KeyCorp Senior Medium-Term Notes, Series K Subordinated Medium-Term Notes, Series L Due Nine Months or More From Date of Issue DISTRIBUTION AGREEMENT
Exhibit
1.1
KeyCorp
Senior Medium-Term Notes, Series K
Subordinated Medium-Term Notes, Series L
Due Nine Months or More From Date of Issue
DISTRIBUTION AGREEMENT
Senior Medium-Term Notes, Series K
Subordinated Medium-Term Notes, Series L
Due Nine Months or More From Date of Issue
DISTRIBUTION AGREEMENT
AND EACH OF THE OTHER AGENTS LISTED
ON SCHEDULE I HERETO
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
creditors’ 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 creditors’ 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
management’s general or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The Company and its subsidiaries’
internal controls over financial reporting are effective and the Company and its subsidiaries are
not aware of any material weakness in their internal controls over financial reporting.
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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 Company’s directors or officers, in their capacities as such, to comply with
any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in
connection therewith (the “Xxxxxxxx-Xxxxx 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 day’s 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, accountants’ letters and
officers’ 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 Xxxxx Day, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx 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 Company’s 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
Company’s 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 Agent’s obligation to solicit offers to purchase Notes, at and as of such Solicitation Time and
(ii) in the case of any Agent’s or any other purchaser’s 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, Xxxxxxx & Xxxxxxx (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 creditors’ 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 creditors’ 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 Company’s 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, Xxxxx 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 Company’s 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 Company’s 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 parties’ 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 Agents’ 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 Agent’s 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 000 Xxxxxx
Xxxxxx, Xxxxxxxxx, Xxxx 00000, Attention: Secretary and General Counsel (Telephone Number:
000-000-0000; 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 arm’s-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 Company’s 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/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Treasurer | |||
[Signature Page to Distribution Agreement (KeyCorp)]
18
| Accepted in New York, New York, as of the date first above written: X.X. XXXXXX SECURITIES LLC |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Executive Director | |||
| Accepted in New York, New York, as of the date first above written: XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Director | |||
| Accepted in New York, New York, as of the date first above written: BARCLAYS CAPITAL INC. |
||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | Director | |||
| Accepted in New York, New York, as of the date first above written: CITIGROUP GLOBAL MARKETS INC. |
||||
| By: | /s/ Xxxx X. XxXxxxxxx, Xx. | |||
| Name: | Xxxx X. XxXxxxxxx, Xx. | |||
| Title: | Managing Director | |||
| Accepted in New York, New York, as of the date first above written: CREDIT SUISSE SECURITIES (USA) LLC |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Director | |||
| Accepted in New York, New York, as of the date first above written: DEUTSCHE BANK SECURITIES INC. |
||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Director | |||
19
| Accepted in New York, New York, as of the date first above written: DEUTSCHE BANK SECURITIES INC. |
||||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxxx | |||
| Title: Managing Director | ||||
| Accepted in New York, New York, as of the date first above written: XXXXXXX, XXXXX & CO. |
||||
| By: | /s/ Xxxxxxx, Xxxxx & Co. | |||
| Name: | Xxxxxxx, Xxxxx & Co. | |||
| Title: Authorized Signatory | ||||
| Accepted in New York, New York, as of the date first above written: XXXXX, XXXXXXXX & XXXXX, INC. |
||||
| By: | /s/ Xxxxxx X. X’Xxxxxx | |||
| Name: | Xxxxxx X. X’Xxxxxx | |||
| Title: | Managing Director | |||
| Accepted in New York, New York, as of the date first above written: KEYBANC CAPITAL MARKETS INC. |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Managing Director | |||
| Accepted in New York, New York, as of the date first above written: XXXXXX XXXXXXX & CO. LLC |
||||
| By: | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Title: | Executive Director | |||
| Accepted in New York, New York, as of the date first above written: RBS SECURITIES INC. |
||||
| By: | /s/ Xxxx X. XxXxxx | |||
| Name: | Xxxx X. XxXxxx | |||
| Title: | Managing Director | |||
20
| Accepted in New York, New York, as of the date first above written: XXXXXXX X’XXXXX & PARTNERS, L.P. |
||||
| By: | Xxxxxxx
X’Xxxxx & Partners Corp., the sole general partner |
|||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | An Officer of the Corporation | |||
| Accepted in New York, New York, as of the date first above written: UBS SECURITIES LLC |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Managing Director | |||
| By: | /s/ Xxxx Xxxx | |||
| Name: | Xxxx Xxxx | |||
| Title: | Director | |||
| Accepted in New York, New York, as of the date first above written: XXXXX FARGO SECURITIES, LLC |
||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Director | |||
21
SCHEDULE I
| Agent | Address for Notices | |
X.X. Xxxxxx Securities LLC
|
000 Xxxxxxx Xxxxxx | |
| New York, New York 10179 | ||
| Attn: High Grade Syndicate Desk — 3rd Floor | ||
| Tel: (000) 000-0000 | ||
| Fax: (000) 000-0000 | ||
Barclays Capital Inc.
|
000 Xxxxxxx Xxxxxx | |
| New York, New York 10019 | ||
| Attn: Syndicate Registration | ||
| Tel: (000) 000-0000 | ||
| Fax: 0 (000) 000-0000 | ||
Citigroup Global Markets Inc.
|
000 Xxxxxxxxx Xxxxxx | |
| New York, New York 10013 | ||
| Attn: Medium-Term Note Department | ||
| Tel: (000) 000-0000 | ||
| Fax: (000) 000-0000 | ||
Credit Suisse Securities (USA) LLC
|
Xxxxxx Xxxxxxx Xxxxxx | |
| New York, New York 10010 | ||
| Attn: Short and Medium Term Finance | ||
| Tel: (000) 000-0000 | ||
| Fax: (000) 000-0000 | ||
Deutsche Bank Securities Inc.
|
00 Xxxx Xxxxxx | |
| New York, New York 10005 | ||
| Attn: Debt Capital Markets Syndicate Desk | ||
| Tel: (000) 000-0000 | ||
| Fax: (000) 000-0000 | ||
Xxxxxxx, Xxxxx & Co.
|
000 Xxxx Xxxxxx | |
| New York, New York 10282 | ||
| Attn: Registration Department | ||
| Tel: (000) 000-0000 | ||
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
|
000 Xxxxxxx Xxxxxx | |
| New York, NY 10019 | ||
| Attn: Debt Capital Markets Group | ||
| Tel: (000) 000-0000 | ||
| Fax: (000) 000-0000 |
22
| Agent | Address for Notices | |
KeyBanc Capital Markets Inc.
|
000 Xxxxxx Xxxxxx | |
| Cleveland, Ohio 44114-2603 | ||
| Attn: Xxxxxx Xxxxxxxx | ||
| Tel: (000) 000-0000 | ||
| Fax: (000) 000-0000 | ||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
|
One Bryant Park | |
| New York, New York 10036 | ||
| Attn: High Grade DCM Transaction Management/Legal | ||
| Tel: (000) 000-0000 | ||
| Fax: (000) 000-0000 | ||
Xxxxxx Xxxxxxx & Co. LLC
|
1585 Broadway | |
| New York, New York 10036 | ||
| Attn: Continuously Offered Products | ||
| Tel: (000) 000-0000 | ||
| Fax: (000) 000-0000 | ||
RBS Securities Inc.
|
000 Xxxxxxxxxx Xxxxxxxxx | |
| Stamford, CT 06901 | ||
| Attn: Debt Capital Markets Syndicate | ||
| Tel: (000) 000-0000 | ||
| Fax: (000) 000-0000 | ||
Xxxxxxx X’Xxxxx & Partners, L.P.
|
000 Xxxxx Xxxxxx, 0xx Xxxxx | |
| New York, New York 10022 | ||
| Attn: Syndicate Department | ||
| Tel: (000) 000-0000 | ||
| Fax: (000) 000-0000 | ||
UBS Securities LLC
|
000 Xxxxxxxxxx Xxxxxxxxx | |
| Stamford, Connecticut 06901 | ||
| Attn: Fixed Income Syndicate | ||
| Tel: (000) 000-0000 | ||
| Fax: (000) 000-0000 | ||
Xxxxx Fargo Securities, LLC
|
000 X. Xxxxxxx Xxxxxx, 0xx Xxxxx | |
| Charlotte, NC 28202 | ||
| Attn: Transaction Management | ||
| Tel: (000) 000-0000 | ||
| Fax: (000) 000-0000 |
23
EXHIBIT A
Form of Terms Agreement
KeyCorp
(An Ohio corporation)
(An Ohio corporation)
[Senior Medium-Term Notes, Series [___]]
[Subordinated Medium-Term Notes, Series [___]]
TERMS AGREEMENT
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 purchaser’s
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]:
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:]
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 accountants’ 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]
[ATTACH PRICING SUPPLEMENT/TERM SHEET]
26
EXHIBIT B
[Administrative Procedures]
[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 shareholders’ 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
28
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 shareholders’ 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.
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EXHIBIT D
Form of Agent Accession and Confirmation Letter
To: KEYCORP
Re: U.S. Medium-Term Note Program
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:
| • | a copy of the Agreement; | ||
| • | certificates pursuant to Section 6(e) of the Agreement; | ||
| • | legal opinions from counsel referred to in the Agreement pursuant to Section 6(b) and 6(c)thereof; | ||
| • | the comfort letters from the independent auditors referred to in the Agreement pursuant to Section 6(d)(ii) thereof; and | ||
| and have found them to our satisfaction. For the purpose of the Agreement, our Notice details are as follows: | |||
| Name: | |||
| Address: | |||
| Attn: | |||
| 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
KEYCORP
cc: The existing Agents
Deutsche Bank Trust Company Americas, as Trustee
Deutsche Bank Trust Company Americas, as Trustee
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