Exhibit 10.23
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 Processing, Inc. (hereinafter called the
"Guarantor") having its principal place of business at 0000 Xxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxx 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. 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 Guarantee's termination, (b) Member's termination
as a MasterCard member and thereafter until the
Exhibit 10.23
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 Ohio; (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 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
Attn: Chief Executive Officer, with a copy to National City Corporation, 0000
Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, Attn: General Cousel 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.
Exhibit 10.23
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 16th day of May, 2003.
BY: ___________________________________
Xxx X. Xxxxxx
Chairman of the Board and CEO
