EXHIBIT 10.23
VISA U.S.A. INC.
GUARANTY
This Parent Company Guaranty ("Guaranty") is effective this 6th day of
August, 2002, between National Processing, Inc.("GUARANTOR"), located at 0000
Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 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 Ohio
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,
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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 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.
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.
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6. DEFAULT. All liability of GUARANTOR to VISA shall become due and payable
immediately, without notice or demand on:
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 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;
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d. The merger, consolidation, restructuring, reorganization or
dissolution of MEMBER or GUARANTOR.
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 the 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 and successors and permitted assigns, apply to
MEMBER and its successors and be binding upon GUARANTOR and its successors
and permitted assigns. The Guaranty may not be assigned by Guarantor. The
Guarantee may be assigned by Visa to its subsidiaries 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
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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:
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 Processing, Inc.
("GUARANTOR")
By /s/ Xxxxxx X. Xxxxxxx
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Name Xxxxxx X. Xxxxxxx
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Title President and Chief Executive Officer
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