1
Exhibit 1
$250,000,000
KEYCORP CAPITAL III
__% CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
GUARANTEED TO THE EXTENT SET FORTH IN THE GUARANTEE BY
KEYCORP
UNDERWRITING AGREEMENT
----------------------
June __, 1999
CREDIT SUISSE FIRST BOSTON CORPORATION
McDONALD INVESTMENTS INC.,
As Representatives of the Several Underwriters,
Eleven Madison Avenue,
New York, N.Y. 10010-3629.
Ladies and Gentlemen:
1. Introductory. KeyCorp Capital III (the "Trust"), a statutory
business trust created under the Business Trust Act of the State of Delaware
(the "Delaware Business Trust Act"), and KeyCorp, an Ohio corporation, as
depositor of the Trust and as guarantor (the "Guarantor"), propose, subject to
the terms and conditions stated herein, that the Trust issue and sell to the
several underwriters named in Schedule A hereto (the "Underwriters") an
aggregate of 250,000 __% Capital Securities (liquidation amount $1,000 per
capital security) (the "Securities") representing undivided beneficial interests
in the assets of the Trust, guaranteed by the Guarantor as to the payment of
distributions, and as to payments on liquidation or redemption, to the extent
set forth in a guarantee agreement (the "Guarantee") between the Guarantor and
Bankers Trust Company, as trustee (the "Guarantee Trustee"). The proceeds of the
sale of the Securities and an aggregate of 7,800 of its Common Securities
(liquidation amount $1,000 per common security) (the "Common Securities") by the
Trust are to be invested in __% Junior Subordinated Deferrable Interest
Debentures (the "Subordinated Debentures") of the Guarantor, to be issued
pursuant to an Indenture, dated as of December 4, 1996 (the "Indenture"),
between the Guarantor and Bankers Trust Company, as trustee (the "Debenture
Trustee"). The Guarantor and the Trust hereby agree with the Underwriters as
follows:
2. Representations and Warranties of the Guarantor and the Trust. The
Guarantor and the Trust jointly and severally represent and warrant to, and
agree with, the several Underwriters that:
(a) A registration statement (Nos. 333-76619 and 333-76619-01)
relating to the Securities, the Subordinated Debentures and the
Guarantee, including a form of prospectus, has been filed with the
Securities and Exchange Commission ("Commission") and either (i) has
been declared effective under the Securities Act of 1933 ("Act") and is
not proposed to be amended or (ii) is proposed to be amended by
amendment or post-effective amendment. If such registration statement
(the "initial
2
registration statement") has been declared effective, either (i) an
additional registration statement (the "additional registration
statement") relating to the Securities, the Subordinated Debentures and
the Guarantee may have been filed with the Commission pursuant to Rule
462(b) ("Rule 462(b)") under the Act and, if so filed, has become
effective upon filing pursuant to such Rule and the Securities, the
Subordinated Debentures and the Guarantee all have been duly registered
under the Act pursuant to the initial registration statement and, if
applicable, the additional registration statement or (ii) such an
additional registration statement is proposed to be filed with the
Commission pursuant to Rule 462(b) and will become effective upon
filing pursuant to such Rule and upon such filing the Securities, the
Subordinated Debentures and the Guarantee will all have been duly
registered under the Act pursuant to the initial registration statement
and such additional registration statement. If the Guarantor and the
Trust do not propose to amend the initial registration statement or if
an additional registration statement has been filed and the Guarantor
and the Trust do not propose to amend it, and if any post-effective
amendment to either such registration statement has been filed with the
Commission prior to the execution and delivery of this Agreement, the
most recent amendment (if any) to each such registration statement has
been declared effective by the Commission or has become effective upon
filing pursuant to Rule 462(c) ("Rule 462(c)") under the Act or, in the
case of the additional registration statement, Rule 462(b). For
purposes of this Agreement, "Effective Time" with respect to the
initial registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration statement means
(i) if the Guarantor and the Trust have advised the Representatives
that they do 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 has become effective upon filing pursuant to Rule 462(c),
or (ii) if the Guarantor and the Trust have advised the Representatives
that they propose 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.
If an additional registration statement has not been filed prior to the
execution and delivery of this Agreement but the Guarantor and the
Trust have advised the Representatives that they propose to file one,
"Effective Time" with respect to such additional registration statement
means the date and time as of which such registration statement is
filed and becomes effective pursuant to Rule 462(b). "Effective Date"
with respect to the initial registration statement or the additional
registration statement (if any) means the date of the Effective Time
thereof. The initial registration statement, as amended at its
Effective Time, including all material incorporated by reference
therein, including all information contained in the additional
registration statement (if any) and deemed to be a part of the initial
registration statement as of the Effective Time of the additional
registration statement pursuant to the General Instructions of the Form
on which it is filed and including all information (if any) deemed to
be a part of the initial registration statement as of its Effective
Time pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act, is
hereinafter referred to as the "Initial Registration Statement". The
additional registration statement, as amended at its Effective Time,
including the contents of the initial registration statement
incorporated by reference therein and including all information (if
any) deemed to be a part of the additional registration statement as of
its Effective Time pursuant to Rule 430A(b), is hereinafter referred to
as the "Additional Registration Statement". The Initial Registration
Statement and the Additional Registration Statement are hereinafter
referred to collectively as the "Registration Statements" and
individually as a "Registration Statement". The form of prospectus
relating to the Securities, the Subordinated
2
3
Debentures and the Guarantee, as first filed with the Commission
pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under
the Act or (if no such filing is required) as included in a
Registration Statement, including all material incorporated by
reference in such prospectus, is hereinafter referred to as the
"Prospectus". No document has been or will be prepared or distributed
in reliance on Rule 434 under the Act.
(b) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (i) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all respects to the requirements of
the Act, the Trust Indenture Act of 1939 ("Trust Indenture 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, (ii) on the Effective Date
of the Additional Registration Statement (if any), each Registration
Statement conformed, or will conform, in all respects to the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations and did not include, or will not include, any untrue
statement of a material fact and did not omit, or will not omit, to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and (iii) on the date of
this Agreement, the Initial Registration Statement and, if the
Effective Time of the Additional Registration Statement is prior to the
execution and delivery of this Agreement, the Additional Registration
Statement each conforms, and at the time of filing of the Prospectus
pursuant to Rule 424(b) or (if no such filing is required) at the
Effective Date of the Additional Registration Statement in which the
Prospectus is included, each Registration Statement and the Prospectus
will conform, in all respects to the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations, and neither of such
documents includes, or will include, any untrue statement of a material
fact or omits, or will omit, to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading. If the Effective Time of the Initial Registration Statement
is subsequent to the execution and delivery of this Agreement: on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement and the Prospectus will conform in all respects
to the requirements of the Act, the Trust Indenture Act and the Rules
and Regulations, neither of such documents will include any untrue
statement of a material fact or will omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and no Additional Registration Statement has
been or will be filed. The two preceding sentences do not apply to
statements in or omissions from a Registration Statement or the
Prospectus based upon (i) written information furnished to the
Guarantor and Trust by any Underwriter through the Representatives
specifically for use therein, and (ii) the Statements of Eligibility
(Forms T-1) under the Trust Indenture Act of Bankers Trust Company, as
Debenture Trustee, Guarantee Trustee and Property Trustee (under the
Amended and Restated Trust Agreement) (the "Form T-1").
(c) The Guarantor has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Ohio, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus, and is duly
registered as a bank holding company under the Bank Holding Company Act
of 1956, as amended; and the Guarantor 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.
3
4
(d) Each of the Guarantor's national bank subsidiaries has been
duly organized and is a validly existing national banking association
under the laws of the United States, continues to hold a valid
certificate to do business as such and has full power and authority to
conduct its business as such; each of the Guarantor's other bank
subsidiaries, if any, has been duly organized and is validly existing
in good standing under the laws of its jurisdiction of organization,
continues to hold a valid certificate to do business as such and has
full power and authority to conduct its business as such; each of its
other significant subsidiaries, as defined in Regulation S-X (the
"Significant Subsidiaries"), has been duly organized and is validly
existing under the laws of the jurisdiction of its organization with
power and authority (corporate and other) under such laws to own its
properties and conduct its business; and (iii) all of the issued and
outstanding shares of capital stock of each such subsidiary have been
duly authorized and validly issued and are fully paid and
non-assessable (except, with respect to any subsidiary that is a
national bank, as provided by Section 55 of Title 12 of the United
States Code; and with respect to any subsidiary that is a bank
incorporated under state law, except as provided by the laws of any
such states) and are owned beneficially by the Guarantor subject to no
security interest, pledge, lien, charge or other encumbrance or adverse
claim, except as otherwise stated in the Prospectus.
(e) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Delaware Business
Trust Act with the power and authority to own its properties and
conduct its business as described in the Prospectus, and the Trust has
conducted no business to date other than as contemplated by this
Agreement, and it will conduct no business in the future that would be
inconsistent with the Trust Agreement (defined below) and the
description of the Trust set forth in the Prospectus; the Trust is not
a party to or bound by any agreement or instrument other than this
Agreement, the Amended and Restated Trust Agreement (the "Trust
Agreement") among the Guarantor, the trustees named therein (the
"Trustees") and the holders of the Securities issued thereunder, and
the agreements and instruments contemplated by the Trust Agreement; the
Trust has no liabilities or obligations other than those arising out of
the transactions contemplated by this Agreement and the Trust Agreement
and described in the Prospectus; based on expected operations and
current law, the Trust is not and will not be classified as an
association taxable as a corporation for United States federal income
tax purposes; and the Trust is not a party to or subject to any action,
suit or proceeding of any nature.
(f) The Securities have been duly and validly authorized by the
Trust, and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued and fully paid and
non-assessable undivided beneficial interests in the assets of the
Trust and will conform to the description of the Securities contained
in the Prospectus; the issuance of the Securities is not subject to
preemptive or other similar rights; the Securities will have the rights
set forth in the Trust Agreement, and the terms of the Securities are
valid and binding on the Trust; and the holders of the Securities (the
"Securityholders") will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
(g) The Common Securities of the Trust have been duly and validly
authorized by the Trust and, upon delivery by the Trust to the
Guarantor against payment therefor as described in the Prospectus, will
be duly and validly issued undivided beneficial interests in the assets
of the Trust and will conform to the description thereof contained in
the Prospectus; the issuance of the Common
4
5
Securities is not subject to preemptive or other similar rights; and at
the Closing Date, all of the issued and outstanding Common Securities
of the Trust will be directly owned by the Guarantor free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(h) The Guarantee, the Subordinated Debentures, the Trust
Agreement, the Indenture and the Agreement as to Expenses and
Liabilities between the Guarantor and the Trust (the "Expense
Agreement") (the Guarantee, the Subordinated Debentures, the Trust
Agreement, the Indenture and the Expense Agreement being collectively
referred to as the "Guarantor Agreements"), when validly executed and
delivered by the Guarantor and, in the case of the Guarantee, by the
Guarantee Trustee, in the case of the Trust Agreement, by the Trustees
and, in the case of the Indenture, by the Debenture Trustee, will
constitute valid and legally binding obligations of the Guarantor,
enforceable in accordance with their respective terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles (regardless of whether enforcement is sought in a proceeding
at law or in equity); the Subordinated Debentures are entitled to the
benefits of the Indenture; the Guarantor Agreements will conform to the
descriptions thereof in the Prospectus; and the Guarantee and the
Indenture have been duly qualified under the Trust Indenture Act.
(i) The execution and delivery of this Agreement and the Guarantor
Agreements, and the consummation of the transactions contemplated
herein and therein, have been duly authorized by all necessary
corporate action and, when executed and delivered by the Guarantor and
the other parties thereto, will not result in any breach of any of the
terms, conditions or provisions of, or constitute a default under, or
result in the creation or imposition of any security interest, lien,
charge or encumbrance upon any property or assets of the Guarantor or
its subsidiaries, pursuant to any indenture, loan agreement, contract
or other material agreement or instrument to which the Guarantor or its
subsidiaries is a party or by which the Guarantor may be bound or to
which any of the property or assets of the Guarantor or its
subsidiaries is subject, nor will such action result in any violation
of the provisions of the Amended and Restated Articles of Incorporation
or the Regulations (or similar instruments) of the Guarantor or its
subsidiaries or any applicable statute, rule or regulation or, to the
best of the Guarantor's knowledge, any order of any court or
governmental agency or body having jurisdiction over the Guarantor, its
subsidiaries or any of their respective properties.
(j) Neither the Guarantor nor any of its affiliates has taken or
will take any action which is designed to or which might reasonably be
expected to cause or result in stabilization or manipulation of the
price of any security of the Guarantor in connection with the offering
of the Securities.
(k) The Trust is not, and after giving effect to the offering and
sale of the Securities will not be, an "investment company", or an
entity "controlled" by an "investment company", as such terms are
defined in the United States Investment Company Act of 1940, as amended
(the "Investment Company Act").
(l) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance and the sale of the Securities by the
Trust, except such
5
6
as may be required under the Blue Sky or securities laws of any
jurisdiction or as have been duly made or obtained.
(m) The Guarantor and its subsidiaries possess adequate
certificates, authorities and permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them and have not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit that, if determined adversely to the Guarantor or
any of its subsidiaries, would individually or in the aggregate have a
material adverse effect on the condition (financial or other),
business, properties or results of operations of the Guarantor and its
subsidiaries taken as a whole.
(n) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Guarantor, any
of its subsidiaries or any of their respective properties that, if
determined adversely to the Guarantor or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of the Guarantor and its subsidiaries taken as a whole, or
would materially and adversely affect the ability of the Guarantor to
perform its obligations under the Guarantor Agreements, this Agreement,
or which are otherwise material in the context of the sale of the
Securities by the Trust; and no such actions, suits or proceedings are
threatened or, to the Guarantor's knowledge, contemplated.
(o) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial position of
the Guarantor and its consolidated subsidiaries as of the dates shown
and their results of operations and cash flows for the periods shown,
and, except as otherwise disclosed in the Prospectus, such financial
statements have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent
basis.
(p) Since the date of the latest audited financial statements
included in the Prospectus there has been no material adverse change,
nor any development or event involving a prospective material adverse
change, in the condition (financial or other), business, properties or
results of operations of the Guarantor and its subsidiaries taken as a
whole, and, except as disclosed in or contemplated by the Prospectus,
there has been no dividend or distribution of any kind declared, paid
or made by the Guarantor on any class of its capital stock.
(3) Purchase, Sale and Delivery of Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Guarantor and the Trust agree that
the Trust will issue and sell to the Underwriters, and the Underwriters agree,
severally and not jointly, to purchase from the Trust, at a purchase price of
$______ per Security, the respective number of Securities set forth opposite the
names of the Underwriters in Schedule A hereto.
The Trust will deliver against payment of the purchase price the
Securities in the form of one or more permanent global Securities in definitive
form (the "Global Securities") deposited with the Property Trustee as custodian
for The Depository Trust Company ("DTC") and registered in the name of Cede &
Co., as nominee for DTC. Interests in any permanent global Securities will be
held only in book-entry form through DTC, except in the limited circumstances
described in the Prospectus. Payment for the Securities shall be made by the
Underwriters in Federal (same day) funds by official check or checks or wire
transfer
6
7
to an account at a bank acceptable to the Representatives drawn to the order of
the Trust at the office of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 at 9:30 A.M., (New York time), on June __, 1999, or at such other
time not later than seven full business days thereafter as the Representatives
and the Guarantor and the Trust determine, such time being herein referred to as
the "Closing Date", against delivery to the Property Trustee as custodian for
DTC of the Global Securities representing all of the Securities. The Global
Securities will be made available for checking at the above office of Xxxxxxxx &
Xxxxxxxx at least 24 hours prior to the Closing Date.
As compensation for the Underwriters' commitments, and in view of the
fact that the proceeds of the sale of the Securities will be issued by the Trust
to purchase the Subordinated Debentures of the Guarantor, the Guarantor will pay
to the Representatives for the Underwriters' proportionate accounts the sum of
$10 per Security times the total number of Securities purchased by the
Underwriters on the Closing Date. Such payment will be made on the Closing Date.
Alternatively, as a matter of convenience, the Representatives may deduct such
amount from the purchase price of the Securities and in such event the Guarantor
shall be deemed to have paid the same.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
5. Certain Agreements of the Guarantor and the Trust. The Guarantor and
the Trust jointly and severally agree with the several Underwriters that:
(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Guarantor
and the Trust will file the Prospectus with the Commission pursuant to
and in accordance with subparagraph (1) (or, if applicable and if
consented to by the Representatives, subparagraph (4)) of Rule
424(b) not later than the earlier of (A) the second business day
following the execution and delivery of this Agreement or (B) the
fifteenth business day after the Effective Date of the Initial
Registration Statement.
The Guarantor and the Trust will advise the Representatives promptly of
any such filing pursuant to Rule 424(b). If the Effective Time of the
Initial Registration Statement is prior to the execution and delivery
of this Agreement and an additional registration statement is necessary
to register a portion of the Securities under the Act but the Effective
Time thereof has not occurred as of such execution and delivery, the
Guarantor and the Trust will file the additional registration statement
or, if filed, will file a post-effective amendment thereto with the
Commission pursuant to and in accordance with Rule 462(b) on or prior
to 10:00 P.M., New York time, on the date of this Agreement or, if
earlier, on or prior to the time the Prospectus is printed and
distributed to any Underwriter, or will make such filing at such later
date as shall have been consented to by Credit Suisse First Boston.
(b) The Guarantor and the Trust will advise the Representatives
promptly of any proposal to amend or supplement the initial or any
additional registration statement as filed or the related prospectus or
the Initial Registration Statement, the Additional Registration
Statement (if any) or the Prospectus and will not effect such amendment
or supplementation without the Representatives' consent; and the
Guarantor and the Trust will also advise the Representatives promptly
of the effectiveness of each Registration Statement (if its Effective
Time is subsequent to 7
8
the execution and delivery of this Agreement) and of any amendment or
supplementation of a Registration Statement or the Prospectus and of
the institution by the Commission of any stop order proceedings in
respect of a Registration Statement and will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities,
the Subordinated Debentures or the Guarantee is required to be
delivered under the Act in connection with sales by any Underwriter or
dealer, any event occurs as a result of which the Prospectus as then
amended or supplemented would 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 the circumstances under which they
were made, not misleading, or if it is necessary at any time to amend
the Prospectus to comply with the Act, the Guarantor and the Trust will
promptly notify Credit Suisse First Boston of such event and will
promptly prepare and file with the Commission, at their own expense, an
amendment or supplement which will correct such statement or omission
or an amendment which will effect such compliance. Neither Credit
Suisse First Boston'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 6.
(d) As soon as practicable, but not later than the Availability
Date (as defined below), the Guarantor will make generally available to
its securityholders an earnings statement covering a period of at least
12 months beginning after the Effective Date of the Initial
Registration Statement (or, if later, the Effective Date of the
Additional Registration Statement) which will satisfy the provisions of
Section 11(a) of the Act. For the purpose of the preceding sentence,
"Availability Date" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last
quarter of the Guarantor's fiscal year, "Availability Date" means the
90th day after the end of such fourth fiscal quarter.
(e) The Guarantor and the Trust will furnish to the Representatives
copies of each Registration Statement (two of which will be signed and
will include all exhibits), each related preliminary prospectus, and,
so long as a prospectus relating to the Securities, the Subordinated
Debentures or the Guarantee 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 in
such quantities as the Representatives requests. Each of the
Guarantor and the Trust will use its reasonable best efforts to furnish
in New York City to each of the Underwriters the Prospectus on or prior
to 10:00 A.M., New York time, on the second business day following the
later of the execution and delivery of this Agreement or the Effective
Time of the Initial Registration Statement. All other such documents
shall be so furnished as soon as available. The Guarantor and the Trust
will pay the expenses of printing and distributing to the Underwriters
all such documents.
(f) The Guarantor and the Trust will use their reasonable best
efforts to arrange for the qualification of the Securities for sale and
the determination of their eligibility for investment under the laws of
such jurisdictions as the Representatives designates and will continue
such qualifications in effect so long as required for the distribution;
provided that in connection therewith neither the Guarantor nor the
Trust shall be required to qualify as a foreign corporation to do
8
9
business in any jurisdiction where it is not now qualified or to take
any action which would subject it to general or unlimited service of
process in any jurisdiction where it is not now so subject.
(g) The Guarantor and the Trust will pay all expenses incident to
the performance of their obligations under this Agreement for any
filing fees and other expenses (including fees and disbursements of
counsel) incurred in connection with qualification of the Securities
and the Subordinated Debentures issuable upon exchange of the
Securities for offering and sale under the laws of such jurisdictions
as the Representatives designates and the printing of memoranda
relating thereto, for any fees charged by investment rating agencies
for the rating of the Securities, for any filing fee incident to and
the fees and disbursements of counsel to the Underwriters in connection
with the review by the National Association of Securities Dealers, Inc.
of the Securities, the cost of preparing the Securities and
Subordinated Debentures, the fees and expenses of the Trustees, the
Guarantee Trustee and the Debenture Trustee and any agent of the
Trustees, the Guarantee Trustee and the Debenture Trustee and the fees
and disbursements of counsel for the Trustees in connection with the
Trust Agreement and the Securities, counsel for the Guarantee Trustee
in connection with the Guarantee and counsel for the Debenture Trustee
in connection with the Indenture and the Subordinated Debentures and
for expenses incurred in the preparation, printing and filing of
preliminary prospectuses and the Prospectus (including any amendments
and supplements thereto) and the distribution of copies thereof to the
Underwriters.
(h) During a period of 30 days beginning from the date of this
Agreement, not to offer, sell, contract to sell or otherwise dispose of
any Securities (except for the Securities proposed to be sold to the
Underwriters pursuant hereto), any other beneficial interests in the
assets of the Trust, or any preferred securities or any other
securities of the Trust or the Guarantor, as the case may be, that are
substantially similar to the Securities (including any guarantee of
such securities) or any securities that are convertible into or
exchangeable for or that represent the right to receive preferred
securities or any such substantially similar securities of either the
Trust or the Guarantor without the prior written consent of the
Representatives.
(i) Not to have the Trust be or become, at any time prior to the
expiration of three years after the Closing Date, an open-end
investment company, unit investment trust, closed-end investment
company or face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act; and
(j) To issue the Guarantee and the Subordinated Debentures
concurrently with the issue and sale of the Securities as contemplated
herein.
(6) Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Securities on the
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Guarantor and the Trust herein, to the accuracy of
the statements of Guarantor and Trust officers or administrators, as the case
may be, made pursuant to the provisions hereof, to the performance by each of
the Guarantor and the Trust of its obligations hereunder and to the following
additional conditions precedent:
(a) The Representatives shall have received letters, one on or
prior to the date of this Agreement and the other on the Closing Date,
from Ernst & Young LLP, independent public accountants (or other
independent public accountants acceptable to the Representatives), each
dated on such delivery
9
10
date, in form and substance satisfactory to the Representatives
containing statements and information of the type ordinarily included
in accountants "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
deemed to be part of the Prospectus.
(b) If the Effective Time of the Initial Registration Statement is
not prior to the execution and delivery of this Agreement, such
Effective Time shall have occurred not later than 10:00 P.M., New York
time, on the date of this Agreement or such later date as shall have
been consented to by the Representatives. If the Effective Time
of the Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or, if earlier, the time the Prospectus is printed and
distributed to any Underwriter, or shall have occurred at such later
date as shall have been consented to by the Representatives. If
the Effective Time of the Initial Registration Statement is prior to
the execution and delivery of this Agreement, the Prospectus shall have
been filed with the Commission in accordance with the Rules and
Regulations and Section 5(a) of this Agreement. Prior to such Closing
Date, no stop order suspending the effectiveness of a Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted or, to the knowledge of the Guarantor, the
Trust or the Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or
event involving a prospective change, in the condition (financial or
other), business, properties or results of operations of the Guarantor
and its subsidiaries taken as one enterprise which, in the judgment of
a majority in interest of the Underwriters, including the
Representatives, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Securities; (ii) any downgrading in the
rating of any debt securities or preferred stock of the Guarantor 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 debt securities or preferred stock of the Guarantor (other than
an announcement with positive implications of a possible upgrading, and
no implication of a possible downgrading, of such rating); (iii) any
material suspension or material limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum
prices for trading on such exchange, or any suspension of trading of
any securities of the Guarantor on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by U.S.
Federal or New York or Ohio authorities; 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 or emergency if, in the judgment of a majority
in interest of the Underwriters, including the Representatives, the
effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Securities.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of counsel for the Guarantor and the Trust, to the effect
that:
10
11
(i) the Guarantor has been duly incorporated and is an
existing corporation in good standing under the laws of Ohio and
is duly registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended; each of KeyBank National
Association and Key Bank USA, National Association (the "National
Banks") is a duly organized and validly existing national banking
association under the laws of the United States and continues to
hold a valid certificate to do business as such; each of the
Guarantor and the National Banks has full corporate power and
authority to conduct its business as described in the Prospectus
and is duly qualified to do business in each jurisdiction in which
it owns or leases real property, except where the failure to be so
qualified, considering all such cases in the aggregate, does not
involve a material risk to the business, properties, financial
position or results of operations of the Guarantor and its
subsidiaries taken as a whole; and all of the outstanding shares
of capital stock of each of the National Banks have been duly
authorized and validly issued, are fully paid and (except as
provided by Section 55 of Title 12 of the United States Code)
non-assessable and (except as otherwise stated in the Prospectus)
are owned beneficially by the Guarantor subject to no security
interest, other encumbrance or adverse claim;
(ii) to the best knowledge of such counsel, (A) there is no
pending or threatened action, suit or proceeding before any court
or governmental agency, authority or body or any arbitrator
involving the Guarantor or any of its subsidiaries of a character
required to be disclosed in the Prospectus which is not adequately
disclosed in the Prospectus, and (B) there is no franchise,
contract or other document which is known to such counsel of a
character required to be described in the Prospectus, which is not
described as required;
(iii) this Agreement has been duly authorized, executed
and delivered by the Guarantor and the Trust;
(iv) the issuance by the Guarantor of the Guarantee and the
Subordinated Debentures, the compliance by the Guarantor with all
of the provisions of this Agreement, the execution, delivery and
performance by the Guarantor of the Guarantor Agreements and the
consummation of the transactions herein and therein contemplated
will not conflict with, result in a breach of, or constitute a
default under the Articles of Incorporation or Regulations of the
Guarantor or, to the best knowledge of such counsel, any indenture
or other agreement or instrument to which the Guarantor or its
subsidiaries is a party or bound, or any order or regulation of
any court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Guarantor or its
subsidiaries which in the case of any indenture, agreement,
instrument or order, would have a material adverse effect on the
holders of the Securities or condition (financial or other),
business, properties or results of operations of the Guarantor and
its subsidiaries, taken as one enterprise;
(v) the Guarantor Agreements have each been duly
authorized, executed and delivered by the Guarantor and/or the
Trust, as the case may be, and constitute the valid and legally
binding obligations of the Guarantor and/or the Trust, as the case
may be, enforceable in accordance with their respective terms,
except as limited by Title II of the United States Code
(Bankruptcy) and other applicable bankruptcy, insolvency,
reorganization, arrangement, fraudulent transfer, moratorium or
other laws relating to or affecting creditors' rights generally
and general principles of equity, constitutional rights and public
policy, regardless of whether
11
12
enforceability is considered in proceedings at law or in equity
and except that the provisions requiring payment of attorneys'
fees may not be enforceable by courts applying Ohio law; the
Subordinated Debentures are entitled to the benefits provided by
the Indenture; and the Guarantee and the Indenture have each been
duly qualified under the Trust Indenture Act;
(vi) each of the Guarantor and the Trust is not, and after
giving effect to the offering and sale of the Securities will not
be, an "investment company", or an entity "controlled" by an
"investment company", as such terms are defined in the Investment
Company Act;
(vii) no consent, approval, authorization or order of any
court or governmental agency or body is required of the Guarantor
or the Trust for the consummation of the transactions contemplated
in this Agreement or any of the Guarantor Agreements, except such
as may be required under the Blue Sky laws of any jurisdiction or
as have been duly made or obtained; and
(viii) the Registration Statement has become effective
under the Act, and, to the best of the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have
been instituted or are pending or threatened under the Act, and
each part of the Registration Statement, when such part became
effective, any amendments thereof filed prior to the date of this
Agreement, as of their respective effective dates, and the
Registration Statement and the Prospectus, as of the date of the
Prospectus, and each amendment thereof or supplement thereto, as
of their respective effective or issue dates, appeared on their
face to be appropriately responsive in all material respects to
the requirements of the Act, the Trust Indenture Act and the
respective Rules and Regulations thereunder; and that such counsel
has no reason to believe that any part of the Registration
Statement, when such part became effective, 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 Prospectus, as of the date of
the Prospectus, or any amendments thereof or supplements thereto,
as of their respective effective or issue dates, contained any
untrue statement of a material fact or omitted to state any
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, or that, as of the Closing Date, either the Prospectus
or any further amendment or supplement thereto made by the
Guarantor or the Trust prior to the Closing Date contained any
untrue statement of a material fact or omitted to state any
material fact necessary 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 Form T-1, as to the financial statements or
other financial data contained in any part of the Registration
Statement or the Prospectus, as to any information pertaining to
the Internal Revenue Code of 1986, as amended, or to the Employee
Retirement Income Security Act of 1974, as amended, or as to any
statements or omissions made in reliance upon or in conformity
with information furnished in writing to the Guarantor and the
Trust by or on behalf of an Underwriter for use therein.
Such opinion or opinions shall be limited to New York, Ohio and United
States federal law and, if applicable, the law of the State of incorporation of
any other Significant Subsidiary. In giving such opinion, such counsel may rely,
as to all matters governed by the laws of jurisdictions in which such counsel is
not
12
13
qualified, upon opinions of other counsel, who shall be counsel satisfactory to
counsel for the Underwriters, in which case the opinion shall state that they
believe you and they are entitled to rely. In addition, as to paragraph (vi),
such counsel may rely upon the opinion of Xxxxxxxx & Xxxxxxxx. Such counsel may
also state that, insofar as such opinion involves factual matters, they have
relied, to the extent that they deem proper, upon certificates of officers of
the Guarantor, the National Banks and the Significant Subsidiaries and
certificates of public officials.
(e) The Representatives shall have received from Xxxxxxxx &
Xxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to such matters as the Representatives
may reasonably require, and the Guarantor and the Trust shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(f) The Representatives shall have received certificates of the
Guarantor and the Trust, signed, in the case of the Guarantor, by the
Chairman of the Board, the President, an Executive Vice President or
Vice President of the Guarantor and by the principal accounting or
financial officer of the Guarantor, and in the case of the Trust, by an
Administrative Trustee, dated the Closing Date, to the effect that, to
the best of their knowledge upon reasonable investigation:
(i) the representations and warranties of the Guarantor and
the Trust in this Agreement are true and correct on and as of the
Closing Date with the same effect as if made at the Closing Date
and each of the Guarantor and the Trust has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) since the respective dates as of which information is
given in the Prospectus, there has been no material adverse
change, nor any presently known and existing development that the
Guarantor or the Trust, as the case may be, expects to result in a
material adverse change on the condition (financial or other),
business, properties or results of operations of the Guarantor and
its subsidiaries considered as one enterprise or the Trust, as the
case may be, whether or not arising from transactions in the
ordinary course of business, except as set forth in or
contemplated in the Prospectus; and
(iii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted and are pending or have been
threatened as of such date.
(g) The Representatives shall have received at the Closing Date
the opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware
counsel for the Trust and the Guarantor, dated the Closing Date, to the
effect that:
(i) the Trust has been duly created and is validly existing as
a business trust in good standing under the Delaware Business
Trust Act and, under the Trust Agreement and the Delaware Business
Trust Act, has the trust power and authority to own its properties
and conduct its business, all as described in the Prospectus, and
all filings required under the laws of the State of Delaware with
respect to the creation and valid existence of the Trust as a
business trust have been made;
13
14
(ii) the Trust Agreement constitutes a valid and binding
obligation of the Guarantor and the Trustees, and is enforceable
against the Guarantor and the Trustees in accordance with its
terms, and the terms of the Securities as set forth in the Trust
Agreement are valid and binding obligations of the Trust in
accordance with the terms of the Trust Agreement, all subject to
the effect upon the Trust Agreement of (A) bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation, fraudulent
conveyance or transfer and other similar laws relating to or
affecting the rights and remedies of creditors generally, (B)
principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in
a proceeding in equity or at law), and (C) the effect of
applicable public policy on the enforceability of provisions
relating to indemnification or contribution;
(iii) under the Trust Agreement and the Delaware Business
Trust Act, the Trust has the trust power and authority to (A)
execute and deliver this Agreement, and perform its obligations
under this Agreement, and (B) issue, and perform its obligations
under, the Securities and the Common Securities;
(iv) under the Trust Agreement and the Delaware Business Trust
Act, the execution and delivery by the Trust of this Agreement,
and the performance by the Trust of its obligations hereunder have
been duly authorized by all necessary trust action on the part of
the Trust;
(v) the Securities have been duly and validly authorized by
the Trust Agreement, and, when issued and delivered against
payment therefor as provided herein, will be duly and validly
issued and, subject to the qualifications set forth herein, fully
paid and non-assessable undivided beneficial interests in the
assets of the Trust; under the Trust Agreement and the Delaware
Business Trust Act, the issuance of the Securities is not subject
to preemptive or other similar rights; the Securities will have
the rights set forth in the Trust Agreement; and the
Securityholders, as beneficial owners of the Trust, will be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under
the General Corporation Law of the State of Delaware; provided
that such counsel may note that the Securityholders may be
obligated, pursuant to the Trust Agreement, to (A) provide
indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers or exchanges of
Capital Securities Certificates (as defined in the Trust
Agreement) and the issuance of replacement Capital Securities
Certificates and (B) provide security and indemnity in connection
with requests of or directions to the Property Trustee (as defined
in the Trust Agreement) to exercise its rights and remedies under
the Trust Agreement;
(vi) the Common Securities of the Trust have been duly and
validly authorized by the Trust Agreement; under the Trust
Agreement and the Delaware Business Trust Act, the issuance of the
Common Securities is not subject to preemptive or other similar
rights;
(vii) the issue and sale of the Securities and the Common
Securities by the Trust, the execution and delivery of this
Agreement by the Trust, the compliance by the Trust with all of
the provisions of the Securities, the Trust Agreement and this
Agreement, the purchase by the Trust of the Subordinated
Debentures and the consummation of the transactions herein and
14
15
therein contemplated do not violate (A) the Trust Agreement or the
Certificate of Trust of the Trust, or (B) any applicable Delaware
law, rule or regulation;
(viii) assuming that the Trust derives no income from or
connected with services provided within the State of Delaware and
has no assets, activities (other than maintaining the Delaware
Trustee (as defined in the Trust Agreement) and the filing of
documents with the Secretary of State of the State of Delaware) or
employees in the State of Delaware, no authorization, approval,
consent or order of any Delaware court or Delaware governmental
authority or Delaware agency is required to be obtained by the
Trust solely in connection with the issuance and sale of the
Securities and the Common Securities. In rendering the opinion
expressed in this paragraph, such counsel need express no opinion
concerning the securities laws of the State of Delaware; and
(ix) assuming that the Trust derives no income from or
connected with sources within the State of Delaware and has no
assets, activities (other than having a Delaware trustee as
required by the Delaware Business Trust Act and filing documents
with the Delaware Secretary of State) or employees in the State of
Delaware and that the Trust is treated as a grantor trust for
purposes of US Federal income tax, the Securityholders (other than
those holders of the Securities who reside or are domiciled in the
State of Delaware) will have no liability for income taxes imposed
by the State of Delaware solely as a result of their participation
in the Trust, and the Trust will not be liable for any income tax
imposed by the State of Delaware.
(h) Xxxxxxxx & Xxxxxxxx, special tax counsel for the Guarantor and
the Trust, shall have furnished to the Representatives their written
opinion, dated the Closing Date, in form and substance satisfactory to
you, to the effect that such firm confirms its opinion set forth in the
Prospectus under the caption "Certain Federal Income Tax Consequences".
(i) Prior to the Closing Date, the Guarantor and the Trust shall
have furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
7. (a) Indemnification and Contribution. 1. The Guarantor and the Trust
jointly and severally will indemnify and hold harmless each Underwriter against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter, its partners, directors and officers and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Act, 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 any 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 alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Guarantor and the Trust will not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of the Form T-1 or 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 the Guarantor and the Trust by any
15
16
Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by the
Underwriter consists of the information described as such in subsection (b)
below.
Insofar as the foregoing indemnity agreement, or the representations
and warranties contained in Section 2(b), may permit indemnification for
liabilities under the Act of any person who is an Underwriter or a partner or
controlling person of an Underwriter within the meaning of Section 15 of the Act
and who, at the date of this Agreement, is a director, officer or controlling
person of the Guarantor or the Trust, the Guarantor and the Trust have been
advised that in the opinion of the Commission such provisions may contravene
Federal public policy as expressed in the Act and may therefore be
unenforceable. In the event that a claim for indemnification under such
agreement or such representations and warranties for any such liabilities
(except insofar as such agreement provides for the payment by the Guarantor or
the Trust of expenses incurred or paid by a director, officer or controlling
person in the successful defense of any action, suit or proceeding) is asserted
by such a person, the Guarantor or the Trust will submit to a court of
appropriate jurisdiction (unless in the opinion of counsel for the Guarantor and
the Trust the matter has already been settled by controlling precedent) the
question of whether or not indemnification by it for such liabilities is against
public policy as expressed in the Act and therefore unenforceable, and the
Guarantor and the Trust will be governed by the final adjudication of such
issue.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Guarantor and the Trust, their directors, officers and
administrators and each person, if any who controls the Guarantor or the Trust
within the meaning of Section 15 of the Act, against any losses, claims, damages
or liabilities to which the Guarantor or the Trust 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 any 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 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 the Guarantor and the Trust
by such Underwriter through the Representatives specifically for use therein,
and will reimburse any legal or other expenses reasonably incurred by the
Guarantor and the Trust 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
________________________________________________________________________________
________________________________________________________________________________
_________________________________________________________________.
(c) Promptly after receipt by an indemnified party under this Section
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
16
17
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 (i) includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of an indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) 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 subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Guarantor and
the Trust on the one hand and the Underwriters on the other from the offering of
the Securities 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 the Guarantor and the Trust on the one hand and 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 the Guarantor and the Trust on
the one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Guarantor and the Trust 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 the Guarantor and the Trust
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
subsection (d) 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 subsection (d). Notwithstanding
the provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. 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 subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Guarantor and the Trust under this Section
shall be in addition to any liability which the Guarantor and the Trust 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 this Section 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 or administrator,
as the
17
18
case may be, of the Guarantor and the Trust, to each officer or administrator,
as the case may be, of the Guarantor and the Trust who has signed a Registration
Statement and to each person, if any, who controls the Guarantor or the Trust
within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Securities hereunder on the Closing
Date and the aggregate number of Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
number of Securities that the Underwriters are obligated to purchase on the
Closing Date, the Representatives may make arrangements satisfactory to
the Guarantor and the Trust for the purchase of such Securities by other
persons, including any of the Underwriters, but if no such arrangements are made
by the Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the Securities that such defaulting Underwriters agreed but failed to purchase
on the Closing Date. If any Underwriter or Underwriters so default and the
aggregate number of Securities with respect to which such default or defaults
occur exceeds 10% of the total number of Securities that the Underwriters are
obligated to purchase on the Closing Date and arrangements satisfactory to
Credit Suisse First Boston and the Guarantor and the Trust for the purchase of
such Securities 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 the Guarantor or the Trust, except as provided in
Section 9. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve a
defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Guarantor and the Trust or each of its officers or administrators, as the case
may be, 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,
the Guarantor or the Trust or any of their respective representatives,
administrators, officers or directors or any controlling person, and will
survive delivery of and payment for the Securities. If this Agreement is
terminated pursuant to Section 8 or if for any reason the purchase of the
Securities by the Underwriters is not consummated, the Guarantor and the Trust
shall remain responsible for the expenses to be paid or reimbursed by them
pursuant to Section 5 and the respective obligations of the Guarantor and the
Trust and the Underwriters pursuant to Section 7 shall remain in effect, and if
any Securities have been purchased hereunder the representations and warranties
in Section 2 and all obligations under Section 5 shall also remain in effect. If
the purchase of the Securities by the Underwriters is not consummated for any
reason other than solely because of the termination of this Agreement pursuant
to Section 8 or the occurrence of any event specified in clause (iii), (iv) or
(v) of Section 6(c), the Guarantor and the Trust will reimburse the Underwriters
for all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives at Eleven Madison Avenue, New York, N.Y. 10010-3629,
Attention: Investment Banking Department--Transactions Advisory Group, or, if
sent to the Guarantor and the Trust, will be mailed, delivered or telegraphed
and confirmed to it at KeyCorp, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000-0000,
Attention: Xxxxxx X. Xxxxxxx, Esq., provided, however, that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed and
confirmed to such Underwriter.
18
19
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
12. Representation of Underwriters. The Representatives will act for
the several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representatives will be binding upon all the
Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
Each of the Guarantor and the Trust hereby submits to the non-exclusive
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.
19
20
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Guarantor and the
Trust two of the counterparts hereof, whereupon it will become a binding
agreement between the Guarantor and the Trust and the several Underwriters in
accordance with its terms.
Very truly yours,
KEYCORP CAPITAL III
BY: KEYCORP, AS DEPOSITOR
By_____________________________
Name:
Title:
KEYCORP
By_____________________________
Name:
Title:
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
MCDONALD INVESTMENTS INC.
Acting on behalf of themselves and as the
Representatives of the several
Underwriters.
BY: CREDIT SUISSE FIRST BOSTON CORPORATION
________________________
Name:
Title:
20
21
SCHEDULE A
Underwriter
----------- NUMBER OF
SECURITIES
----------
Credit Suisse First Boston Corporation................................
McDonald Investments Inc..............................................
X.X. Xxxxxx Securities Inc............................................
Xxxxxxx Xxxxx Xxxxxx Inc..............................................
Total...................................... 250,000
=======
21
