EXHIBIT 4
MASTERCARD INTERNATIONAL INCORPORATED
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NOTE PURCHASE AGREEMENT
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DATED AS OF JUNE 30, 1998
$80,000,000 6.67% SUBORDINATED NOTES DUE JUNE 30, 2008
MASTERCARD INTERNATIONAL INCORPORATED NOTE PURCHASE AGREEMENT
TABLE OF CONTENTS
PAGE
1. AUTHORIZATION OF NOTES..................................................1
2. SALE AND PURCHASE OF NOTES..............................................1
3. CLOSING.................................................................1
4. CONDITIONS TO CLOSING...................................................2
4.1 Representations and Warranties.................................2
4.2 Performance; No Default........................................2
4.3 Compliance Certificates........................................2
4.4 Opinions of Counsel............................................2
4.5 Purchase Permitted By Applicable Law, etc......................2
4.6 S&P Rating.....................................................3
4.7 Sale of Other Notes............................................3
4.8 Payment of Special Counsel Fees................................3
4.9 Private Placement Number.......................................3
4.10 Changes in Corporate Structure.................................3
4.11 Proceedings and Documents......................................4
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY...........................4
5.1 Organization; Power and Authority..............................4
5.2 Authorization, etc.............................................4
5.3 Disclosure.....................................................4
5.4 Organization and Ownership of Shares of Subsidiaries...........5
5.5 Financial Statements...........................................5
5.6 Compliance with Laws, Other Instruments, etc...................5
5.7 Governmental Authorizations, etc...............................6
5.8 Litigation; Observance of Statutes and Orders..................6
5.9 Taxes..........................................................6
5.10 Title to Property; Leases......................................7
5.11 Licenses, Permits, etc.........................................7
5.12 Compliance with ERISA..........................................7
5.13 Private Offering by the Company................................8
5.14 Use of Proceeds; Margin Regulations............................8
5.15 Existing Indebtedness..........................................9
5.16 Foreign Assets Control Regulations, etc........................9
5.17 Status under Certain Statutes..................................9
6. REPRESENTATIONS OF THE PURCHASER........................................9
6.1 Purchase for Investment........................................9
MASTERCARD INTERNATIONAL INCORPORATED i NOTE PURCHASE AGREEMENT
6.2 Source of Funds...............................................10
7. INFORMATION AS TO COMPANY..............................................11
7.1 Financial and Business Information............................11
7.2 Officer's Certificate.........................................13
7.3 Inspection....................................................14
8. PAYMENTS ON THE NOTES..................................................14
8.1 Required Principal, Interest Payments.........................14
8.2 Optional Prepayments with Make-Whole Amount...................15
8.3 Allocation of Partial Prepayments.............................15
8.4 Maturity; Surrender, etc......................................15
8.5 Purchase of Notes.............................................15
8.6 Make-Whole Amount.............................................16
9. AFFIRMATIVE COVENANTS..................................................17
9.1 Compliance with Law...........................................17
9.2 Insurance.....................................................18
9.3 Maintenance of Properties.....................................18
9.4 Payment of Taxes..............................................18
9.5 Corporate Existence, etc......................................18
9.6 Compliance with ERISA.........................................19
10. NEGATIVE COVENANTS.....................................................19
10.1 Transactions with Affiliates..................................19
10.2 Merger, Consolidation, etc....................................20
10.3 Net Worth.....................................................20
11. EVENTS OF DEFAULT......................................................21
11.1 Events of Default.............................................21
11.2 Remedies for Events of Default................................22
11.3 Limitation on Distribution to Junior Creditors................23
11.4 Payment of Expenses...........................................24
11.5 Remedies Cumulative, Not Waived...............................24
12. SUBORDINATION..........................................................24
12.1 Subordination.................................................24
12.2 Right to Receive Payment......................................25
12.3 No Set-off....................................................25
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES..........................25
13.1 Registration of Notes.........................................25
13.2 Transfer and Exchange of Notes................................25
13.3 Replacement of Notes..........................................26
MASTERCARD INTERNATIONAL INCORPORATED ii NOTE PURCHASE AGREEMENT
14. PAYMENTS ON NOTES......................................................26
14.1 Manner of Payment.............................................26
14.2 Payments Due on Non-Business Days.............................27
15. EXPENSES, ETC..........................................................27
15.1 Transaction Expenses..........................................27
15.2 Survival......................................................27
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
ENTIRE AGREEMENT.......................................................28
17. AMENDMENT AND WAIVER...................................................28
17.1 Requirements..................................................28
17.2 Solicitation of Holders of Notes..............................28
17.3 Binding Effect, etc...........................................29
17.4 Notes held by Company, etc....................................29
18. NOTICES................................................................29
19. REPRODUCTION OF DOCUMENTS..............................................30
20. CONFIDENTIAL INFORMATION...............................................30
21. MISCELLANEOUS..........................................................32
21.1 Successors and Assigns........................................32
21.2 Severability..................................................32
21.3 Construction..................................................32
21.4 Counterparts..................................................33
21.5 Governing Law.................................................33
SCHEDULE B -- Defined Terms
MASTERCARD INTERNATIONAL INCORPORATED iii NOTE PURCHASE AGREEMENT
EXHIBIT 1 -- Form of 6.67% Subordinated Note due June 30, 2008
EXHIBIT 4.4(a) -- Form of Opinion of Special Counsel for the Company
MASTERCARD INTERNATIONAL INCORPORATED iv NOTE PURCHASE AGREEMENT
MASTERCARD INTERNATIONAL INCORPORATED
6.67% SUBORDINATED NOTES DUE JUNE 30, 2008
Dated as of June 30, 1998
To Each of the Purchasers Listed in
the Attached Schedule A:
Ladies and Gentlemen:
MASTERCARD INTERNATIONAL INCORPORATED, a Delaware non-stock membership
corporation (together with its successors and assigns, the "COMPANY"), agrees
with you as follows:
1. AUTHORIZATION OF NOTES
The Company will authorize the issue and sale of $80,000,000 aggregate
principal amount of its 6.67% Subordinated Notes due June 30, 2008 (the "NOTES",
such term to include any such notes issued in substitution therefor pursuant to
Section 13 of this Agreement and the Other Agreements). The Notes shall be
substantially in the form of Exhibit 1.
2. SALE AND PURCHASE OF NOTES
Subject to the terms and conditions of this Agreement, the Company will
issue and sell to you and you will purchase from the Company, at the Closing
provided for in Section 3, Notes in the principal amount specified below your
name in SCHEDULE A at the purchase price of 100% of the principal amount
thereof. Contemporaneously with entering into this Agreement, the Company is
entering into separate Note Purchase Agreements (the "OTHER AGREEMENTS")
identical with this Agreement with each of the other purchasers named in
SCHEDULE A (the "OTHER PURCHASERS," together with you, the "PURCHASERS"),
providing for the sale at such Closing to each of the Other Purchasers of Notes
in the principal amount specified below its name in SCHEDULE A. Your obligation
hereunder and the obligations of the Other Purchasers under the Other Agreements
are several and not joint obligations and you shall have no obligation under any
Other Agreement and no liability to any Person for the performance or
non-performance by any Other Purchaser thereunder.
3. CLOSING
The sale and purchase of the Notes to be purchased by you and the Other
Purchasers shall occur at the offices of ▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m., local Hartford time, at a closing
(the "CLOSING") on June 30, 1998 or on such other Business Day thereafter prior
to July 1, 1998 as may be agreed upon by the Company and you and the Other
Purchasers. At the Closing the Company will deliver to you the Notes to be
purchased by you in the form of a single Note (or such greater number of Notes
in denominations of at least $250,000 as you may request) dated the date of the
Closing and registered in your name (or in the name of your nominee), against
delivery by you to the Company or its order of immediately available funds in
the amount of the purchase price therefor by wire transfer of immediately
available funds for the account of the Company as specified on
MASTERCARD INTERNATIONAL INCORPORATED NOTE PURCHASE AGREEMENT
SCHEDULE 3. If at the Closing the Company fails to tender such Notes to you as
provided in this Section 3, or any of the conditions specified in Section 4
shall not have been fulfilled to your satisfaction, you shall, at your election,
be relieved of all further obligations under this Agreement, without thereby
waiving any rights you may have by reason of such failure or such
nonfulfillment.
4. CONDITIONS TO CLOSING
Your obligation to purchase and pay for the Notes to be sold to you at
the Closing is subject to the fulfillment to your satisfaction, prior to or at
the Closing, of the following conditions:
4.1 REPRESENTATIONS AND WARRANTIES.
The representations and warranties of the Company in this Agreement
shall be correct as of the Closing.
4.2 PERFORMANCE; NO DEFAULT.
The Company shall have performed and complied with all agreements and
conditions contained in this Agreement required to be performed or complied with
by it prior to or at the Closing and after giving effect to the issue and sale
of the Notes (and the application of the proceeds thereof as contemplated by
SCHEDULE 5.14) no Default or Event of Default shall have occurred and be
continuing.
4.3 COMPLIANCE CERTIFICATES.
The Company shall have delivered to you a certificate certifying as to
the resolutions attached thereto and other corporate proceedings relating to the
authorization, execution and delivery of the Notes and the Agreements.
4.4 OPINIONS OF COUNSEL.
You shall have received opinions in form and substance satisfactory to
you, dated the date of the Closing
(a) from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, general counsel for the Company,
covering the matters set forth in Exhibit 4.4(a) and covering such
other matters incident to the transactions contemplated hereby as you
or your counsel may reasonably request (and the Company hereby
instructs its counsel to deliver such opinion to you) and
(b) from ▇▇▇▇ & ▇▇▇▇▇▇, your special counsel, covering such
matters incident to such transactions as you may reasonably request.
4.5 PURCHASE PERMITTED BY APPLICABLE LAW, ETC.
On the date of the Closing your purchase of Notes shall
MASTERCARD INTERNATIONAL INCORPORATED 2 NOTE PURCHASE AGREEMENT
(a) be permitted by the laws and regulations of each
jurisdiction to which you are subject, without recourse to provisions
(such as section 1 405(a)(8) of the New York Insurance Law) permitting
limited investments by insurance companies without restriction as to
the character of the particular investment,
(b) not violate any applicable law or regulation (including,
without limitation, regulations of the Board of Governors of the
Federal Reserve System in respect of margin lending), and
(c) not subject you to any tax, penalty or liability under or
pursuant to any applicable law or regulation, which law or regulation
was not in effect on the date hereof.
If requested by you, you shall have received an Officer's Certificate certifying
as to such matters of fact as you may reasonably specify to enable you to
determine whether such purchase is so permitted.
4.6 S&P RATING.
You shall have received evidence satisfactory to you that Standard &
Poors has issued a private letter rating of at least A- for the Notes and such
rating remains in full force and effect as of the date of closing.
4.7 SALE OF OTHER NOTES.
Contemporaneously with the Closing the Company shall sell to the Other
Purchasers and the Other Purchasers shall purchase the Notes to be purchased by
them at the Closing as specified in SCHEDULE A.
4.8 PAYMENT OF SPECIAL COUNSEL FEES.
Without limiting the provisions of Section 15.1, the Company shall have
paid on or before the Closing the fees, charges and disbursements of your
special counsel referred to in Section 4.4 to the extent reflected in a
statement of such counsel rendered to the Company at least one Business Day
prior to the Closing.
4.9 PRIVATE PLACEMENT NUMBER.
A Private Placement Number issued by Standard & Poor's CUSIP Service
Bureau (in cooperation with the Securities Valuation Office of the National
Association of Insurance Commissioners) shall have been obtained for the Notes.
4.10 CHANGES IN CORPORATE STRUCTURE.
Except as specified in SCHEDULE 4.10, the Company shall not have
changed its jurisdiction of incorporation or been a party to any merger or
consolidation and shall not have succeeded to all or any substantial part of the
liabilities of any other entity, at any time following the date of the most
recent financial statements referred to in SCHEDULE 5.5.
MASTERCARD INTERNATIONAL INCORPORATED 3 NOTE PURCHASE AGREEMENT
4.11 PROCEEDINGS AND DOCUMENTS.
All corporate and other proceedings in connection with the transactions
contemplated by this Agreement and all documents and instruments incident to
such transactions shall be satisfactory to you and your special counsel, and you
and your special counsel shall have received all such counterpart originals or
certified or other copies of such documents as you or they may reasonably
request.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to you, as of the date of the
Closing, that:
5.1 ORGANIZATION; POWER AND AUTHORITY.
The Company is a non-stock corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization, and is
duly qualified as a foreign non-stock corporation and is in good standing in
each jurisdiction in which such qualification is required by law, other than
those jurisdictions as to which the failure to be so qualified or in good
standing would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. The Company has the corporate power and
authority to own or hold under lease the properties it purports to own or hold
under lease, to transact the business it transacts and proposes to transact, to
execute and deliver this Agreement and the Other Agreements and the Notes and to
perform the provisions hereof and thereof.
5.2 AUTHORIZATION, ETC.
This Agreement and the Other Agreements and the Notes have been duly
authorized by all necessary corporate action on the part of the Company, and
this Agreement constitutes, and upon execution and delivery thereof each Note
will constitute, a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by
(a) applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally and
(b) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
5.3 DISCLOSURE.
The Company, through its agents, Chase Securities, Inc., ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., has
delivered to you and each Other Purchaser a copy of a Private Placement
Memorandum, dated May, 1998 (the "MEMORANDUM"), relating to the transactions
contemplated hereby. Except as disclosed in SCHEDULE 5.3, this Agreement, the
Memorandum, the documents, certificates or other writings identified in SCHEDULE
5.3 and the financial statements listed in SCHEDULE 5.5, taken as a whole, do
not contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading in light
of the circumstances under which they were
MASTERCARD INTERNATIONAL INCORPORATED 4 NOTE PURCHASE AGREEMENT
made. Except as expressly described in SCHEDULE 5.3, or in one of the documents,
certificates or other writings identified therein, or in the financial
statements listed in SCHEDULE 5.5, since December 31, 1997, there has been no
change in the financial condition, operations, business or properties of the
Company or any of its Subsidiaries except changes that individually or in the
aggregate would not reasonably be expected to have a Material Adverse Effect.
5.4 ORGANIZATION AND OWNERSHIP OF SHARES OF SUBSIDIARIES.
(a) SCHEDULE 5.4 is (except as noted therein) a complete and
correct list of the Company's Subsidiaries, showing, as to each
Subsidiary, the correct name thereof, the jurisdiction of its
organization, and the percentage of shares of each class of its capital
stock or similar equity interests outstanding owned by the Company and
each other Subsidiary.
(b) All of the outstanding shares of capital stock or similar
equity interests of each Subsidiary shown in SCHEDULE 5.4 as being
owned by the Company and its Subsidiaries have been validly issued, are
fully paid and nonassessable and are owned by the Company or another
Subsidiary free and clear of any Lien (except as otherwise disclosed in
SCHEDULE 5.4).
(c) Each Subsidiary identified in SCHEDULE 5.4 is a
corporation or other legal entity duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization,
and is duly qualified as a foreign corporation or other legal entity
and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to
which the failure to be so qualified or in good standing would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. Each such Subsidiary has the corporate or
other power and authority to own or hold under lease the properties it
purports to own or hold under lease and to transact the business it
transacts and proposes to transact.
5.5 FINANCIAL STATEMENTS.
The Company has delivered to each Purchaser copies of the financial
statements of the Company and its Subsidiaries listed on SCHEDULE 5.5. All of
said financial statements (including in each case the related schedules and
notes) fairly present in all material respects the consolidated financial
position of the Company and its Subsidiaries as of the respective dates
specified in such SCHEDULE 5.5 and the consolidated results of their operations
and cash flows for the respective periods so specified and have been prepared in
accordance with GAAP consistently applied throughout the periods involved except
as set forth in the notes thereto (subject, in the case of any interim financial
statements, to normal year-end adjustments).
5.6 COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC.
The execution, delivery and performance by the Company of this
Agreement and the Notes will not
(a) contravene, result in any breach of, or constitute a
default under, or result in the creation of any Lien in respect of any
property of the Company or any Subsidiary
MASTERCARD INTERNATIONAL INCORPORATED 5 NOTE PURCHASE AGREEMENT
under, any indenture, mortgage, deed of trust, loan, purchase or credit
agreement, lease, corporate charter or by-laws, or any other Material
agreement or instrument to which the Company or any Subsidiary is bound
or by which the Company or any Subsidiary or any of their respective
properties may be bound or affected,
(b) conflict with or result in a breach of any of the terms,
conditions or provisions of any order, judgment, decree, or ruling of
any court, arbitrator or Governmental Authority applicable to the
Company or any Subsidiary, or
(c) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the Company or
any Subsidiary.
5.7 GOVERNMENTAL AUTHORIZATIONS, ETC.
No consent, approval or authorization of, or registration, filing or
declaration with, any Governmental Authority is required in connection with the
execution, delivery or performance by the Company of this Agreement or the
Notes.
5.8 LITIGATION; OBSERVANCE OF STATUTES AND ORDERS.
(a) Except as set forth on SCHEDULE 5.8, there are no actions,
suits or proceedings pending or, to the knowledge of the Company,
threatened against or affecting the Company or any Subsidiary or any
property of the Company or any Subsidiary in any court or before any
arbitrator of any kind or before or by any Governmental Authority that,
individually or in the aggregate, would reasonably be expected to have
a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default under
any order, judgment, decree or ruling of any court, arbitrator or
Governmental Authority or is in violation of any applicable law,
ordinance, rule or regulation (including without limitation
Environmental Laws) of any Governmental Authority, which default or
violation, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect.
5.9 TAXES.
The Company and its Subsidiaries have filed all income tax returns that
are required to have been filed in any jurisdiction, and have paid all taxes
shown to be due and payable on such returns and all other taxes and assessments
payable by them, to the extent such taxes and assessments have become due and
payable and before they have become delinquent, except for any taxes and
assessments
(a) the amount of which is not individually or in the
aggregate Material or
(b) the amount, applicability or validity of which is
currently being contested in good faith by appropriate proceedings and
with respect to which the Company or a Subsidiary, as the case may be,
has established adequate reserves in accordance with GAAP.
MASTERCARD INTERNATIONAL INCORPORATED 6 NOTE PURCHASE AGREEMENT
5.10 TITLE TO PROPERTY; LEASES.
The Company and its Subsidiaries have good and marketable title to
their respective Material properties, including all such properties reflected in
the most recent audited balance sheet referred to in Section 5.5 or purported to
have been acquired by the Company or any Subsidiary after said date (except as
sold or otherwise disposed of in the ordinary course of business), in each case
free and clear of Liens prohibited by this Agreement, except for those defects
in title and Liens that, individually or in the aggregate, would not have a
Material Adverse Effect. All Material leases are valid and subsisting and are in
full force and effect in all material respects.
5.11 LICENSES, PERMITS, ETC.
Except as disclosed in SCHEDULE 5.11, the Company and its Subsidiaries
own or possess all licenses, permits, franchises, authorizations, patents,
copyrights, service marks, trademarks and trade names, or rights thereto, that
are Material, without known conflict with the rights of others, except for those
conflicts that, individually or in the aggregate, would not have a Material
Adverse Effect.
5.12 COMPLIANCE WITH ERISA.
(a) COMPLIANCE WITH LAW. The Company and each ERISA Affiliate
have operated and administered each Plan in compliance with all
applicable laws except for such instances of noncompliance as have not
resulted in and could not reasonably be expected to result in a
Material Adverse Effect. Neither the Company nor any ERISA Affiliate
has incurred any liability pursuant to Title I or Title IV of ERISA or
the penalty or excise tax provisions of the IRC relating to employee
benefit plans (as defined in section 3 of ERISA), and no event,
transaction or condition has occurred or exists that would reasonably
be expected to result in the incurrence of any such liability by the
Company or any ERISA Affiliate, or in the imposition of any Lien on any
of the rights, properties or assets of the Company or any ERISA
Affiliate, in either case pursuant to Title I or Title IV of ERISA or
to such penalty or excise tax provisions or to section 401(a)(29) or
section 412 of the IRC, other than such liabilities or Liens as would
not be individually or in the aggregate Material.
(b) AMOUNT OF LIABILITY. The present value of the aggregate
benefit liabilities under each of the Plans (other than Multiemployer
Plans), determined as of the end of such Plan's most recently ended
plan year (i.e. 1997) on the basis of the actuarial assumptions
specified for funding purposes in such Plan's most recent actuarial
valuation report, did not exceed the aggregate current value of the
assets of such Plan allocable to such benefit liabilities in the
aggregate for all Plans. The term "BENEFIT LIABILITIES" has the meaning
specified in section 4001 of ERISA and the terms "CURRENT VALUE" and
"PRESENT VALUE" have the meaning specified in section 3 of ERISA.
(c) MULTIEMPLOYER LIABILITIES. The Company and its ERISA
Affiliates have not incurred withdrawal liabilities (and are not
subject to contingent withdrawal
MASTERCARD INTERNATIONAL INCORPORATED 7 NOTE PURCHASE AGREEMENT
liabilities) under section 4201 or section 4204 of ERISA in respect of
Multiemployer Plans that individually or in the aggregate are Material.
(d) POSTRETIREMENT BENEFITS. The expected postretirement
benefit obligation (determined as of the last day of the Company's most
recently ended fiscal year in accordance with Financial Accounting
Standards Board Statement No. 106, without regard to liabilities
attributable to continuation coverage mandated by section 4980B of the
IRC and other similar provisions of applicable law) of the Company and
its Subsidiaries is not Material.
(e) PROHIBITED TRANSACTIONS. The execution and delivery of
this Agreement and the issuance and sale of the Notes hereunder will
not involve any transaction that is subject to the prohibitions of
section 406 of ERISA (other than a transaction or transactions subject
to an exemption from such prohibitions whether statutory or
administrative) or in connection with which a tax could reasonably be
expected to be imposed pursuant to section 4975(c)(1)(A) through
section 4975(c)(1)(D) of the IRC, inclusive. The representation by the
Company in the first sentence of this Section 5.12(e) is made in
reliance upon and subject to
(i) the accuracy of your representation in Section
6.2 as to the sources of the funds to be used to pay the
purchase price of the Notes to be purchased by you and
(ii) the assumption, made solely for the purpose of
making such representation, that Department of Labor
Interpretive Bulletin 75-2 with respect to prohibited
transactions remains valid in the circumstances of the
transactions contemplated herein.
5.13 PRIVATE OFFERING BY THE COMPANY.
Neither the Company nor anyone acting on its behalf has offered the
Notes or any similar securities for sale to, or solicited any offer to buy any
of the same from, or otherwise approached or negotiated in respect thereof with,
any Person other than you, the Other Purchasers and not more than 50 other
institutional investors, each of which has been offered the Notes at a private
sale for investment. Neither the Company nor anyone acting on its behalf has
taken, or will take, any action that would subject the issuance or sale of the
Notes to the registration requirements of section 5 of the Securities Act.
5.14 USE OF PROCEEDS; MARGIN REGULATIONS.
The Company will apply the proceeds of the sale of the Notes as set
forth in SCHEDULE 5.14. No part of the proceeds from the sale of the Notes
hereunder will be used, directly or indirectly, for any purpose that would
violate regulations of the Board of Governors of the Federal Reserve System in
respect of margin lending.
MASTERCARD INTERNATIONAL INCORPORATED 8 NOTE PURCHASE AGREEMENT
5.15 EXISTING INDEBTEDNESS.
Except as described therein, SCHEDULE 5.15 sets forth a complete and
correct list of all outstanding Indebtedness of the Company and its Subsidiaries
as of June 30, 1998, after giving effect to the application of the proceeds of
the Notes as set forth in SCHEDULE 5.14 (and specifying, as to each such
Indebtedness, the collateral, if any, securing such Indebtedness), since which
date there has been no Material change in the amounts, interest rates, sinking
funds, instalment payments, collateral or maturities of the Indebtedness of the
Company or its Subsidiaries. Neither the Company nor any Subsidiary is in
default and no waiver of default is currently in effect, in the payment of any
principal or interest on any Indebtedness of the Company or such Subsidiary and
no event or condition exists with respect to any Indebtedness of the Company or
any Subsidiary that would permit (or that with notice or the lapse of time, or
both, would permit) one or more Persons to cause such Indebtedness to become due
and payable before its stated maturity or before its regularly scheduled dates
of payment.
5.16 FOREIGN ASSETS CONTROL REGULATIONS, ETC.
Neither the sale of the Notes by the Company hereunder nor its use of
the proceeds thereof will violate the Trading with the Enemy Act, as amended, or
any of the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto.
5.17 STATUS UNDER CERTAIN STATUTES.
Neither the Company nor any Subsidiary is subject to regulation under
the Investment Company Act of 1940, as amended, the Public Utility Holding
Company Act of 1935, as amended, or the Federal Power Act, as amended.
6. REPRESENTATIONS OF THE PURCHASER
6.1 PURCHASE FOR INVESTMENT.
You represent that
(a) you are an "accredited investor" as defined in Rule 501(a)
under the Securities Act, with such knowledge and experience in
financial and business matters as are necessary in order to evaluate
the merits and risks of an investment in the Notes, and
(b) you are purchasing the Notes for your own account or for
one or more separate accounts maintained by you or for the account of
one or more pension or trust funds and not with a view to the
distribution thereof, provided that the disposition of your or their
property shall at all times be within your or their control.
You acknowledge that
(i) the Notes have not been registered under the Securities
Act and may be resold only if registered pursuant to the provisions of
the Securities Act or if an
MASTERCARD INTERNATIONAL INCORPORATED 9 NOTE PURCHASE AGREEMENT
exemption from registration is available, except under circumstances
where neither such registration nor such an exemption is required by
law, and
(ii) the Company is not required to register the Notes under
the Securities Act.
6.2 SOURCE OF FUNDS.
You represent that at least one of the following statements is an
accurate representation as to each source of funds (a "SOURCE") to be used by
you to pay the purchase price of the Notes to be purchased by you hereunder:
(a) GENERAL ACCOUNT -- the Source is an "insurance company
general account" as defined in Department of Labor Prohibited
Transaction Exemption ("PTE") 95-60 and in respect thereof you
represent that there is no "employee benefit plan" (as defined in
section 3(3) of ERISA and section 4975(e)(1) of the IRC, treating as a
single plan all plans maintained by the same employer or employee
organization or affiliate thereof) with respect to which the amount of
the general account reserves and liabilities of all contracts held by
or on behalf of such plan exceed 10% of the total reserves and
liabilities of such general account (exclusive of separate account
liabilities) plus surplus, as set forth in the NAIC Annual Statement
filed with your state of domicile;
(b) SEPARATE ACCOUNT -- the Source is either
(i) an insurance company pooled separate account,
within the meaning of PTE 90-1, or
(ii) a bank collective investment fund, within the
meaning of the PTE 91-38,
and, except as you have disclosed to the Company in writing pursuant to
this Section 7.2(b), no employee benefit plan or group of plans
maintained by the same employer or employee organization beneficially
owns more than 10% of all assets allocated to such pooled separate
account or collective investment fund;
(c) QPAM -- the Source constitutes assets of an "investment
fund" (within the meaning of Part V of PTE 84-14) in respect of which
each of the following is true:
(i) such investment fund is managed by a "qualified
professional asset manager" or "QPAM" (within the meaning of
Part V of PTE 84-14);
(ii) no employee benefit plan's assets that are
included in such investment fund, when combined with the
assets of all other employee benefit plans established or
maintained by the same employer or by an affiliate (within the
meaning of section V(c)(1) of PTE 84-14) of such employer or
by the same employee organization and managed by such QPAM,
exceed 20% of the total client assets managed by such QPAM,
MASTERCARD INTERNATIONAL INCORPORATED 10 NOTE PURCHASE AGREEMENT
(iii) the conditions of Part I(c) and Part I(g) of
PTE 84-14 are satisfied, neither the QPAM nor a Person
controlling or controlled by the QPAM (applying the definition
of "control" in Section V(e) of PTE 84-14) owns a 5% or more
interest in the Company, and
(A) the identity of such QPAM, and
(B) the names of all employee benefit plans
whose assets are included in such investment fund
have been disclosed to the Company in writing pursuant to this
Section 7.2(c);
(d) GOVERNMENT PLAN, ETC -- the Source is a governmental plan
or church plan that is covered by neither ERISA nor Section 4975 of the
IRC;
(e) IDENTIFIED PLANS -- the Source is one or more employee
benefit plans, or a separate account or trust fund comprised of one or
more employee benefit plans, each of which has been identified to the
Company in writing pursuant to this Section 7.2(e);
(f) IN-HOUSE ASSET MANAGER -- the Source is the assets of one
or more employee benefit plans that are managed by an "in-house asset
manager," as that term is defined in PTE 96-23, and such purchase and
holding of the Notes is exempt under PTE 96-23; or
(g) EXEMPT PLANS -- the Source does not include the assets of
any employee benefit plan that is subject to Title I of ERISA or any
"plan" that is subject to Section 4975 of the IRC.
As used in this Section 7.2, the terms "employee benefit plan", "governmental
plan", "party in interest" and "separate account" shall have the respective
meanings assigned to such terms in section 3 of ERISA.
7. INFORMATION AS TO COMPANY
7.1 FINANCIAL AND BUSINESS INFORMATION.
The Company shall deliver to each holder of Notes:
(a) QUARTERLY STATEMENTS -- within 60 days after the end of
each quarterly fiscal period in each fiscal year of the Company (other
than the last quarterly fiscal period of each such fiscal year),
duplicate copies of,
(i) a consolidated balance sheet of the Company and
its Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of income, changes in
equity and cash flows of the Company and its Subsidiaries, for
such quarter and (in the case of the
MASTERCARD INTERNATIONAL INCORPORATED 11 NOTE PURCHASE AGREEMENT
second and third quarters) for the portion of the fiscal year
ending with such quarter,
setting forth in each case in comparative form the figures for the corresponding
periods in the previous fiscal year, all in reasonable detail, prepared in
accordance with GAAP applicable to quarterly financial statements generally, and
certified by a Senior Financial Officer as fairly presenting, in all material
respects, the consolidated financial position of the companies being reported on
and their consolidated results of operations and cash flows, subject to changes
resulting from year-end adjustments, provided that delivery within the time
period specified above of copies of the Company's Quarterly Report on Form 10-Q
prepared in compliance with the requirements therefor and filed with the
Securities and Exchange Commission shall be deemed to satisfy the requirements
of this Section 7.1(a);
(b) ANNUAL STATEMENTS -- within 105 days after the end of each
fiscal year of the Company, duplicate copies of,
(i) a consolidated balance sheet of the Company and
its Subsidiaries, as at the end of such year, and
(ii) consolidated statements of income, changes in
equity and cash flows of the Company and its Subsidiaries, for
such year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail, prepared in accordance with GAAP, and
accompanied by an opinion thereon of independent certified public accountants of
recognized national standing, which opinion shall state that such financial
statements present fairly, in all material respects, the consolidated financial
position of the companies being reported upon and their consolidated results of
operations and cash flows and have been prepared in conformity with GAAP, and
that the examination of such accountants in connection with such financial
statements has been made in accordance with generally accepted auditing
standards, and that such audit provides a reasonable basis for such opinion in
the circumstances, provided that the delivery within the time period specified
above of the Company's Annual Report on Form 10-K for such fiscal year prepared
in accordance with the requirements therefor and filed with the Securities and
Exchange Commission shall be deemed to satisfy the requirements of this Section
7.1 (b);
(c) SEC AND OTHER REPORTS -- promptly upon their becoming
available, one copy of
(i) each financial statement, report, notice or proxy
statement sent by the Company or any Subsidiary to public
securities holders or the Company's members generally, and
(ii) each regular or periodic report, each
registration statement that shall have become effective
(without exhibits except as expressly requested by such
holder), and each final prospectus and all amendments thereto
filed by the Company or any Subsidiary with the Securities and
Exchange Commission;
MASTERCARD INTERNATIONAL INCORPORATED 12 NOTE PURCHASE AGREEMENT
(d) NOTICE OF DEFAULT OR EVENT OF DEFAULT -- promptly, and in
any event within five days, after a Responsible Officer becoming aware
of the existence of any Default or Event of Default, a written notice
specifying the nature and period of existence thereof and what action
the Company is taking or proposes to take with respect thereto;
(e) ERISA MATTERS -- promptly, and in any event within Ten
Business Days after a Responsible Officer becomes aware of any of the
following, a written notice setting forth the nature thereof and the
action, if any, that the Company or an ERISA Affiliate proposes to take
with respect thereto:
(i) with respect to any Plan, any reportable event,
as defined in section 4043(c) of ERISA and the regulations
thereunder, for which notice thereof has not been waived
pursuant to such regulations as in effect on the date of the
Closing; or
(ii) the taking by the PBGC of steps to institute, or
the threatening by the PBGC of the institution of, proceedings
under section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or the
receipt by the Company or any ERISA Affiliate of a notice from
a Multiemployer Plan that such action has been taken by the
PBGC with respect to such Multiemployer Plan; or
(iii) any event, transaction or condition that could
reasonably be expected to result in the incurrence of any
liability by the Company or any ERISA Affiliate pursuant to
Title I or IV of ERISA or the penalty or excise tax provisions
of the IRC relating to employee benefit plans, or in the
imposition of any Lien on any of the rights, properties or
assets of the Company or any ERISA Affiliate pursuant to Title
I or IV of ERISA or such penalty or excise tax provisions,
if such event, liability or Lien, taken together with any other such events,
liabilities or Liens then existing, would reasonably be expected to have a
Material Adverse Effect;
(f) REQUESTED INFORMATION -- with reasonable promptness, such
other data and information relating to the business, operations,
affairs, financial condition, assets or properties of the Company or
any of its Subsidiaries or relating to the ability of the Company to
perform its obligations hereunder and under the Notes as from time to
time may be reasonably requested by any such holder of Notes, or such
information regarding the Company required to satisfy the requirements
of 17 C.F.R. Section 230.144A, as amended from time to time, in
connection with any contemplated transfer of the Notes.
7.2 OFFICER'S CERTIFICATE.
Each set of financial statements delivered to a holder of Notes
pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied by a
certificate of a Senior Financial Officer setting forth:
(a) COVENANT COMPLIANCE -- the information (including detailed
calculations) required in order to establish whether the Company was in
compliance with the requirements of Section 10.3 during the quarterly
or annual period covered by the
MASTERCARD INTERNATIONAL INCORPORATED 13 NOTE PURCHASE AGREEMENT
statements then being furnished (including with respect to each such
Section, where applicable, the calculations of the maximum or minimum
amount, ratio or percentage, as the case may be, permissible under the
terms of such Sections, and the calculation of the amount, ratio or
percentage then in existence); and
(b) EVENT OF DEFAULT -- a statement that such officer has
reviewed the relevant terms hereof and has made, or caused to be made,
under his or her supervision, a review of the transactions and
conditions of the Company and its Subsidiaries from the beginning of
the quarterly or annual period covered by the statements then being
furnished to the date of the certificate and that such review has not
disclosed the existence during such period of any condition or event
that constitutes a Default or an Event of Default or, if any such
condition or event existed or exists, specifying the nature and period
of existence thereof and what action the Company shall have taken or
proposes to take with respect thereto.
7.3 INSPECTION.
The Company shall permit the representatives of each holder of Notes:
(a) NO DEFAULT -- if no Default or Event of Default then
exists, at the expense of such holder and upon reasonable prior notice
to the Company, to visit the principal executive office of the Company
during regular business hours and not more than once per year, to
discuss the affairs, finances and accounts of the Company and its
Subsidiaries with the Company's officers, and, with the consent of the
Company (which consent will not be unreasonably withheld) to visit the
other offices and properties of the Company and each Subsidiary, all at
such reasonable times and as often as may be reasonably requested in
writing; and
(b) DEFAULT -- if a Default or Event of Default then exists,
at the expense of the Company to visit and inspect any of the offices
or properties of the Company or any Subsidiary, to examine all their
respective books of account, records, reports and other papers, to make
copies and extracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective officers and independent
public accountants (and by this provision the Company authorizes said
accountants to discuss the affairs, finances and accounts of the
Company and its Subsidiaries), all at such times and as often as may be
requested.
8. PAYMENTS ON THE NOTES
8.1 REQUIRED PRINCIPAL, INTEREST PAYMENTS.
The entire principal of the Notes remaining outstanding on June 30,
2008, together with interest accrued thereon, shall become due and payable on
June 30, 2008. Interest on the Notes shall be computed and paid in the manner
and on the dates provided in the Notes.
MASTERCARD INTERNATIONAL INCORPORATED 14 NOTE PURCHASE AGREEMENT
8.2 OPTIONAL PREPAYMENTS WITH MAKE-WHOLE AMOUNT.
The Company may, at its option, upon notice as provided below, prepay
at any time all, or from time to time any part, of the Notes, in an amount not
less than 5% of the aggregate principal amount of the Notes then outstanding in
the case of a partial prepayment, at 100% of the principal amount so prepaid,
plus the Make-Whole Amount determined for the prepayment date with respect to
such principal amount. The Company will give each holder of Notes written notice
of each optional prepayment under this Section 8.2 not less than 30 days and not
more than 60 days prior to the date fixed for such prepayment. Each such notice
shall specify such prepayment date, the aggregate principal amount of the Notes
to be prepaid on such date, the principal amount of each Note held by such
holder to be prepaid (determined in accordance with Section 8.3), and the
interest to be paid on the prepayment date with respect to such principal amount
being prepaid, and shall be accompanied by a certificate of a Senior Financial
Officer as to the estimated Make-Whole Amount due in connection with such
prepayment (calculated as if the date of such notice were the date of the
prepayment), setting forth the details of such computation. Two Business Days
prior to such prepayment, the Company shall deliver to each holder of Notes a
certificate of a Senior Financial Officer specifying the calculation of such
Make-Whole Amount as of the specified prepayment date.
8.3 ALLOCATION OF PARTIAL PREPAYMENTS.
In the case of each partial prepayment of the Notes, the principal
amount of the Notes to be prepaid shall be allocated among all of the Notes at
the time outstanding in proportion, as nearly as practicable, to the respective
unpaid principal amounts thereof not theretofore called for prepayment.
8.4 MATURITY; SURRENDER, ETC.
In the case of each prepayment of Notes pursuant to this Section 8, the
principal amount of each Note to be prepaid shall mature and become due and
payable on the date fixed for such prepayment, together with interest on such
principal amount accrued to such date and the applicable Make-Whole Amount, if
any. From and after such date, unless the Company shall fail to pay such
principal amount when so due and payable, together with the interest and
Make-Whole Amount, if any, as aforesaid, interest on such principal amount shall
cease to accrue. Any Note paid or prepaid in full shall be surrendered to the
Company and cancelled and shall not be reissued, and no Note shall be issued in
lieu of any prepaid principal amount of any Note.
8.5 PURCHASE OF NOTES.
The Company will not and will not permit any Affiliate to purchase,
redeem, prepay or otherwise acquire, directly or indirectly, any of the
outstanding Notes except
(a) upon the payment or prepayment of the Notes in accordance
with the terms of this Agreement and the Notes or
(b) pursuant to an offer to purchase made by the Company or an
Affiliate pro rata to the holders of all Notes at the time outstanding
upon the same terms and conditions.
MASTERCARD INTERNATIONAL INCORPORATED 15 NOTE PURCHASE AGREEMENT
Any such offer shall provide each holder with sufficient information to enable
it to make an informed decision with respect to such offer, and shall remain
open for at least 20 Business Days. If the holders of more than 25% of the
principal amount of the Notes then outstanding accept such offer, the Company
shall promptly notify the remaining holders of such fact and the expiration date
for the acceptance by holders of Notes of such offer shall be extended by the
number of days necessary to give each such remaining holder at least 10 Business
Days from its receipt of such notice to accept such offer. The Company will
promptly cancel all Notes acquired by it pursuant to any payment, prepayment or
purchase of Notes pursuant to any provision of this Agreement and no Notes may
be issued in substitution or exchange for any such Notes.
8.6 MAKE-WHOLE AMOUNT.
The term "MAKE-WHOLE AMOUNT" means, with respect to any Note, an amount
equal to the excess, if any, of the Discounted Value of the Remaining Scheduled
Payments with respect to the Called Principal of such Note over the amount of
such Called Principal, provided that the Make-Whole Amount may in no event be
less than zero. For the purposes of determining the Make-Whole Amount, the
following terms have the following meanings:
"CALLED PRINCIPAL" means, with respect to any Note, the
principal of such Note that is to be prepaid pursuant to Section 8.2 or
has become immediately due and payable pursuant to Section 11, as the
context requires.
"DISCOUNTED VALUE" means, with respect to the Called Principal
of any Note, the amount obtained by discounting all Remaining Scheduled
Payments with respect to such Called Principal from their respective
scheduled due dates to the Settlement Date with respect to such Called
Principal, in accordance with accepted financial practice and at a
discount factor (applied on the same periodic basis as that on which
interest on the Notes is payable) equal to the Reinvestment Yield with
respect to such Called Principal.
"REINVESTMENT YIELD" means, with respect to the Called
Principal of any Note, 0.5% per annum plus the yield to maturity
implied by
(i) the yields reported, as of 10:00 A.M. (New York
City time) on the second Business Day preceding the Settlement
Date with respect to such Called Principal, on the display
designated as "USD" on the Bloomberg Financial Market Service
(or such other display as may replace Page USD on the
Bloomberg Financial Market Service) for actively traded U.S.
Treasury securities having a maturity equal to the Remaining
Average Life of such Called Principal as of such Settlement
Date, or
(ii) if such yields are not reported as of such time
or the yields reported as of such time are not ascertainable,
the Treasury Constant Maturity Series Yields reported, for the
latest day for which such yields have been so reported as of
the second Business Day preceding the Settlement Date with
respect to such Called Principal, in Federal Reserve
Statistical Release H.15 (519) (or any comparable successor
publication) for actively traded U.S. Treasury securities
MASTERCARD INTERNATIONAL INCORPORATED 16 NOTE PURCHASE AGREEMENT
having a constant maturity equal to the Remaining Average Life
of such Called Principal as of such Settlement Date.
Such implied yield will be determined, if necessary, by
(a) converting U.S. Treasury ▇▇▇▇ quotations to
bond-equivalent yields in accordance with accepted financial practice,
and
(b) interpolating linearly between
(1) the actively traded U.S. Treasury security with
the duration closest to and greater than the Remaining Average
Life, and
(2) the actively traded U.S. Treasury security with
the duration closest to and less than the Remaining Average
Life.
"REMAINING AVERAGE LIFE" means, with respect to any Called
Principal, the number of years that will elapse between the Settlement
Date and June 30, 2008.
"REMAINING SCHEDULED PAYMENTS" means, with respect to the
Called Principal of any Note, all payments of interest on such Called
Principal that would be due after the Settlement Date with respect to
such Called Principal if no payment of such Called Principal were made
prior to its scheduled due date and the payment of such Called
Principal on June 30, 2008, provided that if such Settlement Date is
not a date on which interest payments are due to be made under the
terms of the Notes, then the amount of the next succeeding scheduled
interest payment will be reduced by the amount of interest accrued to
such Settlement Date and required to be paid on such Settlement Date
pursuant to Section 8.2 or Section 11.
"SETTLEMENT DATE" means, with respect to the Called Principal
of any Note, the date on which such Called Principal is to be prepaid
pursuant to Section 8.2 or has become or is declared to be immediately
due and payable pursuant to Section 11, as the context requires.
9. AFFIRMATIVE COVENANTS
The Company covenants that so long as any of the Notes are outstanding:
9.1 COMPLIANCE WITH LAW.
The Company will and will cause each of its Subsidiaries to comply with
all laws, ordinances or governmental rules or regulations to which each of them
is subject, and will obtain and maintain in effect all licenses, certificates,
permits, franchises and other governmental authorizations necessary to the
ownership of their respective properties or to the conduct of their respective
businesses, in each case to the extent necessary to ensure that non-compliance
with such laws, ordinances or governmental rules or regulations or failures to
obtain or maintain in effect such licenses, certificates, permits, franchises
and other governmental authorizations would not reasonably be expected,
individually or in the aggregate, to have a materially adverse
MASTERCARD INTERNATIONAL INCORPORATED 17 NOTE PURCHASE AGREEMENT
effect on the business, operations, financial condition, properties or assets of
the Company and its Subsidiaries taken as a whole.
9.2 INSURANCE.
The Company will and will cause each of its Subsidiaries to maintain,
with financially sound and reputable insurers, insurance with respect to their
respective properties and businesses against such casualties and contingencies,
of such types, on such terms and in such amounts (including deductibles,
co-insurance and self-insurance, if adequate reserves are maintained with
respect thereto) as is customary in the case of entities of established
reputations engaged in the same or a similar business and similarly situated.
9.3 MAINTENANCE OF PROPERTIES.
The Company will and will cause each of its Subsidiaries to maintain
and keep, or cause to be maintained and kept, their respective properties in
good repair, working order and condition (other than ordinary wear and tear), so
that the business carried on in connection therewith may be properly conducted
at all times, provided that this Section 9.3 shall not prevent the Company or
any Subsidiary from discontinuing the operation and the maintenance of any of
its properties if such discontinuance is desirable in the conduct of its
business and the Company has concluded that such discontinuance would not,
individually or in the aggregate, have a materially adverse effect on the
business, operations, financial condition, properties or assets of the Company
and its Subsidiaries taken as a whole.
9.4 PAYMENT OF TAXES.
The Company will and will cause each of its Subsidiaries to file all
income tax or similar tax returns required to be filed in any jurisdiction and
to pay and discharge all taxes shown to be due and payable on such returns and
all other taxes, assessments, governmental charges, or levies payable by any of
them, to the extent such taxes, assessments charges or levies have become due
and payable and before they have become delinquent, provided that neither the
Company nor any Subsidiary need pay any such tax, assessment, charge or levy, if
(a) the amount, applicability or validity thereof is contested
by the Company or such Subsidiary on a timely basis in good faith and
in appropriate proceedings, and the Company or a Subsidiary has
established adequate reserves therefor in accordance with GAAP on the
books of the Company or such Subsidiary, or
(b) the nonpayment of all such taxes, assessments, charges and
levies in the aggregate would not reasonably be expected to have a
materially adverse effect on the business, operations, financial
condition, properties or assets of the Company and its Subsidiaries
taken as a whole.
9.5 CORPORATE EXISTENCE, ETC.
Subject to Section 10.2, the Company will at all times preserve and
keep in full force and effect its corporate existence. The Company will at all
times preserve and keep in full force and effect the corporate existence of each
of its Subsidiaries (unless merged into the Company or a
MASTERCARD INTERNATIONAL INCORPORATED 18 NOTE PURCHASE AGREEMENT
Subsidiary) and all rights and franchises of the Company and its Subsidiaries
unless, in the good faith judgment of the Company, the termination of or failure
to preserve and keep in full force and effect such corporate existence, right or
franchise would not, individually or in the aggregate, have a materially adverse
effect on the business, operations, financial condition, properties or assets of
the Company and its Subsidiaries taken as a whole.
9.6 COMPLIANCE WITH ERISA.
The Company will not permit
(a) any Plan to fail to satisfy the minimum funding standards
of ERISA or the IRC for any plan year or part thereof or the seeking or
obtaining of a waiver of such standards or the extension of any
amortization period under section 412 of the IRC with respect thereto;
(b) the filing of a notice of intent to terminate any Plan
with the PBGC or the institution or continuation of proceedings under
ERISA section 4042 to terminate or appoint a trustee to administer any
Plan;
(c) the aggregate "amount of unfunded benefit liabilities"
(within the meaning of section 4001 (a)(1 8) of ERISA) under all Plans,
determined in accordance with Title IV of ERISA, to exceed $10,000,000;
(d) the Company or any ERISA Affiliate to incur or reasonably
expect to incur any liability pursuant to Title I or IV of ERISA or the
penalty or excise tax provisions of the IRC relating to employee
benefit plans;
(e) the Company or any ERISA Affiliate to withdraw from any
Multiemployer Plan; or
(f) the Company or any ERISA Affiliate to establish or amend
any employee welfare benefit plan that provides post-employment welfare
benefits in a manner that would increase the liability of the Company
or any ERISA Affiliate thereunder;
if any such event or events described in clause (a) through clause (f) above,
either individually or together with any other such event or events, would
reasonably be expected to have a Material Adverse Effect. As used in this
Section 9.6, the terms "EMPLOYEE BENEFIT PLAN" and "EMPLOYEE WELFARE BENEFIT
PLAN" shall have the respective meanings assigned to such terms in Section 3 of
ERISA.
10. NEGATIVE COVENANTS
The Company covenants that so long as any of the Notes are outstanding:
10.1 TRANSACTIONS WITH AFFILIATES.
The Company will not and will not permit any Subsidiary to enter into
directly or indirectly any Material transaction or Material group of related
transactions (including without
MASTERCARD INTERNATIONAL INCORPORATED 19 NOTE PURCHASE AGREEMENT
limitation the purchase, lease, sale or exchange of properties of any kind or
the rendering of any service) with any Affiliate (other than the Company or
another Subsidiary), except pursuant to the reasonable requirements of the
Company's or such Subsidiary's business and upon fair and reasonable terms no
less favorable to the Company or such Subsidiary than would be obtainable in a
comparable arm's-length transaction with a Person not an Affiliate.
10.2 MERGER, CONSOLIDATION, ETC.
The Company shall not consolidate with or merge with any other Person
or convey, transfer or lease substantially all of its assets in a single
transaction or series of transactions to any Person unless:
(a) the successor formed by such consolidation or the survivor
of such merger or the Person that acquires by conveyance, transfer or
lease substantially all of the assets of the Company as an entirety, as
the case may be, shall be a solvent corporation organized and existing
under the laws of the United States or any State thereof (including the
District of Columbia), and, if the Company is not such corporation,
such corporation shall have executed and delivered to each holder of
any Notes its assumption of the due and punctual performance and
observance of each covenant and condition of this Agreement, the Other
Agreements and the Notes; and
(b) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing.
No such conveyance, transfer or lease of substantially all of the assets of the
Company shall have the effect of releasing the Company or any successor
corporation that shall theretofore have become such in the manner prescribed in
this Section 10.2 from its liability under this Agreement or the Notes.
10.3 NET WORTH.
The Company will not permit Consolidated Net Worth at any time to be
less than
(a) $125,000,000, plus
(b) the sum of the amounts calculated in respect of each
fiscal quarter of the Company ending after December 31, 1997 equal, in
the case of each such fiscal quarter, to the greater of
(i) $0, or
(ii) 50% of Consolidated Net Income for such fiscal
quarter.
MASTERCARD INTERNATIONAL INCORPORATED 20 NOTE PURCHASE AGREEMENT
11. EVENTS OF DEFAULT
11.1 EVENTS OF DEFAULT.
An "EVENT OF DEFAULT" shall exist if any of the following conditions or
events shall occur and be continuing:
(a) PRINCIPAL AND INTEREST DEFAULTS --
(i) the Company defaults in the payment of any
principal or Make-Whole Amount, if any, on any Note when the
same becomes due and payable; or
(ii) the Company defaults in the payment of any
interest on any Note for more than five Business Days after
the same becomes due and payable; or
(b) OTHER DEFAULTS --
(i) the Company defaults in the performance of or
compliance with any term contained in Section 10.3; or
(ii) the Company defaults in the performance of or
compliance with any term contained herein and such default is
not remedied within 30 days after the earlier of
(A) a Responsible Officer obtaining actual
knowledge of such default and
(B) the Company receiving written notice of
such default from any holder of a Note (any such
written notice to be identified as a "notice of
default" and to refer specifically to this Section
11.1(b)(ii)); or
(iii) any representation or warranty made in writing
by or on behalf of the Company or by any officer of the
Company in this Agreement or in any writing furnished in
connection with the transactions contemplated hereby proves to
have been false or incorrect in any material respect on the
date as of which made or deemed made; or
(c) BANKRUPTCY DEFAULTS --
(i) the Company
(A) files, or consents by answer or
otherwise to the filing against it of, a petition for
relief or reorganization or arrangement or any other
petition in bankruptcy, for liquidation or to take
advantage of any bankruptcy, insolvency,
reorganization, moratorium or other similar law of
any jurisdiction,
MASTERCARD INTERNATIONAL INCORPORATED 21 NOTE PURCHASE AGREEMENT
(B) makes an assignment for the benefit of
its creditors,
(C) consents to the appointment of a
custodian, receiver, trustee or other officer with
similar powers with respect to it or with respect to
any substantial part of its property,
(D) is adjudicated as insolvent or to be
liquidated, or
(E) takes corporate action for the purpose
of any of the foregoing; or
(ii) a court or governmental authority of competent
jurisdiction enters an order appointing, without consent by
the Company, a custodian, receiver, trustee or other officer
with similar powers with respect to it or with respect to any
substantial part of its property, or constituting an order for
relief or approving a petition for relief or reorganization or
any other petition in bankruptcy or for liquidation or to take
advantage of any bankruptcy or insolvency law of any
jurisdiction, or ordering the dissolution, winding-up or
liquidation of the Company, or any such petition shall be
filed against the Company and such petition shall not be
dismissed within 60 days.
11.2 REMEDIES FOR EVENTS OF DEFAULT.
(a) PRINCIPAL AND INTEREST DEFAULT. Upon the occurrence of any
Event of Default described in Section 11.1(a), any one or more of each
holder of Notes (with respect to amounts owed to such holder) and the
Required Holders (with respect to amounts owed to all holders) may
enforce its rights or the rights of all holders of Notes, as the case
may be, either by suit in equity or by action at law, or both, in
respect of each payment that is in default pursuant to Section 11.1(a).
(b) OTHER DEFAULTS. Upon the occurrence of any Event of
Default described in Section 11.1(b), the Required Holders may proceed
to protect and enforce the rights of the holders of the Notes hereunder
and under the Notes, either by suit in equity or by action at law, or
both, whether for the specific performance of any covenant or agreement
contained in this Agreement or in aid of the exercise of any power
granted in this Agreement, provided that neither the Required Holders
nor any holder of a Note shall have the right to exercise the remedies
provided in Section 11.2(a) other than in accordance with Section
11.2(a).
(c) BANKRUPTCY. Upon the occurrence of any Event of Default
described in Section 11.1(c),
(i) the Notes will forthwith mature and the entire
unpaid principal amount of the Notes, plus all accrued and
unpaid interest thereon and the Make-Whole Amount determined
in respect of such principal amount (to the full extent
permitted by applicable law) as of the date of such event,
shall be immediately due and payable, in each and every case
without presentment, demand, protest or further notice, all of
which are hereby waived, and
MASTERCARD INTERNATIONAL INCORPORATED 22 NOTE PURCHASE AGREEMENT
(ii) each holder of Notes may prove for the debts
owed to such holder under the Note Purchase Agreements and the
Notes and make a claim therefor in any proceeding in respect
of the insolvency, winding-up, liquidation or dissolution of
the Company.
(d) APPLICATION FOR LIQUIDATION. If, at any time,
(i) an Event of Default under Section 11.1(a) is then
continuing,
(ii) the Company is subject to regulation and
supervision by Governmental Authorities of the United States
of America as an insured depository institution,
(iii) the Notes would constitute a part of the
Company's equity capital for purposes of such regulation and
supervision if this Section 11.2(d) was applicable to such
Event of Default, and
(iv) such regulations require that if an Event of
Default under Section 11.1(a) is continuing, then the remedies
of the holders of the Notes in respect of such Event of
Default shall be limited to petitioning such Governmental
Authority for the liquidation, winding-up or dissolution of
the Company,
then the remedies at such time of the holders of the Notes in such
event shall be limited to petitioning such Governmental Authority for
the liquidation, winding-up or dissolution of the Company, and the
entire unpaid principal amount of the Notes, plus all accrued and
unpaid interest thereon and the Make-Whole Amount determined in respect
of such principal amount (to the full extent permitted by applicable
law) shall be due in connection with such liquidation, winding-up or
dissolution of the Company, and each holder of Notes may prove for the
debts owed to such holder under the Note Purchase Agreements and the
Notes and make a claim therefor in any proceeding in respect of the
winding-up, liquidation or dissolution of the Company.
(e) LIMITATION ON REMEDIES. Notwithstanding Section 11.2(a)
and Section 11.2(b), no holder of Notes may participate in the
institution of the appointment of a receiver or trustee of the Company,
or the institution of a proceeding in respect of the Company's
insolvency, liquidation, bankruptcy, assignment for the benefit of
creditors, reorganization or the institution of any other proceeding
for the marshalling of the assets and liabilities of the Company,
provided that this Section 11.2(e) shall not in any way limit Section
11.2(c).
11.3 LIMITATION ON DISTRIBUTION TO JUNIOR CREDITORS.
The Company will not make any distribution of money or property of any
nature in respect of
(a) any obligation (including, without limitation, any equity
claim) that ranks junior to the Notes under Section 12.1
MASTERCARD INTERNATIONAL INCORPORATED 23 NOTE PURCHASE AGREEMENT
(b) obligations represented by capital, equity or other
ownership interests of the Company, including, without limitation,
claims of general partners, limited partners, stockholders and members,
and claims derived from such interests, including, without limitation,
declared distributions or dividends in respect of such interests,
while any Default or Event of Default is continuing.
11.4 PAYMENT OF EXPENSES.
If the Company defaults in the making of any payment due under any Note
or in the performance or observance of any agreement contained in this Agreement
and the Notes, the Company will pay to the holder thereof such further amounts,
to the extent lawful, as shall be sufficient to pay the reasonable costs and
expenses of collection or of otherwise enforcing such holder's rights, including
reasonable counsel fees. The obligations of the Company under this Section 11.4
shall survive the payment of the Notes.
11.5 REMEDIES CUMULATIVE, NOT WAIVED.
Subject to the provisions of Section 11 and Section 12, no remedy
herein conferred upon any holder of any Note is intended to be exclusive of any
other remedy and each and every such remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing at
law or in equity or by statute. No course of dealing between the Company and any
holder of any Note and no delay or failure in exercising any rights hereunder or
under any Note in respect thereof shall operate as a waiver of any of the rights
of any holder of such Note.
12. SUBORDINATION
12.1 SUBORDINATION.
The obligations of the Company under the Notes with respect to the
payment of outstanding principal of, interest on, and Make-Whole Amount, if any,
due with respect thereto, is and shall be fully and irrevocably subordinate in
right of payment and subject to the prior payment or provision for payment in
full of all Indebtedness for Money Borrowed of the Company that was outstanding
on the date of Closing or incurred by the Company during the period beginning on
and including date of Closing and ending (but excluding) the date on which any
of the events described in Section 11.1(c) shall have first occurred, except for
(a) Indebtedness for Money Borrowed of the Company that is the
subject of subordination provisions that rank on the same priority as
the Notes or the class of obligations of which the Notes are a member
(obligations in respect of the Notes shall rank pari passu with such
claims), and
(b) Indebtedness for Money Borrowed of the Company that is the
subject of subordination provisions that rank junior to the Notes or
the class of obligations of which the Notes are a member (obligations
in respect of the Notes shall be senior to such claims).
MASTERCARD INTERNATIONAL INCORPORATED 24 NOTE PURCHASE AGREEMENT
Obligations made senior to the Company's obligations in respect of outstanding
principal of and interest and Make-Whole Amount, if any, due with respect to,
the Notes pursuant to this Section 12.1 are referred to herein as "SENIOR
CLAIMS".
12.2 RIGHT TO RECEIVE PAYMENT.
In the event of the appointment of a receiver or trustee of the Company
or in the event of its insolvency, liquidation, bankruptcy, assignment for the
benefit of creditors, reorganization (whether or not pursuant to bankruptcy
laws) or any other marshalling of the assets and liabilities of the Company, the
obligation of the Company to pay the principal of the Notes, together with
interest accrued thereon and the Make-Whole Amount, if any, due with respect
thereto, shall become immediately due and payable in full (notwithstanding any
contrary provision of this Agreement or the Notes) but the holders of the Notes
shall not be entitled to participate or share, ratably or otherwise, in the
distribution of assets of the Company in satisfaction of such obligation to pay
the principal of the Notes, together with the interest accrued thereon and any
Make-Whole Amount, if any, due with respect thereto, until all Senior Claims
have been fully satisfied (or provision made for payment if assets of the
Company available to pay the same shall be adequate in amount to satisfy all
such claims fully). Subject to the payment in full of all Senior Claims, the
holders of Notes shall be, to the extent of distributions of property of the
Company to the holders of Senior Claims to which the holders of Notes would be
entitled but for this Section 12, subrogated to the rights of the holders of
such Senior Claims.
12.3 NO SET-OFF.
Each holder of Notes irrevocably waives, to the fullest extent
permitted by law, any right to set off or otherwise apply any amount now or
hereafter due or owing or payable by such holder on any account whatsoever
against, or in or towards satisfaction of, any amount now or hereafter due or
owing or payable, by the Company under this Agreement and the Notes.
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES
13.1 REGISTRATION OF NOTES.
The Company shall keep at its principal executive office a register for
the registration and registration of transfers of Notes. The name and address of
each holder of one or more Notes, each transfer thereof and the name and address
of each transferee of one or more Notes shall be registered in such register.
Prior to due presentment for registration of transfer, the Person in whose name
any Note shall be registered shall be deemed and treated as the owner and holder
thereof for all purposes hereof, and the Company shall not be affected by any
notice or knowledge to the contrary. The Company shall give to any holder of a
Note promptly upon request therefor, a complete and correct copy of the names
and addresses of all registered holders of Notes.
13.2 TRANSFER AND EXCHANGE OF NOTES.
Upon surrender of any Note at the principal executive office of the
Company for registration of transfer or exchange (and in the case of a surrender
for registration of transfer, duly endorsed or accompanied by a written
instrument of transfer duly executed by the registered
MASTERCARD INTERNATIONAL INCORPORATED 25 NOTE PURCHASE AGREEMENT
holder of such Note or his attorney duly authorized in writing and accompanied
by the address for notices of each transferee of such Note or part thereof), the
Company shall execute and deliver, at the Company's expense (except as provided
below), one or more new Notes (as requested by the holder thereof) in exchange
therefor, in an aggregate principal amount equal to the unpaid principal amount
of the surrendered Note. Each such new Note shall be payable to such Person as
such holder may request and shall be substantially in the form of Exhibit 1.
Each such new Note shall be dated and bear interest from the date to which
interest shall have been paid on the surrendered Note or dated the date of the
surrendered Note if no interest shall have been paid thereon. The Company may
require payment of a sum sufficient to cover any stamp tax or governmental
charge imposed in respect of any such transfer of Notes. Notes shall not be
transferred in denominations of less than $250,000, provided that if necessary
to enable the registration of transfer by a holder of its entire holding of
Notes, one Note may be in a denomination of less than $250,000. Any transferee,
by its acceptance of a Note registered in its name (or the name of its nominee),
shall be deemed to have made the representation set forth in Section 6.2.
13.3 REPLACEMENT OF NOTES.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the ownership of and the loss, theft, destruction or mutilation of any Note
(which evidence shall be, in the case of an institutional investor, notice from
such institutional investor of such ownership and such loss, theft, destruction
or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to it (provided that if the holder of such Note
is, or is a nominee for, a Purchaser or another holder of a Note with a
minimum net worth of at least $10,000,000, such Person's own unsecured
agreement of indemnity shall be deemed to be satisfactory), or
(b) in the case of mutilation, upon surrender and cancellation
thereof,
the Company at its own expense shall execute and deliver, in lieu thereof, a new
Note, dated and bearing interest from the date to which interest shall have been
paid on such lost, stolen, destroyed or mutilated Note or dated the date of such
lost, stolen, destroyed or mutilated Note if no interest shall have been paid
thereon.
14. PAYMENTS ON NOTES
14.1 MANNER OF PAYMENT.
The Company shall pay all amounts payable with respect to each Note
(without any presentment of such Notes and without any notation of such payment
being made thereon) by crediting, by federal funds bank wire transfer, the
account of the holder thereof in any bank in the United States of America as may
be designated in writing by such holder, or in such other manner as may be
reasonably directed or to such other address in the United States of America as
may be reasonably designated in writing by such holder. SCHEDULE A shall be
deemed to constitute notice, direction or designation (as appropriate) by each
Purchaser to the Company with respect to payments to be made to such Purchaser
as aforesaid. In the absence of such
MASTERCARD INTERNATIONAL INCORPORATED 26 NOTE PURCHASE AGREEMENT
written direction, all amounts payable with respect to each Note shall be paid
by check mailed and addressed to the registered holder of such Note at the
address shown in the Note register maintained by the Company.
14.2 PAYMENTS DUE ON NON-BUSINESS DAYS.
Any payment of principal of or Make-Whole Amount or interest on any
Note that is due on a date other than a Business Day shall be made on the next
succeeding Business Day without including the additional days elapsed in the
computation of the interest payable on such next succeeding Business Day
(interest in respect of such additional days being due on the next interest
payment date).
15. EXPENSES, ETC.
15.1 TRANSACTION EXPENSES.
Whether or not the transactions contemplated hereby are consummated,
the Company will pay all costs and expenses (including reasonable attorneys'
fees of a special counsel and, if reasonably required, local or other counsel)
incurred by you and each Other Purchaser or holder of a Note in connection with
such transactions and in connection with any amendments, waivers or consents
under or in respect of this Agreement or the Notes (whether or not such
amendment, waiver or consent becomes effective), including, without limitation:
(a) the costs and expenses incurred in enforcing or defending
(or determining whether or how to enforce or defend) any rights under
this Agreement or the Notes or in responding to any subpoena or other
legal process or informal investigative demand issued in connection
with this Agreement or the Notes, or by reason of being a holder of any
Note; and
(b) the costs and expenses, including financial advisors'
fees, incurred in connection with the insolvency or bankruptcy of the
Company or any Subsidiary or in connection with any work-out or
restructuring of the transactions contemplated hereby and by the Notes.
The Company will pay, and will save you and each other holder of a Note harmless
from, all claims in respect of any fees, costs or expenses if any, of brokers
and finders (other than those retained by you).
15.2 SURVIVAL.
The obligations of the Company under this Section 15 will survive the
payment or transfer of any Note, the enforcement, amendment or waiver of any
provision of this Agreement or the Notes, and the termination of this Agreement.
MASTERCARD INTERNATIONAL INCORPORATED 27 NOTE PURCHASE AGREEMENT
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT
All representations and warranties contained herein shall survive the
execution and delivery of this Agreement and the Notes, the purchase or transfer
by you of any Note or portion thereof or interest therein and the payment of any
Note, and may be relied upon by any subsequent holder of a Note, regardless of
any investigation made at any time by or on behalf of you or any other holder of
a Note. All statements contained in any certificate or other instrument
delivered by or on behalf of the Company pursuant to this Agreement shall be
deemed representations and warranties of the Company under this Agreement.
Subject to the preceding sentence, this Agreement and the Notes embody the
entire agreement and understanding between you and the Company and supersede all
prior agreements and understandings relating to the subject matter hereof.
17. AMENDMENT AND WAIVER
17.1 REQUIREMENTS.
This Agreement and the Notes may be amended, and the observance of any
term hereof or of the Notes may be waived (either retroactively or
prospectively), with (and only with) the written consent of the Company and the
Required Holders, except that
(a) no amendment or waiver of any of the provisions of any one
or more of Section 1 through Section 6, or any defined term (as it is
used therein), will be effective as to you unless consented to by you
in writing, and
(b) no such amendment or waiver may, without the written
consent of the holder of each Note at the time outstanding affected
thereby,
(i) change the amount or time of any prepayment or
payment of principal of, or reduce the rate or change the time
of payment or method of computation of interest or of the
Make-Whole Amount on, the Notes,
(ii) change the percentage of the principal amount of
the Notes the holders of which are required to consent to any
such amendment or waiver, or
(iii) amend any of Sections 8, Section 11.1(a),
Section 11.2, Section 12, Section 17 or Section 20.
17.2 SOLICITATION OF HOLDERS OF NOTES.
(a) SOLICITATION. The Company will provide each holder of the
Notes (irrespective of the amount of Notes then owned by it) with
sufficient information, sufficiently far in advance of the date a
decision is required, to enable such holder to make an informed and
considered decision with respect to any proposed amendment, waiver or
consent in respect of any of the provisions hereof or of the Notes. The
Company will deliver executed or true and correct copies of each
amendment, waiver or consent effected pursuant to the provisions of
this Section 17 to each holder of
MASTERCARD INTERNATIONAL INCORPORATED 28 NOTE PURCHASE AGREEMENT
outstanding Notes promptly following the date on which it is executed
and delivered by, or receives the consent or approval of, the requisite
holders of Notes.
(b) PAYMENT. The Company will not directly or indirectly pay
or cause to be paid any remuneration, whether by way of supplemental or
additional interest, fee or otherwise, or grant any security, to any
holder of Notes as consideration for or as an inducement to the
entering into by any holder of Notes of any waiver or amendment of any
of the terms and provisions hereof unless such remuneration is
concurrently paid, or security is concurrently granted, on the same
terms, ratably to each holder of Notes then outstanding even if such
holder did not consent to such waiver or amendment.
17.3 BINDING EFFECT, ETC.
Any amendment or waiver consented to as provided in this Section 17
applies equally to all holders of Notes and is binding upon them and upon each
future holder of any Note and upon the Company without regard to whether such
Note has been marked to indicate such amendment or waiver. No such amendment or
waiver will extend to or affect any obligation, covenant, agreement, Default or
Event of Default not expressly amended or waived or impair any right consequent
thereon. No course of dealing between the Company and the holder of any Note nor
any delay in exercising any rights hereunder or under any Note shall operate as
a waiver of any rights of any holder of such Note. As used herein, the term
"THIS AGREEMENT" and references thereto shall mean this Agreement as it may from
time to time be amended or supplemented.
17.4 NOTES HELD BY COMPANY, ETC.
Solely for the purpose of determining whether the holders of the
requisite percentage of the aggregate principal amount of Notes then outstanding
approved or consented to any amendment, waiver or consent to be given under this
Agreement or the Notes, or have directed the taking of any action provided
herein or in the Notes to be taken upon the direction of the holders of a
specified percentage of the aggregate principal amount of Notes then
outstanding, Notes directly or indirectly owned by the Company or any of its
Affiliates shall be deemed not to be outstanding.
18. NOTICES
All notices and communications provided for hereunder shall be in
writing and sent
(a) by telecopy if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery
service (charges prepaid),
(b) by registered or certified mail with return receipt
requested (postage prepaid), or
(c) by a recognized overnight delivery service (with charges
prepaid).
Any such notice must be sent:
MASTERCARD INTERNATIONAL INCORPORATED 29 NOTE PURCHASE AGREEMENT
(i) if to you or your nominee, to you or it at the address
specified for such communications in SCHEDULE A, or at such other
address as you or it shall have specified to the Company in writing,
(ii) if to any other holder of any Note, to such holder at
such address as such other holder shall have specified to the Company
in writing, or
(iii) if to the Company, to the Company at
MASTERCARD INTERNATIONAL INCORPORATED
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President and Treasurer
T: ▇▇▇-▇▇▇-▇▇▇▇
F: ▇▇▇-▇▇▇-▇▇▇▇
or at such other address as the Company shall have specified to the
holder of each Note in writing.
Notices under this Section 18 will be deemed given only when actually received.
19. REPRODUCTION OF DOCUMENTS
This Agreement and all documents relating thereto, including, without
limitation,
(a) consents, waivers and modifications that may hereafter be
executed,
(b) documents received by you at the Closing (except the Notes
themselves), and
(c) financial statements, certificates and other information
previously or hereafter furnished to you,
may be reproduced by you by any photographic, photostatic, microfilm, microcard,
miniature photographic or other similar process and you may destroy any original
document so reproduced. The Company agrees and stipulates that, to the extent
permitted by applicable law, any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative proceeding
(whether or not the original is in existence and whether or not such
reproduction was made by you in the regular course of business) and any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence. This Section 19 shall not prohibit the
Company or any other holder of Notes from contesting any such reproduction to
the same extent that it could contest the original, or from introducing evidence
to demonstrate the inaccuracy of any such reproduction.
20. CONFIDENTIAL INFORMATION
MASTERCARD INTERNATIONAL INCORPORATED 30 NOTE PURCHASE AGREEMENT
For the purposes of this Section 20, "CONFIDENTIAL INFORMATION" means
information delivered to you by or on behalf of the Company or any Subsidiary in
connection with the transactions contemplated by or otherwise pursuant to this
Agreement that is proprietary in nature and that was clearly marked or labeled
or otherwise adequately identified when received by you as being confidential
information of the Company or such Subsidiary, provided that such term does not
include information that
(a) was publicly known or otherwise known to you prior to the
time of such disclosure,
(b) subsequently becomes publicly known through no act or
omission by you or any Person acting on your behalf,
(c) otherwise becomes known to you from a source other than
through disclosure by the Company or any Subsidiary that is not, to
your actual knowledge, subject to an applicable duty of confidentiality
to the Company or such Subsidiary with respect thereto, or
(d) constitutes financial statements delivered to you under
Section 7.1 that are otherwise publicly available.
You will maintain the confidentiality of such Confidential Information in
accordance with procedures adopted by you in good faith to protect confidential
information of third parties delivered to you, provided that you may deliver or
disclose Confidential Information to
(i) your directors, officers, trustees, employees,
agents, attorneys and affiliates (to the extent such
disclosure reasonably relates to the administration of the
investment represented by your Notes),
(ii) your financial advisors and other professional
advisors who agree to hold confidential the Confidential
Information substantially in accordance with the terms of this
Section 20,
(iii) any other holder of any Note,
(iv) any Person to which you sell or offer to sell
such Note or any part thereof or any participation therein (if
such Person has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of this
Section 20),
(v) any Person from which you offer to purchase any
security of the Company (if such Person has agreed in writing
prior to its receipt of such Confidential Information to be
bound by the provisions of this Section 20),
(vi) any federal or state regulatory authority having
jurisdiction over you,
MASTERCARD INTERNATIONAL INCORPORATED 31 NOTE PURCHASE AGREEMENT
(vii) the National Association of Insurance
Commissioners or any similar organization, or any nationally
recognized rating agency that requires access to information
about your investment portfolio, or
(viii) any other Person to which such delivery or
disclosure may be necessary or appropriate
(A) to effect compliance with any law, rule,
regulation or order applicable to you,
(B) in response to any subpoena or other
legal process,
(C) in connection with any litigation to
which you are a party or
(D) if an Event of Default has occurred and
is continuing, to the extent you may reasonably
determine such delivery and disclosure to be
necessary or appropriate in the enforcement or for
the protection of the rights and remedies under your
Notes and this Agreement.
Each holder of a Note, by its acceptance of a Note, will be deemed to have
agreed to be bound by and to be entitled to the benefits of this Section 20 as
though it were a party to this Agreement. On reasonable request by the Company
in connection with the delivery to any holder of a Note of information required
to be delivered to such holder under this Agreement or requested by such holder
(other than a holder that is a party to this Agreement or its nominee), such
holder will enter into an agreement with the Company embodying the provisions of
this Section 20.
21. MISCELLANEOUS
21.1 SUCCESSORS AND ASSIGNS.
All covenants and other agreements contained in this Agreement by or on
behalf of any of the parties hereto bind and inure to the benefit of their
respective successors and assigns (including, without limitation, any subsequent
holder of a Note) whether so expressed or not.
21.2 SEVERABILITY.
Any provision of this Agreement that 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 (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
21.3 CONSTRUCTION.
Each covenant contained herein shall be construed (absent express
provision to the contrary) as being independent of each other covenant contained
herein, so that compliance with any one covenant shall not (absent such an
express contrary provision) be deemed to excuse
MASTERCARD INTERNATIONAL INCORPORATED 32 NOTE PURCHASE AGREEMENT
compliance with any other covenant. Where any provision herein refers to action
to be taken by any Person, or which such Person is prohibited from taking, such
provision shall be applicable whether such action is taken directly or
indirectly by such Person. Certain capitalized terms used in this Agreement are
defined in SCHEDULE B; references to a "Schedule" or an "Exhibit" are, unless
otherwise specified, to a Schedule or an Exhibit attached to this Agreement; and
references to Sections are, unless otherwise specified, references to Sections
of this Agreement.
21.4 COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be an original but all of which together shall constitute one
instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
21.5 GOVERNING LAW.
THIS AGREEMENT AND THE NOTES SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF
THE STATE OF NEW YORK EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH
STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER
THAN SUCH STATE.
[Remainder of page intentionally blank; next page is signature page.]
MASTERCARD INTERNATIONAL INCORPORATED 33 NOTE PURCHASE AGREEMENT
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Company, whereupon the foregoing shall become a binding agreement between you
and the Company.
Very truly yours,
MASTERCARD INTERNATIONAL INCORPORATED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Treasurer
The foregoing is hereby agreed to as of the date thereof.
UNITY MUTUAL LIFE INSURANCE COMPANY
BY: ADVANTUS CAPITAL MANAGEMENT, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
MASTERCARD INTERNATIONAL INCORPORATED 34 NOTE PURCHASE AGREEMENT
SCHEDULE B
DEFINED TERMS
As used herein, the following terms have the respective meanings set
forth below or set forth in the Section hereof following such term:
"AFFILIATE" means, at any time, and with respect to any Person, any
other Person that at such time directly or indirectly through one or more
intermediaries Controls, or is Controlled by, or is under common Control with,
such first Person. As used in this definition,
"Control" means the possession, directly or
indirectly, of the power to direct or cause the direction of
the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
Unless the context otherwise clearly requires, any reference
to an "Affiliate" is a reference to an Affiliate of the
Company.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day
on which any of the commercial banks specified by any holder of Notes or the
Company for the receipt of payments in respect of the Notes are required or
authorized to be closed.
"CAPITAL LEASE" means, at any time, a lease with respect to which the
lessee is required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
"CLOSING" is defined in Section 3.
"COMPANY" is defined in the introductory sentence to this Agreement.
"CONSOLIDATED NET INCOME" means, in respect of any period, net income
of the Company and its subsidiaries for such period determined in accordance
with GAAP.
"CONSOLIDATED NET WORTH" means, at any time, the total equity of the
Company and its subsidiaries at such time determined in accordance with GAAP.
"CONFIDENTIAL INFORMATION" is defined in Section 20.
"DEFAULT" means an event or condition the occurrence or existence of
which would, with the lapse of time or the giving of notice or both, become an
Event of Default.
"ENVIRONMENTAL LAWS" means any and all Federal, state, local, and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including but
not limited to those related to hazardous substances or wastes, air emissions
and discharges to waste or public systems.
MASTERCARD INTERNATIONAL INCORPORATED Schedule B-1 NOTE PURCHASE AGREEMENT
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations promulgated thereunder
from time to time in effect.
"ERISA AFFILIATE" means
(a) any corporation subject to ERISA whose employees are
treated as employed by the same employer as the employees of the
Company under IRC Section 414(b),
(b) any trade or business subject to ERISA whose employees are
treated as employed by the same employer as the employees of the
Company under IRC Section 414(c),
(c) solely for purposed Section 302 of ERISA and Section 412
of the IRC, any organization subject to ERISA that is a member of an
affiliated service group of which the Company is a member under IRC
Section 414(m), or
(d) solely for purposes of Section 302 of ERISA and Section
412 of the IRC, any party subject to ERISA that is a party to an
arrangement with the Company and whose employees are aggregated with
the employees of the Company under IRC Section 414(o).
If a trade or business (including without limitation a corporation)
becomes an ERISA Affiliate, the provisions hereof applicable to such trade or
business as an ERISA Affiliate shall not apply thereto until as of the date it
becomes an ERISA Affiliate. If a trade or business ceases to be an ERISA
Affiliate, the provision hereof applicable to such trade or business as an ERISA
Affiliate shall no longer apply thereto as of the date of such cessation.
"EVENT OF DEFAULT" is defined in Section 11.1.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States of America.
"GOVERNMENTAL AUTHORITY" means
(a) the government of
(i) the United States of America or any State or
other political subdivision thereof, or
(ii) any jurisdiction in which the Company or any
Subsidiary conducts all or any part of its business, or which
asserts jurisdiction over any properties of the Company or any
Subsidiary, or
MASTERCARD INTERNATIONAL INCORPORATED Schedule B-2 NOTE PURCHASE AGREEMENT
(b) any entity exercising executive, legislative, judicial,
regulatory or administrative functions of, or pertaining to, any such
government.
"HOLDER" means, with respect to any Note, the Person in whose name such
Note is registered in the register maintained by the Company pursuant to Section
13.1.
"INDEBTEDNESS" means, with respect to any Person, without duplication,
(a) its liabilities for borrowed money and its redemption
obligations in respect of mandatorily redeemable Preferred Stock;
(b) its liabilities for the deferred purchase price of
property acquired by such Person which in accordance with GAAP would be
included as a liability on the balance sheet of such Person (including
all liabilities created or arising under any conditional sale or other
title retention agreement with respect to any such property);
(c) all liabilities appearing on its balance sheet in
accordance with GAAP in respect of Capital Leases;
(d) all liabilities for borrowed money secured by any Lien
with respect to any property owned by such Person (whether or not it
has assumed or otherwise become liable for such liabilities);
(e) all its liabilities in respect of letters of credit or
instruments serving a similar function issued or accepted for its
account by banks and other financial institutions (whether or not
representing obligations for borrowed money);
(f) Swaps of such Person; and
(g) any Guaranty of such Person with respect to liabilities of
a type described in any of clause (a) through clause (f) hereof.
provided that Indebtedness shall not include trade payables and accrued expenses
relating to employees, in each case arising in the ordinary course of business.
As used in this definition,
"Guaranty" means, with respect to any Person, any obligation
(except the endorsement in the ordinary course of business of
negotiable instruments for deposit or collection) of such Person
guaranteeing or in effect guaranteeing any indebtedness, dividend or
other obligation of any other Person in any manner, whether directly or
indirectly, including (without limitation) obligations incurred through
an agreement, contingent or otherwise, by such Person:
(a) to purchase such indebtedness or obligation or any
property constituting security therefor;
(b) to advance or supply funds
(i) for the purchase or payment of such indebtedness
or obligation, or
MASTERCARD INTERNATIONAL INCORPORATED Schedule B-3 NOTE PURCHASE AGREEMENT
(ii) to maintain any working capital or other balance
sheet condition or any income statement condition of any other
Person or otherwise to advance or make available funds for the
purchase or payment of such indebtedness or obligation;
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such indebtedness or
obligation of the ability of any other Person to make payment of the
indebtedness or obligation; or
(d) otherwise to assure the owner of such indebtedness or
obligation against loss in respect thereof.
In any computation of the indebtedness or other liabilities of the
obligor under any Guaranty, the indebtedness or other obligations that
are the subject of such Guaranty shall be assumed to be direct
obligations of such obligor.
"Swaps" means, with respect to any Person, payment obligations
with respect to interest rate swaps, currency swaps and similar
obligations obligating such Person to make payments, whether
periodically or upon the happening of a contingency. For the purposes
of this Agreement, the amount of the obligation under any Swap shall be
the amount determined in respect thereof as of the end of the then most
recently ended fiscal quarter of such Person, based on the assumption
that such Swap had terminated at the end of such fiscal quarter, and in
making such determination, if any agreement relating to such Swap
provides for the netting of amounts payable by and to such Person
thereunder or if any such agreement provides for the simultaneous
payment of amounts by and to such Person, then in each such case, the
amount of such obligation shall be the net amount so determined.
"INDEBTEDNESS FOR MONEY BORROWED OF THE COMPANY" means any obligation
of, or any obligation guaranteed by, the Company 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.
"IRC" means the Internal Revenue Code of 1986, as amended from time to
time, and the rules and regulations promulgated thereunder from time to time.
"LIEN" means, with respect to any Person, any mortgage, lien, pledge,
charge, security interest or other encumbrance, or any interest or title of any
vendor, lessor, lender or other secured party to or of such Person under any
conditional sale or other title retention agreement or Capital Lease, upon or
with respect to any property or asset of such Person (including in the case of
stock, stockholder agreements, voting trust agreements and all similar
arrangements). The term "Lien" does not include negative pledge clauses in
agreements relating to the borrowing of money.
"MAKE-WHOLE AMOUNT" is defined in Section 8.6.
"MATERIAL" means material in relation to the business, operations,
financial condition, assets, or properties of the Company and its Subsidiaries
taken as a whole.
MASTERCARD INTERNATIONAL INCORPORATED Schedule B-4 NOTE PURCHASE AGREEMENT
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(a) the business, operations, financial condition, assets or
properties of the Company and its Subsidiaries taken as a whole, or
(b) the ability of the Company to perform its obligations
under this Agreement and the Notes, or
(c) the validity or enforceability of this Agreement or the
Notes.
"MEMORANDUM" is defined in Section 5.3.
"MULTIEMPLOYER PLAN" means any Plan that is a "multiemployer plan" (as
such term is defined in section 4001 (a)(3) of ERISA).
"NOTES" is defined in Section 1.
"OFFICER'S CERTIFICATE" means a certificate of a Senior Financial
Officer or of any other officer of the Company whose responsibilities extend to
the subject matter of such certificate.
"OTHER AGREEMENTS" is defined in Section 2.
"OTHER PURCHASERS" is defined in Section 2.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA or any successor thereto.
"PERSON" means an individual, partnership, corporation, limited
liability company, association, trust, unincorporated organization, or a
government or agency or political subdivision thereof.
"PLAN" means an "employee benefit plan" (as defined in section 3(3) of
ERISA) that is or, within the preceding five years, has been established or
maintained, or to which contributions are or, within the preceding five years,
have been made or required to be made, by the Company or any ERISA Affiliate or
with respect to which the Company or any ERISA Affiliate is reasonably expected
to have any liability.
"PREFERRED STOCK" means any class of capital stock of a corporation
that is preferred over any other class of capital stock of such corporation as
to the payment of dividends or the payment of any amount upon liquidation or
dissolution of such corporation.
"PROPERTY" or "PROPERTIES" means, unless otherwise specifically
limited, real or personal property of any kind, tangible or intangible, ▇▇▇▇▇▇
or inchoate.
"PURCHASERS" is defined in Section 2.
"PTE" is defined in Section 6.2(a).
MASTERCARD INTERNATIONAL INCORPORATED Schedule B-5 NOTE PURCHASE AGREEMENT
"REQUIRED HOLDERS" means, at any time, the holder or holders of more
than 66-2/3% in principal amount of the Notes at the time outstanding (exclusive
of Notes then owned by the Company or any of its Affiliates).
"RESPONSIBLE OFFICER" means any Senior Financial Officer and any other
officer of the Company with responsibility for the administration of the
relevant portion of this Agreement.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time
to time.
"SENIOR CLAIMS" is defined in Section 12.1 (b).
"SENIOR FINANCIAL OFFICER" means the chief financial officer, principal
accounting officer, treasurer or comptroller of the Company.
"SIGNIFICANT SUBSIDIARY" means at any time any Subsidiary that would at
such time constitute a "significant subsidiary" (as such term is defined in
Regulation S-X of the Securities and Exchange Commission as in effect on the
date of the Closing) of the Company.
"SOURCE" is defined in Section 6.2.
"SUBSIDIARY" means, as to any Person, any corporation, association or
other business entity in which such Person or one or more of its Subsidiaries or
such Person and one or more of its Subsidiaries owns sufficient equity or voting
interests to enable it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons performing
similar functions) of such entity, and any partnership or joint venture if more
than a 50% interest in the profits or capital thereof is owned by such Person or
one or more of its Subsidiaries or such Person and one or more of its
Subsidiaries (unless such partnership or joint venture can and does ordinarily
take major business actions without the prior approval of such Person or one or
more of its Subsidiaries). Unless the context otherwise clearly requires, any
reference to a "Subsidiary" is a reference to a Subsidiary of the Company.
MASTERCARD INTERNATIONAL INCORPORATED Schedule B-6 NOTE PURCHASE AGREEMENT
EXHIBIT 1
FORM OF NOTE
THE RIGHT TO PAYMENT IN RESPECT OF THIS NOTE IS SUBORDINATED
TO CERTAIN SENIOR CLAIMS AGAINST THE COMPANY TO THE
EXTENT AND IN THE MANNER PROVIDED IN THE NOTE
PURCHASE AGREEMENTS REFERRED TO BELOW.
MASTERCARD INTERNATIONAL INCORPORATED
6.67% Subordinated Note due June 30, 2008
No. R-[____________] [Date]
$[________________] PPN: 57636@ AA 8
FOR VALUE RECEIVED, the undersigned, MASTERCARD INTERNATIONAL
INCORPORATED (herein called the "Company"), a non-stock corporation organized
and existing under the laws of the State of Delaware hereby promises to pay to
[_______________], or registered assigns, the principal sum of ________________
DOLLARS on June 30, 2008, with interest (computed on the basis of a 360-day year
of twelve 30-day months) (a) on the unpaid balance thereof at the rate of 6.67%
per annum from the date hereof, payable semiannually, on the 30th day of June
and December in each year, commencing with the June 30 or December 30 next
succeeding the date hereof, until the principal hereof shall have become due and
payable, and (b) to the extent permitted by law on any overdue payment
(including any overdue prepayment) of principal, any overdue payment of interest
and any overdue payment of any Make-Whole Amount (as defined in the Note
Purchase Agreements referred to below), payable semiannually as aforesaid (or,
at the option of the registered holder hereof, on demand), at a rate per annum
from time to time equal to 6.67%.
Payments of principal, Make-Whole Amount, if any, and interest shall be
made in such coin or currency of the United States of America as at the time of
payment is legal tender for the payment of public and private debts to the
registered holder hereof at the address shown in the register maintained by the
Company for such purpose, in the manner provided in the Note Purchase
Agreements.
This Note is one of a series of Subordinated Notes (herein called the
"Notes") issued pursuant to those certain Note Purchase Agreements, dated as of
June 30, 1998 (as from time to time amended, the "Note Purchase Agreements"),
between the Company and the respective Purchasers named therein and is entitled
to the benefits thereof. Each holder of this Note will be deemed, by its
acceptance hereof, (i) to have agreed to the confidentiality provisions set
forth in Section 20 of the Note Purchase Agreements and (ii) to have made the
representation set forth in Section 6 of the Note Purchase Agreements.
This Note is a registered Note and, as provided in the Note Purchase
Agreements, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written
MASTERCARD INTERNATIONAL INCORPORATED Exhibit 1-1 NOTE PURCHASE AGREEMENT
instrument of transfer duly executed, by the registered holder hereof or such
holder's attorney duly authorized in writing, a new Note for a like principal
amount will be issued to, and registered in the name of, the transferee. Prior
to due presentment for registration of transfer, the Company may treat the
person in whose name this Note is registered as the owner hereof for the purpose
of receiving payment and for all other purposes, and the Company will not be
affected by any notice to the contrary.
This Note is subject to optional prepayment, in whole or from time to
time in part, at the times and on the terms specified in the Note Purchase
Agreements, but not otherwise.
This Note will be governed by, and construed and enforced in accordance
with, the law as provided in the Note Purchase Agreement.
MASTERCARD INTERNATIONAL INCORPORATED
By: ___________________________________
Name:
Title:
MASTERCARD INTERNATIONAL INCORPORATED Exhibit 1-2 NOTE PURCHASE AGREEMENT
EXHIBIT 4.4(a)
FORM OF OPINION OF SPECIAL COUNSEL
TO THE COMPANY
Matters To Be Covered In
Opinion of Special Counsel To the Company
1. Each of the Company and its subsidiaries is duly organized, validly
existing and in good standing and the Company has the requisite legal power and
authority to issue and sell the Notes and to execute and deliver the Note
Purchase Agreements and the Notes.
2. Each of the Company and its Significant Subsidiaries is duly
qualified and in good standing as a foreign business organization in appropriate
jurisdictions.
3. The Note Purchase Agreements and the Notes have been duly authorized
and executed, and delivered and are legal, valid, binding and enforceable.
4. The Note Purchase Agreements and the Notes do not conflict with
charter documents, laws or other agreements.
5. All consents required to issue and sell the Notes and to execute and
deliver the Note Purchase Agreements have been obtained.
6. There is no litigation questioning the validity of the Note Purchase
Agreements or the Notes.
7. Neither the registration of the Notes under the Securities Act of
1933, nor the qualification of an indenture under the Trust Indenture Act of
1939 in respect of the Notes, is required.
8. The use of the proceeds of the Notes does not violate any regulation
of the Federal Reserve Board in respect of margin lending.
9. Company not an "investment company", or a company "controlled" by an
"investment company", under the Investment Company Act of 1940, as amended.
The opinion shall cover such other matters relating to the sale of the
Notes as the Purchaser or its special counsel may reasonably request and may
contain qualifications and exceptions (including, without limitation,
qualifications as to the enforceability of documents and instruments) that are
customarily found in New York law opinions delivered in transactions similar to
the transactions contemplated by the Note Purchase Agreement. With respect to
matters of fact on which such opinion is based, such counsel shall be entitled
to rely on appropriate certificates of public officials and officers of the
Company and customary searches of public records. Such opinion shall state that
(i) ▇▇▇▇ & ▇▇▇▇▇▇, counsel to the Purchasers, shall be entitled to rely on such
opinion for purposes of rendering their opinion to the Purchaser on the date of
Closing, (ii) subsequent holders of Notes shall be entitled to rely on such
opinion as if it were addressed to them, and (iii) copies of such opinion may be
delivered or disclosed to (a) governmental, regulatory and other authorities
having jurisdiction over the affairs of each holder
MASTERCARD INTERNATIONAL INCORPORATED Exhibit 4.4(a)-1 NOTE PURCHASE AGREEMENT
EXHIBIT 4.4(a)
of Notes (including, without limitation, the National Association of Insurance
Commissioners of the United States of America) and (b) any potential transferee
of any Notes.
MASTERCARD INTERNATIONAL INCORPORATED Exhibit 4.4(a)-2 NOTE PURCHASE AGREEMENT