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EXHIBIT 4.1
EXECUTION COPY
AMENDMENT TO THE NOTE PURCHASE AGREEMENT
THIS AMENDMENT, dated as of August 4, 2004 (the "Amendment"), to
the
Note Purchase Agreement, dated as of June
30, 1998 (the "Note Purchase
Agreement"), by and among MasterCard
International Incorporated, a Delaware
non-stock membership corporation (the
"Company") and each of the purchasers
listed on Schedule A attached thereto (the
"Purchasers").
W I T N E S S T H
WHEREAS, the Company, the wholly-owned subsidiary of MasterCard
Incorporated, a Delaware corporation and
the holding parent company of the
Company ("MasterCard"), has requested
certain amendments to the Note Purchase
Agreement, as more fully described
herein;
WHEREAS, in connection with the proposed amendments, MasterCard
has
offered to guarantee all obligations of the
Company under the Note Purchase
Agreement; and
WHEREAS, the parties are willing to agree to such amendment,
but
only upon the terms and subject to the
conditions set forth herein;
NOW THEREFORE, in consideration of the premises and mutual
covenants
hereinafter set forth, the parties hereto
hereby agree as follows:
1.
Defined
Terms. Unless otherwise defined herein, capitalized terms
which are defined in the Note Purchase
Agreement are used herein as therein
defined.
2.
Amendment
to Section 7.1. Section 7.1 of the Note Purchase Agreement
is hereby amended by deleting paragraphs
(a), (b) and (c) thereof in their
entireties and substituting in lieu thereof
the following new paragraphs:
"(a) [intentionally omitted];
(b) [intentionally omitted];
(c) [intentionally omitted];"
3.
Amendment
to Section 7.2. Section 7.2 of the Note Purchase Agreement
is hereby amended by deleting such
paragraph in its entirety and substituting in
lieu thereof:
"Each set of financial statements delivered to a Purchaser in
connection with Section 7(a) of the Guaranty shall be accompanied
by
a certificate of a Senior Financial Officer that from the
beginning
of the quarterly or annual period
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2
covered by the statements then being furnished to the date of
the
certificate no condition or event that constitutes a Default or
an
Event of Default existed or exists or, if any such condition or
event existed or exists, specifying the nature and period of
existence thereof and what action the Company has taken or
proposes
to take with respect thereto."
4.
Amendment
to Section 10.3. Section 10.3 of the Note Purchase
Agreement is hereby amended by deleting
such Section in its entirety and
substituting in lieu thereof:
"[Intentionally omitted]".
5.
Amendment
to Section 11.1. Section 11.1(b) of the Note Purchase
Agreement is hereby amended by inserting
the following new paragraph (iv)
following paragraph (iii):
"(iv) (A) the Guaranty shall cease to be in full force and effect
or
(B)(x) the Guarantor defaults in the performance of its
obligations
under Section 7(b) of the Guaranty or (y) the Guarantor defaults
in
the performance of any other obligation in the Guaranty and
such
default is not remedied within 30 days after the earlier of (1)
a
Responsible Officer of the Guarantor obtains actual knowledge
of
such default and (2) the Guarantor receives written notice of
such
default from any holder of a Note (any such notice to be
identified
as a "notice of default" and to refer specifically to this
Section
11.1(b)(iv)); or"
6.
Amendment
to Schedule B - Defined Terms. Schedule B of the Note
Purchase Agreement is hereby amended (a) by
deleting the definitions of
"Consolidated Net Income" and "Consolidated
Net Worth" in their entireties; and
(b) by inserting the following new
definitions in the appropriate alphabetical
order as follows:
"'GUARANTY' means the Guaranty dated as of August 4, 2004 made
by
the Guarantor in favor of the Holders."
"`GUARANTOR' means MasterCard Incorporated, a Delaware
corporation."
7.
Conditions
to Effectiveness of this Amendment. This Amendment shall
become effective upon the satisfaction or
waiver of the following conditions:
(a). Amendment . The
Company shall have received counterparts of
this Amendment, duly executed and delivered
or consented to by the Company and
the Required Holders.
(b). Consent Fee. The
Company shall send to each Holder, in the
manner provided for payments generally to
the Holders under Section 14 of the
Note Purchase Agreement, a consent fee in
an amount equal to 0.10% of the
principal amount of the Notes held by such
Holder.
(c). Guaranty.
MasterCard shall have executed a guaranty (the
"Guaranty"), substantially in the form
attached hereto as Exhibit A.
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3
(d). Certificates. The
Company and MasterCard shall execute and
deliver customary secretary's certificates
with respect to the execution and
delivery of this Amendment by the Company
and the Guaranty by MasterCard.
8.
Continuing
Effect of the Note Purchase Agreement. This Amendment
shall not constitute an amendment or waiver
of any provision of the Note
Purchase Agreement not expressly referred
to herein and shall not be construed
as an amendment, waiver or consent to any
further or future action on the part
of the parties. Except as expressly amended
hereby, the provisions of the Note
Purchase Agreement are and shall remain in
full force and effect.
9.
Counterparts. This Amendment may be executed by one or more of
the
parties hereto on any number of separate
counterparts (including by facsimile),
and all of said counterparts taken together
shall be deemed to constitute one
and the same instrument.
10.
Severability.
Any provision of this Amendment 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 in any
jurisdiction shall not invalidate or render
unenforceable such provision in any
other jurisdiction.
11.
Integration.
This Amendment represents the agreement of the parties
with respect to the subject matter hereof,
and there are no promises,
undertakings, representations or warranties
by any party relative to the subject
matter hereof not expressly set forth or
referred to herein.
12.
GOVERNING LAW.
THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK.
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IN WITNESS
WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper
and duly authorized officers as of
the day and year first above written.
MASTERCARD INTERNATIONAL INCORPORATED
By: /s/ Andrea Robertson
-----------------------------------------
Name: Andrea Robertson
Title: Treasurer
AMERICAN INVESTORS LIFE INSURANCE COMPANY
By: AmerUS Capital
Management Group, Inc.,
its authorized attorney-in-fact
By: /s/ Roger D. Fors
-----------------------------------------
Name: Roger D. Fors
Title: VP, Investment Management &
Research
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ Timothy L. Powell
-----------------------------------------
Name: Timothy L. Powell
Title:
Director
METLIFE BANK, NATIONAL ASSOCIATION
By: Metropolitan Life
Insurance Company, as
investment manager
By: /s/ Timothy L. Powell
-----------------------------------------
Name: Timothy L. Powell
Title: Director
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NATIONWIDE MUTUAL INSURANCE COMPANY
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY
NATIONWIDE LIFE INSURANCE COMPANY
By: /s/ Joseph P. Young
-----------------------------------------
Name: Joseph P. Young
Title: Authorized Signatory
PENN MUTUAL LIFE
INSURANCE COMPANY
By: /s/ William Meyers
-----------------------------------------
Name: William Meyers
Title: Research Analyst
THRIVENT FINANCIAL FOR LUTHERANS
By: /s/ Glen J. Vanic
-----------------------------------------
Name: Glen J. Vanic
Title: Portfolio Manager
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Exhibit A
GUARANTY
GUARANTY,
dated as of August 4, 2004, made by MasterCard Incorporated, a
Delaware corporation (the "Guarantor"), in
favor of the holders (the "Holders")
of the 6.67% Subordinated Notes due June
30, 2008 (the "Notes") issued by
MasterCard International Incorporated (the
"Company") pursuant to the Note
Purchase Agreement, dated as of June 30,
1998 (as amended, supplemented or
otherwise modified from time to time, the
"Note Purchase Agreement"), by and
among the Company and the initial Holders
named therein.
W I T N E S S E T H:
WHEREAS,
pursuant to the Amendment, dated as of August 4, 2004 (the
"Amendment"), to the Note Purchase
Agreement, the Company has requested certain
amendments to the Note Purchase
Agreement;
WHEREAS,
it is a condition precedent to the effectiveness of the
Amendment
that the Guarantor shall have executed and
delivered this Guaranty for the
benefit of the Holders; and
WHEREAS,
the Guarantor is the holding parent company of the Company and
is
entering into this Guaranty in connection
with the Amendment.
NOW,
THEREFORE, the Guarantor hereby agrees as follows:
1. Defined
Terms.
(a). Unless otherwise defined herein, terms defined in the Note
Purchase Agreement and used herein shall
have the meanings given to them in the
Note Purchase Agreement.
(b). The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Guaranty
shall refer to this Guaranty as a
whole and not to any particular provision
of this Guaranty, and section and
paragraph references are to this Guaranty
unless otherwise specified.
(c). The meanings given to terms defined herein shall be
equally
applicable to both the singular and plural
forms of such terms.
(d). "Consolidated Net Income" means as at any date for
determination thereof, consolidated net
income of the Guarantor and its
Subsidiaries, determined in accordance with
GAAP.
(e). "Consolidated Net Worth" means as at any date of
determination,
the stockholders' equity of the Guarantor,
as determined in accordance with GAAP
and as would be reflected on a consolidated
balance sheet of the Guarantor
prepared as of such date.
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(f). "Indebtedness for Money Borrowed of the Guarantor" means
any
obligation of, or any obligation guaranteed
by, the Guarantor for the repayment
of money borrowed, whether or not evidenced
by bonds, debentures, notes or other
written instruments, and any deferred
obligation for payment of the purchase
price of property or assets.
(g). "Material Adverse Effect" means a material adverse effect
on
(i) the business, operations, financial condition, assets or
properties of the Guarantor and its
Subsidiaries taken as a whole, or
(ii) the ability of the Guarantor to perform its obligations
under this Guaranty, or
(iii) the validity or enforceability of this Guaranty.
2.
Guaranty. The Guarantor hereby guarantees to the Holders the
prompt
payment in full when due (whether at stated
maturity, by lapse of time, by
acceleration or otherwise) of the principal
of and interest on (at the
applicable rate or rates provided in the
Note Purchase Agreement) the Notes and
all other amounts whatsoever now or
hereafter payable or becoming payable by the
Company under the Note Purchase Agreement
or the Notes, in accordance with the
terms thereof (the "Guaranteed
Obligations"). This Section 2 is a continuing
guaranty and is a guaranty of payment and
is not merely a guaranty of collection
and shall apply to all Guaranteed
Obligations whenever arising. The liability of
Guarantor under this Guaranty shall be in
addition to Guarantor's other present
and future liabilities, if any, to the
Holders, whether arising by contract
(including, without limitation, any note
purchase agreement or other guaranty,
regardless of when given), operation of
law, or otherwise.
3.
Acknowledgments, Waivers and Consents. The Guarantor agrees that
its
obligations under Section 2 of this
Guaranty shall, to the fullest extent
permitted by applicable law, be absolute,
unconditional, and irrevocable under
any and all circumstances and that the
guaranty herein is made with respect to
any
