Exhibit 10.39
GUARANTEE
In consideration of, and as an inducement for, MasterCard International
Incorporated, a Delaware membership corporation (hereinafter called
"MasterCard"), having its principal place of business at 0000 Xxxxxxxx Xxxxxx,
Xxxxxxxx, X.X. 10577-2509, accepting National City Bank of Kentucky,
(hereinafter called "Member") having its principal place of business at 000
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 as a card member and licensee of
MasterCard, the undersigned National City Corporation (hereinafter called the
"Guarantor") having its principal place of business at 0000 Xxxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxx, 00000 does hereby unconditionally and irrevocably guarantee to
MasterCard, without offset or deduction, the prompt payment of all amounts
hereinafter at any time due MasterCard from Member pursuant to its license
agreement with MasterCard, the Bylaws and Rules of MasterCard, and all rules,
regulations and policies of MasterCard now and hereinafter at any time in
effect, including, without limitation, all amounts owed by Member to MasterCard
or any member of MasterCard with respect to, or resulting from, Member's
MasterCard transactions, and all amounts paid by MasterCard to any merchant in
fulfillment of Member's obligations to such merchant under any written agreement
between Member and such merchant; provided, however, that the foregoing
obligation of the Guarantor, in the aggregate and regardless of cause shall in
no case exceed the amount of USD 400 million. Each and all of the foregoing
liabilities and obligations of Member are hereby guaranteed by Guarantor and are
hereinafter collectively referred to as the "Obligations". This Guarantee
constitutes of guarantee of payment and not of collection. The Guarantor does
hereby agree that in the event that Member does not or is unable to pay or
perform any of the Obligations for any reason (including, without limitation,
the liquidation, dissolution, receivership, insolvency, bankruptcy, assignment
for the benefit of creditors, reorganization, arrangement, composition or
readjustment of, any or other similar proceedings affecting the status,
existence, assets or obligations of, Member), the Guarantor shall immediately
pay such Obligations upon the written demand or demands of MasterCard. Without
limiting the generality of this Guarantee, the Guarantor specifically agrees
that it shall not be necessary or required, and the Guarantor shall not be
entitled to require, that MasterCard file suit or proceed to obtain or assert a
claim for a personal judgment against Member for the Obligations or make any
effort at collection of the Obligations from Member as a condition of enforcing
the liability of the Guarantor under this guarantee or requiring payment of said
Obligations by the Guarantor hereunder. The Guarantor agrees, immediately upon
demand or demands of MasterCard, to reimburse MasterCard for the payment of all
actual costs, fees and expenses, including, without limitation, reasonable
attorney's fees, incurred by MasterCard in the enforcement or attempted
enforcement of any of its rights hereunder.
The Guarantor specifically agrees that it shall not be necessary or required in
order to enforce the obligations of the Guarantor hereunder that there be, and
the Guarantor specifically waives, notice and acceptance of this Guarantee. The
obligations of the Guarantor under this Guarantee shall be absolute and
unconditional and shall remain in full force and effect until the sooner of (a)
MasterCard's consent to this
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Guarantee's termination, (b) Member's termination as a MasterCard member and
thereafter until the Obligations have been fully and satisfactorily discharged
and (c) until the effective date of the revocation contained in a written notice
of revocation sent by Guarantor to MasterCard, which revocation date shall not
be earlier than six (6) months after such notice is received by MasterCard;
provided, however, that any such revocation shall not affect any outstanding
obligation or liability created or incurred for any transaction(s) that are
handled by the Member prior to the effective date of the revocation of this
Guarantee, including any chargebacks, reversals, credits or other adjustments
connected with any such transaction(s).
The Guarantor hereby represents and warrants to MasterCard that: (a) the
Guarantor is a corporation duly organized, validly existing and in good standing
under the laws of Delaware; (b) the Guarantor has the power and authority to
execute and perform this Guarantee, and has duly authorized the execution,
delivery and performance of this Guarantee; (c) no approval is required from any
regulatory body, board, authority or commission, nor from any other
administrative or governmental agency, nor from any other person, firm or
corporation, with respect to the execution of this Guarantee by the Guarantor
and the payment by the Guarantor of all of the Guarantor's obligations
hereunder; (d) this Guarantee constitutes the legal, valid and binding
obligation of the Guarantor, enforceable in accordance with its terms; and (e)
the execution, delivery and performance of the same by the Guarantor will not
violate the Guarantor's charter or bylaws, or any provision of law, any order or
any court or other agency of government, or any indenture, agreement or other
instrument to which the Guarantor is a party, or by or under which the Guarantor
or any of the Guarantor's property is bound, or be in conflict with, result in a
breach of, or constitute (with due notice and/or lapse of time) a default under,
any such indenture, agreement, or other instrument.
Any provision of this Guarantee which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability shall not
invalidate or render unenforceable such provision in any other jurisdiction.
All notices, requests and demands to or upon Guarantor or MasterCard, as
appropriate, shall be deemed duly given or made when received and shall be sent
by certified or registered mail, return receipt requested, postage prepaid,
addressed to the Guarantor at 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx, 00000,
Attn: Chief Financial Officer, with a copy to Guarantor's General Counsel at
said address and addressed to MasterCard at: MasterCard International
Incorporated, 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000, Attn: Xxxxxxx X. Xxxxx,
Vice President, Franchise Management with a copy to MasterCard's General Counsel
at said address. Either Guarantor or MasterCard may change the address for
purposes of receipt of notice from the other by written notice.
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This Guarantee shall be governed by New York law. The Guarantor irrevocably (a)
agrees that MasterCard may bring suit, action or other legal proceeding arising
out of this Guarantee or the transactions contemplated hereby in the state or
federal courts sitting in the County of New York, State of New York, (b)
consents to the jurisdiction of any such court in any such suit, action or
proceeding, and (c) waives any objection which it may have to the laying of the
venue of any such suit, action or proceeding in any such court.
IN WITNESS WHEREOF: the Guarantor has caused this Guarantee to be executed by
its duly authorized officer this 30th day of April, 2003.
BY: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Vice Chairman
