Exhibit 10.36
VISA U.S.A. INC.
PARENT COMPANY GUARANTY
This Parent Company Guaranty ("Guaranty") is effective this 6th day of
August, 2002, between National City Corporation ("GUARANTOR"), located at 0000
Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000 and VISA U.S.A. INC., located at 000
Xxxxx Xxxxxx Xxxxxxxxx, Xxxxxx Xxxx, Xxxxxxxxxx 00000 ("VISA").
WITNESSETH
WHEREAS National City Bank of Kentucky ("MEMBER"), located at 000 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, is a member of VISA; and
WHEREAS, GUARANTOR is a corporation under the laws of the state of
Delaware that is affiliated with MEMBER and benefits from MEMBER's VISA
membership; and
WHEREAS, VISA has risk management policies and procedures applicable to
MEMBER's continuing membership in VISA; and
WHEREAS, pursuant to such risk management policies and procedures, VISA
requires a guaranty of payment of MEMBER's obligations of membership in VISA as
a condition of acceptance or continuation of MEMBER's membership; and
WHEREAS, GUARANTOR has agreed to guarantee MEMBER's financial
obligations of membership in VISA;
NOW, THEREFORE, to induce VISA's acceptance or continuation of MEMBER's
membership, GUARANTOR and VISA mutually have agreed to the following covenants
and conditions.
AGREEMENT
1. NATURE OF GUARANTY. GUARANTOR guarantees payment of MEMBER's membership
obligations now or hereafter existing pursuant to VISA's Certificate of
Incorporation and Amendments, Bylaws, rules, policies, and Operating
Rules, including without limitation those obligations for which VISA
acts as the ultimate guarantor, should MEMBER default or fail to meet
its obligations of membership, as well as MEMBER's obligations to pay
any VISA member attendant to MEMBER's membership in VISA, and VISA's
expenses incurred in payment of such obligations on MEMBER's behalf or
otherwise because of MEMBER's failure to meet such obligations
including, without limitation, rewards paid or payable for recovery of
cards and reasonable legal expenses ("Obligations"). This guaranty is
an unconditional guaranty of immediate payment by GUARANTOR, its
successors and
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assigns of every Obligation, without regard to the validity (if
invalidity results from the lack of valid authorization for any
Obligation) or enforceability of such Obligation. Without limiting the
generality of the foregoing, GUARANTOR's liability shall extend to all
Obligations that are unenforceable or not allowable due to the
receivership, bankruptcy, reorganization or similar proceeding
involving MEMBER.
Anything herein to the contrary notwithstanding, the total liability of
GUARANTOR to VISA under this Guarantee shall not exceed the sum of Six
Hundred Million and 00/100 Dollars ($600,000,000.00).
2. RESPONSIBILITY FOR INFORMATION. GUARANTOR agrees to furnish VISA
information on GUARANTOR's and MEMBER's financial conditions
immediately when requested. GUARANTOR assumes all responsibility for
keeping itself informed of MEMBER's financial condition and
Obligations.
3. CONSENT TO VISA'S ACTS. GUARANTOR consents to all of VISA's actions
affecting the Obligations, including any changes in VISA's Certificate
of Incorporation and Amendments, Bylaws, rules, policies or Operating
Rules giving rise to the Obligations, releasing or substituting other
guarantors, or the pledging or releasing of any security for the
payment of the Obligations, without notice to GUARANTOR or any
additional consent and without affecting in any way GUARANTOR'S
liability.
4. SUBORDINATION OF GUARANTOR. Any existing or future indebtedness of
MEMBER to GUARANTOR is subordinated to the Obligations. GUARANTOR
agrees to take whatever reasonable action VISA requires to enable VISA
to obtain immediate payment of the Obligations. GUARANTOR acknowledges
and agrees that VISA can take all actions reasonably and lawfully
available to it to secure immediate payment including, without
limitation, debiting GUARANTOR's settlement account for the amount owed
if GUARANTOR also is a member of Visa International Service
Association.
5. WAIVER. GUARANTOR waives notice of acceptance of or default under this
Guaranty, protest, presentment, demand for payment and any right to
require VISA to proceed against MEMBER or any other party or pursue any
other remedy. GUARANTOR waives any defenses based on or arising out of
any defense of MEMBER other than payment in full of the Obligations.
Until all of MEMBER's Obligations are paid in full, GUARANTOR shall
have no right of subrogation and waives any right to enforce any remedy
which VISA may have against MEMBER. VISA does not waive any right or
power by any act, failure to act or delay, unless specifically waived
in an executed written instrument.
6. DEFAULT. All liability of GUARANTOR to VISA shall become due and
payable immediately, without notice or demand on:
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a. MEMBER'S failure to pay when due any Obligation,
b. MEMBER's failure to have in its settlement account adequate
funds to settle one or more transactions at any time when
settlement is due,
c. MEMBER's engaging in any activity pursuant to rights of VISA
membership in excess of any threshold established for such
activity from time to time by VISA for VISA's members
generally or MEMBER specifically, as to which threshold MEMBER
has been notified,
d. VISA's reasonable determination, based on the information then
available to it, that for any reason MEMBER cannot or
imminently will not meet any of its Obligations,
e. GUARANTOR's or MEMBER's dissolution, insolvency, assignment
for benefit of creditors, or commencement of debtor relief
proceedings,
f. Appointment of or MEMBER's or GUARANTOR's consent to the
appointment of a receiver, conservator or other legal
custodian for MEMBER or GUARANTOR, or attachment of court
order on MEMBER's or GUARANTOR's property,
g. Failure by GUARANTOR or MEMBER to pay any material tax or
assessment when due.
7. GUARANTOR'S LIABILITY. GUARANTOR's liability is independent of any
other security for or other guaranty of MEMBER's obligations, and is
not affected by:
a. Any payment on any other guaranty or undertaking, or any
payment by MEMBER or GUARANTOR to any party other than VISA;
b. Any other guaranty of GUARANTOR or any other party of MEMBER's
Obligations;
c. Any payment made on the Obligations which is repaid to MEMBER
under court or administrative order in any insolvency,
receivership or debtor relief proceedings. GUARANTOR waives
any rights to the deferral or modification of GUARANTOR's
obligations because of such proceedings;
d. The merger, consolidation, restructuring, reorganization or
dissolution of MEMBER or GUARANTOR.
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8. ENFORCEMENT. GUARANTOR agrees to pay all reasonable expenses, including
attorney's fees and costs, incurred by VISA in enforcing this Guaranty
or in any action or proceeding on this Guaranty that holds GUARANTOR
liable under this guarantee.
9. TERMINATION. This Guaranty shall be effective until the sooner of (a)
VISA's consent to its termination, (b) MEMBER's termination as a VISA
member and satisfaction of all obligations of such membership secured
by this Guaranty or until the effective date of revocation contained in
a written notice of revocation sent by GUARANTOR to VISA, which
revocation date shall not be earlier than nine (9) months after such
notice is received by VISA; provided, however, that any such revocation
shall not affect any outstanding obligation or liability hereunder
created or incurred prior to the revocation date contained in such
notice or any unpaid portion thereof which may be renewed or extended.
Without limitation of the foregoing , MEMBER will continue to be
responsible for any transactions that are handled by th Member prior to
the effective date of revocation of this Guaranty, including any
chargebacks, reversals, credits or other adjustments connected with
such a transaction, regardless of when such adjustments occur. If
Member notifies VISA that Member believes itself to be adequately
capitalized, then VISA shall re-evaluate the necessity of keeping this
Guaranty in force and may, in VISA's discretion, agree to terminate
this Guaranty; provided, however, that VISA shall not be required to
perform such re-evaluation more than once in any twelve month period.
10. BENEFIT. This Guaranty shall inure to the benefit of VISA, its
subsidiaries, its corporate parent, VISA International Service
Association, correspondents successors and permitted assigns, apply to
MEMBER and its successors, and be binding upon GUARANTOR and its
successors and permitted assigns. The Guarantee may not be assigned by
Guarantor. The Guarantee may be assigned by Visa to its subsidiarries
or affiliates without consent, and to other parties with the written
consent of MEMBER, which consent shall not unreasonably be withheld.
Any attempted assignment in violation of this Agreement will be void ab
initio.
11. MODIFICATIONS. The terms and provisions of this Guaranty may not be
waived or modified except by a writing signed by both parties.
12. GOVERNING LAW. This Guaranty shall be governed by the laws of the State
of California, without giving effect to its conflict of laws
provisions. If any of its provisions are held invalid under the laws of
any jurisdiction, the rest of the Guaranty shall be enforced without
those provisions.
13. REPRESENTATIONS AND WARRANTIES. GUARANTOR hereby represents and
warrants as follows:
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a. The execution, delivery and performance of this Guaranty has
been duly authorized by all necessary corporate action on the
part of GUARANTOR. Specifically, this Guaranty has been
approved by the Board of Directors or Loan Committee of
Guarantor, and is reflected in the minutes thereof. This
Guaranty constitutes the legal, valid and binding obligation
of GUARANTOR, enforceable against GUARANTOR in accordance with
its terms.
b. This Guaranty does not violate the charter or bylaws of
GUARANTOR, any agreement to which GUARANTOR is a party or is
subject, or any law, rule or regulation applicable to
GUARANTOR.
c. The GUARANTOR is not, nor by entering into this Guaranty will
it be rendered, insolvent.
d. The person signing immediately below on behalf of GUARANTOR
has full legal and corporate authority to execute this
Guaranty.
IN WITNESS WHEREOF, GUARANTOR has executed this Guaranty this 6th day
of August, 2002.
National City Corporation
("GUARANTOR")
By /s/ Xxxxxx X. Xxxxxxx
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Name Xxxxxx X. Xxxxxxx
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Title Vice Chairman
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