SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
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Date of Report (Date of earliest event reported) MARCH 10, 1999
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KEYCORP
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(Exact name of registrant as specified in its charter)
OHIO 0-850 34-6542451
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(State of incorporation) (Commission File Number) (IRS Employer
Identification No.)
127 PUBLIC SQUARE, CLEVELAND, OHIO 44114-1306
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(Address of principal executive offices)
216-689-6300
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(Registrant's telephone number, including area code)
NOT APPLICABLE
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(Former name or former address, if changed since last report)
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
The following exhibit is filed herewith and incorporated by reference into
Registration Statement Nos. 333-59175 and 333-59175-01 (together with Amendment
No. 1 thereto) pertaining to the offering of $250,000,000 6-7/8% Capital
Securities, Liquidation Amount $1,000 per Capital Security (the "Capital
Securities"), of KeyCorp Capital II (the "Issuer Trust"), fully and
unconditionally guaranteed by KeyCorp (the "Corporation").
EXHIBIT NUMBER DESCRIPTION
1 Underwriting Agreement, dated March 10, 1999, among the
Issuer Trust, the Corporation and Credit Suisse First Boston
Corporation, as representative of several underwriters named
in Schedule A to the Underwriting Agreement (the
"Underwriters"), relating to the issuance and sale of the
Capital Securities of the Issuer Trust to the Underwriters.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
KEYCORP
By: /s/ Daniel R. Stolzer
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Name: Daniel R. Stolzer
Title: Vice President and
Associate General Counsel
Date: March 15, 1999
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EXHIBIT INDEX
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EXHIBIT NUMBER DESCRIPTION
1 Underwriting Agreement, dated March 10, 1999, among the
Issuer Trust, the Corporation and Credit Suisse First Boston
Corporation, as representative of several underwriters named
in Schedule A to the Underwriting Agreement (the
"Underwriters"), relating to the issuance and sale of the
Capital Securities of the Issuer Trust to the Underwriters.
$250,000,000
KEYCORP CAPITAL II
6-7/8% CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
GUARANTEED TO THE EXTENT SET FORTH IN THE GUARANTEE BY
KEYCORP
UNDERWRITING AGREEMENT
March 10, 1999
CREDIT SUISSE FIRST BOSTON CORPORATION,
As Representative of the Several Underwriters,
Eleven Madison Avenue,
New York, N.Y. 10010-3629.
Ladies and Gentlemen:
1. INTRODUCTORY. KeyCorp Capital II (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 6-7/8% 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 6-7/8% 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. 333-59175 and 333-59175-01) 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 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)")
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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 Representative 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
Representative 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 Representative 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
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.
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(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 Representative 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.
(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
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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 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
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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 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
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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
$985.64 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 to an
account at a bank acceptable to Credit Suisse First Boston Corporation ("Credit
Suisse First Boston") drawn to the order of the Trust at the office of Sullivan
& Cromwell, 125 Broad Street, New York, New York 10004 at 9:30 A.M., (New York
time), on March 17, 1999, or at such other time not later than seven full
business days thereafter as Credit Suisse First Boston 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 Sullivan & Cromwell 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 Representative 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, Credit Suisse First Boston 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.
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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
Credit Suisse First Boston, 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 Credit Suisse First Boston 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 Credit Suisse First Boston
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 Credit Suisse First Boston's consent; and the Guarantor and the
Trust will also advise Credit Suisse First Boston promptly of the
effectiveness of each Registration Statement (if its Effective Time is
subsequent to 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
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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 Representative
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 Credit
Suisse First Boston 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 Credit Suisse First Boston 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 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 Credit Suisse First Boston
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 Credit Suisse First Boston.
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(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 Representative 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 Representative), each dated on such delivery
date, in form and substance satisfactory to the Representative 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 Credit
Suisse First Boston. 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 Credit Suisse
First Boston. 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
Representative, 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 Representative, 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
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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
Representative, 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 Representative shall have received an opinion, dated the
Closing Date, of counsel for the Guarantor and the Trust, to the effect
that:
(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
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(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 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
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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 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 Sullivan & Cromwell. 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 Representative shall have received from Sullivan & Cromwell,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to such matters as the Representative 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 Representative 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 Representative shall have received at the Closing Date the
opinion of Richards, Layton & 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
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of the State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made;
(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 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;
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(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) Sullivan & Cromwell, special tax counsel for the Guarantor and the
Trust, shall have furnished to the Representative 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 Representative such further information, certificates and
documents as the Representative may reasonably request.
7. INDEMNIFICATION AND CONTRIBUTION. (a) 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 Underwriter through the Representative
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,
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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 Representative 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 (i) the following information in the Prospectus
furnished on behalf of each Underwriter: the first sentence of the last
paragraph of text on the cover of the Prospectus, concerning the terms of the
offering by the Underwriters, the second to the last paragraph on page 3 of the
Prospectus concerning stabilization and over-allotment by the Underwriters, the
concession and reallowance figures appearing in the third paragraph under the
caption "Underwriting", the second sentence of the eighth paragraph under the
caption "Underwriting" concerning market making by the Underwriters and the last
paragraph under the caption "Underwriting" concerning stabilization and
over-allotment by the Underwriters and (ii) the following information in the
Prospectus furnished on behalf of McDonald Investments Inc.: the information
contained in the fifth paragraph on page 3 of the Prospectus and the tenth
paragraph under the caption "Underwriting".
(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 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
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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
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,
Credit Suisse First Boston may make arrangements satisfactory to the Guarantor
and the Trust for the purchase of such Securities by
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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
Representative 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, 127 Public Square, Cleveland, Ohio 44114-1306, Attention:
Daniel R. Stolzer, Esq., provided, however, that any notice to an Underwriter
pursuant to Section 7 will be mailed, delivered or telegraphed and confirmed to
such Underwriter.
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 Representative will act for the
several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representative 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.
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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.
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If the foregoing is in accordance with the Representative's 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 II
BY: KEYCORP, AS DEPOSITOR
By /s/ Louis D. Raffis
--------------------------------------
Name: Louis D. Raffis
Title: Authorized Official
KEYCORP
By /s/ Louis D. Raffis
--------------------------------------
Name: Louis D. Raffis
Title: Authorized Official
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By /s/ John K. Adams, Jr.
--------------------------------------
Name: John K. Adams, Jr.
Title: Managing Director
Acting on behalf of itself and as the
Representative of the several Underwriters.
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SCHEDULE A
NUMBER OF
UNDERWRITER SECURITIES
----------- ----------
Credit Suisse First Boston Corporation................................. 137,500
McDonald Investments Inc............................................... 32,500
Chase Securities Inc. ................................................. 20,000
Goldman, Sachs & Co.................................................... 20,000
J.P. Morgan Securities Inc............................................. 20,000
Salomon Smith Barney Inc. ............................................. 20,000
-------
Total....................................... 250,000
=======
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