Trust, and Chevy Chase has caused the Trust to issue the Notes.
(q) Each of the Notes, the Sale and Servicing Agreement, the Indenture and
the Trust Agreement conforms in all material respects to the
descriptions thereof contained in the Prospectus.
(r) Any taxes, fees and other governmental charges in connection with the
execution, delivery and issuance of this Agreement, the Sale and
Servicing Agreement, the Indenture, the Trust Agreement and the Notes
that are required to be paid by Chevy Chase at or prior to the Closing
Date have been paid or will be paid at or prior to the Closing Date.
(s) Chevy Chase will not apply the proceeds of the sale of the Notes
pursuant to this Agreement to purchase securities (which term does not
include the Receivables) within the meaning of Regulation T promulgated
by the Federal Reserve Board.
(t) As of the Closing Date, the representations and warranties of Chevy
Chase in the Sale and Servicing Agreement will be true and correct.
Any certificate signed by an officer of Chevy Chase and delivered to
the Underwriters or the Underwriters' counsel in connection with an offering
of the Notes shall be deemed, and shall state that it is, a representation
and warranty as to the matters covered thereby to each person to whom the
representations and warranties in this Section 3 are made.
4. REPRESENTATIONS AND WARRANTIES OF THE UNDERWRITERS. Each Underwriter
severally, and not jointly, represents and warrants to Chevy Chase that:
As of the date hereof and as of the Closing Date that such Underwriter
has complied and will comply with all of its obligations arising under
Section 15(c)(2) of the Exchange Act and Rule 15c2-8 thereunder, in each
case, applicable to such Underwriter and solely in connection with the
electronic delivery of the preliminary prospectus.
5. PURCHASE, SALE, DELIVERY AND PAYMENTS. The Underwriters' commitment to
purchase the Notes pursuant to this Agreement shall be deemed to have been
made on the basis of the representations and warranties herein contained and
shall be subject to the terms and conditions herein set forth. Chevy Chase
agrees to instruct the Indenture Trustee to issue and agrees to sell to the
Underwriters, and the Underwriters, severally and not jointly, agree, to
purchase from Chevy Chase, the Notes at a purchase price for the Notes of
each class calculated by multiplying the purchase price percentage set forth
on Schedule 1 hereto by the respective principal amount of Notes of each
class, to be purchased by the Underwriters, respectively, as set forth on
Schedule 1 hereto. Payment of the purchase price for, and delivery of, any
Notes to be purchased by the Underwriters shall be made at the offices of
Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000
or at such other place as shall be agreed
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upon by the Underwriters and Chevy Chase, at 10:00 a.m. New York time on
September 27, 2001 (the "Closing Date"), or at such other date or time as
shall be agreed upon in writing by the Representative and Chevy Chase. On the
Closing Date, payment shall be made to Chevy Chase by wire transfer of same
day funds payable to the account of Chevy Chase against delivery to the
Indenture Trustee as custodian for The Depository Trust Company ("DTC") of
the Notes in the form of one or more global Notes in definitive form (the
"Global Notes") and registered in the name of Cede & Co., as nominee for DTC.
The Global Notes will be made available for checking at the offices of Xxxxx
Xxxxxxxxxx LLP at least 24 hours prior to the Closing Date.
6. OFFERING BY UNDERWRITERS. It is understood that the Underwriters propose to
offer the Notes for sale to the public (which may include selected dealers)
as set forth in the Prospectus.
7. COVENANTS OF CHEVY CHASE. Chevy Chase covenants with the Underwriters as
follows:
(a) To prepare a Prospectus setting forth any price related information
previously omitted from the effective Registration Statement pursuant to
Rule 430A under the Act within the time period prescribed by Rule 430A,
and to transmit such Prospectus to the Commission for filing pursuant to
Rule 424(b) under the Act, and prior to the Closing Date to provide
evidence satisfactory to the Underwriters of such filing, or to prepare
and timely file a post-effective amendment to the Registration Statement
providing such information, which post-effective amendment shall have
been declared effective in accordance with the requirements of Rule 430A
under the Act and to provide evidence satisfactory to the Underwriters
of the effectiveness thereof.
(b) If at any time when the Prospectus as amended or supplemented is
required by the Act to be delivered in connection with sales of the
Notes by the Underwriters, any event shall occur or condition exist as a
result of which it is necessary, in the opinion of the Underwriters'
counsel or counsel for Chevy Chase, further to amend or supplement the
Prospectus as then amended or supplemented in order that the Prospectus
as amended or supplemented will not include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of circumstances existing at the time
it is delivered to a purchaser, not misleading or if it shall be
necessary, in the opinion of any such counsel, at any such time to amend
or supplement the Registration Statement or the Prospectus as then
amended or supplemented in order to comply with the requirements of the
Act or the Rules and Regulations, or if required by such Rules and
Regulations, including Rule 430A thereunder, to file a post-effective
amendment to such Registration Statement (including an amended
Prospectus), Chevy Chase will promptly notify the Representative of such
event and will prepare and file with the Commission (subject to the
Representative's prior review), at its own expense, such amendment or
supplement as may be necessary to correct such untrue statement or
omission or to make the Registration Statement comply with such
requirements, and within two Business Days will furnish to the
Underwriters as many copies of the Prospectus, as amended or
supplemented, as the Underwriters shall reasonably request. Neither the
Representative's consent to, nor the Underwriters' delivery of, any such
amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 7 of this Agreement.
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(c) Chevy Chase will give the Underwriters reasonable notice of its intention
to file any amendment to the Registration Statement, the Prospectus or the
Prospectus as amended or supplemented, pursuant to the Act, and will
furnish the Underwriters with copies of any such amendment or supplement
proposed to be filed a reasonable time in advance of filing, and will not
file any such amendment or supplement to which the Underwriters or the
Underwriters' counsel shall object.
(d) Chevy Chase will notify the Underwriters immediately, and confirm the
notice in writing, (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the mailing or the delivery (including
electronic delivery) to the Commission for filing of any supplement to the
Prospectus or the Prospectus as amended or supplemented, (iii) of the
receipt and contents of any comments from the Commission with respect to
the Registration Statement or the Prospectus or the Prospectus as amended
or supplemented, (iv) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the Prospectus
or for additional information, (v) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the initiation of, or threat of, any proceedings for that purpose or (vi)
the suspension of qualification of the Notes for offering or sale in any
jurisdiction or the initiation of any proceeding for that purpose. Chevy
Chase will make every reasonable effort to prevent the issuance of any stop
order and, if any stop order is issued, to obtain the lifting thereof at
the earliest possible moment.
(e) Chevy Chase will deliver to the Underwriters as many signed and as many
conformed copies of the Registration Statement (as originally filed) and of
each amendment thereto (including exhibits filed therewith or incorporated
by reference therein and documents incorporated by reference in the
Prospectus), each related preliminary prospectus, and so long as delivery
of a Prospectus relating to the Notes is required to be delivered under the
Act in connection with sales by any Underwriter or dealer, the Prospectus
and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as the Underwriters may reasonably
request. Chevy Chase will also furnish to the Representative copies of any
report required by Rule 463 under the Act.
(f) Chevy Chase will make generally available to holders of the Notes as soon
as practicable, but in any event not later than the Availability Date (as
defined below), earning statements of the Trust (which need not be audited)
complying with Section 11(a) of the Act and the Rules and Regulations
(including Rule 158) and covering a period of at least twelve consecutive
months beginning after the Effective Date which will satisfy the provisions
of Section 11(a) of the Act. For the purposes of the preceding sentence,
the "Availability Date" means the 45th day after the end of the Trust's
fourth fiscal quarter following the fiscal quarter that includes the
Effective Date, except that, if such fourth fiscal quarter is the last
quarter of the Trust's fiscal year, "Availability Date" means the 90th day
after the end of such fourth fiscal quarter.
(g) Chevy Chase will endeavor, in cooperation with the Underwriters, to qualify
the Notes for sale and the determination of their eligibility for
investment under the applicable securities laws of such states and other
jurisdictions of the United States as the Representative may designate, and
will maintain or cause to be maintained such qualifications in effect for
as
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long as may be required for the distribution of the Notes. Chevy Chase will
file or cause the filing of such statements and reports as may be required
by the laws of each jurisdiction in which the Notes have been qualified as
above provided.
(h) Chevy Chase will not, directly or indirectly, without the Underwriters'
prior consent, publicly offer or sell or contract to sell or attempt to
offer, sell or dispose of any securities representing interests in or
secured by the Receivables for a period of 30 days following the
commencement of the offering of the Notes to the public; provided, however,
-------- -------
that Chevy Chase may, without the Underwriters' prior consent, contract to
sell or attempt to offer, sell or dispose of securities in public
transactions secured by first or second mortgage loans, home equity lines
of credit, home improvement loans and "sub-prime" auto loans (but not
"prime" auto loans); provided further, however, that Chevy Chase may,
-------------------------
without the Underwriters' prior consent, contract to sell or attempt to
offer, sell or dispose of in public or private transactions the Class B
Certificates from the Chevy Chase Auto Receivables Trust, Series 1997-3 and
the Class B Certificates from the Chevy Chase Auto Receivables Trust,
Series 1997-4.
(i) For so long as any of the Notes remain outstanding, Chevy Chase, as
Servicer, will deliver to the Representative and, upon request, to each of
the other Underwriters, as soon as practicable, copies of each certificate,
report or notice and the annual statements of compliance delivered by Chevy
Chase, as Servicer, to the Indenture Trustee pursuant to Section 4.10 of
the Sale and Servicing Agreement, the annual statement of a firm of
independent public accountants furnished to the Indenture Trustee pursuant
to Section 4.11 of the Sale and Servicing Agreement and such other
information concerning the Receivables, Chevy Chase (including in its
capacities as the Seller and Servicer) or the Notes, as the Representative
may from time to time reasonably request.
(j) On or before the Closing Date, Chevy Chase shall furnish or make available
to the Underwriters or its counsel such additional documents and
information regarding Chevy Chase (including in its capacities as the
Seller and Servicer) and its affairs as the Underwriters may from time to
time reasonably request, including any and all documentation reasonably
requested in connection with their due diligence efforts regarding
information in the Prospectus and in order to evidence the accuracy or
completeness of any of the conditions contained in this Agreement.
(k) So long as any of the Notes is outstanding, Chevy Chase shall furnish to
the Representative by first class mail as soon as practicable, (A) all
documents distributed, or caused to be distributed, by Chevy Chase to
Noteholders, (B) all documents filed, or caused to be filed, by Chevy Chase
with the Commission relating to the Trust pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), (C) any order of the
Commission under the Exchange Act or pursuant to a "no action" letter from
the staff of the Commission relating to the Trust and (D) from time to
time, such other information in the possession of Chevy Chase concerning
the Trust as the Representative may reasonably request.
(l) The net proceeds from the sale of the Notes shall be applied in the manner
set forth in the Prospectus Supplement.
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(m) If, between the date hereof or, if earlier, the dates as of which
information is given in the Prospectus and the Closing Date, to the
knowledge of Chevy Chase there shall have been any material change, or
any development involving a prospective material change in or affecting
the general affairs, management, financial position, shareholders'
equity or results of operations of Chevy Xxxxx, Xxxxx Xxxxx will give
prompt written notice thereof to the Underwriters.
(n) To the extent, if any, that any rating provided with respect to the
Notes set forth in Section 7(i) hereof is conditional upon the
furnishing of documents reasonably available to Chevy Chase or the
taking of any other reasonable actions by Chevy Xxxxx, Xxxxx Xxxxx shall
furnish such documents or take any such other actions.
8. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of the
Underwriters to purchase the Notes pursuant to this Agreement are subject to
the accuracy on and as of the Closing Date of the representations and
warranties on the part of Chevy Chase herein contained, to the accuracy of
the statements of officers of Chevy Chase made pursuant hereto, to the
performance by Chevy Chase of all of its obligations hereunder and to the
following conditions at the Closing Date:
(a) The Representative shall have received a letter, dated the date of
delivery thereof (which, if the Effective Time is prior to the execution
and delivery of this Agreement, shall be on or prior to the date of this
Agreement or, if the Effective Time is subsequent to the execution and
delivery of this Agreement, shall be prior to the filing of the
amendment or post-effective amendment to the Registration Statement to
be filed shortly prior to the Effective Time), from Xxxxxx Xxxxxxxx LLP,
in form and substance satisfactory to the Underwriters and counsel for
the Underwriters, confirming that they are independent public
accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder and stating in effect that (i) they
have performed certain specified procedures as a result of which they
have determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of
the Trust and Chevy Chase set forth in the Registration Statement and
the Prospectus), agrees with the accounting records of the Trust and
Chevy Chase, excluding any questions of legal interpretation, and (ii)
they have performed certain specified procedures with respect to the
computer programs used to select the Receivables and to generate
information with respect to the Receivables set forth in the
Registration Statement and the Prospectus.
For purposes of this subsection (a), if the Effective Time is
subsequent to the execution and delivery of this Agreement, "Registration
Statement" shall mean the registration statement as proposed to be amended by
the amendment or post-effective amendment to be filed shortly prior to the
Effective Time, and "Prospectus" shall mean the prospectus included in such
Registration Statement. Financial statements included in material
incorporated by reference into the Prospectus shall be deemed included in the
Registration Statement for purposes of this subsection (a).
(b) If the Effective Time is not prior to the execution and delivery of this
Agreement, the Effective Time shall have occurred not later than 10:00
p.m., New York time, on the date of
10
this Agreement or such later date as shall have been consented to by the
Representative. If the Effective Time is prior to the execution and
delivery of this Agreement, the Prospectus shall have been filed with the
Commission in accordance with Section 7 (a) of this Agreement.
(c) The Registration Statement shall have been declared effective by the
Commission and no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the Act or proceedings
therefor initiated or threatened by the Commission, any price related
information previously omitted from the effective Registration Statement
pursuant to Rule 430A under the Act shall have been included in the
Prospectus and transmitted to the Commission for filing pursuant to Rule
424 under the Act within the prescribed time period, and Chevy Chase shall
have provided evidence satisfactory to the Underwriters of such timely
filing, or a post-effective amendment to the Registration Statement
providing such information shall have been promptly filed with the
Commission and declared effective in accordance with the requirements of
Rule 430A under the Act, and prior to the Closing Date, Chevy Chase shall
have provided evidence satisfactory to the Underwriters of such
effectiveness and there shall not have come to the attention of the
Underwriters facts that would cause the Underwriters to believe that the
Prospectus, at the time it was required to be delivered to a purchaser of
the Notes, contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(d) The Underwriters shall have received the favorable opinion, dated the
Closing Date, of Xxxx Xxxxxxx LLP, special counsel to Chevy Chase, or other
counsel to Chevy Chase, acceptable to the Underwriters and their counsel,
addressed to the Underwriters and in form and scope satisfactory to the
Underwriters' counsel, to the effect that:
(i) Chevy Chase has been duly chartered and is validly existing as
a federally chartered stock savings bank under the laws of the
United States of America and has full corporate power and
authority to own its properties and conduct its business as
described in the Prospectus; Chevy Chase has full corporate
power and authority to execute, deliver, and perform its
obligations under this Agreement, the Sale and Servicing
Agreement and the Trust Agreement and to cause the Notes to be
issued and to consummate the transactions contemplated hereby
and thereby.
(ii) Chevy Chase has duly authorized and executed this Agreement,
the Sale and Servicing Agreement and the Trust Agreement.
(iii) The execution, delivery and performance of this Agreement, the
Sale and Servicing Agreement and the Trust Agreement, the
transfer of the Receivables to the Trust, the issuance and sale
of the Notes and the consummation of any other of the
transactions contemplated herein, in the Sale and Servicing
Agreement or in the Trust Agreement do not conflict with or
result in a violation of (a) any applicable law or regulation
(assuming compliance with all applicable state securities and
Blue Sky laws) of the United States of America, the State of
New York or the Commonwealth of
11
Virginia to which Chevy Chase is subject, (b) the Charter or
By-laws of Chevy Chase or (c) any order, writ, judgment or
decree known to such counsel to which Chevy Chase is a party or
is subject, or, to the knowledge of such counsel, except as
contemplated in the Sale and Servicing Agreement and the
Indenture, result in any lien, charge or encumbrance upon any
of the properties or assets of Chevy Chase.
(iv) There are no actions, proceedings or investigations, to the
knowledge of such counsel, pending or threatened before any
court, administrative agency or other tribunal to which Chevy
Chase is a named party or to which its assets are subject (A)
asserting the invalidity of the Trust Agreement, the Sale and
Servicing Agreement, this Agreement or the Notes, (B) seeking
to prevent the issuance of the Notes or the consummation by
Chevy Chase of any of the transactions contemplated by the
Trust Agreement, the Sale and Servicing Agreement or this
Agreement, (C) that might adversely affect the validity or
enforceability of the Trust Agreement, this Agreement, the Sale
and Servicing Agreement or the Notes, or (D) seeking to
adversely affect the federal income tax attributes of the Notes
as described in the Prospectus Supplement under the heading
"Material Federal Income Tax Considerations."
(v) Each of this Agreement, the Sale and Servicing Agreement and
the Trust Agreement, constitutes the valid, legal and binding
obligation of Chevy Chase enforceable against Chevy Chase in
accordance with its terms.
(vi) No filing or other action, except the filing of a Uniform
Commercial Code financing statement on Form UCC-1 with the
State Corporation Commission of the Commonwealth of Virginia
and the Recorder of Deeds (as designee of the Office of the
Mayor) of the District of Columbia, naming Chevy Chase as
"debtor" and the Trust as "secured party," is necessary to
perfect the transfer of the Receivables and proceeds (as
defined in Section 9A-102(64) of the Uniform Commercial Code as
presently in effect in the Commonwealth of Virginia and Section
9-102(64) of the Uniform Commercial Code as presently in effect
in the District of Columbia) thereof against the claims of
creditors of, and transferees from, Chevy Chase. Such security
interest would be enforceable notwithstanding a receivership or
conservatorship of Chevy Chase in which the FDIC is appointed a
receiver or conservator for Chevy Chase.
(vii) The Receivables constitute "chattel paper" as defined in
Section 9-102(a)(11) of the Uniform Commercial Code as in
effect in the State of New York and the District of Columbia
and Section 9A-102(a)(11) of the Uniform Commercial Code as in
effect in the Commonwealth of Virginia.
In addition, such counsel shall state that nothing has come to
their attention concerning Chevy Chase that would lead them to believe that the
information set forth in the Prospectus Supplement under the caption "THE BANK-
General" and "THE BANK-Litigation", as of its date and as of the Closing Date,
contains an untrue statement of a material fact or omits
12
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(e) The Underwriters shall have received the favorable opinion of counsel to
the Indenture Trustee, dated the Closing Date, addressed to the
Underwriters and in form and scope satisfactory to the Underwriters'
counsel, to the effect that:
(i) The Indenture Trustee has duly authorized, executed and
delivered the Indenture and the Sale and Servicing Agreement.
(ii) The Indenture Trustee has been duly organized and is validly
existing as a national banking corporation in good standing
under the laws of the United States of America and has full
power and authority to execute and deliver the Indenture and
the Sale and Servicing Agreement and to perform its obligations
thereunder and each such Agreement constitutes the valid, legal
and binding obligation of the Indenture Trustee, enforceable
against the Indenture Trustee in accordance with its terms.
(iii) The Notes have been duly executed, authenticated and delivered
by the Indenture Trustee.
(iv) The execution and delivery by the Indenture Trustee of the Sale
and Servicing Agreement and the Indenture and the performance
by the Indenture Trustee of its duties thereunder do not
conflict with or result in a violation of (a) the charter or
by-laws of the Indenture Trustee, (b) to the best of such
counsel's knowledge, any order, writ, judgment or decree or (c)
any agreement, contract, instrument, or indenture known to such
counsel to which the Indenture Trustee is a party or is
subject.
(v) No consent, approval or authorization of, or registration,
declaration or filing with, any court or governmental agency or
body of the United States of America or any state thereof is
required for the execution, delivery or performance by the
Indenture Trustee of the Sale and Servicing Agreement or the
Indenture.
(f) The Underwriters shall have received an opinion, dated the Closing Date, of
Xxxx Xxxxxxx LLP, special counsel to Chevy Chase, addressed to, and
satisfactory to, Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. ("S&P"), Xxxxx'x Investors Service, Inc.
("Moody's"), Xxxxx, Inc. ("Fitch"), and the Underwriters, relating to the
transfer of the Receivables to the Trust.
(g) Chevy Chase shall have furnished to the Underwriters a certificate signed
on behalf of Chevy Chase by one or more of the chairman of the board, the
president, any vice chairman of the board, any executive vice president,
any senior vice president, any group vice president, any vice president,
the treasurer, or the controller of Chevy Chase, dated the Closing Date, as
to (i) the accuracy of the representations and warranties of Chevy Chase
herein and in the Sale and Servicing Agreement at and as of the Closing
Date, (ii) the
13
performance by Chevy Chase of all of its obligations hereunder to be
performed at or prior to the Closing Date and (iii) such other matters as
the Underwriters may reasonably request.
(h) The Indenture Trustee shall have furnished to the Underwriters a
certificate of the Indenture Trustee, signed by one or more duly authorized
officers of the Indenture Trustee, dated the Closing Date, as to the due
execution of the Sale and Servicing Agreement and the Indenture by the
Indenture Trustee and the due execution and delivery of the Notes by the
Indenture Trustee thereunder and such other matters as the Underwriters
shall reasonably request.
(i) The Class A-1 Notes shall have been rated "A-1+" by S&P, "Prime -1" by
Moody's and "F- 1+" by Fitch, the other Class A Notes shall have been rated
"AAA" by S&P, "Aaa" by Moody's and "AAA" by Fitch and the Class B Notes
shall have been rated "A" by S&P, "A3" by Moody's and "A+" by Fitch, and
such ratings shall not have been rescinded.
(j) The Underwriters and Chevy Chase shall have received from Xxxxxx Xxxxxxxx
LLP, or other independent certified public accountants acceptable to the
Underwriters, a letter, dated as of the Closing Date, delivered at such
time in form satisfactory to the Underwriters.
(k) Prior to the Closing Date the Underwriters shall have been furnished with
such documents and opinions as they may reasonably require for the purpose
of enabling them to pass upon the issuance and sale of the Notes as herein
contemplated and related proceedings or in order to evidence the accuracy
and completeness of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by Chevy Chase in connection with the issuance and sale of the Notes
as herein contemplated shall be satisfactory in form and substance to the
Underwriters.
(l) Since the respective dates as of which information is given in the
Prospectus, there shall not have been any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of Chevy Chase otherwise than as set forth in the Prospectus,
the effect of which is in the Underwriters' judgment so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Notes on the terms and in the manner
contemplated in the Prospectus or which, in the judgment of the
Underwriters, materially impairs the investment quality of the Notes or the
ability of the Servicer to service the Receivables.
(m) Subsequent to the execution and delivery of this Agreement, there shall not
have occurred (i) any change, development or event involving a prospective
change, in the condition (financial or other), business, properties or
results of operations of Chevy Chase or its automobile loan business which,
in the judgment of the Underwriters, is material and adverse and makes it
impracticable or inadvisable to proceed with the completion of the public
offering or the sale of and payment for the Notes; (ii) any banking
moratorium declared by Federal, New York, Minnesota or Maryland
authorities; or (iii) any downgrading in the rating of any securities of
Chevy Chase by any nationally recognized statistical rating organization
(as defined for purposes of Rule 436(g) under the Act) or any public
announcement that any such organization has under surveillance or review
its rating of any securities of Chevy Chase (other than an announcement
with positive implications of
14
a possible upgrading, and no implication of a possible downgrading, of such
rating); or (iv) any suspension or limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum prices
for trading on such exchange; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war
by Congress or any other substantial national or international calamity,
emergency or change in financial markets if, in the Representative's
judgment, the effect of any such outbreak, escalation, declaration,
calamity, emergency or change makes it impractical or inadvisable to
proceed with completion of the sale of and payment for the Notes.
(n) The Underwriters shall have received evidence satisfactory to the
Underwriters that on or before the Closing Date, UCC-1 financing statements
have been filed (i) in the offices of the Maryland State Department of
Assessments and Taxation, the Virginia State Corporation Commission and the
District of Columbia Recorder of Deeds, reflecting the interest of the
Trust in the Receivables and the proceeds thereof and (ii) in the offices
of the Secretaries of State of the States of Delaware and of Minnesota,
reflecting the security interest of the Indenture Trustee in the Trust
Estate and the proceeds thereof.
(o) The Underwriters and Chevy Chase shall have received the favorable opinion,
dated the Closing Date, of Xxxxx Xxxxxxxxxx LLP, counsel for the
Underwriters, in form and scope satisfactory to the Underwriters, to the
effect that:
(i) The Registration Statement was declared effective under the Act
as of the date and time specified in such opinion, the
Prospectus either was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the
date specified therein or was included in the Registration
Statement (as the case may be), and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part thereof
has been instituted or is pending or contemplated under the
Act, and the Registration Statement and the Prospectus, and
each amendment or supplement thereof, as of their respective
effective or issue dates, complies as to form in all material
respects with the requirements of the Act and the Rules and
Regulations; such counsel have no reason to believe that the
Registration Statement or any amendment thereto, as of its
Effective Date, contained any untrue statement of a material
fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Registration Statement as of the Closing
Date, or the Prospectus, as of its issue date or as of such
Closing Date, contained any untrue statement of a material fact
or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; it being understood
that such counsel need express no opinion as to the financial
statements or other financial data contained in the
Registration Statement or the Prospectus.
(ii) The conditions to the use by Chevy Chase of a registration
statement on Form S-3 under the Act, as set forth in the
General Instructions to Form S-3,
15
have been satisfied with respect to the Registration Statement
and the Prospectus. There are no contracts or documents of
Chevy Chase which are required to be filed as exhibits to the
Registration Statement pursuant to the Act or the Rules and
Regulations thereunder which have not been so filed.
(iii) The Registration Statement at the time it became effective, and
any amendment thereto at the time such amendment became
effective, complied as to form in all material respects with
the applicable requirements of the Act and the Rules and
Regulations.
(iv) The Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended.
(v) The Trust is not required to be registered under the 1940 Act,
and immediately following the issuance and sale of the Notes in
the manner contemplated by the Sale and Servicing Agreement,
the Indenture and this Agreement, the Trust will not be
required to be so registered.
(vi) The Notes, this Agreement, the Trust Agreement, the Sale and
Servicing Agreement and the Indenture conform in all material
respects to the respective descriptions thereof in the
Registration Statement and the Prospectus.
(vii) The Notes have been duly authorized and, when executed and
authenticated in accordance with the terms of the Sale and
Servicing Agreement and the Indenture and delivered to and paid
for by the Underwriters pursuant to this Agreement, will be
duly and validly issued and outstanding and will be entitled to
the benefits of the Sale and Servicing Agreement and the
Indenture.
(viii) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or
body of the United States is required for the issuance and sale
of the Notes, or the consummation by Chevy Chase of the other
transactions contemplated by this Agreement, the Sale and
Servicing Agreement or the Trust Agreement, except the
registration under the Act of the Notes and such consents,
approvals, authorizations, registrations or qualifications as
may have been obtained or effected or as may be required under
securities or Blue Sky laws in connection with the purchase and
distribution of the Notes by the Underwriters.
(ix) The statements in the Base Prospectus under the headings "RISK
FACTORS --Insolvency of either of the lenders may reduce or
delay payments to the securityholders," and "LEGAL ASPECTS OF
THE AUTO LOANS," and in the Prospectus Supplement under the
headings "SUMMARY -- Federal Income Tax Considerations,"
"MATERIAL FEDERAL INCOME TAX CONSIDERATIONS," and "ERISA
CONSIDERATIONS," to the extent
16
that they constitute matters of law or legal conclusions with
respect thereto, have been prepared or reviewed by such counsel
and are correct in all material respects.
In addition, such counsel shall state that nothing has come to
their attention that would lead them to believe that the Registration Statement,
at the time it became effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the Prospectus,
as of its date and as of the Closing Date, contains an untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(p) Chevy Chase will provide or cause to be provided to the Representative such
conformed copies of such opinions, certificates, letters and documents
being provided pursuant hereto and such further information, certificates
and documents as the Representative may reasonably request. The
Representative may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder.
If any condition specified in this Section 7 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriters by notice to Chevy Chase at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party except as provided in Section 8.
9. PAYMENT OF EXPENSES. Chevy Chase agrees to pay all expenses incident to the
performance of its obligations under this Agreement, and will reimburse the
Underwriters (if and to the extent incurred by them) for any filing fees
and other expenses (including fees and disbursements of counsel),
including, without limitation, those related to (i) the filing of the
Registration Statement and all amendments thereto, (ii) the duplication and
delivery to the Underwriters, in such quantities as the Underwriters may
reasonably request, of copies of this Agreement, (iii) the preparation,
issuance and delivery of the Notes and the determination of their
eligibility for investment under the laws of such jurisdictions as the
Representative designates, (iv) 50% of the fees and disbursements of Xxxx
Xxxxxxx LLP, counsel for Chevy Chase, (v) 50% of the fees and disbursements
of Xxxxxxx & Xxxxxxx, LLC and of Jenkens & Xxxxxxxxx, a professional
corporation, (vi) 50% of the fees and disbursements of Xxxxx Xxxxxxxxxx
LLP, (vii) 50% of the fees and disbursements of Xxxxxx Xxxxxxxx LLP,
accountants of Chevy Chase, (viii) 50% of the fees relating to the
qualification of the Notes under securities and Blue Sky laws and the
determination of the eligibility of the Notes for investment in accordance
with the provisions of Section 6(g), including filing fees and
disbursements and the fees of Xxxxx Xxxxxxxxxx LLP in connection therewith
and in connection with the preparation of any Blue Sky Survey, (ix) 50% of
the fees relating to the printing and delivery to the Underwriters, in such
quantities as the Underwriters may reasonably request, of copies of the
Registration Statement and Prospectus and all amendments and supplements
thereto, and of any Blue Sky Survey, (x) the filing fee of the National
Association of Securities Dealers, Inc., if any, (xi) the duplication and
delivery to the Underwriters in such quantities as the Underwriters may
reasonably request, of copies of the Sale and Servicing Agreement and the
Indenture, (xii) the fees charged by nationally recognized statistical
rating agencies for rating the Notes and (xiii) the
17
fees and expenses of the Indenture Trustee and its counsel. The
Underwriters agree to pay (i) 50% of the fees and disbursements of Xxxxx
Xxxxxxxxxx LLP, (ii) 50% of the fees and disbursements of Xxxxxxx &
Weddell, LLC and of Jenkens & Xxxxxxxxx, a professional corporation, (iii)
50% of the fees relating to the qualification of the Notes under securities
and Blue Sky laws and the determination of the eligibility of the Notes for
investment in accordance with the provisions of Section 6(g), including
filing fees and disbursements and the fees of Xxxxx Xxxxxxxxxx LLP in
connection therewith and in connection with the preparation of any Blue Sky
Survey, (iv) 50% of the fees and disbursements of Xxxx Xxxxxxx LLP, counsel
for Chevy Chase, (v) 50% of the fees and disbursements of Xxxxxx Xxxxxxxx
LLP, accountants of Chevy Chase and (vi) 50% of the fees relating to the
printing and delivery to the Underwriters, in such quantities as the
Underwriters may reasonably request, of copies of the Registration
Statement and Prospectus and all amendments and supplements thereto, and of
any Blue Sky Survey.
10. INDEMNIFICATION. Chevy Chase agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls each Underwriter within
the meaning of the Act or the Exchange Act, as follows:
(a) Chevy Chase will indemnify and hold harmless the Underwriters against
any losses, claims, damages or liabilities, joint or several, to which
such Underwriters may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus, any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are
based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading (in the case of the Prospectus, any
related preliminary prospectus or any amendment or supplement thereto,
in the light of the circumstances under which they were made) and will
reimburse the Underwriters for any legal or other expenses reasonably
incurred by such Underwriters in connection with investigating or
defending any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that Chevy Chase will not be
-------- -------
liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to Chevy Chase by any Underwriter through the
Representative specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter
consists of the information described as such in subsection (b) below.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless Chevy Chase against any losses, claims, damages or
liabilities to which Chevy Chase may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained
in the Registration Statement, the Prospectus or any amendment or
supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading (in the case of the
Prospectus, any related preliminary prospectus or any amendment or
18
supplement thereto, in the light of the circumstances under which they
were made), in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with
written information furnished to Chevy Chase by such Underwriter
through the Representative specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by Chevy
Chase in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred, it
being understood and agreed that the only such information furnished
by any Underwriter consists of the following information in the
Prospectus furnished on behalf of the Underwriters: the table at the
bottom of the cover page of the Prospectus Supplement concerning the
terms of the offering by the Underwriters and the information under
the caption "Underwriting" in the Prospectus Supplement.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under subsection (a) or (b) above,
notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise
than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any
legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party
is or could have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on
any claims that are the subject matter of such action.
11. CONTRIBUTION. If the indemnification provided for in Section 9 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) of Section 9 above, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as
a result of the losses, claims, damages or liabilities referred to in such
subsection (a) or (b) (i) in such proportion as is appropriate to reflect
the relative benefits received by Chevy Chase on the one hand and each of
the Underwriters on the other from the offering of the Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
Chevy Chase on the one hand and each of the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by Chevy Chase on the one
hand and the Underwriters on the other shall be
19
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by Chevy Chase bear to the
total underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by Chevy Chase or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this Section 10 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim
which is the subject of this Section 10. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this Section
10 to contribute are several in proportion to their respective underwriting
obligations and not joint.
The obligations of Chevy Chase under Section 9 and this Section 10
shall be in addition to any liability which Chevy Chase may otherwise have
and shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under Section 9 and this Section 10 shall
be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each director of Chevy Chase, to each officer of Chevy Chase who has signed
the Registration Statement and to each person, if any, who controls Chevy
Chase within the meaning of the Act.
Notwithstanding the provisions of Sections 9 and 10, the Underwriters
shall not be required to contribute any amount in excess of the amount by
which the total price at which the Notes underwritten by the Underwriters
and distributed to the public were offered to the public exceeds the amount
of any damages which the Underwriters have otherwise been required to pay
in respect of such losses, liabilities, claims, damages and expenses. For
purposes of this Section 10, each person, if any, who controls the
Underwriters within the meaning of the Act or the Exchange Act shall have
the same rights to contribution as each of the Underwriters, and each
director of Chevy Chase, each officer of Chevy Chase who signed the
Registration Statement, and each person, if any, who controls Chevy Chase
within the meaning of the Act or the Exchange Act shall have the same
rights to contribution as Chevy Chase.
12. DEFAULT OF UNDERWRITERS. If any Underwriter defaults in its obligations to
purchase Notes hereunder on the Closing Date and the aggregate principal
amount of Notes that such defaulting Underwriter or Underwriters have
agreed but failed to purchase does not exceed 10% of the total principal
amount of Notes that the Underwriters are obligated to purchase on such
Closing Date, the Representative may make arrangements satisfactory to
Chevy Chase for the purchase of such Notes by other persons, including any
of the Underwriters, but if no such arrangements are made by such Closing
Date, the nondefaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Notes
that such defaulting Underwriters agreed but failed to purchase on such
Closing Date. If any Underwriters so default and the aggregate principal
amount of Notes with respect to which such default or defaults occur
exceeds 10% of the total principal amount of Notes that the Underwriters
are obligated to purchase on such Closing Date and arrangements
satisfactory to the
20
Representative and Chevy Chase for the purchase of such Notes by other
persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting
Underwriter or Chevy Chase, except as provided in Section 12. As used in
this Agreement, the term "Underwriter" includes any person substituted for
an Underwriter under this Section 11. Nothing herein will relieve a
defaulting Underwriter from liability for its default.
13. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements
of Chevy Chase or its officers and of the several Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, Chevy Chase or any of their
respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Notes. If this
Agreement is terminated or if for any reason the purchase of the Notes by
the Underwriters is not consummated, Chevy Chase and the Underwriters shall
remain responsible for the expenses to be paid or reimbursed by it pursuant
to Section 8 and the respective obligations of Chevy Chase and the
Underwriters pursuant to Section 9 and 10 shall remain in effect, and if
any Notes have been purchased hereunder the representations and warranties
in Section 3 and all obligations under Section 6 and 7 shall also remain in
effect. If the purchase of the Notes by the Underwriters is not consummated
for any reason other than solely because of the termination of this
Agreement pursuant to Section 11 or the occurrence of any event specified
in clause (ii), (iv) or (v) of Section 7(m), Chevy Chase will reimburse the
Underwriters for all out-of-pocket expenses reasonably incurred by them in
connection with the offering of the Notes.
14. NOTICES. All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the Representative shall be
directed to the address set forth on the first page hereof, or sent by
facsimile machine which produces an electronic confirmation of receipt to
(000) 000-0000 attention: Asset-Backed Group. Notices to Chevy Chase shall
be directed to Chevy Chase Bank, F.S.B., 0000 Xxxxxxxxxxx Xxxxxx, Xxxxx
Xxxxx, Xxxxxxxx 00000, or sent by facsimile machine which produces an
electronic confirmation of receipt to (000) 000-0000, attention: Xxxxxxx X.
Xxxxxx, Xx.
15. PARTIES. This Agreement shall inure to the benefit of and be binding upon
the Underwriters and Chevy Chase, and their respective successors. Nothing
expressed or mentioned in this Agreement is intended nor shall it be
construed to give any person, firm or corporation, other than the parties
hereto or thereto and their respective successors and the controlling
persons and officers and directors referred to in Sections 9 and 10 and
their heirs and legal representatives, any legal or equitable right, remedy
or claim under or with respect to this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the parties and their
respective successors and such controlling persons and officers and
directors and their heirs and legal representatives (to the extent of their
rights as specified herein and therein) and except as provided above for
the benefit of no other person, firm or corporation. No purchaser of Notes
from the Underwriters shall be deemed to be a successor by reason merely of
such purchase.
21
16. REPRESENTATION OF UNDERWRITERS BY THE REPRESENTATIVE. The Representative
will act for the several Underwriters in connection with the transactions
contemplated by this Agreement, and any action under this Agreement taken
by the Representative will be binding upon all the Underwriters.
17. GOVERNING LAW AND TIME; CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS. CHEVY CHASE HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE
FEDERAL AND STATE COURTS IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW
YORK IN ANY SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY. SPECIFIED TIMES OF DAY REFER TO
NEW YORK CITY TIME.
18. COUNTERPARTS. This Agreement may be executed in counterparts, each of which
shall be deemed to be an original, but together they shall constitute but
one instrument.
22
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
you and Chevy Chase in accordance with its terms.
Very truly yours,
CHEVY CHASE BANK, F.S.B.
By:_____________________________
Name: Xxxx X. Xxxxxx
Title: Group Vice President
CONFIRMED AND ACCEPTED, as of
the date first above written:
CREDIT SUISSE FIRST BOSTON CORPORATION
By:______________________________
Name: Xxxx X. XxXxxxxxxx, XX
Title: Director
[Underwriting Agreement]
Schedule 1
Class A-1; Purchase Price Percentage: 99.88500%
----------------------------------------------------------
Underwriters Principal
Amount
----------------------------------------------------------
Credit Suisse First Boston Corporation $29,000,000
----------------------------------------------------------
Deutsche Banc Alex. Xxxxx Inc $28,000,000
----------------------------------------------------------
Xxxxxxx Xxxxx Barney Inc. $28,000,000
----------------------------------------------------------
Class A-2; Purchase Price Percentage: 99.82879%
----------------------------------------------------------
Underwriters Principal
Amount
----------------------------------------------------------
Credit Suisse First Boston Corporation $30,000,000
----------------------------------------------------------
Deutsche Banc Alex. Xxxxx Inc $30,000,000
----------------------------------------------------------
Xxxxxxx Xxxxx Barney Inc. $30,000,000
----------------------------------------------------------
Class A-3; Purchase Price Percentage: 99.77933%
----------------------------------------------------------
Underwriters Principal
Amount
----------------------------------------------------------
Credit Suisse First Boston Corporation $40,000,000
----------------------------------------------------------
Deutsche Banc Alex. Xxxxx Inc $40,000,000
----------------------------------------------------------
Xxxxxxx Xxxxx Barney Inc. $40,000,000
----------------------------------------------------------
Class A-4; Purchase Price Percentage: 99.73578%
----------------------------------------------------------
Underwriters Principal
Amount
----------------------------------------------------------
Credit Suisse First Boston Corporation $32,000,000
----------------------------------------------------------
Deutsche Banc Alex. Xxxxx Inc $32,000,000
----------------------------------------------------------
Xxxxxxx Xxxxx Barney Inc. $32,000,000
----------------------------------------------------------
Class B; Purchase Price Percentage: 99.57310%
----------------------------------------------------------
Underwriters Principal
----------------------------------------------------------
----------------------------------------------------------
Amount
----------------------------------------------------------
Credit Suisse First Boston Corporation $12,332,000
----------------------------------------------------------
