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Exhibit
1.1
KeyCorp Capital
X
Capital
Securities
guaranteed to the extent
set forth in the Guarantees by
KEYCORP
Underwriting
Agreement
February 20,
2008
To the Representatives of the several
Underwriters
named in Schedule I to the
respective
Pricing Agreements
hereinafter described
Ladies and Gentlemen:
From time to time KeyCorp
Capital X, a statutory trust formed under the laws of the State of
Delaware (the “Designated Trust”), and KeyCorp, an Ohio
corporation (the “Company”), as depositor of the
Designated Trust and as guarantor, propose to enter into one or
more Pricing Agreements (each a “Pricing Agreement”) in
the form of Annex I hereto, with such additions and deletions as
the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, that the Designated Trust
issue and sell to the firms named in Schedule I to the applicable
Pricing Agreement (such firms constituting the
“Underwriters” with respect to such Pricing Agreement
and the securities specified therein) certain of its preferred
securities (the “Securities”) representing undivided
beneficial interests in the assets of the Designated Trust. The
Securities specified in such Pricing Agreement are referred to as
the “Firm Designated Securities” with respect to such
Pricing Agreement. If specified in such Pricing Agreement, the
Designated Trust may grant the Underwriters the right to purchase
at their election an additional number of Securities, specified as
provided in such Pricing Agreement as provided in Section 3
hereof (the “Optional Designated Securities”). The Firm
Designated Securities and any Optional Designated Securities are
collectively called the “Designated Securities.” The
proceeds of the sale of the Designated Securities to the public and
of common securities of the Designated Trust (the “Common
Securities”) to the Company concurrently with the sale of the
Designated Securities are to be invested in junior subordinated
debentures of the Company (the “Junior Subordinated
Debentures”) identified in the Pricing Agreement with respect
to such Designated Securities (with respect to such Pricing
Agreement, the “Designated Junior Subordinated
Debentures”), to be issued pursuant to the Junior
Subordinated Indenture, dated as of December 4, 1996, between
the Company and Bankers Trust Company (now known as Deutsche Bank
Trust Company Americas), as trustee (the “Indenture
Trustee”), as supplemented from time to time (as so
supplemented, the “Indenture”). The Designated
Securities may be exchangeable into Designated Junior Subordinated
Debentures, as specified in Schedule II to such Pricing Agreement.
The Designated Securities will be guaranteed by the Company to the
extent set forth in the Pricing Agreement with respect to such
Designated Securities (the “Designated Guarantee”) (all
such Designated Guarantees together, the
“Guarantees”).
The terms and rights of any
particular issuance of Designated Securities shall be as specified
in the Pricing Agreement relating thereto and in or pursuant to the
amended and restated trust agreement identified in such Pricing
Agreement (with respect to such Pricing Agreement, the “Trust
Agreement”).
1. Particular sales of
Designated Securities may be made from time to time to the
Underwriters of such Designated Securities, for whom the firms
designated as representatives of the Underwriters of such
Designated Securities in the Pricing Agreement relating thereto
will act as representatives (the “Representatives”).
The term “Representatives” also refers to a single firm
acting as sole representative of the Underwriters and to
Underwriters who act without any firm being designated as their
representative. This Underwriting Agreement shall not be construed
as an obligation of the Designated Trust to sell any of the
Securities or as an obligation of any of the Underwriters to
purchase any of the Securities. The obligation of the Designated
Trust to issue and sell any of the Securities and the obligation of
any of the Underwriters to purchase any of the Securities shall be
evidenced by the Pricing Agreement with respect to the Designated
Securities specified therein. Each Pricing Agreement shall specify
the aggregate number of the Firm Designated Securities, the maximum
number of Optional Designated Securities, if any, the initial
public offering price of such Firm Designated Securities and
Optional Designated Securities or the manner of determining such
price, the terms of the Designated Securities, including the terms
on which and terms of the securities into which the Designated
Securities will be exchangeable, the purchase price to the
Underwriters of such Designated Securities, the names of the
Underwriters of such Designated Securities, the names of the
Representatives of such Underwriters, the number of such Designated
Securities to be purchased by each Underwriter and the commission,
if any, payable to the Underwriters with respect thereto and shall
set forth the date, time and manner of delivery of such Firm and
Optional Designated Securities, if any, and payment therefor. The
Pricing Agreement shall also specify (to the extent not set forth
in the registration statement and prospectus with respect thereto)
the terms of such Designated Securities. A Pricing Agreement shall
be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic
communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The
standard provisions set forth herein will be incorporated by
reference in any Pricing Agreement. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall
be several and not joint.
2. The Designated Trust and
the Company, jointly and severally, each represents and warrants
to, and agrees with, each of the Underwriters that:
(a) An “automatic shelf
registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “Act”) on Form
S-3 (File No. 333-134937) in respect of the Securities has
been filed with the Securities and Exchange Commission (the
“Commission”) not earlier than three years prior to the
date hereof; such registration statement, and any post-effective
amendment thereto, became effective on filing; and no stop order
suspending the effectiveness of such registration statement or any
part thereof has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission, and no notice of
objection of the Commission to the use of such registration
statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Act has been received by the Company or the
Designated Trust (the base prospectus filed as part of such
registration statement, in the form in which it has most recently
been filed with the Commission on or prior to the date of this
Agreement, is hereinafter called the “Basic
Prospectus”; any preliminary prospectus (including any
preliminary prospectus supplement) relating to the Securities filed
with the Commission pursuant to Rule 424(b) under the Act is
hereinafter called a “Preliminary Prospectus”; the
various parts of such registration statement, including all
exhibits thereto but excluding Form T-1 and including
any
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prospectus supplement
relating to the Securities that is filed with the Commission and
deemed by virtue of Rule 430B to be part of such registration
statement, each as amended at the time such part of the
registration statement became effective, are hereinafter
collectively called the “Registration Statement”; the
Basic Prospectus, as amended and supplemented immediately prior to
the Applicable Time (as defined in Section 2(c) hereof), is
hereinafter called the “Pricing Prospectus”; the form
of the final prospectus relating to the Securities filed with
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(A)(a) hereof is hereinafter called the
“Prospectus”; any reference herein to the Basic
Prospectus, the Pricing Prospectus, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Act, as of the date of such
prospectus; any reference to any amendment or supplement to the
Basic Prospectus, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any post-effective
amendment to the Registration Statement, any prospectus supplement
relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act and any documents filed under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and incorporated therein, in each case after the date
of the Basic Prospectus, such Preliminary Prospectus or the
Prospectus, as the case may be; any reference to any amendment to
the Registration Statement shall be deemed to refer to and include
any annual report of the Designated Trust, if any, and the Company
filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any
“issuer free writing prospectus” as defined in Rule 433
under the Act relating to the Securities, the Junior Subordinated
Debentures or the Guarantees is hereinafter called an “Issuer
Free Writing Prospectus”);
(b) No order preventing or
suspending the use of any Preliminary Prospectus or any Issuer Free
Writing Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Act and the Trust
Indenture Act of 1939, as amended (the “Trust Indenture
Act”), and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided , however , that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Designated Trust and the Company by an Underwriter
of Designated Securities through the Representatives expressly for
use therein;
(c) For the purposes of this
Agreement, the “Applicable Time” is the time set forth
in Schedule II to the applicable Pricing Agreement; the Pricing
Prospectus as supplemented by the final term sheet prepared and
filed pursuant to Section 5(A)(a) hereof, taken together
(collectively, the “Pricing Disclosure Package”) and
each electronic roadshow as of the Applicable Time, did not include
any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; and each Issuer Free Writing Prospectus listed on
Schedule III to the applicable Pricing Agreement does not conflict
with the information contained in the Registration Statement, the
Pricing Prospectus or the Prospectus and each such Issuer Free
Writing Prospectus, as supplemented by and taken together with the
Pricing Disclosure Package as of the Applicable Time, did not
include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided , however , that
this
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representation and warranty
shall not apply to statements or omissions made in an Issuer Free
Writing Prospectus in reliance upon and in conformity with
information furnished in writing to the Designated Trust or the
Company by an Underwriter of Designated Securities through the
Representatives expressly for use therein;
(d) The documents
incorporated by reference in the Pricing Prospectus and the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
and any further documents so filed and incorporated by reference in
the Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission,
as the case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; provided ,
however , that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Designated
Trust or the Company by an Underwriter of Designated Securities
through the Representatives expressly for use therein; and no such
documents were filed with the Commission since the
Commission’s close of business on the business day
immediately prior to the date of the applicable Pricing Agreement
and prior to the execution of the applicable Pricing
Agreement;
(e) The Registration
Statement conforms, and the Prospectus and any further amendments
or supplements to the Registration Statement or the Prospectus will
conform, in all material respects to the requirements of the Act
and the Trust Indenture Act, and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus
and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided , however , that
this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with
information furnished in writing to the Designated Trust or the
Company by an Underwriter of Designated Securities through the
Representatives expressly for use therein;
(f) The consolidated
historical financial statements and schedules of the Company and
its consolidated subsidiaries included in the Pricing Prospectus,
the Prospectus and the Registration Statement present fairly the
financial condition, results of operations and cash flows of the
Company as of the dates and for the periods indicated, comply as to
form with the applicable accounting requirements of the Act and
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved (except as otherwise noted therein). The selected
financial data set forth under the captions “Selected
Consolidated Financial Information” and “Recent
Developments” in the Pricing Prospectus, the Prospectus and
Registration Statement fairly present, on the basis stated in the
Pricing Prospectus, the Prospectus and the Registration Statement,
the information included therein.
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(g) The Designated Trust has
been duly created and is validly existing as a statutory trust in
good standing under the laws of the State of Delaware, with power
and authority to own, lease and operate its properties and conduct
its business as described in the Pricing Prospectus; the Company
has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of Ohio, with power
and authority (corporate and other) to own, lease and operate its
properties and conduct its business as described in the Pricing
Prospectus;
(h) The Designated Securities
have been duly and validly authorized, and, when the Firm
Designated Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such Designated
Securities and, in the case of any Optional Designated Securities,
pursuant to Over-allotment Options (as defined in Section 3
hereof) with respect to such Securities, such Designated Securities
will be duly and validly issued and fully paid and non-assessable
beneficial interests in the Designated Trust entitled to the
benefits provided by the applicable Trust Agreement, which will be
substantially in the form filed as an exhibit to the Registration
Statement; the Designated Securities conform to the description
thereof contained in the Registration Statement and the Designated
Securities will conform to the description thereof contained in the
Pricing Disclosure Package and the Prospectus;
(i) The Common Securities of
the Designated Trust have been duly authorized on behalf of the
Designated Trust by the Company, as depositor of the Designated
Trust, and upon delivery by the Designated Trust to the Company
against payment therefor as set forth in the Trust Agreement, will
be duly and validly issued and non-assessable beneficial interests
in the Designated Trust and will conform to the description thereof
contained in the Pricing Disclosure Package and the Prospectus; the
issuance of the Common Securities of the Designated Trust is not
subject to preemptive or other similar rights; the Common
Securities conform to the description thereof contained in the
Registration Statement; and at each Time of Delivery all of the
issued and outstanding Common Securities of the Designated Trust
will be directly owned by the Company free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity;
(j) The Designated Guarantee,
the Trust Agreement for the Designated Trust, the Designated Junior
Subordinated Debentures and the Indenture (the Designated
Guarantee, such Trust Agreement, the Designated Junior Subordinated
Debentures and the Indenture being collectively referred to as the
“Company Agreements”) have each been duly authorized
and when validly executed and delivered by the Company and, in the
case of the Designated Guarantee, by the Guarantee Trustee (as
defined in the Guarantee), in the case of the Trust Agreement, by
the Trustees (as defined in the Trust Agreement) and, in the case
of the Indenture, by the Indenture Trustee, and, in the case of the
Designated Junior Subordinated Debentures, when validly issued by
the Company and duly authenticated and delivered by the Indenture
Trustee, will constitute valid and legally binding obligations of
the Company, enforceable in accordance with their respective terms,
subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting creditors’ rights and to general equity
principles; the Trust Agreement, the Indenture and the Designated
Guarantee have each been duly qualified under the Trust Indenture
Act; the Designated Junior Subordinated Debentures are entitled to
the benefits of the Indenture; and the Company Agreements, which
will be in substantially the form filed as an exhibit to the
Registration Statement, will conform to the descriptions thereof in
the Pricing Disclosure Package and the Prospectus;
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(k) The issue and sale of the
Designated Securities by the Designated Trust, the compliance by
the Designated Trust with all of the provisions of this Agreement,
any Pricing Agreement and each Over-allotment Option, if any, the
Designated Securities and the Trust Agreement, the purchase of the
Designated Junior Subordinated Debentures by the Designated Trust,
the execution, delivery and performance by the Designated Trust of
the Trust Agreement, this Agreement and any Pricing Agreement, and
the consummation of the transactions contemplated herein and
therein will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Designated Trust is a
party or by which the Designated Trust is bound or to which any of
the property or assets of the Designated Trust is subject, nor will
such action result in any violation of the provisions of the Trust
Agreement or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Designated Trust or any of its properties; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for
the issue and sale of the Designated Securities and the Common
Securities by the Designated Trust, the purchase of the Junior
Subordinated Debentures by the Designated Trust or the consummation
by the Designated Trust of the transactions contemplated by this
Agreement, the Pricing Agreement or any Over-allotment Option or
the Trust Agreement, except such as have been, or will have been,
prior to each Time of Delivery, obtained under the Act and the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Securities by the
Underwriters;
(l) The issuance by the
Company of the Guarantees and the Junior Subordinated Debentures,
the compliance by the Company with all of the provisions of this
Agreement, any Pricing Agreement and each Over-allotment Option, if
any, the Guarantees, the Junior Subordinated Debentures, the Trust
Agreements and the Indenture, the execution, delivery and
performance by the Company of the Company Agreements, this
Agreement and any Pricing Agreement, and the consummation of the
transactions contemplated herein and therein will not conflict with
or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound
or to which any of the property or assets of the Company or any of
its subsidiaries is subject except for such conflict, breach,
violation or default which does not have a material adverse effect
on the Company and its subsidiaries, taken as a whole, nor will
such action result in any violation of the provisions of the
Amended Article of Incorporation or Code of Regulations of the
Company or the charter or by-laws of any of its subsidiaries or any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their properties; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for
the issue of the Guarantees or the Junior Subordinated Debentures
or the consummation by the Company of the other transactions
contemplated by this Agreement, any Pricing Agreement or the
Company Agreements, except such as have been or will have been,
prior to each Time of Delivery, obtained under the Act or the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the issuance by the
Company of the Guarantees and the Junior Subordinated
Debentures;
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(m) The Pricing Agreement
with respect to the Designated Securities (incorporating the
provisions hereof) and this Agreement each have been duly
authorized, executed and delivered by the Company and the
Designated Trust;
(n) (A) (i) At the time
of filing the Registration Statement, (ii) at the time of the
most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to
Section 13 or 15(d) of the Exchange Act or form of
prospectus), and (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of
Rule 163(c) under the Act) made any offer relating to the
Securities in reliance on the exemption of Rule 163 under the Act,
the Company was a “well-known seasoned issuer” as
defined in Rule 405 under the Act; and (B) at the earliest
time after the filing of the Registration Statement that the
Designated Trust, the Company or another offering participant made
a bona fide offer (within the meaning of Rule 164(h)(2) under the
Act) of the Designated Securities, the Guarantee or the Junior
Subordinated Debentures, neither the Designated Trust nor the
Company was an “ineligible issuer” as defined in Rule
405 under the Act;
(o) Each of the Company and
the Designated Trust is not and, after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Disclosure Package and the
Prospectus, will not be an “investment company” as
defined in the Investment Company Act of 1940, as
amended;
(p) No action, suit or
proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or any of its
subsidiaries or its or their property is pending or, to the best
knowledge of the Company, threatened that (i) could reasonably
be expected to have a material adverse effect on the performance of
this Agreement or the consummation of any of the transactions
contemplated hereby or (ii) could reasonably be expected to
have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Disclosure Package
and the Prospectus (exclusive of any supplement
thereto);
(q) Neither the Company nor
any subsidiary is in violation or default of (i) any provision
of its charter or bylaws, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property
is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or such subsidiary
or any of its properties, as applicable, except in the case of
(ii) and (iii), where such violations or defaults would not
have a material adverse effect upon the business, consolidated
financial condition or results of operations of the Company or its
subsidiaries;
(r) No subsidiary of the
Company is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other
distribution on such subsidiary’s capital stock, from
repaying to the Company any loans or advances to such subsidiary
from the Company or from transferring any of such
subsidiary’s property or assets to the Company or any other
subsidiary of the Company, except as described in or contemplated
by the Disclosure Package and the Prospectus (exclusive of any
supplement thereto);
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(s) The Company and each of
its subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The
Company and its subsidiaries’ internal controls over
financial reporting are effective and the Company and its
subsidiaries are not aware of any material weakness in their
internal controls over financial reporting;
(t) The Company, other than
KeyBanc Capital Markets Inc. to the extent disclosed in the
Prospectus, has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities;
(u) There is and has been no
failure on the part of the Company and to the best of its knowledge
any of the Company’s directors or officers, in their
capacities as such, to comply with any provision of the
Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith (the “Sarbanes-Oxley
Act”), including Section 402 relating to loans and
Sections 302 and 906 relating to certifications;
(v) Neither the Company nor
any of its subsidiaries nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or
any of its subsidiaries is aware of or has taken any action,
directly or indirectly, that would result in a violation by such
persons of the Foreign Corrupt Practices Act of 1977, as amended,
and the rules and regulations thereunder (the “FCPA”),
including, without limitation, making use of the mails or any means
or instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the
payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the
FCPA) or any foreign political party or official thereof or any
candidate for foreign political office, in contravention of the
FCPA; and the Company, its subsidiaries and, to the knowledge of
the Company, its affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies
and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance
therewith;
(w) To the best knowledge of
the Company, the operations of the Company and its subsidiaries are
currently in compliance with applicable financial recordkeeping and
reporting requirements and the money laundering statutes and the
rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering
Laws”) and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to
the Money Laundering Laws is pending or, to the best knowledge of
the Company, threatened;
(x) Neither the Company nor
any of its subsidiaries nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or
any of its
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subsidiaries is currently
subject to any sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department
(“OFAC”); and the Company will not directly or
indirectly use the proceeds of the offering, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint
venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
3. Upon the execution of the
Pricing Agreement applicable to any Designated Securities and
authorization by the Representatives of the release of the Firm
Designated Securities, the several Underwriters propose to offer
the Firm Designated Securities for sale upon the terms and
conditions set forth in the Prospectus.
The Designated Trust may
specify in the Pricing Agreement applicable to any Designated
Securities that the Designated Trust thereby grants to the
Underwriters the right (an “Over-allotment Option”) to
purchase at their election up to the number of Optional Designated
Securities set forth in such Pricing Agreement, on the terms set
forth in the paragraph above, for the sole purpose of covering
over-allotments in the sale of the Firm Designated Securities. Any
such election to purchase Optional Designated Securities may be
exercised by written notice from the Representatives to the
Designated Trust and the Company, given within a period specified
in the Pricing Agreement, setting forth the aggregate number of
Optional Designated Securities to be purchased and the date on
which such Optional Designated Securities are to be delivered, as
determined by the Representatives but in no event earlier than the
First Time of Delivery (as defined in Section 4 hereof) or,
unless the Representatives, the Designated Trust and the Company
otherwise agree in writing, earlier than or later than the
respective number of business days after the date of such notice
set forth in such Pricing Agreement.
The number of Optional
Designated Securities to be added to the number of Firm Designated
Securities to be purchased by each Underwriter as set forth in
Schedule I to the Pricing Agreement applicable to such Designated
Securities shall be, in each case, the number of Optional
Designated Securities which the Designated Trust and the Company
have been advised by the Representatives have been attributed to
such Underwriter; provided that, if the Designated Trust and
the Company have not been so advised, the number of Optional
Designated Securities to be so added shall be, in each case, that
proportion of Optional Designated Securities which the number of
Firm Designated Securities to be purchased by such Underwriter
under such Pricing Agreement bears to the aggregate number of Firm
Designated Securities (rounded as the Representatives may determine
to the nearest 100 securities). The total number of Designated
Securities to be purchased by all the Underwriters pursuant to such
Pricing Agreement shall be the aggregate number of Firm Designated
Securities set forth in Schedule I to such Pricing Agreement plus
the aggregate number of Optional Designated Securities which the
Underwriters elect to purchase.
As compensation to the
Underwriters of the Designated Securities for their commitments
hereunder and under the Pricing Agreement, and in view of the fact
that the proceeds of the sale of the Designated Securities will be
used by the Designated Trust to purchase the Designated Junior
Subordinated Debentures of the Company, the Company agrees to pay
at each Time of Delivery to the account designated by the
Representatives to the Company, for the accounts of the several
Underwriters, the amount set forth in the Pricing Agreement per
capital security for the Designated Securities to be delivered at
each Time of Delivery.
4. Certificates for the Firm
Designated Securities and the Optional Designated Securities to be
purchased by each Underwriter pursuant to the Pricing Agreement
relating thereto, in the form
9
specified in such Pricing Agreement, and
in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight
hours’ prior notice to the Designated Trust and the Company,
shall be delivered by or on behalf of the Designated Trust to the
Representatives for the account of such Underwriter, against
payment by such Underwriter or on its behalf of the purchase price
therefor by wire transfer of Federal (same day) Funds to an account
designated by the Designated Trust, (i) with respect to the
Firm Designated Securities, all in the manner and at the place and
time and date specified in such Pricing Agreement or at such other
place and time and date as the Representatives, the Designated
Trust and the Company may agree upon in writing, such time and date
being herein called the “First Time of Delivery” and
(ii) with respect to the Optional Designated Securities, if
any, in the manner and at the time and date specified by the
Representatives in the written notice given by the Representatives
of the Underwriters’ election to purchase such Optional
Designated Securities, or at such other time and date as the
Representatives, the Designated Trust and the Company may agree
upon in writing, such time and date, if not the First Time of
Delivery, herein called the “Second Time of Delivery”.
Each such time and date for delivery is herein called a “Time
of Delivery”.
5. (A) The Designated Trust
and the Company, jointly and severally, agrees with each of the
Underwriters of any Designated Securities:
(a) To prepare the Prospectus
in a form approved by the Representatives and to file such
Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission’s close of business on the second business day
following the execution and delivery the Pricing Agreement relating
to the Designated Securities or, if applicable, such earlier time
as may be required by Rule 424(b); to make no further amendment or
any supplement to the Registration Statement, the Basic Prospectus
or the Prospectus after the date of the Pricing Agreement relating
to such Securities and prior to any Time of Delivery for such
Securities which shall be disapproved by the Representatives for
such Securities promptly after reasonable notice thereof; to advise
the Representatives promptly of any such amendment or supplement to
the Registration Statement, the Basic Prospectus or the Prospectus
after any Time of Delivery for the Designated Securities and
furnish the Representatives with copies thereof; to prepare a final
term sheet, containing solely a description of the Securities, in a
form approved by you and to file such term sheet pursuant to Rule
433(d) under the Act within the time required by such Rule; to file
promptly all other material required to be filed by the Designated
Trust or the Company with the Commission pursuant to Rule 433(d)
under the Act; to file promptly all reports and any definitive
proxy or information statements required to be filed by the
Designated Trust or the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent
to the date of the Prospectus and for so long as the delivery of a
prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is required in connection with the offering
or sale of the Designated Securities, and during such same period
to advise the Representatives, promptly after it receives notice
thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed with the
Commission, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any prospectus
relating to the Securities, of the issuance by the Commission of
any notice of objection of the use of the Registration
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