EX-10.35






Exhibit 10.35




TRUST AGREEMENT

FOR CERTAIN AMOUNTS

THAT MAY BECOME PAYABLE

TO CERTAIN EXECUTIVES AND DIRECTORS

OF KEYCORP




          THIS TRUST AGREEMENT, made as of the 1st day of April, 1997, and amended as of August 25,
2003, is between KeyCorp, an Ohio corporation (“Key”), and Wachovia Bank, National Association,
formerly known as Wachovia Bank of North Carolina, N.A. (the “Trustee”).




          Key has established a number of nonqualified retirement and deferred compensation plans to
provide benefits to certain of its executives, Key has entered into a number of agreements with
certain of its executives under which those executives may become entitled to payments and benefits
after a change of control of Key (as defined in those agreements), and Key has established a plan
pursuant to which members of the Board of Directors may defer a portion of the compensation payable
to them in consideration of their services as directors and a plan pursuant to which members of the
Board of Directors will receive deferred shares as part of the compensation payable to them in
consideration for their services as directors. Key has identified and caused to be set forth on
Exhibit A to this Trust Agreement a list of all such plans and agreements that Key intends to be
subject to the terms of this Trust Agreement.




          Key desires to establish a trust (the “Trust”) and to contribute to the Trust assets that
shall be held therein until paid to or on behalf of a Participant, and that shall be subject, while
so held, to the claims of the creditors of Key in the event Key becomes Insolvent (as defined in
Section 5.1 below). It is the intention of the parties that the Trust shall constitute an unfunded
arrangement for purposes of Title I of the Employee Retirement Income Security Act of 1974.
(Certain capitalized terms not defined elsewhere in this Trust Agreement are defined in Article 15
below.)




          In consideration of the premises, Key and the Trustee do hereby establish the Trust and agree
that the Trust shall be comprised, held, and disposed of as follows:




          Article 1. Establishment of Trust




          1.1 Key hereby deposits with the Trustee in trust $100, which shall become the principal of
the Trust to be held, administered, and disposed of by the Trustee as provided in this Trust
Agreement.




          1.2 The Trust hereby established may be revoked by Key at any time before the occurrence of
the first to occur of (a) a Potential Change of Control (as defined in Section 15.9) and (b) a
Change of Control (as defined in Section 15.3). If any Potential Change of Control occurs, the
Trust hereby established may not be revoked by Key until both that particular Potential Change of
Control and any other Potential Change of Control that may have also occurred have been
“terminated” (as defined in Section 15.10) and the Trust then may be




1









 







revoked by Key if and only if no Change of Control has then occurred. Upon the occurrence of a
Change of Control, the Trust hereby established shall become irrevocable. Key’s General Counsel
shall notify the Trustee promptly upon the occurrence of any Change of Control and of any Potential
Change of Control.




          1.3 The Trust is intended to be a grantor trust, of which Key is the grantor, within the
meaning of subpart F, part 1, subchapter J, chapter 1, subtitle A of the Internal Revenue Code, and
shall be construed accordingly.




          1.4 The principal of the Trust and any earnings thereon shall be held separate and apart from
other funds of Key and shall be used exclusively for the uses and purposes of Participants and
general creditors as herein set forth. Participants shall have no preferred claim on, or any
beneficial ownership interest in, any assets of the Trust. Any rights created under the Covered
Plans (as defined in Section 15.4 below) and this Trust Agreement shall be mere unsecured
contractual rights of Participants against Key. Any assets held by the Trust will be subject to the
claims of general creditors of Key under federal and state law in the event Key becomes Insolvent.




          Article 2. Additional Funding




          2.1 Key, in its sole discretion, may at any time, or from time to time, make or cause to be
made, directly or indirectly, additional deposits of cash or other property in trust with the
Trustee to augment the principal to be held, administered, and disposed of by the Trustee as
provided in this Trust Agreement.




          2.2 If a Potential Change of Control occurs, Key shall, not later than the day before the
occurrence of any Change of Control related to that Potential Change of Control, contribute to the
Trust an amount equal to the excess, if any, of the Full Funding Amount (as defined in Section
15.5) over the value of the assets in the Trust (the “Current Trust Asset Value”) immediately prior
to the contribution. At the time any contribution is made pursuant to Section 2.1 or this Section
2.2, Key may specify, in a written notice to the Trustee, that Key retains the right to withdraw
the amount so contributed at any time before the earlier of (a) the occurrence of a Change of
Control or (b) the delivery by Key to the Trustee of a waiver of the right so retained. Absent such
a notice by Key at the time of the contribution, the contribution shall be subject to withdrawal by
Key only as provided in Article 3, dealing with discretionary withdrawals generally, or in Article
6, dealing with reversion of excess assets.




          2.3 Immediately upon the occurrence of the first Change of Control to occur after the
execution of this Trust Agreement and thereafter on each and every anniversary of that Change of
Control, Key shall contribute to the Trust an amount equal to the excess, if any, of the Full
Funding Amount over the Current Trust Asset Value immediately prior to the contribution.




          Article 3. Discretionary Withdrawals




          3.1 Key, in its sole discretion, at any time before the occurrence of the first to occur of a
Potential Change of Control or a Change of Control, may withdraw assets from the Trust




2









 







provided that no such withdrawal shall reduce the Current Trust Asset Value, immediately after the
withdrawal, to an amount below $100.




          3.2 Except in the exercise of a right of withdrawal retained as provided in the second
sentence of Section 2.2, Key shall not be entitled to make any discretionary withdrawal of assets
from the Trust, after any Potential Change of Control has occurred, until both that particular
Potential Change of Control and any other Potential Change of Control that may have also occurred
have been terminated and Key may then make such a discretionary withdrawal if and only if no Change
of Control has then occurred. No discretionary withdrawal under this Section 3.2 shall reduce the
Current Trust Asset Value, immediately after the withdrawal, to an amount below $100.




          3.3 After a Change of Control has occurred, Key may not make any discretionary withdrawal from
the Trust. Nothing in this Article 3 shall restrict the right of Key to receive a reversion of
excess assets under Article 6.




          Article 4. Payments to Participants.




          4.1 Not later than 120 days after the occurrence of a Potential Change of Control and again
not later than 10 days following the occurrence of a Change of Control, Key shall deliver to the
Trustee a schedule (the “Payment Schedule”) that lists the names and addresses of all Participants
and indicates the amounts payable and to become payable to each Participant and/or provides a
formula or other instructions acceptable to the Trustee for determining the amounts so payable and
that indicates the form in which such amounts are to be paid, as provided for or available under
each Covered Plan, and the time of commencement for payment of such amounts. At the same time as
Key delivers the Payment Schedule to the Trustee, Key shall deliver to each Participant that
portion of the Payment Schedule that pertains to amounts that may become payable to that particular
Participant. After the occurrence of a Change of Control, Key shall update the Payment Schedule,
provide revised versions thereof to the Trustee, and provide the relevant portions thereof to each
Participant from time to time and at such times so that each termination of the employment of any
Participant (or the occurrence of any other fact or circumstance that alters the payments due or to
become due to any Participant under any of the Covered Plans) is taken into account in a current
revised Payment Schedule that has been appropriately delivered to the Trustee and to each
Participant (to the extent relevant to each such Participant) not later than 10 days after its
occurrence. Except as otherwise provided herein, the Trustee shall make payments to the
Participants in accordance with the Payment Schedule as it may be revised from time to time. The
Trustee shall make provision for the reporting and withholding of any federal, state, or local
taxes that may be required to be withheld with respect to the payment of benefits pursuant to the
terms of each Covered Plan and shall pay amounts withheld to the appropriate taxing authorities or
determine that such amounts have been reported, withheld, and paid by Key.




          4.2 Except as otherwise specifically provided herein, the entitlement of a Participant to
payments from Key under a particular Covered Plan shall be determined under the terms of the
particular Covered Plan at issue. It is Key’s intention that any and all amounts that may become




3









 







payable to Participants under the Covered Plans will be paid to the Participants at the times and
in the amounts specified in the relevant Covered Plan.




          4.3 In order to provide added assurances to the Participants that the amounts to which they
may be entitled under the Covered Plans will be calculated in good faith and paid promptly at the
times and in the amounts specified in the respective Covered Plans, the following procedure shall
be followed:





     (a) If, concurrently with or after the occurrence of a Change of Control, Key delivers to
the Trustee a Payment Schedule indicating that a Participant is entitled to payments under a
Covered Plan, the Trustee shall promptly thereafter deliver a copy of the relevant portion of
the Payment Schedule to the Participant and shall make the payments so indicated in the Payment
Schedule.




     (b) If, after the occurrence of a Change of Control, a Participant (either because no
Payment Schedule has been delivered to the Trustee or because the Participant believes that the
amounts specified in the Payment Schedule are incorrect) delivers written notice (a “Participant
Payment Notice”) to the Trustee that the Participant is entitled to payments under a Covered
Plan and requesting that the Trustee make payments to the Participant pursuant to that Covered
Plan, the Trustee shall promptly deliver a copy of the Participant Payment Notice to Key and
thereafter:




(i) if Key has not, within ten business days of the delivery of the Participant Payment
Notice to the Trustee, delivered to the Trustee a notice (a “Key Stop Payment Notice”) in
which Key asserts that the Participant is not entitled to the payments set forth in the
Participant Payment Notice, the Trustee shall make the payments set forth in the Participant
Payment Notice, or, alternatively,




(ii) if Key has, within ten business days of the delivery of the Participant Payment Notice
to the Trustee, delivered to the Trustee a Key Stop Payment Notice, the disparity between
the Participant Payment Notice and the Key Stop Payment Notice shall be resolved as provided
in Section 4.4 below and any payments or portions thereof that are not in dispute shall be
paid by the Trustee as and when due to the Participant.



          4.4 If the Trustee has received both a Participant Payment Notice and a Key Stop Payment
Notice with regard to the same Covered Plan:





     (a) the Trustee shall engage the Accounting Firm (as defined in Section 15.1), at Key’s
expense, to determine what payments the Participant is entitled to under the particular Covered
Plan, which determination shall be made by the Accounting Firm as promptly as practicable but in
all events within 30 days of the engagement of the Accounting Firm by the Trustee,




     (b) Key shall cooperate with the Accounting Firm and provide to it all information that is
available to Key and is required by the Accounting Firm to make the determination referred to in
(a) above within the time frame set forth therein, and



4









 





     (c) unless and until ordered to do otherwise by an award of arbitrators following
arbitration proceedings instituted pursuant to Section 4.5 below, the Trustee shall make
payments to the Participant in the amount or amounts and at the time or times determined by the
Accounting Firm.



          4.5 In the event of any dispute between a Participant and Key with respect to whether the
Participant is entitled to payments (or the amounts thereof) under a Covered Plan and/or to payment
thereof from the assets of the Trust, either party (Key or the Participant) may deliver to the
other a demand for binding arbitration. If either party delivers any such demand to the other, the
dispute shall be determined by binding arbitration conducted in Cleveland, Ohio according to the
Commercial Arbitration Rules of the American Arbitration Association. In any such arbitration the
arbitrators may consider, with such weight as they may deem appropriate, any determination by the
Accounting Firm that may have been made as provided in Section 4.4 above. The award of the
arbitrators will be final and binding and judgment on the award may be entered in any court having
jurisdiction over the subject matter and the parties.




          4.6 In order to discourage Key from disputing, otherwise than in good faith, any amounts
properly due to a Participant, the costs and expenses related to any arbitration proceeding
referred to in Section 4.5 shall be borne as provided in this Section 4.6. Key shall bear the cost
of its own attorneys and other representatives and all of the fees and expenses of the arbitrators
and the arbitration proceedings. The reasonable fees and expenses of the Participant’s attorneys
relating to the subject matter of the arbitration shall be paid by Key unless and to the extent the
arbitrators determine (which determination shall be final and binding upon the parties) that the
positions advanced by the Participant in any such arbitration have no reasonable basis (which
determination need not be made simply because the arbitrators decide against the Participant on any
or all substantive points). If Key fails to pay any of the costs and expenses related to any
arbitration as specified in this Section 4.6, the Trustee shall pay such amounts from the assets of
the Trust.




          4.7 Key may make payments under any Covered Plan directly to or on behalf of a Participant as
they become due under the terms of the Covered Plan. If Key makes any such payment it shall notify
the Trustee of its decision to make such payments directly prior to the time amounts are payable to
or on behalf of the Participant. In addition, if the principal of the Trust and any earnings
thereon are not sufficient to make any payments that are due and payable under any Covered Plan in
accordance with its terms, Key shall make the balance of each such payment as it falls due. The
Trustee shall notify Key whenever principal and earnings are not sufficient.




          4.8 When making any payment to a Participant under a Covered Plan that is overdue, the Trustee
shall increase the amount of the payment to include interest on the overdue payment from the date
due to the date of the distribution calculated on a daily basis, compounded as of the end of each
calendar month, and using as the interest rate for each calendar month or part thereof during the
period with respect to which interest is due the prime lending rate published by KeyBank National
Association or its successor and in effect on the first day of that calendar month.




5









 








          4.9 Whenever a payment under a Covered Plan with respect to a Participant is payable to a
beneficiary of the Participant rather than to the Participant, the beneficiary shall be entitled to
all of the rights of the Participant under all of the provisions of this Trust Agreement with
respect to that payment.




          4.10 Notwithstanding any other provision of this Trust Agreement, if at any time circumstances
are such that Key would be prohibited from making any particular payment under a Covered Plan by
the regulations adopted by the Federal Deposit Insurance Corporation limiting payments in the
nature of golden parachutes in certain circumstances (12 CFR Parts 303 and 359), the Trustee shall
refrain from making those same payments until such time as Key would not be prohibited from making
those same payments by those regulations. Unless and until the Trustee is notified in writing by
Key or by a federal banking agency that circumstances are such that Key would be prohibited from
making any particular payment by reason of the regulations referred to in the immediately preceding
sentence, the Trustee may conclusively presume that no such prohibition exists.




          Article 5. Trustee Responsibility Regarding Payments to Participants when Key Is Insolvent.




          5.1 The Trustee shall cease payments to Participants from the Trust if Key is Insolvent. Key
shall be considered “Insolvent” for purposes of this Trust Agreement if (a) it is unable to pay its
debts as they become due, or (b) it is subject to a pending proceeding as a debtor under the United
States Bankruptcy Code.




          5.2 At all times during the continuance of the Trust, the principal and income of the Trust
shall be subject to claims of general creditors of Key under federal and state law as set forth
below.





     (a) The Board of Directors and the Chief Executive Officer of Key shall have the duty to
inform the Trustee in writing of Key’s Insolvency. If a person claiming to be a creditor of Key
alleges in writing to the Trustee that Key has become Insolvent, the Trustee shall determine
whether Key is Insolvent and, pending such determination, the Trustee shall discontinue payments
from the Trust to Participants.




     (b) Unless the Trustee has actual knowledge of Key’s Insolvency, or has received notice
from Key or a person claiming to be a creditor alleging that Key is Insolvent, the Trustee shall
have no duty to inquire whether Key is Insolvent. The Trustee may in all events rely on such
evidence concerning Key’s solvency as may be furnished to the Trustee and that provides the
Trustee with a reasonable basis for making a determination concerning Key’s solvency.




     (c) If at any time the Trustee has determined that Key is Insolvent, the Trustee shall
discontinue payments to Participants and shall hold the assets of the Trust for the benefit of
the general creditors of Key. Nothing in this Trust Agreement shall in any way diminish any



6









 







rights of Participants to pursue their rights as general creditors of Key with respect to
benefits due under the Covered Plans or otherwise.




     (d) The Trustee shall resume the making of payments to Participants in accordance with
Section 4 of this Trust Agreement only after the Trustee has determined that Key is not
Insolvent (or is not any longer Insolvent).



          5.3 Provided that there are sufficient assets, if the Trustee discontinues payments under the
Covered Plans from the Trust pursuant to Section 5.2 hereof and subsequently resumes such payments,
the first payment following such discontinuance shall include the aggregate amount of all payments
due to Participants under the terms of the Covered Plans for the period of such discontinuance,
less the aggregate amount of any payments made to the Participants by Key in lieu of the payments
provided for hereunder during any such period of discontinuance.




          Article 6. Reversion of Excess Assets.




          From time to time after the third anniversary of the first Change of Control occurring after
the execution of this Trust Agreement, if and when requested by Key to do so, the Trustee shall
engage the services of the Accounting Firm, at the expense of Key, to determine the Aggregate Plan
Liability (as defined in Section 15.2). If the Current Trust Asset Value at the time of the
calculation exceeds 150% of the dollar amount of the Aggregate Plan Liability and the Trustee is
requested to do so by Key, the Trustee shall pay the amount of any such excess over 150% to Key.
The Trustee shall determine, in its sole discretion, how the funds necessary to make any such
payment are to be raised from Trust assets.




          Article 7. Payments to Key.




          Except as provided in Article 3 or in Article 6, Key shall not have any right or power to
direct the Trustee to return to Key or to divert to others any of the Trust assets before all
payments that may become payable to any and all Participants under the Covered Plans have been made
to Participants. At such point in time as no further payments are payable or may become payable in
the future to or with respect to any Participant under any Covered Plan, the remaining assets of
the Trust shall be paid to Key.




          Article 8. Investment Authority.




          8.1 The Trustee shall invest and reinvest the trust property, including any income accumulated
and added to principal, only in (a) annuity or life insurance contracts that either have been
contributed to the trust property by Key or are issued by one or more insurance companies that are
rated at least A++ by Best Life Insurance Reports at the time of issuance; (b) interest-bearing
deposit accounts or certificates issued or offered by any one or more Federal Deposit Insurance
Corporation insured financial institutions having in each case an investment grade rating from
Moody’s Investor Services and Standard & Poor’s Investment Advisory Service and a capital and
surplus of at least $1,000,000,000 in the aggregate (but excluding obligations of Key); (c) direct
obligations of the United States of America, or obligations the payment of which is guaranteed, as
to both principal and interest, by the government or an




7









 







agency of the government of the United States of America; (d) readily marketable debt securities
listed on a United States national securities exchange (other than securities of Key) that are
rated at least “investment grade” by one or more nationally recognized rating agencies; or (e)
shares or other units of participation in any mutual fund or investment trust fund maintained by
the Trustee, which are invested exclusively or predominantly in assets described in the foregoing
clauses (a) through (d) of this Section 8.1. In no event may the Trustee invest in securities
(including stock or rights to acquire stock) or obligations issued by Key, other than a de minimis
amount held in common investment vehicles in which the Trustee invests. All rights associated with
assets of the Trust shall be exercised by the Trustee or the person designated by the Trustee, and
shall in no event be exercisable by or rest with Participants. The Trustee shall not be liable to
any Participant or beneficiary under any Covered Plan for any insufficiency of the trust property
to discharge all benefits due the same under the Covered Plan; rather, the liability for all such
benefits shall be and remain the primary and ultimate responsibility of Key and any such benefits
not discharged in full by payments made by the Trustee under this Trust Agreement shall be paid by
Key.




          8.2 The Trustee is empowered to register securities, and to take and hold title to other
property, in the name of the Trustee or in the name of a nominee without disclosing the Trust.
Securities also may be held in bearer form and may be held in bulk with certificates of the same
class and issuer which are assets of other fiduciary accounts. The Trustee shall be responsible for
any wrongful acts of any nominee of the Trustee.




          8.3 The Trustee is empowered to take all actions necessary or advisable in order to collect
any life insurance, annuity, or other benefits or payments of which the Trustee is the designated
beneficiary. Key may maintain in force all life insurance policies held in the Trust by paying
premiums and other charges due thereon; but if any such premiums or other charges are not paid
directly by Key, the Trustee shall pay such premiums and other charges on or before the due date
thereof.




          8.4 Subject to the Trustee’s obligation, as set forth in Section 4, to use Trust assets for
payment of benefits to Participants or their beneficiaries: (a) to the extent the Trustee has cash
or its equivalent readily available for the payment of premiums due or policy loans and/or
dividends are available for such purpose, the Trustee shall pay premiums due with such cash or its
equivalent or policy loans and/or dividends, as the Trustee may deem best; but if the Trustee does
not have sufficient cash or its equivalent readily available and policy loans and dividends are not
available, then the Trustee shall dispose of or otherwise use other assets held by it in the Trust
to generate the necessary cash or, if no such other assets are available, the Trustee may surrender
one or more of the life insurance policies in order to generate cash with which to pay premiums on
one or more of the other life insurance policies. If the Trustee determines to surrender one or
more of the life insurance policies as permitted by the immediately preceding sentence, the Trustee
may consult with Key, both before and after a Change of Control, as to which life insurance
policies should be surrendered to maximize the aggregate economic benefit to the Trust of all of
the life insurance policies. The Trustee shall have no liability to Key or any other person if, as
a result of an insufficiency of cash or its equivalent, policy loans and dividends, and assets that
can be disposed of or otherwise used to generate cash, the Trustee is unable to pay premiums as
they become due.





8












 





     8.5 The Trustee shall be named sole owner and beneficiary of each life insurance policy held
in the Trust and shall have full authority and power to exercise all rights of ownership relating
to the policy, including the right to borrow against the policy, except that the Trustee shall have
no power to name a beneficiary of the policy other than the Trust, to assign the policy (as
distinct from conversion of the policy to a different form) other than to a successor Trustee, or
to loan to any person the proceeds of any borrowing against such policy.



     8.6 The Trustee shall have the power to acquire additional life insurance coverage on
Participants through application for new life insurance when directed by Key. The Trustee shall
acquire any additional life insurance from the agent or agents designated by Key.



     Article 9. Accounting by Trustee.



     The Trustee shall keep accurate and detailed records of all investments, receipts,
disbursements, and all other transactions required to be made, including such specific records as
shall be agreed upon in writing between Key and the Trustee. All such accounts, books, and records
shall be open to inspection and audit at all reasonable times by Key. Within 60 days following the
close of each calendar year and within 60 days after the removal or resignation of the Trustee, the
Trustee shall deliver to Key a written account of its administration of the Trust during such year
or during the period from the close of the last preceding year to the date of such removal or
resignation, setting forth all investments, receipts, disbursements, and other transactions
effected by it, including a description of all securities and investments purchased and sold with
the cost or net proceeds of such purchases or sales (accrued interest paid or receivable being
shown separately), and showing all cash, securities, and other property held in the Trust at the
end of such year or as of the date of such removal or resignation, as the case may be.



     Article 10. Calculations of Current Trust Asset Value and Aggregate Plan Liability.



     10.1 Any determination of the Current Trust Asset Value that is to be made before the
occurrence of any Change of Control shall be made by Key. After the occurrence of a Change of
Control, all determinations of the Current Trust Asset Value shall be reasonably made by the
Trustee and may be based on the determination of one or more qualified independent appraisers,
consultants, or other experts retained by the Trustee for that purpose.



     10.2 Any determination of the Aggregate Plan Liability that is to be made before the
occurrence of any Change of Control shall be made by Key. After the occurrence of a Change of
Control, all determinations of the Aggregate Plan Liability shall be reasonably made by the Trustee
and may be based on the determination of one or more qualified independent actuaries, consultants,
or other experts retained by the Trustee for that purpose. All such determinations shall be based
on the terms of the Covered Plans and the actuarial assumptions and methodology set forth in
Exhibit B.



     10.3 Key shall pay all costs incurred in determining the Current Trust Asset Value and/or the
Aggregate Plan Liability from time to time. If not so paid, these costs shall be paid from the



9









 







Trust. Key shall reimburse the Trust within 30 days after receipt of a bill from the Trustee for
any such costs paid out of the Trust.



     Article 11. Responsibility of Trustee.



     11.1 The Trustee shall at all times act in accordance with, and its obligations hereunder
shall be at all times subject to, all applicable laws and regulations as from time to time in
effect. The Trustee shall act with the care, skill, prudence, and diligence under the circumstances
then prevailing that a prudent person acting in a like capacity and familiar with such matters
would use in the conduct of an enterprise of a like character and with like aims; provided,
however, that the Trustee shall incur no liability to any person for any action taken pursuant to a
direction, request, or approval that is contemplated by, and in conformity with, the terms of the
Trust and is given in writing by Key prior to the occurrence of any Change of Control. If the
Trustee determines that Key is Insolvent, the Trustee shall not be liable to any person on account
of the Trustee’s discontinuation of payment from the Trust to Participants for so long as the
Trustee deems Key to be Insolvent. Except as otherwise provided in Section 4.5 above with respect
to binding arbitration of disputes between a Participant and Key, in the event of a dispute between
Key and any other party, the Trustee may apply to a court of competent jurisdiction to resolve the
dispute.



     11.2 If the Trustee undertakes or defends any litigation arising in connection with the Trust,
Key agrees to indemnify the Trustee against the Trustee’s costs, expenses, and liabilities
(including, without limitation, attorneys’ fees and expenses) relating thereto and to be primarily
liable for such payments. If such costs, expenses, and liabilities are not paid by Key in a
reasonably timely manner, the Trustee may obtain payment from the Trust. Key shall reimburse the
Trust within 30 days after receipt of a bill from the Trustee for any such costs, expenses, and
liabilities paid out of the Trust.



     11.3 The Trustee may consult with legal counsel (who may also be counsel for the Trustee
generally) with respect to any of its duties or obligations hereunder.



     11.4 The Trustee may hire agents, accountants, actuaries, investment advisors, financial
consultants, or other professionals and may rely on the advice given by such professionals, to
assist it in performing any of its duties or obligations hereunder, including, without limitation,
to assist it in enforcing against Key any of the obligations of Key under this Trust Agreement.



     11.5 The Trustee shall have, without exclusion, all powers conferred on trustees by applicable
law, unless expressly provided otherwise herein.



     11.6 Notwithstanding any powers granted to the Trustee pursuant to this Trust Agreement or to
applicable law, the Trustee shall not have any power that could give the Trust the objective of
carrying on a business and dividing the gains therefrom, within the meaning of section 301.7701-2
of the Procedure and Administrative Regulations promulgated pursuant to the Internal Revenue Code.



10









 





     Article 12. Compensation and Expenses of Trustee.



     The Trustee shall be entitled to receive reasonable compensation for its services in
accordance with its published fee schedule as in effect from time to time. The Trustee shall be
entitled to receive its reasonable expenses incurred with respect to the administration of the
Trust, including fees incurred by the Trustee pursuant to Sections 11.3 and 11.4 of this Trust
Agreement. Such compensation and expenses shall be payable by Key. If not so paid, the fees and
expenses shall be paid from the Trust. Key shall reimburse the Trust within 30 days after receipt
of a bill from the Trustee for any such fees or expenses paid out of the Trust.



     Article 13. Tenure and Succession of Trustee.



     13.1 Key may remove any trustee from time to time serving under this Trust Agreement at any
time upon giving 60 days written notice to such trustee and each trustee from time to time serving
under this instrument shall have the right to resign by delivering a written notice of resignation
to Key, except that: (a) Key shall not have any power to remove the Trustee at any time after a
Change of Control, and (b) no such removal or resignation shall become effective until the
acceptance of the trust by a successor trustee designated in accordance with Section 13.2.



     13.2 If Wachovia Bank, National Association, or any successor to it designated in accordance
with this Section 13.2, for any reason shall decline, cease, or otherwise fail to serve as trustee,
the vacancy in the trusteeship shall be filled by such bank or trust company, wherever located,
having a capital and surplus of at least $100,000,000 in the aggregate, as shall be designated by
Key (if the designation is made prior to the occurrence of any Change of Control) or by the
resigning Trustee (if the designation is made after the occurrence of any Change of Control). If
neither Key nor the resigning Trustee designates a successor trustee in circumstances where such a
designation is contemplated by this Section 13.2, any party in interest, including any Participant
or Beneficiary, may apply to any court of competent jurisdiction sitting in Cuyahoga County, Ohio
to have a successor trustee designated by the court.



     13.3 Upon acceptance of the trust, each successor trustee shall be vested with the title to
the trust property possessed by the trustee that it succeeds and shall have all the powers,
discretions, and duties of such predecessor trustee. No successor trustee shall be required to
furnish bond.



     13.4 Each successor trustee may accept as complete and correct and may rely upon any
accounting by any predecessor trustee and upon any statement or representation by any predecessor
trustee as to the assets comprising or any other matter pertaining to the administration of the
Trust. No successor trustee shall be liable for any act or omission of any predecessor trustee or
have any duty to enforce or seek to enforce any claim of any kind against any predecessor trustee
on account of any such act or omission.



11









 





     Article 14. Amendment or Termination.



     14.1 Except as provided in the second sentence of this Section 14.1, at any time before the
occurrence of the first Change of Control to occur after the execution of this Agreement, Key, in
its sole discretion, may amend this Trust Agreement (including the exhibits hereto) in any manner
and may terminate this Trust Agreement. If at any particular point in time (a) one or more
Potential Changes of Control have occurred, (b) one or more of those Potential Changes of Control
has not yet been terminated, and (c) no Change of Control has occurred, then Key may not, at that
particular point in time, terminate this Trust Agreement and Key may only amend this Trust
Agreement if and to the extent permitted by Section 14.2 below.



     14.2 At any particular point in time when (a) one or more Potential Changes of Control have
occurred, (b) one or more of those Potential Changes of Control has not yet been terminated, and
(c) no Change of Control has occurred: Key may not terminate this Trust Agreement but Key may add
one or more additional plans or agreements to the class of Covered Plans and Key may amend this
Trust Agreement (including the exhibits hereto), provided that (x) Key determines, in the exercise
of its reasonable discretion, that the amendment is in the best interests of the Participants,
taken as a group, and (y) no such amendment shall remove any plan or agreement from the class of
Covered Plans unless the plan has been terminated and there are no further obligations due or to
become due thereunder to any Participant.



     14.3 After a Change of Control has occurred, this Trust Agreement (including the exhibits
hereto) may not be amended or terminated except as provided in Section 14.5.



     14.4 Unless earlier revoked pursuant to Section 1.2, the Trust shall not terminate until the
date on which Participants are no longer entitled to any further payments pursuant to the terms of
any of the Covered Plans. Upon termination of the Trust on or after that date, any assets remaining
in the Trust shall be returned to Key.



     14.5 Upon written approval of all Participants who are or may in the future be entitled to
receive any payment pursuant to the terms of any of the Covered Plans, Key may terminate the Trust
prior to the time all payments that are or may become due in the future under the Covered Plans
have been made. All assets in the Trust at any such termination shall be returned to Key.



     Article 15. Certain Definitions.



     15.1 From and after the occurrence of the first Change of Control to occur after the execution
of this Trust Agreement, the term “Accounting Firm” shall mean the independent auditors of Key for
the fiscal year preceding the first year in which there occurred either (a) that Change of Control
or (b) any Potential Change of Control that had not terminated before the occurrence of that Change
of Control and such firm’s successor or successors; provided, however, if such firm is unable or
unwilling to serve and perform in the capacity contemplated by this Trust Agreement, the Trustee
shall select another national accounting firm of recognized standing to serve and perform in that
capacity under this Trust Agreement, except that such other accounting firm shall not be the then
independent auditors for Key or any of its affiliates (as defined in Rule 12b-2 promulgated under
the 1934 Act).



12









 





     15.2 The term “Aggregate Plan Liability” as at any time shall mean the maximum amount of
payments that have not yet been paid but could become payable in the future under the Covered
Plans, determined as provided in Section 10.2.



     15.3 A “Change of Control” shall be deemed to occur if and when there occurs any of the
circumstances set forth in any of clauses (a) through (d) of this Section 15.3. For these purposes
and for purposes of Section 15.9, Key will be deemed to have become a subsidiary of another
corporation if any other corporation (which term shall, for all purposes of this Section 15.3 and
of Section 15.9, include, in addition to a corporation, a limited liability company, partnership,
trust, or other organization) owns, directly or indirectly, 50 percent or more of the total
combined outstanding voting power of all classes of stock of Key or any successor to Key:




     (a) Key is merged with or into, is consolidated with, or becomes the subsidiary of another
corporation and, immediately after giving effect to that transaction, either:




(i) less than 45% of the then outstanding voting securities of the surviving or resulting
corporation or (if Key becomes a subsidiary in the transaction) of the ultimate parent of
Key represent or were issued in exchange for voting securities of Key outstanding
immediately prior to the transaction, or




(ii) individuals who were directors of Key on the day before the first public announcement
of (A) the pendency of the transaction or (B) the intention of any Person to cause the
transaction to occur, cease for any reason to constitute at least 50% of the directors of
the surviving or resulting corporation or (if Key becomes a subsidiary in the transaction)
of the ultimate parent of Key.




     (b) Any Person becomes the beneficial owner of 35% or more of the outstanding voting stock
of Key or files a report on Schedule 13D or Schedule 14D-1, each as adopted under the 1934 Act
(or any successor schedule, form, or report), disclosing the acquisition of 35% or more of the
outstanding voting stock of Key in a transaction or series of transactions.




     (c) The shareholders of Key approve a plan providing for the dissolution of Key or for the
sale, lease, exchange, or other disposal of (in one transaction or a series of related
transactions) all or substantially all of the assets of Key and its subsidiaries, taken as a
whole.




     (d) Without the prior approval, solicitation, invitation, or recommendation of the Board of
Directors of Key, any Person makes a public announcement of a bona fide intention (i) to engage
in a transaction with Key that, if consummated, would result in a Change of Control under any of
subclauses (a) through (c) above, (ii) to “solicit” (as defined in Rule 14a-1 under the 1934
Act) proxies in connection with a proposal that is not approved or recommended by the Board of
Directors of Key, or (iii) to engage in an election contest relating to the election of
directors of Key (pursuant to Regulation 14A, including Rule 14a-11, under the 1934 Act), and,
at any time within the 24 month period immediately following the date of the announcement of
that intention, individuals who, on the day before that announcement, constituted the directors
of Key (the “Incumbent Directors”) cease for any reason to



13









 







constitute at least 50% thereof unless both (x) the election, or the nomination for
election by Key’s shareholders, of each new director was approved by a vote of at least
two-thirds of the Incumbent Directors in office at the time of the election or nomination for
election of such new director, and (y) prior to the time that the Incumbent Directors no longer
constitute at least 50% of the Board of Directors, the Incumbent Directors then in office, by a
vote of at least 75% of their number, reasonably determine in good faith that the change in
Board membership that has occurred before the date of that determination and that is anticipated
to thereafter occur within the balance of the 24 month period to cause the Incumbent Directors
to no longer be at least 50% of the Board of Directors was not caused by or attributable to, in
whole or in any significant part, directly or indirectly, proximately or remotely, any event
under items (i), (ii), or (iii) of this subclause (d).



     15.4 The term “Covered Plan” means any one of the plans and agreements identified on Exhibit
A, as the same may be amended from time to time in accordance with Section 14.2 above. To the
extent that certain benefits under any one or more of the plans and agreements listed on Exhibit A
are secured by one or more “Prior Rabbi Trusts” (as defined in Section 15.11), those benefits, to
the extent they are so secured, shall not be treated as benefits under a Covered Plan for purposes
of this Trust Agreement (i.e. there is no intention to provide duplicate coverage for any
particular benefits) and no benefits that are secured by one or more Prior Rabbi Trusts shall be
paid by the Trustee pursuant to this Trust Agreement or taken into account for any purpose under
this Trust Agreement.



     15.5 The term “Full Funding Amount” as of any point in time shall mean an amount equal to 125%
of the Aggregate Plan Liability as of that point in time.



     15.6 The term “Internal Revenue Code” shall mean the Internal Revenue Code of 1986, as
amended.



     15.7 The term “Person” shall mean a “person” as used in Section 13(d) and Section 14(d)(2) of
the 1934 Act.



     15.8 The term “Participant” shall mean an executive or director who is a participant in or
party to any of the Covered Plans.



     15.9 A “Potential Change of Control” shall be deemed to occur if and when there occurs any of
the circumstances set forth in any of the following clauses (a) through (d):




     (a) Key enters into a definitive agreement pursuant to which Key is to be merged with or
into, is to be consolidated with, or is to become the subsidiary of another corporation and the
definitive agreement contemplates that, immediately after giving effect to that transaction,
either:




(i) less than 45% of the then outstanding voting securities of the surviving or resulting
corporation or (if Key becomes a subsidiary in the transaction) of the ultimate parent of
Key will represent or have been issued in exchange for voting securities of Key outstanding
immediately prior to the transaction, or



14









 






(ii) individuals who were directors of Key on the day before the first public announcement
of (A) the pendency of the transaction or (B) the intention of any Person to cause the
transaction to occur, will cease for any reason to constitute at least 50% of the directors
of the surviving or resulting corporation or (if Key becomes a subsidiary in the
transaction) of the ultimate parent of Key.




     (b) A tender offer or exchange offer is commenced providing for the acquisition of 35% or
more of the outstanding voting stock of Key or any application, letter, or notice is delivered
to or filed with any state or Federal regulatory authority indicating an intention to acquire
35% or more of the outstanding voting stock of Key.




     (c) Without the prior approval, solicitation, invitation, or recommendation of the Board of
Directors of Key, any Person makes a public announcement of a bona fide intention (i) to engage
in a transaction that, if consummated, would constitute a Change of Control, (ii) to “solicit”
(as defined in Rule 14a-1 under the 1934 Act) proxies in connection with a proposal that is not
approved or recommended by the Board of Directors of Key, or (iii) to engage in an election
contest relating to the election of directors of Key (pursuant to Regulation 14A, including Rule
l4a-11, under the 1934 Act) which, if successful, would result in the election of one or more
directors, not nominated by the Board of Directors of Key.




     (d) There is delivered to the shareholders of Key proxy material soliciting approval a plan
providing for the dissolution of Key or for the sale, lease, exchange, or other disposal of (in
one transaction or a series of related transactions) all or substantially all of the assets of
Key and its subsidiaries, taken as a whole.



     15.10 A Potential Change of Control shall be deemed to have “terminated:”




     (a) In the case of a Potential Change of Control described in Section 15.9(a), upon the
termination of the definitive agreement without the occurrence of a Change of Control.




     (b) In the case of a Potential Change of Control described in Section 15.9(b), upon the
termination or consummation of the tender or exchange offer, or the withdrawal, rejection, or
denial of the application, letter, or notice, without the acquisition of 35% or more of the
outstanding voting stock of Key.




     (c) In the case of a Potential Change of Control described in Section 15.9(c), the
abandonment of the intention to engage in the transaction that, if consummated, would have
constituted a Change of Control, the termination of the solicitation without a shareholder vote,
or the defeat by the shareholders of the proposal or the termination of the election contest
without the election of any director not nominated by the Board of Directors of Key, as the case
may be.




     (d) In the case of a Potential Change of Control described in Section 15.9(d), the
abandonment of the plan before a shareholder vote or the vote by the shareholders not to approve
the plan.



15









 





     15.11 The term “Prior Rabbi Trust” shall mean any one of the following trust agreements: (a)
the Trust Agreement entered into between Ameritrust Corporation and Wachovia Bank and Trust
Company, N.A. on November 3, 1988, (b) the KeyCorp Umbrella Trust for Executives entered into
between Key and NBD Bank, N.A. as of July 1, 1990, or (c) the KeyCorp Umbrella Trust for Directors
entered into between Key and NBD Bank, N.A. as of July 1, 1990.



     15.12 The term “SEC” shall mean the Securities and Exchange Commission.



     15.13 The term “1934 Act” shall mean the Securities Exchange Act of 1934, as amended.



     16. Miscellaneous



     16.1 Any provision of this Trust Agreement prohibited by law shall be ineffective to the
extent of any such prohibition, without invalidating the remaining provisions hereof.



     16.2 This Trust Agreement shall be governed by and construed in accordance with the laws of
the State of Ohio.



     16.3 Each Participant is an intended beneficiary under the Trust, and as an intended
beneficiary shall be entitled to enforce all terms and provisions of this Trust Agreement with the
same force and effect as if such person had been a party to this Trust Agreement.



     IN WITNESS WHEREOF, Key and the Trustee have executed this Amended Trust Agreement as of
August 25, 2003.



	 	 	 	 	 	 	 	 	 	 	 
	Wachovia Bank, National Association	 	 	 	KEYCORP	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By

	 	 	 	 	 	By	 	 	 	 
	 

	 	 

Beverley H. Wood
	 	 	 	 	 	 

Thomas E. Helfrich
	 	 
	 

	 	Senior Vice President
	 	 	 	 	 	Executive Vice President	 	 






16









 






EXHIBIT A




COVERED PLANS



Individual by Individual Limitation on Plans Specified in Category 1 or Category 2: Plans
specified in either of Category 1 or Category 2 below are to be covered by the Trust insofar, but
only insofar, as the plans provide benefits to individuals who (a) had terminated their employment
with Key or a predecessor on or before January 1, 1997 and are listed on Annex I to this Exhibit A,
(b) were in job grade 89 (or equivalent) or above with Key or an affiliate at any time on or after
January 1, 1997, or (c) were or are members of the KeyCorp Board of Directors.



Time Limitation on Benefits Payable Under Plans Specified in Category 1 or Category 2: In general,
benefits payable under plans specified in either of Category 1 or Category 2 are to be covered by
the Trust insofar, but only insofar, as the benefits arise out of or are related to the performance
of services by an individual on or before the second anniversary of the first Change of Control to
occur after the date of execution of the Trust Agreement. In addition, benefits payable with
respect to any such plan that are provided pursuant to an agreement specified in either of Category
3 or Category 4 of this Exhibit A are to be covered by the Trust.



Amendments, etc.: If, before the first Change of Control to occur after the date of execution of
the Trust Agreement, any of the plans and agreements specified in Categories 1 through 4 below are
from time to time amended or modified, or a new plan or agreement is entered into in replacement
thereof or substitution therefor, the reference shall be deemed to include the amendment or
modification, or the replacement or substitute plan or agreement, as the case may be.




Category 1. Retiree Benefit Plans





	 	•	 	KeyCorp Excess Cash Balance Pension Plan (new plan as of 1/1/95)
	 
	 	•	 	KeyCorp Excess 401(k) Savings Plan (old Society Supplemental Stock Purchase and Savings
Plan from 4/15/87)
	 
	 	•	 	KeyCorp Supplemental Retirement Plan (old Society Supplemental Retirement Plan from
5/14/81)
	 
	 	•	 	KeyCorp Supplemental Retirement Benefit Plan (old Key plan from 1/1/81, restated
8/16/90)
	 
	 	•	 	KeyCorp Executive Supplemental Pension Plan (new plan as of 1/1/95)
	 
	 	•	 	Retirement Benefits to be provided pursuant to employment or other agreements with those
particular individuals listed on Annex 1 or Annex 2 to this Exhibit A.





Category 2. Deferred Compensation Plan





	 	•	 	KeyCorp Deferred Compensation Plan (new Key plan for 1997, into which the KeyCorp
Executive Deferred Compensation Plan was merged)
	 
	 	•	 	KeyCorp Director Deferred Compensation Plan
	 
	 	•	 	KeyCorp Automatic Deferral Plan
	 
	 	•	 	KeyCorp Directors’ Deferred Share Plan
	 
	 	•	 	KeyCorp Signing Bonus Plan






17









 








Category 3. Employment Agreements (3)





	 	•	 	Robert T. Clutterbuck
	 
	 	•	 	Henry L. Meyer III
	 
	 	•	 	William B. Summers





Category 4. Change of Control Agreements (30 as of August 20, 2003)







	 	•	 	Patrick V. Auletta
	 
	 	•	 	William Barnes
	 
	 	•	 	Kevin M. Blakely
	 
	 	•	 	Richard J. Buoncore
	 
	 	•	 	Thomas W. Bunn
	 
	 	•	 	Michael A. Butler
	 
	 	•	 	George E. Emmons, Jr.
	 
	 	•	 	Michael L. Evans
	 
	 	•	 	Barbara Godin
	 
	 	•	 	Christopher M. Gorman
	 
	 	•	 	Linda A. Grandstaff
	 
	 	•	 	Karen R. Haefling
	 
	 	•	 	Paul N. Harris
	 
	 	•	 	Robert B. Heisler, Jr.
	 
	 	•	 	Thomas E. Helfrich









	 	•	 	Leroy G. Irving
	 
	 	•	 	Robert G. Jones
	 
	 	•	 	Jack L. Kopnisky
	 
	 	•	 	Paul A. Larkins
	 
	 	•	 	Michael J. Monroe
	 
	 	•	 	Peter K. Potchen
	 
	 	•	 	Robert G. Rickert
	 
	 	•	 	Kevin P. Riley
	 
	 	•	 	David J. Schutter
	 
	 	•	 	Thomas C. Stevens
	 
	 	•	 	Patrick J. Swanick
	 
	 	•	 	Andrew R. Tyson
	 
	 	•	 	Joseph M. Vayda
	 
	 	•	 	Jeffrey B. Weeden
	 
	 	•	 	Len E. Williams









Plus any other Change of Control Agreement that (a) is substantially similar to the Change of
Control Agreements listed above and (b) is entered into by Key before the occurrence of the first
Change of Control to occur after the execution of this Trust Agreement.




18









 








ANNEX 1

to

EXHIBIT A




Wilson M. Brown, Jr.




Donald Cruse




Richard Kesslar




Bruce C. Murray




Robert Patrick




Frank Ponchak




Perry B. Wydman




Gordon E. Heffern





19









 








ANNEX 2

to

EXHIBIT A




Robert W. Gillespie




Roger Noall




20









 






EXHIBIT B




Assumptions and Methodology for

Determining Aggregate Plan Liability




     1. The liability for benefits under each Plan will be calculated using two different
assumptions as to when Participants terminate service:




     (a) As of the date of the first Change of Control occurring after the execution of this
Trust Agreement.




     (b) Twenty four months after the first Change of Control occurring after the execution of
this Trust Agreement, assuming future compensation continues at current levels, and future
deferrals under deferred compensation plans continue through the end of the twenty four month
period at levels that are consistent with the levels of deferrals elected by the participants in
those plans under the last elections made before the first to occur of (i) the first Change of
Control occurring after execution of this Trust Agreement and (ii) any Potential Change of
Control related to that Change of Control.


The liability for accrued benefits under each Plan will be the greater of the liabilities
calculated in accordance with (a) and (b) above. If the liability for benefits varies depending
upon the circumstances under which a Participant terminates service (for example, whether the
Participant resigns or is terminated by action of the employer), the liability shall be calculated
based on the greatest potential benefit to the Participant.




     2. Calculations will be based upon the most valuable optional form of payment available to the
Participant.



     3. The liability for benefits under deferred compensation or other defined contribution Plans
shall be equal to the deferral or other account balances (vested and unvested) of Participants as
of the applicable date, plus projected deferrals expected to be made within 24 months after the
applicable date pursuant to prior elections. Account balances of Participants under a Plan shall be
calculated based on crediting the highest rate of interest that was being credited under that Plan
on the date six months before the first to occur of (i) the first Change of Control occurring after
execution of this Trust Agreement and (ii) any Potential Change of Control related to that Change
of Control.



     4. The liability for benefits under other Plans shall be equal to the present value of accrued
benefits (vested and unvested) of Participants as of the relevant dates under 1(a) or (b) above.



     5. No mortality is assumed prior to the commencement of benefits. Future mortality is assumed
to occur in accordance with the 1983 Group Annuity Table Unisex Rates after the commencement of
benefits.



21









 





     6. The present value of amounts shall be determined using a discount rate equal to the average
of the Pension Benefit Guaranty Corporation immediate annuity rate for a nonmultiemployer plan for
the full six months prior to the calculation date.



     7. In determining the dollar cost of providing any benefit that is to be provided in stock or
the value of which is dependent upon the value of KeyCorp Common Shares, the dollar cost of
providing those benefits shall be determined using a value for KeyCorp Common Shares equal to 140%
of the highest closing price for KeyCorp Common Shares at any time within the six month period
ending on the determination date.



     8. Where left undefined above, calculations will be performed in accordance with generally
accepted actuarial principles.




22