Distribution Agreement – Notes – KeyCorp
KeyCorp
Senior Medium-Term Notes, Series K
Subordinated Medium-Term Notes, Series L
Due Nine Months or More From Date of Issue
DISTRIBUTION AGREEMENT
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J.P. MORGAN SECURITIES LLC |
June 13, 2011 |
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383 Madison Ave. |
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New York, New York 10179 |
AND EACH OF THE OTHER AGENTS LISTED
ON SCHEDULE I HERETO
Ladies and Gentlemen:
KeyCorp, an Ohio corporation (the “Company”), confirms its agreement with
each of you with respect to the issue and sale from time to time by the Company
of its Senior Medium-Term Notes, Series K and Subordinated Medium-Term Notes,
Series L Due Nine Months or More From Date of Issue (the “Notes”) pursuant to
the registration statement referred to below, upon notice to each of you
(individually, an “Agent,” and collectively, the “Agents,” which term shall
include any additional agents appointed pursuant to Section 13 hereof) and the
Trustees (defined below) as set forth in this Agreement. The Notes may be issued
as senior indebtedness (the “Senior Notes”) or as subordinated indebtedness (the
“Subordinated Notes”) of the Company. The Senior Notes will be issued under an
indenture, dated as of June 10, 1994 (as the same may be supplemented or amended
from time to time, the “Senior Indenture”), between the Company and Deutsche
Bank Trust Company Americas, as successor to Bankers Trust Company, as Trustee
(the “Senior Trustee”), and the Subordinated Notes will be issued under an
indenture, dated as of June 10, 1994 (as the same may be supplemented or amended
from time to time, the “Subordinated Indenture”), between the Company and
Deutsche Bank Trust Company Americas, as successor to Bankers Trust Company, as
Trustee (the “Subordinated Trustee”). The Senior Indenture and Subordinated
Indenture are herein sometimes collectively referred to individually as an
“Indenture” and collectively as “Indentures” and the Senior Trustee and
Subordinated Trustee are herein sometimes collectively referred to individually
as a “Trustee” and collectively as the “Trustees.” Wherever the terms
“Indenture” and “Trustee” are used with respect to a specific issuance of Notes
they shall mean the Senior Indenture and Senior Trustee, in the case of an
issuance of unsecured and unsubordinated Notes, and the Subordinated Indenture
and Subordinated Trustee, in the case of an issuance of unsecured and
subordinated Notes. The Notes shall have the maturities, interest rates,
redemption provisions, if any, and other terms set forth in the supplement to
the Basic Prospectus referred to below. The Notes will be issued, and the terms
and rights thereof established, from time to time by the Company in accordance
with the Indenture. This Agreement replaces and supersedes the Distribution
Agreement dated June 20, 2008 between the Company and the Agents (as such term
is defined therein).
On the basis of the representations and warranties herein contained, but
subject to the terms and conditions stated herein and to the reservation by the
Company of the right to sell Notes directly to investors (other than
broker-dealers, except as provided in Section 2(a)) on its own behalf, the
Company hereby (i) appoints the Agents as the agents of the Company for the
purpose of soliciting and receiving offers to purchase Notes from the Company by
others pursuant to Section 2(a) hereof and (ii) agrees that, except as otherwise
contemplated herein, whenever it determines to sell Notes directly to any Agent
as principal, it will enter into a terms agreement (which shall be substantially
in the form of Exhibit A hereto and which may take the form of an oral
agreement confirmed in writing or any exchange of any standard form of written
telecommunication between you and the Company) or other separate agreement to
which you and the Company shall otherwise agree, relating to such sale in
accordance with the provisions of Section 2(b) hereof (any such terms agreement
or other separate agreement to which you and the Company shall otherwise agree
shall hereinafter be referred to as a “Terms Agreement”).
The Company has prepared and filed a registration statement on Form S-3 ASR
(No. 333-174865), including a prospectus, relating to the Notes, with the
Securities and Exchange Commission (the “Commission”) in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the “Securities Act”).
The Company also has filed with, or proposes to file with, the Commission
pursuant to Rule 424 under the Securities Act supplements to the Basic
Prospectus included in the
Registration Statement that will describe certain terms of the Notes. The
Registration Statement, including the exhibits thereto, as amended to the
Commencement Date (as hereinafter defined) is hereinafter referred to as the
“Registration Statement” and the prospectus in the form in which it appears in
the Registration Statement is hereinafter referred to as the “Basic Prospectus.”
The Basic Prospectus as supplemented by the prospectus supplement or supplements
(each, a “Prospectus Supplement”) specifically relating to the Notes, including
a Pricing Supplement (as defined below), in the form filed with, or transmitted
for filing to, the Commission pursuant to Rule 424 under the Securities Act is
hereinafter referred to as the “Prospectus” (including any information included
in such Prospectus that was omitted from the Registration Statement at the time
it became effective but that is deemed to be part of and included in the
Registration Statement pursuant to Rule 430B under the Act (the “Rule 430B
Information”)). Any reference in this Agreement to the Registration Statement,
the Basic Prospectus, any preliminary form of Prospectus (a “preliminary
prospectus”) or any Prospectus Supplement previously filed with the Commission
or the Prospectus shall be deemed to refer to and include the documents, if any,
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act which were filed under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the “Exchange Act”) on or before the date of this Agreement or
the date of the Basic Prospectus or the Prospectus, as the case may be; and any
reference to “amend”, “amendment” or “supplement” with respect to the
Registration Statement, the Basic Prospectus, any preliminary prospectus or the
Prospectus, including any supplement to the Prospectus that sets forth only the
terms of a particular issue of the Notes (a “Pricing Supplement”), shall be
deemed to refer to and include any documents filed under the Exchange Act after
the date of this Agreement, or the date of the Basic Prospectus, any preliminary
prospectus, Prospectus Supplement or the Prospectus, as the case may be, which
are deemed to be incorporated by reference therein.
1. Representations. The Company represents and warrants to, and agrees
with, each Agent as of the Commencement Date (as hereinafter defined), as of
each date on which you solicit offers to purchase Notes, as of each date on
which the Company accepts an offer to purchase Notes (including any purchase by
an Agent as principal pursuant to a Terms Agreement or otherwise), as of each
date the Company issues and sells Notes and as of each date the Registration
Statement or the Basic Prospectus is amended or supplemented, as follows (it
being understood that such representations and warranties shall be deemed to
relate to the Registration Statement, the Basic Prospectus and the Prospectus,
each as amended or supplemented to each such date):
(a) (1) The Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of the Company, threatened by the
Commission; (2) the Company meets the requirements for use of an automatically
effective shelf registration statement on Form S-3 under the Securities Act and
has not been notified by the Commission of any objection to the use of the
automatic shelf registration statement on Form S-3; and (3) other than any
preliminary prospectus, the Prospectus, and any document not constituting a
prospectus pursuant to Section 2(a)(10)(a) of the Act or Rule 134 under the
Securities Act, the Company (including its agents and representatives, other
than Underwriters in their capacity as such) has not prepared, made, used,
authorized, approved or referred to and will not prepare, make, use, authorize,
approve or refer to any “written communication” (as defined in Rule 405 under
the Securities Act) that constitutes an offer to sell or solicitation of an
offer to buy any Notes (each such communication by the Company or its agents and
representatives being referred to herein as an “Issuer Free Writing Prospectus”)
other than, in respect of any particular issue of Notes, (i) a term sheet agreed
between the Company and the relevant Agents containing solely a description of
the offered Notes (a “Term Sheet”) and (ii) any written communication approved
in writing in advance by the relevant Agents (each such document being referred
to in clauses (i) and (ii) herein as a “Specified Issuer Free Writing
Prospectus”).
(b) (1)(i) At the respective times the Registration Statement and each
amendment thereto became effective, including at each deemed effective date with
respect to the Agents pursuant to Rule 430B(f)(2) under the Securities Act and
at the Time of Delivery, the Registration Statement complied and will comply in
all material respects with the requirements of the Securities Act and the Trust
Indenture Act of 1939, as amended and the rules and regulations of the
Commission thereunder (collectively, the “Trust Indenture Act”); (ii) the Basic
Prospectus and the Prospectus complied when filed with the Commission in all
material respects with the rules and regulations under the Securities Act and
the Trust Indenture Act; and (iii) each Prospectus Supplement and Specified
Issuer Free Writing Prospectus, if any, complied in all material respects with
the Securities Act and has been filed or will be filed in accordance with the
Securities Act (to the extent required thereby); and (2) (i) at the respective
times the Registration Statement and
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each amendment thereto became effective, including at each deemed effective
date with respect to the Agents pursuant to Rule 430B(f)(2) under the Securities
Act, and at the Commencement Date, the Registration Statement did not 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; (ii) as of any date on which the Company accepts an offer to
purchase Notes (the “Initial Sale Time”) and as of the time and date set forth
in the Terms Agreement relating to an issue of Notes or, when not otherwise
agreed to between the Company and the applicable Agents, the time and date when
an Agent first conveys to purchasers the pricing terms of an issue of Notes set
forth in the applicable Specified Issuer Free Writing Prospectus (the
“Applicable Time”), the Basic Prospectus, the Prospectus Supplements and the
applicable Specified Issuer Free Writing Prospectus(es), if any, all considered
together (collectively, the “General Disclosure Package”) did not contain 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 (iii) of its date and at the Time of
Delivery, the Prospectus did not and will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representations or warranties as to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in or omitted
from the Registration Statement, the General Disclosure Package or the
Prospectus or any amendment thereof or supplement thereto in reliance upon and
in conformity with information furnished in writing to the Company by or on
behalf of any Agent specifically for use in connection with the preparation of
the Registration Statement, the General Disclosure Package and such Prospectus.
(c) The documents incorporated by reference in the Basic Prospectus and the
Prospectus, when they became effective or were filed with the Commission, as the
case may be, comply, or will comply, as the case may be, in all material
respects to the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder, as
applicable, 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 Basic Prospectus and the
Prospectus, or any 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 Securities Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission thereunder,
as applicable, 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.
(d) (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 Securities Act (whether such amendment was by post-effective
amendment, incorporated report filed pursuant to Sections 13 or 15(d) of the
Exchange Act or form of prospectus), (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 Securities Act) made any offer relating to the Securities in reliance
on the exemption in Rule 163 under the Securities Act, and (iv) at the Initial
Sale Time, the Company was or is (as the case may be) a “well-known seasoned
issuer” as defined in Rule 405 under the Securities Act. The Company agrees to
pay any fees required by the Commission relating to the Securities within the
time required by Rule 456(b)(1) under the Securities Act without regard to the
proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under
the Securities Act.
(e) (i) At the earliest time after the filing of the Registration Statement
that the Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2) under the Securities Act of the
Securities and (ii) as of the Initial Sale Time, the Company was not and is not
an Ineligible Issuer (as defined in Rule 405), without taking account of any
determination by the Commission pursuant to Rule 405 that it is not necessary
that the Company be considered an Ineligible Issuer.
(f) Each Specified Issuer Free Writing Prospectus and the Term Sheet does not
include any information that conflicts with the information contained in the
Registration Statement, including any document incorporated therein by reference
and any prospectus supplement deemed to be a part thereof that has not been
superseded or modified. The foregoing sentence does not apply to statements in
or omissions from any Specified Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to the Company by any Agent
specifically for use therein.
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(g) The financial statements and the supporting schedules included or
incorporated by reference in the Registration Statement, the General Disclosure
Package and the Prospectus present fairly the financial position of the Company
and its subsidiaries on a consolidated basis, as at the dates indicated, and the
respective results of operations for the periods specified, in conformity with
generally accepted accounting principles applied on a consistent basis during
the periods involved.
(h) (i) The Company has been duly organized 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 its properties and conduct its business
as described in the Registration Statement, the General Disclosure Package and
the Prospectus, and is duly registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than where the
failure to be so qualified or in good standing, considering all such cases in
the aggregate, does not involve a material risk to the business, properties,
financial position or results of operations of the Company and its subsidiaries;
(ii) KeyBank National Association (“KeyBank”), its national bank subsidiary, is
a duly organized and validly existing national banking association under the
laws of the United States, continues to hold a valid certificate to do business
as such and has full power and authority to conduct its business as such; each
of its other significant subsidiaries, as defined in Regulation S-X (the
“Significant Subsidiaries”), is duly organized and validly existing under the
laws of the jurisdiction of its organization with corporate power and authority
under such laws to conduct its business; and (iii) all of the outstanding shares
of capital stock of each such subsidiary have been duly authorized and validly
issued, are fully paid and non-assessable (except, with respect to any
subsidiary that is a national bank, as provided by Section 55 of Title 12 of the
United States Code).
(i) Each of this Agreement and any applicable Terms Agreement has been or
will be duly authorized, executed and delivered by the Company.
(j) The Notes have been or will be duly authorized and established in
conformity with the provisions of the relevant Indenture and any applicable
Terms Agreement, and, when issued and delivered in accordance with the Indenture
and delivered to and paid for by the purchasers thereof in accordance with this
Agreement and any applicable Terms Agreement, will have been duly executed,
issued and delivered by the Company and will constitute valid and binding
obligations of the Company enforceable in accordance with their terms subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other similar
laws of general applicability relating to or affecting creditors153 rights and to
general equity principles and will be entitled to the benefits provided by the
Indentures, the Indentures have been duly authorized, executed and delivered by
the Company and qualified under the Trust Indenture Act and constitute valid and
binding instruments enforceable in accordance with their terms subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other similar laws of
general applicability relating to or affecting creditors153 rights and to general
equity principles; and the Indentures conform, and the Notes of any particular
issuance of Notes will conform in all material respects, to the summary
descriptions thereof in the Registration Statement, the General Disclosure
Package and the Prospectus, as amended or supplemented to relate to such
issuance of Notes.
(k) The execution and delivery by the Company of this Agreement, the Notes,
the Indentures and any applicable Terms Agreement, the issue and sale of the
Notes and the performance by the Company of all of its obligations under this
Agreement, the Notes, the Indentures and any Terms Agreement, does not require
any consent, approval, authorization or order of any court or governmental
agency, that has not been obtained or as may be required under state blue sky
laws, and the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other material 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, nor will such action contravene or result
in any violation of the provisions of the Amended and Restated Articles of
Incorporation or the Regulations of the Company or any applicable statute, rule
or regulation or to the best of its knowledge, any order of any court or
governmental agency or body having jurisdiction over the Company, its
subsidiaries or any of their respective properties.
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(l) To the knowledge of the Company and except as set forth in the
Prospectus, there is no threatened action, suit or proceeding that could
reasonably be expected to result in any material adverse change in the condition
(financial or other), business or results of operations of the Company and its
subsidiaries, or could reasonably be expected to materially and adversely affect
the properties or assets thereof.
(m) Since the respective dates as of which information is given in the
Registration Statement, the General Disclosure Package and the Prospectus, there
has not been any material adverse change in the condition (financial or other),
business or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus.
(n) The Company is not and, after giving effect to the offering and sale of
the Notes and the application of the proceeds thereof as described in the
General Disclosure Package and the Prospectus, will not be an “investment
company” as defined in the Investment Company Act of 1940, as amended (the
“Investment Company Act”).
(o) Immediately after any sale of Notes by the Company hereunder or under any
applicable Terms Agreement, the aggregate amount of Notes which shall have been
issued and sold by the Company hereunder or under any Terms Agreement and of any
securities of the Company (other than the Notes) that shall have been issued and
sold pursuant to the Registration Statement will not exceed the amount of
securities registered under the Registration Statement.
(p) 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.
(q) 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 applicable
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.
(r) 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 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.
(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 management153s 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 management153s 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 subsidiaries153 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.
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(t) The Company has established and maintains disclosure controls and
procedures (as defined in Rules 13a-15e and 15d-15e under the Exchange Act) and
such controls and procedures are effective in ensuring that material information
relating to the Company, including its subsidiaries, is made known to the
principal executive officer and the principal financial officer; and the Company
has utilized such controls and procedures in preparing and evaluating the
disclosures in the General Disclosure Package and the Prospectus.
(u) There is and has been no failure on the part of the Company and to the
best of its knowledge any of the Company153s 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.
2. Solicitations as Agent; Purchases as Principal. (a)
Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, each of the Agents hereby severally and not jointly agrees, as agent of
the Company, to use its reasonable efforts to solicit offers to purchase the
Notes from the Company upon the terms and conditions set forth in the General
Disclosure Package and the Prospectus. So long as this Agreement shall remain in
effect with respect to any Agent, the Company shall not, without the consent of
such Agent, solicit or accept offers to purchase, or sell, Notes or any other
debt securities with a maturity at the time of original issuance of 9 months or
more except pursuant to this Agreement and any Terms Agreement, or except
pursuant to a private placement not constituting a public offering under the
Securities Act or except in connection with a firm commitment underwriting
pursuant to an underwriting agreement that does not provide for a continuous
offering of medium-term debt securities. However, the Company reserves the right
to sell, and may solicit and accept offers to purchase, Notes directly on its
own behalf to investors (other than broker-dealers, except to the extent set
forth in the next succeeding sentence). The Company may also sell Notes to an
Agent acting as principal for its own account or for resale to one or more
investors. The Company may from time to time offer Notes for sale otherwise than
through an Agent; provided, however, that so long as this Agreement
shall be in effect the Company shall not solicit or accept offers to purchase
Notes through any agent other than an Agent without amending this Agreement to
appoint such agent an additional Agent hereunder on the same terms and
conditions as provided herein for the Agents and without giving the Agents prior
notice of such appointment; except, that if from time to time the Company is
approached by a prospective agent offering to solicit a specific purchase of
Notes, the Company may engage such agent with respect to such specific purchase,
only if, (i) such agent is engaged on terms substantially similar (including the
same commission schedule as set forth herein) to the applicable terms of this
Agreement (without being required to become a party hereto) and (ii) the Agents
are given notice of such purchase promptly, in each case after the purchase is
agreed to.
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase Notes. Upon receipt of at least one business
day153s prior notice from the Company, each Agent will suspend solicitation of
offers to purchase Notes from the Company until such time as the Company has
advised such Agent or Agents that such solicitation may be resumed.
Each purchase of Notes shall be (i) at a discount from the principal amount
of such Notes as agreed between the Company and such Agent or (ii) as otherwise
agreed between the Company and such Agent.
The Agents are authorized to solicit offers to purchase Notes only in the
principal amount of $1,000 (or, in the case of Notes not denominated in U.S.
dollars, the equivalent thereof in the applicable foreign currency or composite
currency, rounded down to the nearest 1,000 units of such foreign currency or
composite currency) or any amount in excess thereof which is an integral
multiple of $1,000 (or, in the case of Notes not denominated in U.S. dollars,
1,000 units of such foreign currency or composite currency). Each Agent shall
communicate to the Company, orally or in writing, each offer to purchase Notes
received by such Agent as agent that in its judgment should be considered by the
Company. The Company shall have the sole right to accept offers to purchase the
Notes and may reject any such offer in whole or in part. Each Agent shall have
the right, in its sole discretion, to reject any offer to purchase Notes, as a
whole or in part, that it considers to be unacceptable and any such rejection
shall not be deemed a breach of its agreements herein contained. The procedural
details relating to the issue and delivery of Notes sold by an Agent as agent
and the payment therefor are set forth in the Administrative Procedures (as
hereinafter defined).
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(b) Purchase as Principal. Each sale of Notes to any Agent as
principal shall be made in accordance with the terms of this Agreement and
(unless such Agent shall otherwise agree) a Terms Agreement which will provide
for the sale of such Notes to, and the purchase and reoffering thereof by, such
Agent.
The commitment of any Agent to purchase Notes as principal, whether pursuant
to any Terms Agreement or otherwise, shall be deemed to have been made on the
basis of the representations and warranties (made or deemed to have been made as
of the date of the Terms Agreement and as of the Time of Delivery (as defined
below)) of the Company herein contained and shall be subject to the terms and
conditions set forth herein and in the applicable Terms Agreement. Each Terms
Agreement by an Agent to purchase Notes as principal (pursuant to a Terms
Agreement or otherwise) shall specify the principal amount of Notes to be
purchased by such Agent pursuant thereto, the price to be paid to the Company
for such Notes, the maturity date of such Notes, the interest rate or interest
rate basis, if any, applicable to such Notes, any other terms of such Notes, the
time and date and place of delivery of and payment for such Notes (the time and
date of any and each such delivery and payment, the “Time of Delivery”), any
provisions relating to rights of underwriters acting together with such Agent in
the reoffering of Notes, and, except as otherwise indicated in such Terms
Agreement, shall require the delivery of opinions of counsel, accountants153
letters and officers153 certificates pursuant to Section 6 hereof. Unless
otherwise specified in a Terms Agreement, the procedural details relating to the
issue and delivery of Notes purchased by an Agent as principal and the payment
therefor shall be as set forth in the Administrative Procedures.
Unless otherwise specified in a Terms Agreement, if you are purchasing Notes
as principal you may resell such Notes to other dealers or to investors and
other purchasers. Any such sales to other dealers may be at a discount, which
shall not exceed the amount set forth in the Pricing Supplement relating to such
Notes. Any such sales to investors and other purchasers may be at prevailing
market prices, or prices related thereto at the time of such resale, at
negotiated prices or otherwise, as determined by the Agent.
If the Company and two or more Agents enter into an agreement pursuant to
which such Agents agree to purchase Notes from the Company as principal and one
or more of such Agents shall fail at the Time of Delivery to purchase the Notes
which it or they are obligated to purchase (the “Defaulted Notes”), then the
nondefaulting Agents shall have the right, within 24 hours thereafter, to make
arrangements for one of them or one or more other Agents or underwriters to
purchase all, but not less than all, of the Defaulted Notes in such amounts as
may be agreed upon and upon the terms herein set forth; provided, however, that
if such arrangements shall not have been completed within such 24-hour period;
then:
(i) if the aggregate principal amount of Defaulted Notes does not exceed 10%
of the aggregate principal amount of Notes to be so purchased by all of such
Agents at the Time of Delivery, the nondefaulting Agents shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective initial purchase obligations bear to the
purchase obligations of all nondefaulting Agents; or
(ii) if the aggregate principal amount of Defaulted Notes exceeds 10% of the
aggregate principal amount of Notes to be so purchased by all of such Agents at
the Time of Delivery, such agreement shall terminate without liability on the
part of any nondefaulting Agent.
No action taken pursuant to this paragraph shall relieve any defaulting Agent
from liability in respect of its default. Any such defaulting Agent shall
reimburse the Company, within 15 days of the receipt by such defaulting Agent of
an invoice from the Company, for any duly documented reasonable expenses
incurred by the Company as a result of the default by such defaulting Agent. In
the event of any such default which does not result in a termination of such
agreement, either the nondefaulting Agents or the Company shall have the rights
to postpone the Time of Delivery for a period not exceeding seven days in order
to effect any required changes in the Registration Statement or the Prospectus
or in any other documents or arrangements.
(c) Obligations Several. The Company acknowledges that the obligations
of the Agents are several and not joint and, subject to the provisions of this
Section 2, each Agent shall have complete discretion as to the manner in which
it solicits purchasers for the Notes and as to the identity thereof.
(d) Administrative Procedures. The Agents and the Company agree to
perform their respective duties and obligations specifically provided to be
performed in the Medium-Term Notes Administrative Procedures (the
7
“Administrative Procedures”) attached hereto as Exhibit B, as the same
may be amended from time to time. The Administrative Procedures may be amended
only by written agreement of the Company and the Agents.
3. Commencement Date. The documents required to be delivered pursuant
to Section 6 hereof on the Commencement Date (as defined below) or as a
condition precedent to your obligation to begin soliciting offers to purchase
Notes as agent of the Company shall be delivered to the Agents at the offices of
Jones Day, 222 East 41st Street, New York, New York, at 11:00 A.M.,
New York City time, on the date of this Agreement, which date and time of such
delivery may be postponed by agreement between the Agents and the Company but in
no event shall be later than the day prior to the date on which solicitation of
offers to purchase Notes is commenced or the first date on which the Company
accepts an offer by any Agent to purchase Notes as principal (such time and date
being referred to herein as the “Commencement Date”).
4. Covenants of the Company. The Company covenants and agrees with
each Agent: (a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus prior to the termination of the offering of the
Notes pursuant to this Agreement or any Terms Agreement which shall be
reasonably disapproved by any Agent after reasonable opportunity to comment
thereon, provided, however, that the foregoing shall not apply to any
of the Company153s periodic filings with the Commission described in subsection
(iii) below, copies of which filings the Company will cause to be delivered to
the Agents promptly after their transmission to the Commission for filing; (ii)
subject to the foregoing clause (i), (A) promptly to cause each Prospectus
Supplement to be filed with or transmitted for filing to the Commission in
accordance with Rule 424(b) under the Securities Act, (B) to prepare, with
respect to any Notes to be sold through or to such Agent pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by such Agent and to file such Pricing Supplement in accordance with
Rule 424(b) under the Securities Act, and (C) if agreed between the Company and
such Agent, to prepare a Term Sheet, to file such Term Sheet in accordance with
Rule 433(d) and promptly to file all material required to be filed by the
Company with the Commission pursuant to Rule 433(d); and (iii) promptly to file
all reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Notes. The Company will
promptly advise each Agent (A) of the filing of any amendment or supplement to
the Prospectus or any amendment to the Registration Statement and of the
effectiveness of any such amendment to the Registration Statement; (B) of the
receipt of any comments from the Commission with respect to the Registration
Statement, the Prospectus, a Prospectus Supplement or any document filed
pursuant to the Exchange Act that is incorporated by reference in the
Prospectus; (C) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement; of the suspension of the
qualification of the Notes for offering or sale in any jurisdiction, or the
institution or threatening of any proceeding for any such purpose, or of any
request by the Commission for any amendment or supplement of the Registration
Statement or Prospectus or for additional information relating thereto or to any
document incorporated by reference in the Prospectus; and (D) of the receipt by
the Company of any notification with respect to any suspension of the
qualification of the Notes for offering or sale in any jurisdiction, or the
initiation or threatening of any proceeding for any such purpose. The Company
agrees to use every reasonable effort to prevent the issuance of any such stop
order or of any order suspending any such qualification and, if issued, to use
every reasonable effort to obtain the lifting thereof at the earliest possible
moment. If the Basic Prospectus is amended or supplemented as a result of the
filing under the Exchange Act of any document incorporated by reference in the
Prospectus, no Agent shall be obligated to solicit offers to purchase Notes so
long as it is not reasonably satisfied with such document.
(b) To use its reasonable best efforts to qualify the Notes for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the Agents
shall reasonably request and to continue such qualification in effect so long as
reasonably required in connection with the distribution of the Notes and to pay
all fees and expenses (including fees and disbursements of counsel to the
Agents) reasonably incurred in connection with such qualification and in
connection with the determination of the eligibility of the Notes for investment
under the laws of such jurisdictions as such Agent may reasonably designate;
provided, however, that the Company shall not be required to file a
general consent to service of process or to qualify as a foreign corporation or
as a dealer in securities in any jurisdiction in which it is not so qualified or
to subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject. The Company will file such statements
and reports as may be required by the laws of each jurisdiction in which the
Notes have been qualified as above provided.
8
(c) To furnish each Agent and counsel to the Agents, at the expense of the
Company, a signed copy of the Registration Statement (as originally filed) and
each amendment thereto, in each case including exhibits and documents
incorporated by reference therein and, during the period mentioned in paragraph
(d) below, to furnish each Agent as many copies of the General Disclosure
package and the Prospectus (including all amendments and supplements thereto)
and documents incorporated by reference therein as such Agent may reasonably
request.
(d) If at any time when a prospectus relating to the Notes is required to be
delivered under the Securities Act, any event shall occur as a result of which,
in the opinion of counsel for the Agents or counsel for the Company, the
Prospectus would include an 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, or, if in
the opinion of either such counsel, it is necessary at any time to amend or
supplement the Registration Statement or the Prospectus to comply with the
requirements of the Securities Act, or if at any time following the issuance of
an Issuer Free Writing Prospectus, any event shall occur or condition exist as a
result of which such Issuer Free Writing Prospectus conflicted or included or
would include an untrue statement of a material fact or omitted or would omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances at that subsequent time, not misleading, to
immediately notify the Agents by telephone (with confirmation in writing) and
request each Agent (i) in its capacity as agent of the Company, to suspend
solicitation of offers to purchase Notes from the Company (and, if so notified,
such Agent shall cease such solicitations and cease using the Prospectus as soon
as practicable, but in any event not later than one business day later); and
(ii) to cease sales of any Notes such Agent may then own as principal. If the
Company shall decide to amend or supplement the Registration Statement, the
Prospectus or the Issuer Free Writing Prospectus, it shall so advise each Agent
promptly by telephone (with confirmation in writing) and, at its expense, shall
prepare and cause to be filed promptly with the Commission an amendment or
supplement to the Registration Statement, the Prospectus or the Issuer Free
Writing Prospectus, reasonably satisfactory in all respects to the Agents, that
will correct such statement or omission or effect such compliance and will
supply such amended or supplemented Prospectus to the Agents in such quantities
as you may reasonably request. Notwithstanding the foregoing, if there is
incorrect information in the written information furnished by the Agent or
Agents to the Company for use in the Prospectus and if such Prospectus is
required to be reprinted, then the expense of reprinting such Prospectus shall
be borne, severally, by the Agent or Agents who shall have furnished such
incorrect information. If any such amendment or supplement and any documents and
certificates furnished to the Agents pursuant to Section 4(e) in connection with
the preparation and filing of such amendment or supplement are reasonably
satisfactory in all respects to the Agents, upon the filing with the Commission
of such amendment or supplement to the Registration Statement, the Prospectus or
Issuer Free Writing Prospectus, the Agents will resume the solicitation of
offers to purchase Notes hereunder. Notwithstanding any other provision of this
Section 4(d), until the distribution of any Notes any Agent may own as principal
has been completed or in the event such Agent, in the opinion of its counsel, is
otherwise required to deliver a prospectus in respect of a transaction in the
Notes, if any event described in this Section 4(d) occurs the Company will, at
its own expense, promptly prepare and file with the Commission an amendment or
supplement, satisfactory in all respects to such Agent, that will correct such
statement or omission or effect such compliance, will supply such amended or
supplemented Prospectus to such Agent in such quantities as such Agent may
reasonably request and shall furnish to such Agent pursuant to Section 4(e) such
documents and certificates as it may request in connection with the preparation
and filing of such amendment or supplement.
(e) To furnish to the Agents during the term of this Agreement such relevant
documents and certificates of officers of the Company relating to the business,
operations and affairs of the Company, the Registration Statement, the General
Disclosure Package, the Prospectus, any amendments or supplements thereto, the
Indentures, the Notes, this Agreement, the Administrative Procedures, any
applicable Terms Agreement and the performance by the Company of its obligations
hereunder or thereunder as the Agents may from time to time reasonably request.
(f) To suspend solicitation of purchases of the Notes, and to notify the
Agents promptly in writing of such suspension, upon receiving notice from any
“nationally recognized statistical rating organization,” as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act, of (i) any intended or
potential downgrading or (ii) any review or possible change that does not
indicate an improvement in the rating accorded any of the securities of, or
guaranteed by, the Company.
(g) To make generally available to its security holders (as defined in Rule
158 under the Securities Act) and to such Agent as soon as practicable but not
later than 45 days after the close of each the first three fiscal quarters of
9
each fiscal year and 90 days after the close of each fiscal year, earnings
statements which shall satisfy the provisions of Section 11(a) of the Securities
Act and Rule 158 under the Securities Act covering periods of at least 12 months
beginning in each case with the first day of the fiscal quarter of the Company
occurring after the “effective date” (as defined in Rule 158) of the
Registration Statement with respect to each sale of Notes.
(h) So long as any Notes are outstanding, to furnish to such Agent copies of
all reports or other communications (financial or other) furnished to holders of
the Notes and copies of all annual reports, quarterly reports and current
reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other
similar forms as may be designated by the Commission, and all material reports
or other communications (financial or other) furnished to or filed with any
national securities exchange on which any class of securities of the Company is
listed.
(i) That, from the date of any applicable Terms Agreement with such Agent or
other agreement by such Agent to purchase Notes as principal with a maturity of
one year or longer and continuing to and including the business day following
the related Time of Delivery, not to offer, sell, contract to sell or otherwise
dispose of any debt securities of or guaranteed by the Company which are
denominated in the same currency as such Notes and with a maturity of one year
or longer, without the prior written consent of such Agent.
5. Costs and Expenses. The Company covenants and agrees with each
Agent that the Company will, whether or not any sale of Notes is consummated,
pay all costs and expenses incident to the performance of its obligations
hereunder and under any applicable Terms Agreement, including without limiting
the generality of the foregoing, all costs and expenses: (i) incident to the
preparation, issuance, execution, authentication and delivery of the Notes; (ii)
incident to the preparation, printing and filing under the Securities Act of the
Registration Statement, the General Disclosure Package, the Prospectus and any
preliminary prospectus (including in each case all exhibits, amendments and
supplements thereto); (iii) the fees and disbursements of the Company153s counsel
and accountants and of the Trustee and its counsel; (iv) incurred in connection
with the registration or qualification and determination of eligibility for
investment of the Notes under the laws of such jurisdictions as the Agents (or
in connection with any Terms Agreement, the applicable Agent) may designate
(including fees of counsel for the Agents (or such Agent) and their
disbursements); (v) in connection with the listing of the Notes on any stock
exchange; (vi) related to any filing with the Financial Industry Regulatory
Authority, Inc.; (vii) in connection with the printing (including word
processing and duplication costs) and delivery of this Agreement, the Indenture,
any Blue Sky Memoranda and any Legal Investment Survey and the furnishing to the
Agents and dealers of copies of the Registration Statement, the General
Disclosure Package and the Prospectus, including mailing and shipping, as herein
provided; (viii) payable to rating agencies in connection with the rating of the
Notes; (ix) the reasonable fees and disbursements of counsel for the Agents
incurred in connection with the offering and sale of the Notes, including any
opinions to be rendered by such counsel hereunder; and (x) any advertising and
out-of-pocket expenses incurred by the Agents.
6. Conditions. The obligation of any Agent, as agent of the Company,
at any time (“Solicitation Time”) to solicit offers to purchase the Notes, the
obligation of any Agent to purchase Notes as principal pursuant to any Terms
Agreement or otherwise, and the obligation of any other purchaser to purchase
Notes shall in each case be subject: (1) to the condition that all
representations and warranties of the Company herein and all statements of
officers of the Company made in any certificate furnished pursuant to the
provisions hereof are accurate (i) in the case of an Agent153s obligation to
solicit offers to purchase Notes, at and as of such Solicitation Time and (ii)
in the case of any Agent153s or any other purchaser153s obligation to purchase
Notes, at and as of the time the Company accepts the offer to purchase such
Notes and, as the case may be, at and as of the related Time of Delivery or time
of purchase; (2) to the condition that at or prior to such Solicitation Time,
time of acceptance, Time of Delivery or time of purchase, as the case may be,
the Company shall have complied with all its agreements and all conditions on
its part to be performed or satisfied hereunder; and (3) to the following
additional conditions when and as specified:
(a) Prior to such Solicitation Time or corresponding Time of Delivery or time
of purchase, as the case may be:
(i) the Prospectus as amended or supplemented (including, if applicable, the
Pricing Supplement) with respect to such Notes shall have been filed with the
Commission pursuant to Rule 424(b) under the Securities Act within the
applicable time period prescribed for such filing by the rules and regulations
under the Securities Act; no
10
stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission;
(ii) there shall not have occurred any downgrading, nor shall any notice have
been given of (i) any intended or potential downgrading or (ii) any review or
possible change that does not indicate an improvement, in the rating accorded
any securities of or guaranteed by the Company by any “nationally recognized
statistical rating organization,” as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act;
(iii) there shall not have occurred any change or any development in or
affecting particularly the business or properties of the Company or its
subsidiaries which, in the judgment of the applicable Agent, materially impairs
the investment quality of the Notes; and
(iv) (A) trading generally shall not have been suspended on or by, as the
case may be, any of the New York Stock Exchange or the American Stock Exchange,
minimum or maximum prices for trading shall not have been fixed, or maximum
ranges for prices for securities shall not have been required, on the New York
Stock Exchange or the American Stock Exchange, by such Exchange or by order of
the Commission or any other governmental authority having jurisdiction; (B)
trading in any securities of the Company shall not have been suspended by the
Commission or a national securities exchange or in any over-the-counter market;
(C) any major disruption of settlements of securities shall not have occurred
and a general moratorium on commercial banking activities in New York shall not
have been declared by either Federal or New York State authorities; or (D) there
shall not have occurred any outbreak or escalation of hostilities in which the
United States is involved, a declaration of war by Congress, any major act of
terrorism against the United States, any other substantial national or
international calamity or crisis or any other event or occurrence of a similar
character if, in the judgment of such Agent or Agents or of such other
purchaser, the effect of any such outbreak, escalation, declaration, calamity or
other event or occurrence makes it impracticable or inadvisable to market the
Notes on the terms and in the manner contemplated in the General Disclosure
Package or the Prospectus as amended or supplemented at the Solicitation Time or
at the time such offer to purchase was made. Promptly after the determination by
any such Agent or other purchaser that it is impractical or inadvisable to
market the Notes, such Agent or other purchaser shall notify the Company of such
determination in writing; but the omission so to notify the Company shall not
act to modify the rights of the Agent or other purchaser under this Section
6(a)(iv)(A).
(b) On the Commencement Date, and in the case of a purchase of Notes by an
Agent as principal pursuant to a Terms Agreement or otherwise, if called for by
the applicable Terms Agreement or other agreement, at the corresponding Time of
Delivery, the General Counsel, the Managing Counsel or Senior Counsel to the
Company and/or Squire, Sanders & Dempsey (US) LLP, Counsel to the Company,
as indicated in the applicable Prospectus Supplement shall have furnished to the
relevant Agent or Agents their written opinion, dated the Commencement Date or
Time of Delivery, as the case may be, in form and substance satisfactory to such
Agent or Agents, to the effect that:
(i) The Company has been duly incorporated and is an existing corporation in
good standing under the laws of Ohio and is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as amended; KeyBank is a
duly organized and validly existing national banking association under the laws
of the United States and continues to hold a valid certificate to do business as
such; each of the Company and KeyBank has full corporate power and authority to
conduct its business as described in the Registration Statement, the General
Disclosure Package (if applicable) and the Prospectus and is duly qualified to
do business in each jurisdiction in which it owns or leases real property,
except where the failure to be so qualified, considering all such cases in the
aggregate, does not involve a material risk to the business, properties,
financial position or results of operations of the Company and its subsidiaries
taken as a whole; and all of the outstanding shares of capital stock of KeyBank
has been duly authorized and validly issued, is fully paid and non-assessable
(exceptions to be specified) and (except as otherwise stated in the Registration
Statement) is owned beneficially by the Company subject to no security interest,
other encumbrance or adverse claim.
(ii) This Agreement and any applicable Terms Agreement have been duly
authorized, executed and delivered by the Company.
11
(iii) The Notes conform in all material respects to the description thereof
contained or incorporated by reference in the General Disclosure Package (if
applicable), the Prospectus and the applicable prospectus supplement, and such
description conforms in all material respects to the rights set forth in the
instruments defining the same.
(iv) The Notes have been duly and validly authorized and, when executed,
authenticated and delivered in accordance with the terms of the applicable
Indenture and issued to and paid for by any purchaser of Notes sold through an
Agent as agent or any Agent as principal pursuant to any Terms Agreement or
other agreement, will be entitled to the benefits of such applicable Indenture
and will constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other similar laws of general
applicability relating to or affecting creditors153 rights and to general equity
principles.
(v) Each of the Senior Indenture and the Subordinated Indenture has been duly
and validly authorized, executed and delivered by the Company and constitutes a
valid and legally binding instrument of the Company enforceable in accordance
with its terms subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other similar laws of general applicability relating to or
affecting creditors153 rights and to general equity principles; and the Indentures
have been duly qualified under the Trust Indenture Act.
(vi) The issue and sale of the Notes and the execution and delivery by the
Company of the Notes, the Indentures, this Agreement and any applicable Terms
Agreement or other agreement pursuant to which an Agent purchases Notes as
principal and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any statute, rule or
regulation, any agreement or instrument known to such counsel to which the
Company or any subsidiary of the Company is a party or by which it or any of
them are bound or to which any of the property or assets of the Company or any
its subsidiaries is subject and that is material to the Company and its
subsidiaries, taken as a whole, the Company153s Articles of Incorporation or
Regulations, or any order known to such counsel of any court or governmental
agency or body having jurisdiction over the Company.
(vii) No consent, approval, authorization, order, registration or
qualification of or filing with any court or governmental agency or body is
required for the issue and sale of the Notes or the consummation of the other
transactions contemplated by this Agreement, any applicable Terms Agreement or
other agreement pursuant to which an Agent purchases Notes as principal, or the
Indentures, except such consents, approvals, authorizations, registrations or
qualifications as have been obtained under the Securities Act and the Trust
Indenture Act and as may be required under state securities or Blue Sky laws in
connection with offers and sales of the Notes from the Company and with
purchases of Notes.
(viii) The Registration Statement is effective under the Securities Act; any
required amendment or supplement to each prospectus relating to the offered
Notes (including the Prospectus) pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b) (without reference to
Rule 424(b)(8)); any required filing of any Issuer Free Writing Prospectus
pursuant to Rule 433 has been made in the manner and within the time period
required by Rule 433(d); and, to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceeding for that purpose has been instituted or threatened by the
Commission.
(ix) Such counsel is of the opinion ascribed to it in the Prospectus
Supplement under the caption “Material United States Tax Considerations,” if
any.
(x) Such counsel (A) is of the opinion that at the time the Registration
Statement, including without limitation the Rule 430B Information, became
effective or is deemed effective, and at the date such opinion is delivered, the
Registration Statement and the Prospectus, and at the time they were filed, each
document incorporated by reference therein (other than the financial statements,
including the notes and schedules thereto and the audit reports thereon, or any
other financial and statistical data set forth or referred to therein or in any
document incorporated by reference therein or any exhibits thereto, and the
Statements of Eligibility of the Trustee on Form T-1 filed as an exhibit
thereto, as to which we express no opinion), complied as to form in all material
respects with the requirements of the Securities Act, the Exchange Act, the
Trust Indenture Act and the respective rules thereunder;
12
(B) has no reason to believe that (other than the financial statements,
including the notes and schedules thereto and the audit reports thereon, or any
other financial and statistical data set forth or referred to therein or in any
document incorporated by reference therein or any exhibits thereto, and the
Statements of Eligibility of the Trustee on Form T-1 filed as an exhibit
thereto, as to which we express no opinion) the Registration Statement,
including without limitation the Rule 430B Information, as of its effective date
and each deemed effective date, and if an amendment to the Registration
Statement or to any document incorporated by reference therein has been filed by
the Company with the Commission subsequent to the effectiveness of the
Registration Statement, at the time of the most recent such filing, and at date
such opinion is delivered, contained any 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; (C) has no reason to believe that
(other than the financial statements, including the notes and schedules thereto
and the audit reports thereon, or any other financial and statistical data set
forth or referred to therein or in any document incorporated by reference
therein or any exhibits thereto, and the Statements of Eligibility of the
Trustee on Form T-1 filed as an exhibit thereto, as to which we express no
opinion) the Prospectus, as amended or supplemented, as of its date, at the
Commencement Date and the Time of Delivery, contained or contains any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; (D) has no reason to believe that the General
Disclosure Package (if applicable), as of the Applicable Time, contained an
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and (E) does not know of any amendment to
the Registration Statement required to be filed which is not filed as required;
provided that in the case of an opinion delivered on the Commencement Date
(other than in connection with a Terms Agreement), the opinion and beliefs set
forth in clauses (A), (C) and (D) above shall be deemed not to cover information
concerning an offering of particular Notes to the extent such information will
be set forth in a supplement to the Basic Prospectus.
Such opinion or opinions shall be to such further effect with respect to
other legal matters relating to this Agreement, and the sale of the Notes,
pursuant to this Agreement as counsel for the Agents may reasonably request.
Such opinion or opinions shall be limited New York, Ohio and federal law and, if
applicable, the law of the state of incorporation of any other Significant
Subsidiaries. In giving such opinion, such counsel may rely, as to all matters
governed by the laws of jurisdictions in which such counsel is not qualified and
the federal law of the United States, upon opinions of other counsel, who shall
be counsel satisfactory to counsel for the Agents, in which case the opinion
shall state that they believe you and they are entitled to so rely. Such counsel
may also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Company, KeyBank and the Significant Subsidiaries and certificates of public
officials.
In rendering their opinion, such counsel may rely upon the opinion of Jones
Day referred to below as to any matters governed by New York law covered
therein.
(c) On the Commencement Date, and in the case of a purchase of Notes by an
Agent as principal pursuant to a Terms Agreement or otherwise, if called for by
the applicable Terms Agreement or other agreement, at the corresponding Time of
Delivery, Jones Day, counsel to the Agents, shall have furnished to the relevant
Agent or Agents such opinion or opinions dated the Commencement Date or Time of
Delivery, as the case may be with respect to the incorporation of the Company,
the validity of the Indenture, the Notes, the Registration Statement, the
Prospectus as amended or supplemented and other related matters as such Agent or
Agents may reasonably request, and in each case such counsel shall have received
such papers and information as they may reasonably request to enable them to
pass upon such matters.
(d) (i) On the Commencement Date, the Company153s independent certified public
accountants that have certified the financial statements of the Company and its
subsidiaries included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus, as then amended or
supplemented, shall have furnished to the relevant Agent or Agents a letter,
dated the Commencement Date, to the effect set forth in Exhibit C
hereto, and (ii) in the case of a purchase of Notes by an Agent as principal
pursuant to a Terms Agreement or otherwise, if called for by the applicable
Terms Agreement or other agreement, at the relevant pricing date, the Company153s
independent certified public accountants who have certified the financial
statements of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement, the General Disclosure Package and the
Prospectus, as then amended or supplemented, shall have furnished to the
relevant Agent or Agents
13
(A) a “comfort letter,” dated the relevant pricing date, to the effect set
forth in Exhibit C hereto and (B) a customary “bring-down” of such
comfort letter, dated as of the Time of Delivery.
(e) On the Commencement Date, and in the case of a purchase of Notes by an
Agent as principal pursuant to a Terms Agreement or otherwise, if called for by
the applicable Terms Agreement or other agreement, at the corresponding Time of
Delivery, the relevant Agent or Agents shall have received from the Company a
certificate or certificates signed by the Chairman of the Board, the President
or an Executive Vice President, and by the principal financial or accounting
officer, dated the Commencement Date or Time of Delivery, as the case may be, to
the effect that, to the best of their knowledge based upon reasonable
investigation (1) the representations and warranties of the Company contained
herein are true and correct on and as of the Commencement Date or Time of
Delivery, as the case may be, as if made on and as of such date, and the Company
has complied with all agreements and all conditions on its part to be performed
or satisfied hereunder or under the applicable Terms Agreement or other
agreement at or prior to the Commencement Date or Time of Delivery, as the case
may be, and (2) no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceeding for that purpose has been
instituted or is threatened by the Commission.
(f) On the Commencement Date and at each Time of Delivery, the Company shall
have furnished to the relevant Agent or Agents such further certificates and
documents as such Agent or Agents may reasonably request. All such opinions,
certificates, letters and other documents will be in compliance with the
provisions hereof only if they are satisfactory in form and substance to the
relevant Agent or Agents. The Company will furnish the relevant Agent or Agents
with such conformed copies of such opinions, certificates, letters and other
documents as the relevant Agent or Agents shall reasonably request.
7. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless each Agent against any losses, claims, damages or liabilities,
joint or several, to which such Agent may become subject, under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any part of the
Registration Statement when such part became effective, the General Disclosure
Package, the Prospectus or any amendment thereof or supplement thereto or any
Specified Issuer Free Writing Prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Agent for any legal or other expenses reasonably incurred by
it in connection with investigating or defending against such loss, claim,
damage, liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by any Agent specifically for use therein.
(b) Each Agent severally and not jointly will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any part of the Registration Statement when such part
became effective, the General Disclosure Package, the Prospectus or any
amendment thereof or supplement thereto or any Specified Issuer Free Writing
Prospectus, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made therein in reliance upon and in conformity
with written information furnished to the Company by such Agent specifically for
use therein, and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
against any such loss, claim, damage, liability or action as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party, and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party
14
shall be entitled to participate in, and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that, if the defendants in any such action
(including any impleaded parties) include both the indemnified party and the
indemnifying party and representations of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them,
the indemnified party or parties shall have the right to select separate counsel
to participate in the defense of such action on behalf of such indemnified party
or parties (and the reasonable fees and expenses of one such separate counsel
shall be paid by the indemnifying party). No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party.
(d) If the indemnification provided for in this Section 7 is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Agents on the other from the offering of the Notes to which such
losses, claims, damages or liabilities relate or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Agents on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Agents on the other shall be deemed to be in the
same proportion as the total proceeds from the offering of the Notes to which
such losses, claims, damages or liabilities relate (before deducting expenses)
received by the Company bear to the total compensation or profit (before
deducting expenses) received or realized by the Agents from the purchase and
resale, or underwriting, of such Notes. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or the Agents and
the parties153 relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The Company and the
Agents agree that it would not be just and equitable if contributions pursuant
to this subsection (d) were to be determined by pro rata allocation (even if the
Agents were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred
to in the first sentence of this subsection (d). The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending against any action or claim
which is the subject of this subsection (d). Notwithstanding the provisions of
this subsection (d), no Agent shall be required to contribute any amount in
excess of the amount of the commissions at which the Notes underwritten by it
and distributed to the public to which such losses, claims, damages or
liabilities relate were offered to the public exceeds the amount of any damages
that such Agent has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Agents153 obligations in this
subsection (d) to contribute shall be several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section 7 shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Agent within
the meaning of the Securities Act; and the obligations of the Agents under this
Section 7 shall be in addition to any liability that the respective Agents may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company (including any person who, with his consent, is named in
the Registration Statement as about to become a director of the Company), to
each officer of the Company who has signed the Registration Statement and to
each person, if any, who controls the Company within the meaning of the
Securities Act.
8. Termination. (a) This Agreement may be terminated at any time (i)
by the Company with respect to any or all of the Agents or (ii) by any Agent
with respect to itself only, in each case upon the giving of written notice of
such termination to each other party hereto. Any Terms Agreement shall be
subject to termination in the discretion
15
of the Agent or Agents that are parties thereto by notice given to the
Company prior to the payment for any Note to be purchased thereunder, if at or
prior to such time any of the conditions specified in Section 6(a) hereof shall
not have been satisfied. The termination of this Agreement shall not require
termination of any agreement by an Agent to purchase Notes as principal (whether
pursuant to a Terms Agreement or otherwise) and the termination of such an
agreement shall not require termination of this Agreement. In the event this
Agreement is terminated with respect to any Agent, (x) this Agreement shall
remain in full force and effect with respect to any Agent as to which such
termination has not occurred, (y) this Agreement shall remain in full force and
effect with respect to the rights and obligations of any party which have
previously accrued or which relate to Notes which are already issued, agreed to
be issued or the subject of a pending offer at the time of such termination and
(z) in any event, the provisions of the fourth paragraph of Section 2(a),
Section 2(c), the last sentence of Section 4(d) and Sections 4(g), 4(h), 5, 7,
9, 10, 12 and 17 shall survive; provided that if at the time of
termination an offer to purchase Notes has been accepted by the Company but the
Time of Delivery to the purchaser or its agent of such Notes has not yet
occurred, the provisions of Sections 2(b), 2(d), 4(a) through 4(e), 4(i) and 6
shall also survive. If any Terms Agreement is terminated, the provisions of the
last sentence of Section 4(d) and Sections 2(b), 2(d), 4(a), 4(b), 4(e), 4(h)
through 4(i), 5, 6, 7, 9, 10, 12 and 17 (which shall have been incorporated by
reference in such Terms Agreement) shall survive.
(b) If this Agreement or any Terms Agreement shall be terminated by an Agent
or Agents because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement or any
Terms Agreement or if for any reason the Company shall be unable to perform its
obligations under this Agreement or any Terms Agreement or any condition of any
Agent153s obligations cannot be fulfilled, the Company agrees to reimburse each
Agent or such Agents as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including the fees and
expenses of their counsel) reasonably incurred by such Agent or Agents in
connection with this Agreement or the offering of Notes.
9. Position of the Agents. Each Agent, in soliciting offers to
purchase Notes from the Company and in performing the other obligations of such
Agent hereunder (other than in respect of any purchase by an Agent as principal,
pursuant to a Terms Agreement or otherwise), is acting solely as agent for the
Company and not as principal and does not assume any obligation towards or
relationship of agency or trust with any purchaser of Notes. Each Agent will
make reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes from the Company was solicited by such
Agent and has been accepted by the Company, but such Agent shall not have any
liability to the Company in the event such purchase is not consummated for any
reason. If the Company shall default on its obligation to deliver Notes to a
purchaser whose offer it has accepted, the Company shall (i) hold the relevant
Agent harmless against any loss, claim, damage or liability arising from or as a
result of such default by the Company and (ii) notwithstanding such default, pay
to the Agent that solicited such offer any commission to which it would be
entitled in connection with such sale.
10. Representations and Agreements to Survive. The respective
indemnities and contribution agreements, representations, warranties and
agreements of the Company herein or certificates of its officers and the Agents
set forth in or made pursuant to this Agreement or any agreement by an Agent to
purchase Notes as principal shall remain in full force and effect regardless of
any termination of this Agreement or any such agreement, any investigation made
by or on behalf of any Agent or any controlling person of any Agent, or the
Company, or any officer or director or any controlling person of the Company,
and shall survive each delivery of and payment for any of the Notes.
11. Notices. Except as otherwise specifically provided herein or in
the Administrative Procedures, all statements, requests, notices and advices
hereunder shall be in writing, and effective only on receipt, and will be
delivered by hand, by mail (postage prepaid), by telegram (charges prepaid) or
by telecopier. Communications to the Company will be sent to 127 Public Square,
Cleveland, Ohio 44114, Attention: Secretary and General Counsel (Telephone
Number: 216-689-6300; Facsimile Number: 216-689-4121) with a copy
to: the Associate General Counsel : Securities (Facsimile Number:
216-689-5372). Communications to the Agents will be sent to the notice
address(es) specified on Schedule I hereto or at such other address as such
party may designate from time to time by notice duly given in accordance with
the terms of this Section 11.
12. Successors. This Agreement and any Terms Agreement shall be
binding upon, and inure solely to the benefit of, each Agent and the Company,
and their respective successors and the officers, directors and controlling
16
persons referred to in Section 7 and (to the extent expressly provided in
Section 6) the purchasers of Notes, and no other person shall acquire or have
any right or obligation under or by virtue of this Agreement or any Terms
Agreement.
13. No fiduciary duty. The Company hereby acknowledges that (a) any
purchase and sale of Notes pursuant to this Agreement is an arm153s-length
commercial transaction between the Company, on the one hand, and the Agents and
any affiliate through which any of them may be acting, on the other, (b) the
Agents are not acting as fiduciaries of the Company and (c) the Company153s
engagement of the Agents in connection with any offering hereunder and the
process leading up to any offering hereunder is as independent contractors and
not in any other capacity. Furthermore, the Company agrees that it is solely
responsible for making its own judgments in connection with any offering
hereunder (irrespective of whether any of the Agents has advised or is currently
advising the Company on related or other matters). The Company agrees that it
will not claim that the Agents have rendered advisory services of any nature or
respect, or owe an agency, fiduciary or similar duty to the Company, in
connection with this Agreement or any of the transactions contemplated hereby or
the process leading to any offering hereunder.
14. Amendments. This Agreement may be amended or supplemented if, but
only if, such amendment or supplement is in writing and is signed by the Company
and each Agent.
15. Additional Agents. The Company may from time to time appoint one
or more additional Agents hereunder; provided that such additional Agent shall
have delivered to the Company a letter and the Company shall have delivered to
such additional Agent a confirmation substantially in the form of Exhibit
D hereto, whereupon, such additional Agent shall be subject to the terms and
conditions hereof and shall assume the rights and obligations of each Agent
hereunder.
16. Business Day. Time shall be of the essence in this Agreement and
any Terms Agreement. As used herein, the term “business day” shall mean any day
which is not a Saturday or Sunday or legal holiday or a day on which banks in
New York City are generally required or authorized by law or executive order to
close.
17. Applicable Law. This Agreement and any Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without giving effect to the conflict of laws provisions thereof.
18. Counterparts. This Agreement and any Terms Agreement may be signed
in counterparts, each of which shall be an original, and all of which together
shall constitute one and the same instrument.
19. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
If the foregoing is in accordance with your understanding, please sign and
return to us three counter-parts hereof, whereupon this letter and the
acceptance by each of you thereof shall constitute a binding agreement between
the Company and each of you in accordance with its terms.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
17
|
Very truly yours, KeyCorp |
||||
|
By: |
/s/ Joseph M. Vayda |
|||
|
Name: |
Joseph M. Vayda |
|||
|
Title: |
Treasurer |
|||
[Signature Page to Distribution Agreement (KeyCorp)]
18
|
Accepted in New York, New York, J.P. MORGAN SECURITIES LLC |
||||
|
By: |
/s/ Stephen L. Sheiner |
|||
|
Name: |
Stephen L. Sheiner |
|||
|
Title: |
Executive Director |
|||
|
Accepted in New York, New York, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED |
||||
|
By: |
/s/ Joseph A. Crowley |
|||
|
Name: |
Joseph A. Crowley |
|||
|
Title: |
Director |
|||
|
Accepted in New York, New York, BARCLAYS CAPITAL INC. |
||||
|
By: |
/s/ Pamela Kendall |
|||
|
Name: |
Pamela Kendall |
|||
|
Title: |
Director |
|||
|
Accepted in New York, New York, CITIGROUP GLOBAL MARKETS INC. |
||||
|
By: |
/s/ Jack D. McSpadden, Jr. |
|||
|
Name: |
Jack D. McSpadden, Jr. |
|||
|
Title: |
Managing Director |
|||
|
Accepted in New York, New York, CREDIT SUISSE SECURITIES (USA) LLC |
||||
|
By: |
/s/ Sharon Harrison |
|||
|
Name: |
Sharon Harrison |
|||
|
Title: |
Director |
|||
|
Accepted in New York, New York, DEUTSCHE BANK SECURITIES INC. |
||||
|
By: |
/s/ Saurabh Monga |
|||
|
Name: |
Saurabh Monga |
|||
|
Title: |
Director |
|||
19
|
Accepted in New York, New York, DEUTSCHE BANK SECURITIES INC. |
||||
|
By: |
/s/ Anguel Zaprianov |
|||
|
Name: |
Anguel Zaprianov |
|||
|
Title: Managing Director |
||||
|
Accepted in New York, New York, GOLDMAN, SACHS & CO. |
||||
|
By: |
/s/ Goldman, Sachs & Co. |
|||
|
Name: |
Goldman, Sachs & Co. |
|||
|
Title: Authorized Signatory |
||||
|
Accepted in New York, New York, KEEFE, BRUYETTE & WOODS, INC. |
||||
|
By: |
/s/ Dennis P. O153Rourke |
|||
|
Name: |
Dennis P. O153Rourke |
|||
|
Title: |
Managing Director |
|||
|
Accepted in New York, New York, KEYBANC CAPITAL MARKETS INC. |
||||
|
By: |
/s/ Gary E. Andrews |
|||
|
Name: |
Gary E. Andrews |
|||
|
Title: |
Managing Director |
|||
|
Accepted in New York, New York, MORGAN STANLEY & CO. LLC |
||||
|
By: |
/s/ Yurij Slyz |
|||
|
Name: |
Yurij Slyz |
|||
|
Title: |
Executive Director |
|||
|
Accepted in New York, New York, RBS SECURITIES INC. |
||||
|
By: |
/s/ John J. McCabe |
|||
|
Name: |
John J. McCabe |
|||
|
Title: |
Managing Director |
|||
20
|
Accepted in New York, New York, SANDLER O153NEILL & PARTNERS, L.P. |
||||
|
By: |
Sandler O153Neill & Partners Corp., |
|||
|
By: |
/s/ Robert A. Kleinert |
|||
|
Name: |
Robert A. Kleinert |
|||
|
Title: |
An Officer of the Corporation |
|||
|
Accepted in New York, New York, UBS SECURITIES LLC |
||||
|
By: |
/s/ Scott Yeager |
|||
|
Name: |
Scott Yeager |
|||
|
Title: |
Managing Director |
|||
|
By: |
/s/ Anna Kawa |
|||
|
Name: |
Anna Kawa |
|||
|
Title: |
Director |
|||
|
Accepted in New York, New York, WELLS FARGO SECURITIES, LLC |
||||
|
By: |
/s/ Carolyn Hurley |
|||
|
Name: |
Carolyn Hurley |
|||
|
Title: |
Director |
|||
21
SCHEDULE I
|
Agent |
Address for Notices |
|
|
J.P. Morgan Securities LLC |
383 Madison Avenue |
|
|
New York, New York 10179 |
||
|
Attn: High Grade Syndicate Desk : 3rd Floor |
||
|
Tel: (212) 834-5724 |
||
|
Fax: (212) 834-6081 |
||
|
Barclays Capital Inc. |
745 Seventh Avenue |
|
|
New York, New York 10019 |
||
|
Attn: Syndicate Registration |
||
|
Tel: (212) 526-0015 |
||
|
Fax: 1 (646) 834-8133 |
||
|
Citigroup Global Markets Inc. |
388 Greenwich Street |
|
|
New York, New York 10013 |
||
|
Attn: Medium-Term Note Department |
||
|
Tel: (212) 816-5831 |
||
|
Fax: (212) 816-0949 |
||
|
Credit Suisse Securities (USA) LLC |
Eleven Madison Avenue |
|
|
New York, New York 10010 |
||
|
Attn: Short and Medium Term Finance |
||
|
Tel: (212) 325-7198 |
||
|
Fax: (212) 743-5825 |
||
|
Deutsche Bank Securities Inc. |
60 Wall Street |
|
|
New York, New York 10005 |
||
|
Attn: Debt Capital Markets Syndicate Desk |
||
|
Tel: (212) 250-6801 |
||
|
Fax: (212) 469-7875 |
||
|
Goldman, Sachs & Co. |
200 West Street |
|
|
New York, New York 10282 |
||
|
Attn: Registration Department |
||
|
Tel: (866) 471-2526 |
||
|
Keefe, Bruyette & Woods, Inc. |
787 Seventh Avenue |
|
|
New York, NY 10019 |
||
|
Attn: Debt Capital Markets Group |
||
|
Tel: (212) 887-4742 |
||
|
Fax: (212) 582-1592 |
22
|
Agent |
Address for Notices |
|
|
KeyBanc Capital Markets Inc. |
127 Public Square |
|
|
Cleveland, Ohio 44114-2603 |
||
|
Attn: Audrey Saccardi |
||
|
Tel: (216) 689-3567 |
||
|
Fax: (216) 689-0976 |
||
|
Merrill Lynch, Pierce, Fenner & Smith Incorporated |
One Bryant Park |
|
|
New York, New York 10036 |
||
|
Attn: High Grade DCM Transaction Management/Legal |
||
|
Tel: (646) 855-0742 |
||
|
Fax: (704) 264-2522 |
||
|
Morgan Stanley & Co. LLC |
1585 Broadway |
|
|
New York, New York 10036 |
||
|
Attn: Continuously Offered Products |
||
|
Tel: (212) 761-2825 |
||
|
Fax: (212) 507-2409 |
||
|
RBS Securities Inc. |
600 Washington Boulevard |
|
|
Stamford, CT 06901 |
||
|
Attn: Debt Capital Markets Syndicate |
||
|
Tel: (203) 873-4534 |
||
|
Fax: (203) 897-6166 |
||
|
Sandler O153Neill & Partners, L.P. |
919 Third Avenue, 6th Floor |
|
|
New York, New York 10022 |
||
|
Attn: Syndicate Department |
||
|
Tel: (212) 466-7806 |
||
|
Fax: (212) 466-7991 |
||
|
UBS Securities LLC |
677 Washington Boulevard |
|
|
Stamford, Connecticut 06901 |
||
|
Attn: Fixed Income Syndicate |
||
|
Tel: (203) 719-1088 |
||
|
Fax: (203) 719-0495 |
||
|
Wells Fargo Securities, LLC |
301 S. College Street, 6th Floor |
|
|
Charlotte, NC 28202 |
||
|
Attn: Transaction Management |
||
|
Tel: (704) 715-0541 |
||
|
Fax: (704) 383-9165 |
23
EXHIBIT A
Form of Terms Agreement
KeyCorp
(An Ohio corporation)
[Senior Medium-Term Notes, Series [___]]
[Subordinated Medium-Term Notes, Series [___]]
TERMS AGREEMENT
, 20[ ]
Attention:
Re: Distribution Agreement dated June [___], 2011 (the “Distribution
Agreement”)
Subject to the Distribution Agreement, [the undersigned agrees to purchase
the following principal amount of Notes:
$ ]
[each of the undersigned purchasers agree severally and not jointly to
purchase from you your Medium-Term Notes, in each case in the principal amount
set forth below opposite such purchaser153s name, on the terms set forth in this
Terms Agreement:
|
Principal Amount |
||
|
Name |
of Notes |
|
|
[Agent] |
$ [ ] |
|
|
[Agent] |
$ [ ] |
|
|
[Agent] |
$ [ ] |
|
|
Total |
$[ ]] |
|
Title:
Principal Amount:
Specified Currency:
[Initial Public Offering Price:
[Initial]* Interest Rate:
[Index Maturity:]*
[Interest Rate Basis:]*
[Maximum Interest Rate:]*
[Minimum Interest Rate:]*
[ Interest Determination Dates:]*
[Interest Reset Dates:]*
[Interest Payment Dates:
Maturity Date:]
[Spread:]*
[Spread Multiplier:]*
[Interest Period:]*
[Regular Record Date (if other
than the fifteenth calendar day
preceding each Interest Payment Date):]*
Purchase Price: %
Price to Public: %
Time of Delivery and Time and Place:
Redemption Provisions, if any:
Initial Redemption Date[s]:
24
Additional Redemption Dates:
Initial Redemption Percentage:
Additional Redemption Percentage Reduction:
[Currency of denomination:]**
[Denominations:]**
[Currency of payment:]**
[Original Issue Discount Note:]
[Initial Accrual Period OID:]
[Other provisions:]
Exceptions, if any, to Section 4(i) of the Distribution Agreement:
The Applicable Time means [a.m./p.m.] (Eastern time) on .
[Documents to be delivered:
The following documents referred to in the Distribution Agreement shall be
delivered:
[(1) The certificate referred to in Section 6(e);]
[(2) The opinions referred to in Sections 6(b) and 6(c);]
[(3) The accountants153 letters referred to in Section 6(d)(ii)]]
|
* |
Applicable to Floating Rate Notes only. |
|
|
** |
Applicable to Foreign Currency Notes Only. |
|
[AGENT] |
||||
|
By: |
||||
|
Its: |
||||
|
Accepted: KEYCORP |
||||
|
By: |
||||
|
[Title] |
||||
25
Annex to Terms Agreement
[ATTACH PRICING SUPPLEMENT/TERM SHEET]
26
EXHIBIT B
[Administrative Procedures]
27
EXHIBIT C
Pursuant to Section 6(d) of the Distribution Agreement, the independent
auditors shall furnish letters to the Agents to the effect that:
(1) They are independent public accountants with respect to the Company and
its subsidiaries within the meaning of the Securities Act and the applicable
published Securities Act Regulations.
(2) In their opinion, the consolidated financial statements and any
supplemental financial information or schedules audited by them and included or
incorporated by reference in the Registration Statement, the General Disclosure
Package and the Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Securities Act or the Exchange Act, as
applicable, and the published rules and regulations thereunder.
(3) On the basis of procedures referred to in such letter, including a
reading of the minute books of the Company since the end of the most recent
fiscal year with respect to which an audit report has been issued, performing
the procedures specified by the American Institute of Certified Public
Accountants for a review of interim financial information as described in SAS
No. 100, Interim Financial Information, on the unaudited consolidated interim
financial statements of the Company included or incorporated by reference in the
Registration Statement, the General Disclosure Package and the Prospectus and
reading the internal unaudited consolidated interim financial data, if any, for
the period from the date of the latest balance sheet included or incorporated by
reference in the Registration Statement, the General Disclosure Package and the
Prospectus to the date of the latest available internal interim financial data
(which internal unaudited interim financial data, if any, will be attached to
each such letter to the Agents); and making inquiries of officials of the
Company responsible for financial and accounting matters (including inquiries
with respect to whether the unaudited consolidated financial statements comply
as to form in all material respects with the applicable accounting requirements
of the Exchange Act and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters whether the internal
unaudited consolidated interim financial statements are stated on a basis
substantially consistent with that of the audited consolidated financial
statements incorporated by reference in the Registration Statement, the General
Disclosure Package and the Prospectus), nothing caused them to believe that:
(A) (i) any material modifications should be made to the unaudited
consolidated financial statements included in any Quarterly Reports on Form 10-Q
which are incorporated by reference in the Registration Statement, the General
Disclosure Package or the Prospectus (the “10-Q Financials”) for them to be in
conformity with generally accepted accounting principles applicable to such
financial statements and (ii) the 10-Q Financials do not comply as to form in
all material respects with the applicable requirements of the Securities Act or
the Exchange Act, as applicable, and the related published rules and
regulations; or
(B) the internal unaudited consolidated interim financial statements of the
Company are not in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the audited
consolidated financial statements incorporated by reference in the Registration
Statement, the General Disclosure Package or the Prospectus; or
(C) at the date of the latest available internal unaudited consolidated
interim financial statements of the Company, there was any increase in
consolidated long-term debt or any decrease in consolidated shareholders153 equity
as compared with amounts shown in the latest balance sheet included or
incorporated by reference in the General Disclosure Package and the Prospectus
except in all instances for decreases that the General Disclosure Package and
the Prospectus discloses have occurred or may occur or as may be set forth in
such letter; or
(D) for the period from the date of the latest balance sheet included or
incorporated by reference in the General Disclosure Package and the Prospectus
to the date of the latest available internal financial statements of the
Company, there was any decrease, as compared with the corresponding period of
the previous year, in consolidated
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net interest income, consolidated net interest income after provision for
possible loan losses, consolidated income before taxes or in the total or per
common share amounts of consolidated net income, except in all cases for changes
or decreases that the General Disclosure Package and the Prospectus discloses
have occurred or may occur or as may be set forth in such letter;
(E) as of a specified date not more than five days prior to the date of
delivery of such letter to the Agent(s), there was any increase in consolidated
long-term debt or any decrease in consolidated shareholders153 equity as compared
with the [amount shown in the latest balance sheet included or incorporated by
reference in the General Disclosure Package and the Prospectus/amount shown in
the latest internal unaudited consolidated interim financial statements], except
for any decrease that the General Disclosure Package and the Prospectus
discloses has occurred or may occur.
(4) In addition to their examination referred to in their reports
incorporated by reference in the Registration Statement, the General Disclosure
Package and the Prospectus and the procedures referred to in (3) above, (a) they
have carried out certain other procedures, not constituting an audit, with
respect to certain of the dollar amounts, percentages and other financial
information (in each case to the extent that such dollar amounts, percentages
and other financial information, either directly or by analysis or computation,
are derived from the general accounting records of the Company and its
subsidiaries) which are included or incorporated by reference in the General
Disclosure Package and the Prospectus (other than those appearing in the audited
financial statements included therein) and appear in the General Disclosure
Package and the Prospectus or incorporated documents, as agreed to by officers
of the Company and the Agents, and have found such dollar amounts, percentages
and financial information to be in agreement with the general accounting records
of the Company and its subsidiaries and (b) if any pro forma financial
information is included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus, they have carried
out other procedures, not constituting an audit, with respect to such pro forma
financial information and indicated the results thereof, if requested by the
Agents and agreed to by officers of the Company.
29
EXHIBIT D
Form of Agent Accession and Confirmation Letter
To: KEYCORP
Re: U.S. Medium-Term Note Program
[Date]
We refer to the Distribution Agreement dated June [ ], 2011 (as
amended from time to time) in respect of the above-referenced program (the
“Program”) between the Company and the Agents party thereto (which agreement, as
amended from time to time, is herein referred to as the “Agreement”).
Capitalized terms used herein shall have the meanings assigned to them in the
Distribution Agreement.
Conditions Precedent
We have received:
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a copy of the Agreement; |
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certificates pursuant to Section 6(e) of the Agreement; |
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legal opinions from counsel referred to in the Agreement pursuant to Section |
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the comfort letters from the independent auditors referred to in the |
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and have found them to our satisfaction. For the purpose of the Agreement, |
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Name: |
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Address: |
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Attn: |
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Facsimile Number: |
In consideration of the Bank appointing us as an Agent under Section 15 of
the Agreement, we hereby acknowledge, for the benefit of the Bank and each of
the other Agents, that we are bound by the terms and conditions of the
Distribution Agreement and possess all the rights and obligations of an Agent
thereunder.
This letter is governed by, and shall be construed in accordance with, the
laws of the State of New York.
Very truly yours,
[NAME OF NEW AGENT]
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In accordance with Section 15 of the Agreement, the Company confirms it has
taken all necessary action to ensure that, with effect from the date hereof, you
shall become a party to the Agreement as an Agent under the Program, bound by
the terms and conditions of the Agreement and possessing all the rights and
obligations of an Agent thereunder.
Very truly yours,
For and on behalf of
KEYCORP
cc: The existing Agents
Deutsche Bank Trust Company Americas, as Trustee
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