1
EXHIBIT 99(c)
BANKERS TRUST COMPANY
EXCHANGE AGENT AGREEMENT
January , 1997
Bankers Trust Company
Corporate Trust and
Agency Group
Four Albany Street, 4th Floor
New York, New York 10006
Attention: Corporate Market Services
Ladies and Gentlemen:
KeyCorp, an Ohio corporation ("KeyCorp"), and KeyCorp Institutional Capital
A, a business trust created under the laws of Delaware (the "Issuer"), are
offering to exchange (the "Exchange Offer"), among other securities, the 7.826%
Capital Securities of the Issuer which are being registered under the U.S.
Securities Act of 1933 (the "New Capital Securities") for a like aggregate
liquidation amount of the outstanding 7.826% Capital Securities of the Issuer
(the "Old Capital Securities" and, together with the New Capital Securities, the
"Capital Securities"), pursuant to a prospectus (the "Prospectus") included in a
Registration Statement on Form S-4 (File Nos. 333-19151 and 333-19151-01), as
amended (the "Registration Statement"), filed with the Securities and Exchange
Commission (the "SEC"). The term "Expiration Date" shall mean 5:00 p.m., New
York City time, on , 1997, unless the Exchange Offer is extended as
provided in the Prospectus, in which case the term "Expiration Date" shall mean
the latest date and time to which the Exchange Offer is extended. Upon execution
of this Agreement, Bankers Trust Company will act as the Exchange Agent for the
Exchange Offer (the "Exchange Agent"). A copy of the Prospectus is attached
hereto as EXHIBIT A. Capitalized terms used and not otherwise defined herein
shall have the respective meanings ascribed thereto in the Prospectus.
A copy of each of the form of the letter of transmittal (the "Letter of
Transmittal") and the form of the notice of guaranteed delivery (the "Notice of
Guaranteed Delivery") to be used by Holders of Old Capital Securities to
surrender Old Capital Securities in order to receive New Capital Securities
pursuant to the Exchange Offer, and the form of letter to brokers and the form
of letter to clients (together, with the Letter of Transmittal and the Notice of
Guaranteed Delivery, the "Tender Documents") are attached hereto as EXHIBIT B.
2
KeyCorp and the Issuer hereby appoint you to act as Exchange Agent in
connection with the Exchange Offer. In carrying out your duties as Exchange
Agent, you are to act in good faith and in accordance with the following
provisions of this Agreement:
1. You are to mail the Prospectus and the Tender Documents to all of the
Holders and participants on the day that you are notified by KeyCorp and the
Issuer that the Registration Statement has become effective under the Securities
Act of 1933, as amended, or as soon as practicable thereafter, and to make
subsequent mailings thereof to any persons who become Holders prior to the
Expiration Date and to any persons as may from time to time be requested by
KeyCorp. All mailings pursuant to this Section 1 shall be by first-class mail,
postage prepaid, unless otherwise specified by KeyCorp or the Issuer. You shall
also accept and comply with telephone requests for information relating to the
Exchange Offer, provided that such information shall relate only to the
procedures for tendering Old Capital Securities in (or withdrawing tenders of
Old Capital Securities from) the Exchange Offer. All other requests for
information relating to the Exchange Offer shall be directed to KeyCorp,
Attention: Xxxxxxx X. Xxxxxxxxx.
2. You are to examine the Letters of Transmittal and the Old Capital
Securities and other documents delivered or received by you, by or for the
Holders (including any book-entry confirmations, as such term is defined in the
Prospectus), to ascertain whether (i) the Letters of Transmittal and any other
Tender Documents are duly executed and properly completed in accordance with the
instructions set forth therein and that the book-entry confirmations are in due
and proper form and contain the information required to be set forth therein,
(ii) the Old Capital Securities have otherwise been properly tendered, (iii) the
Old Capital Securities tendered in part are tendered in principal amounts of
$100,000 (100 Capital Securities) and integral multiples of $1,000 in excess
thereof and that if any Old Capital Securities are tendered for exchange in
part, the untendered principal amount thereof is $100,000 (100 Capital
Securities) or any integral multiple of $1,000 in excess thereof, and (iv)
Holders have provided their correct Tax Identification Number or required
certification. In each case where a Letter of Transmittal or other document has
been improperly executed or completed or, for any other reason, is not in proper
form, or some other irregularity exists, you will take such action as you
consider appropriate to notify the tendering Holder of such irregularity and as
to the appropriate means of resolving
-2-
3
the same. Determination of questions as to the proper completion or execution of
the Letters of Transmittal, or as to the proper form for transfer of the Old
Capital Securities or as to any other irregularity in connection with the
submission of Letters of Transmittal and/or Old Capital Securities and other
documents in connection with the Exchange Offer, shall be made by the officers
of, or counsel for, KeyCorp and the Issuer at their written instructions or oral
direction confirmed by facsimile. Any determination made by KeyCorp and the
Issuer on such questions shall be final and binding.
3. At the written request of KeyCorp and the Issuer or their counsel, you
shall notify tendering Holders of Old Capital Securities in the event of any
extension, termination or amendment of the Exchange Offer. In the event of any
such termination, you will return all tendered Old Capital Securities to the
persons entitled thereto, at the request and expense of KeyCorp.
4. Tenders of the Old Capital Securities may be made only as set forth in
the Letter of Transmittal and in the section of the Prospectus entitled "The
Exchange Offer". Notwithstanding the foregoing, tenders which KeyCorp or the
Issuer shall approve in writing as having been properly tendered shall be
considered to be properly tendered. Letters of Transmittal and Notices of
Guaranteed Delivery shall be recorded by you as to the date and time of receipt
and shall be preserved and retained by you at KeyCorp's expense for six years.
New Capital Securities are to be issued in exchange for Old Capital Securities
pursuant to the Exchange Offer only (i) against deposit with you prior to the
Expiration Date or, in the case of a tender in accordance with the guaranteed
delivery procedures outlined in Instruction 1 of the Letter of Transmittal,
within three New York Stock Exchange trading days after the Expiration Date of
the Exchange Offer, together with executed Letters of Transmittal and any other
documents required by the Exchange Offer or (ii) in the event that the Holder is
a participant in The Depository Trust Company ("DTC") system, by the utilization
of DTC's Automated Tender Offer Program ("ATOP") and any evidence required by
the Exchange Offer.
You are hereby directed to establish an account with respect to the Old
Capital Securities at DTC (the "Book Entry Transfer Facility") within two days
after the Effective Date of the Exchange Offer in accordance with Section 17A(d)
of the Securities Exchange Act of 1934, and the rules and regulations
thereunder. Any financial institution that is a participant in the Book Entry
Transfer Facility system may, until the Expiration Date, make book-
-3-
4
entry delivery of the Old Capital Securities by causing the Book Entry Transfer
Facility to transfer such Old Capital Securities into your account in accordance
with the procedure for such transfer established by the Book Entry Transfer
Facility. In every case, however, a Letter of Transmittal (or a manually
executed facsimile thereof) or an Agent's Message, property completed and duly
executed, with any required signature guarantees and any other required
documents must be transmitted to and received by you prior to the Expiration
Date or the guaranteed delivery procedures described in the Exchange Offer must
be complied with.
5. Upon the oral or written request of KeyCorp or the Issuer (with written
confirmation of any such oral request thereafter), you will transmit by
telephone, and promptly thereafter confirm in writing, to Xxxxxx X. Xxxxxxx,
Xxxxxxx X. Xxxxxxxxx or such other persons as KeyCorp or the Issuer may
reasonably request at the address and phone number set forth in Section 23
hereof, the aggregate number and principal amount of Old Capital Securities
tendered to you and the number and principal amount of Old Capital Securities
properly tendered that day. In addition, you will also inform the aforementioned
persons, upon oral request made from time to time (with written confirmation of
such request thereafter) prior to the Expiration Date, of such information as
they or any of them may reasonably request.
6. Upon acceptance by KeyCorp and the Issuer of any Old Capital Securities
duly tendered by KeyCorp and the Issuer pursuant to the Exchange Offer (such
acceptance if given orally, to be confirmed in writing), KeyCorp and the Issuer
will cause New Capital Securities in exchange therefor to be issued as promptly
as possible and you will deliver such New Capital Securities on behalf of
KeyCorp and the Issuer at the rate of $100,000 (100 Capital Securities)
principal amount of New Capital Securities for each $100,000 principal amount of
Old Capital Securities tendered as promptly as possible after the Expiration
Date. Unless otherwise instructed by KeyCorp or the Issuer, you shall issue New
Capital Securities only in denominations of $100,000 (100 Capital Securities) or
any integral multiple of $1,000 in excess thereof.
7. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and the conditions set forth in the Prospectus and the
Letter of Transmittal, Old Capital Securities tendered pursuant to the Exchange
Offer may be withdrawn at any time on or prior to the Expiration Date in
accordance with the terms of the Exchange Offer.
-4-
5
8. Notice of any decision by KeyCorp and the Issuer not to exchange any Old
Capital Securities tendered shall be given to you by KeyCorp or the Issuer
either orally (if given orally, to be confirmed in writing) or in a written
notice.
9. If, pursuant to the Exchange Offer, KeyCorp and the Issuer do not accept
for exchange all or part of the Old Capital Securities tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus under the caption "The Exchange Offer--Conditions to the Exchange
Offer" or otherwise, you shall, upon notice from KeyCorp and the Issuer (such
notice if given orally, to be confirmed in writing), promptly after the
expiration or termination of the Exchange Offer, return the certificates
evidencing unaccepted Old Capital Securities (or effect appropriate book-entry
transfer), together with any related required documents and the Letters of
Transmittal relating thereto that are in your possession, to the persons who
deposited such certificates or effected such book-entry transfer.
10. Certificates for reissued Old Capital Securities, unaccepted Old
Capital Securities or New Capital Securities shall be forwarded by (a)
first-class certified mail, return receipt requested under a blanket surety bond
obtained by you protecting you, KeyCorp and the Issuer from loss or liability
arising out of the non-receipt or non-delivery of such certificates or (b) by
registered mail insured by you separately for the replacement value of each such
certificate.
11. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, commercial bank, trust
company or other nominee or to engage or use any person to solicit tenders.
12. If any Holder shall report to you that his or her failure to surrender
Old Capital Securities registered in his or her name is due to the loss or
destruction of a certificate or certificates, you shall request such Holder (i)
to furnish to you an affidavit of loss and, if required by KeyCorp and the
Issuer, a bond of indemnity in an amount and evidenced by such certificate or
certificates of a surety, as may be satisfactory to you, KeyCorp and the Issuer,
and (ii) to execute and deliver an agreement to indemnify KeyCorp and the Issuer
and you, in such form as is acceptable to you, KeyCorp and the Issuer. The
obligees to be named in each such indemnity bond shall include you, KeyCorp and
the Issuer. You shall report to KeyCorp the names of all Holders who claim that
their Old Capital
-5-
6
Securities have been lost or destroyed and the principal amount of such Old
Capital Securities.
13. As soon as practicable after the Expiration Date, you shall arrange for
cancellation of the Old Capital Securities submitted to you or returned by DTC
in connection with ATOP. Such Old Capital Securities shall be cancelled and
retired by you in your capacity as Trustee (the "Trustee") under the Indenture,
dated December 4, 1996, governing the Capital Securities, as you are instructed
by KeyCorp (or a representative designated by KeyCorp) in writing.
14. For your services as the Exchange Agent hereunder, KeyCorp shall pay
you in accordance with the schedule of fees attached hereto as EXHIBIT C.
KeyCorp also will reimburse you for your reasonable out-of-pocket expenses
(including, but not limited to, reasonable attorneys' fees not previously paid
to you as set forth in EXHIBIT C) in connection with your services promptly
after submission to KeyCorp of itemized statements.
15. As the Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those specifically
set forth herein or in the Exhibits attached hereto or as may be
subsequently requested in writing of you by KeyCorp or the Issuer and
agreed to by you in writing with respect to the Exchange Offer;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, accuracy, sufficiency, value or
genuineness of any Old Capital Securities deposited with you hereunder or
any New Capital Securities, any Tender Documents or other documents
prepared by KeyCorp or the Issuer in connection with the Exchange Offer or
any signatures or endorsements other than your own, and will not be
required to make and will not make any representations as to the validity,
sufficiency, value or genuineness of the Exchange Offer or any other
disclosure materials in connection therewith; PROVIDED, HOWEVER, that in no
way will your general duty to act in good faith be discharged by the
foregoing;
(c) shall not be obligated to take any legal action hereunder which
might in your judgment involve any expense or liability unless you shall
-6-
7
have been furnished with an indemnity reasonably satisfactory to you;
(d) may rely on, and shall be fully protected and indemnified as
provided in Section 16 hereof in acting upon, the written or oral
instructions with respect to any matter relating to your acting as Exchange
Agent specifically covered by this Agreement or supplementing or qualifying
any such action of any officer or agent of such other person or persons as
may be designated by KeyCorp or the Issuer;
(e) may consult with counsel satisfactory to you, including counsel
for KeyCorp, and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by you hereunder in good faith and in accordance with such advice
of such counsel;
(f) shall not at any time advise any person whether to tender or to
refrain from tendering all or any portion of their Old Capital Securities
in the Exchange Offer or as to the market value or decline or appreciation
in market value of any Old Capital Securities or New Capital Securities;
and
(g) shall not be liable for any action which you may do or refrain
from doing in connection with this Agreement except for your negligence,
willful misconduct or bad faith.
16. (a) KeyCorp and the Issuer covenant and agree to indemnify and hold
harmless Bankers Trust Company and its officers, directors, employees, agents
and affiliates (collectively, the "Indemnified Parties" and each an "Indemnified
Party") against any loss, liability or reasonable expense of any nature
(including reasonable attorneys' and other fees and expenses) incurred in
connection with the administration of the duties of the Indemnified Parties
hereunder in accordance with this Agreement; PROVIDED, HOWEVER, such Indemnified
Party shall use its best efforts to notify KeyCorp and the Issuer by letter, or
by cable, telex or telecopier confirmed by letter, of the written assertion of a
claim against such Indemnified Party, or of any action commenced against such
Indemnified Party, promptly after but in any event within 10 days of the date
such Indemnified Party shall have received any such written assertion of a claim
or shall have been served with a summons, or other legal process, giving
-7-
8
information as to the nature and basis of the claim; PROVIDED, HOWEVER, that
failure to so notify KeyCorp and the Issuer shall not relieve KeyCorp and the
Issuer of any liability which they may otherwise have hereunder. Anything in
this Agreement to the contrary notwithstanding, neither KeyCorp nor the Issuer
shall be liable for indemnification or otherwise for any loss, liability, cost
or expense to the extent arising out of an Indemnified Person's bad faith, gross
negligence or willful misconduct. KeyCorp and the Issuer shall be entitled to
participate at its own expense in the defense of any such claim or legal action
and if KeyCorp or the Issuer so elects or if the Indemnified Party in such
notice to KeyCorp and the Issuer so directs, KeyCorp or the Issuer shall assume
the defense of any suit brought to enforce any such claim. In the event KeyCorp
or the Issuer assumes such defense, neither KeyCorp nor the Issuer shall be
liable for any fees and expenses thereafter incurred by such Indemnified Party,
except for any reasonable fees and expenses of such Indemnified Party incurred
as a result of the need to have separate representation because of a conflict of
interest between such Indemnified Party and KeyCorp or the Issuer.
(b) Bankers Trust Company agrees that, without the prior written consent of
KeyCorp and the Issuer (which consent shall not be unreasonably withheld), it
will not settle, compromise or consent to the entry of any judgment in any
pending or threatened claim, action or proceeding in respect of which
indemnification could be sought in accordance with the indemnification provision
of this Agreement (whether Bankers Trust Company, KeyCorp or the Issuer or any
of their directors, officers and controlling persons is an actual or potential
party to such claim, action or proceeding), unless such settlement, compromise
or consent includes an unconditional release of KeyCorp, the Issuer and their
directors, officers and controlling persons from all liability arising out of
such claim, action or proceeding.
17. This Agreement and your appointment as the Exchange Agent shall be
construed and enforced in accordance with the laws of the State of New York and
shall inure to the benefit of, and the obligations created hereby shall be
binding upon, the successors and assigns of the parties hereto. No other person
shall acquire or have any rights under or by virtue of this Agreement.
18. The parties hereto hereby irrevocably submit to the venue and
jurisdiction of any New York State or federal court sitting in the Borough of
Manhattan in New York City in any action or proceeding arising out of or
-8-
9
relating to this Agreement, and the parties hereby irrevocably agree that all
claims in respect of such action, or proceeding arising out of or relating to
this Agreement, shall be heard and determined in such a New York State or
federal court. The parties hereby consent to and grant to any such court
jurisdiction over the persons of such parties and over the subject matter of any
such dispute and agree that delivery or mailing of any process or other papers
in the manner provided herein, or in such other manner as may be permitted by
law, shall be valid and sufficient service thereof.
19. This Agreement may not be modified, amended or supplemented without an
express written agreement executed by the parties hereto. Any inconsistency
between this Agreement and the Tender Documents, as they may from time to time
be supplemented or amended, shall be resolved in favor of the latter, except
with respect to the duties, liabilities and indemnification of you as Exchange
Agent.
20. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
21. In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
22. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the foregoing,
Sections 14 and 16 shall survive the termination of this Agreement.
23. All notices and communications hereunder shall be in writing and shall
be deemed to be duly given if delivered or mailed first class certified or
registered mail, postage prepaid, or telecopies as follows:
If to KeyCorp: KeyCorp
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: General Counsel
-9-
10
If to the Issuer: KeyCorp Institutional A
c/o KeyCorp
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: General Counsel
If to you: Bankers Trust Company
Corporate Trust and Agency Group
Four Xxxxxx xxxxxx - 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. Xxxxx Xxxxx or
Xx. Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy : (000) 000-0000
or such other address or telecopy number as any of the above may have furnished
to the other parties in writing for such purpose.
24. This Letter Agreement and all of the obligations hereunder shall be
assumed by any and all successors and assigns of the Issuer and KeyCorp.
-10-
11
If the foregoing is in accordance with your understanding, would you please
indicate your agreement by signing and returning the enclosed copy of this
Agreement to KeyCorp.
Very truly yours,
KEYCORP
By:
------------------------------
Name:
Title:
KEYCORP INSTITUTIONAL
CAPITAL A
By:
------------------------------
Name:
Administrator
Agreed to this o day of January, 1997
BANKERS TRUST COMPANY
By:
-----------------------------
Name:
Title:
-11-
12
Exhibit A
---------
Prospectus
----------
-12-
13
Exhibit B
---------
Tender Documents
----------------
-13-
14
Exhibit C
---------
Schedule of Fees
----------------
Covers review of the Letter of Transmittal, DTC ATOP Voluntary Offering
Instruction, the Exchange Agent Agreement and other related documentation, if
any, as required by the Exchange Offer; set-up of records and accounts;
distribution of materials; all operational and administrative charges and time
in connection with the review, receipt and processing of Letters of
Transmittal/VOI, Processing Delivery of Guarantees, Legal items, Withdrawals,
record keeping, and answering securityholders' inquiries pertaining to the
Exchange Offer.
Flat Fee: $0,000.00
NOTE
These fees are also subject to change should circumstances warrant.
Reimbursement for all out-of-pocket expenses, disbursements (including
postage, telex, fax, photocopying and advertising costs), and fees of
counsel (including their disbursements and expenses) incurred in the
performance of our duties will be added to the billed fees. Once appointed,
if the Exchange Offer should fail to close for reasons beyond our control,
we reserve the right to charge a fee not to exceed the amount of our
acceptance fee and we will require reimbursement in full for our legal fees
and any out-of-pocket expenses related to our responsibilities under the
Exchange Offer Agreement.
Fees for any services not specifically covered in this or any other
applicable schedule will be based on the appraisal of services rendered.
-14-
