EXHIBIT 10.4.1



 






EXHIBIT 10.4.1




FIRST AMENDMENT TO GUARANTEE




     THIS FIRST AMENDMENT TO GUARANTEE (the “Amendment”), dated as of November 23, 2004, is made by
and among MASTERCARD INTERNATIONAL INCORPORATED, a Delaware non-stock membership corporation
(“MasterCard International”), MASTERCARD INCORPORATED, a Delaware stock corporation (“MasterCard
Incorporated”; MasterCard International and MasterCard Incorporated are hereinafter referred to
individually and collectively as “Guarantor”), and UMB BANK, & TRUST, N.A., a national banking
association (formerly known as State Street Bank and Trust of Missouri, N.A.), as Indenture Trustee
(the “Indenture Trustee”).



Recitals




     WHEREAS, MasterCard International delivered to the Indenture Trustee for the benefit of the
Noteholders under that certain Indenture, dated as of August 31, 1999 (as amended, supplemented,
extended or otherwise modified from time to time, the “Indenture”), that certain Guarantee, dated
as of August 31, 1999 (the “Guarantee”). Capitalized terms used in this Amendment and not defined
in this Amendment shall have the meanings ascribed to them in the Guarantee;



     WHEREAS, pursuant to the Guarantee, MasterCard International absolutely and unconditionally
guaranteed the full and prompt payment of certain debts, liabilities and obligations owed by MCI
O’Fallon 1999 Trust, a Delaware business trust (“MCI
O’Fallon”), to the Noteholders;



     WHEREAS, MasterCard International and related entities have undergone a corporate
restructuring wherein the ownership and control of MasterCard International was transferred to
MasterCard Incorporated;



     WHEREAS, in order to more accurately reflect the corporate structure of the Guarantor and
facilitate efficient and accurate compliance with the reporting and financial covenants set forth
in the Guarantee, MasterCard International and MasterCard Incorporated have requested that the
Indenture Trustee amend the Guarantee to add MasterCard Incorporated as an additional guarantor and
to make other changes consistent with Guarantor’s corporate structure;



     WHEREAS, Section 15(a) of the Guarantee provides that none of the provisions of the Guarantee
may be amended or modified, except as provided for in Section 11.1 of the Indenture;



     WHEREAS, Section 11.1 of the Indenture provides that the Indenture Trustee shall not enter
into any amendment or modification without the prior written consent of the Required Noteholders,
which constitutes the holders of more than 50% in principal amount of the Senior Secured Notes; and



 









 





     WHEREAS, the Required Noteholders have provided their written consent to this Amendment and
have authorized the Indenture Trustee to enter into this Amendment, copies of which written
consents are attached hereto as Exhibit A and are incorporated herein by this reference.



     NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements
herein contained, it is agreed as follows:



     1. The Guarantee is hereby amended so as to add MasterCard Incorporated as an additional party
thereto and guarantor thereunder, jointly and severally, and to provide that all references to
“Guarantor” contained therein shall hereinafter refer to both MasterCard International and
MasterCard Incorporated, jointly and severally. All references to “Amendment” in the Guarantee
shall mean this Amendment.



     2. The introductory paragraph of Section 8 and subsections 8.1 through and including
subsection 8.16 of the Guarantee are hereby amended by deleting each reference to “Guarantor”
contained therein and inserting the term “MasterCard International” in lieu thereof, in order that
the representations and warranties contained therein shall be solely the representations and
warranties of MasterCard International and not both MasterCard International and MasterCard
Incorporated, collectively as Guarantor. Section 8 of the Guarantee is further amended by adding
the following provisions at the end thereof:



          “8.17. Representations and Warranties of MasterCard Incorporated. In order to induce
the Required Noteholders to consent to the Amendment and authorize the Indenture Trustee to enter
into the Amendment, MasterCard Incorporated hereby represents and warrants to the Indenture Trustee
and each Noteholder as of the date of the Amendment, as follows:



          (a) Financial Condition (i) The audited consolidated balance sheet of MasterCard
Incorporated at the end of its most recent fiscal year and the related consolidated statements of
income and comprehensive income, of changes in equity and of cash flows of MasterCard Incorporated
for the fiscal period ended on such date, reported on by its independent public accountants, and
(ii) the unaudited consolidated balance sheet of MasterCard Incorporated at the end of its most
recent fiscal quarter and the related consolidated statements of income and cash flows of
MasterCard Incorporated for the portion of the fiscal period ended on such date, which have been
filed in MasterCard Incorporated’s reports to the Securities and Exchange Commission (the “SEC”),
are complete and correct and present fairly (except, with respect to interim statements, for normal
year-end adjustments) the consolidated financial position of MasterCard Incorporated as of such
dates, and the consolidated results of operations and cash flows for the fiscal periods then ended
and, in the case of the statements referred to in the foregoing clause (ii), the portion of the
fiscal year through such date. All such financial statements, including the related schedules and
notes thereto in the case of statements referred to in the foregoing clause (ii), have been
prepared in accordance with



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GAAP applied consistently throughout the periods involved (except, with respect to interim
statements, for normal year-end adjustments and that such interim statements may be condensed and
exclude detailed footnote disclosure, and as disclosed therein). MasterCard Incorporated did not,
as of the date of any such financial statements, have any material obligation, contingent or
otherwise, which was not reflected in the foregoing statements or in the notes thereto and which,
individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.



          (b) No Material Change. Since the date of the most recent financial statements
identified in subsection 8.17(a), (i) there has been no occurrence which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect, and (ii) other than as
disclosed in any report filed publicly with the SEC, MasterCard Incorporated has not, since such
date, incurred any material obligation, contingent or otherwise, which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.



          (c) Corporate Existence; Compliance with Law. MasterCard Incorporated (a) is a stock
corporation duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (b) has the corporate power and authority and the legal right to
own and operate its property, to lease the property it operates and to conduct the business in
which it is currently engaged (except to the extent that the failure to possess such corporate
power and authority and such legal right, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect), (c) is duly qualified as a foreign corporation and in
good standing under the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification, except where the failure to be
so qualified, individually or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect and (d) is in compliance with all Legal Requirements (including, without limitation,
CERCLA, any so-called “Superfund” or “Superlien” law, or any applicable federal, state, local or
other statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to, or
imposing liability or standards of conduct concerning, any Hazardous Substances), except to the
extent that the failure to comply therewith, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect.



          (d) Corporate Power; Authorization. MasterCard Incorporated has the corporate power
and authority and the legal right to make, deliver and perform the Amendment. MasterCard
Incorporated has taken all necessary corporate action to authorize the execution, delivery and
performance of the Amendment. No consent or authorization of, or filing with, any Person
(including, without limitation, any Governmental Authority) is required in connection with the
execution, delivery or performance by MasterCard Incorporated or the validity or enforceability
against MasterCard Incorporated of the Amendment.



          (e) Enforceable Obligations. The Amendment has been duly executed and delivered on
behalf of MasterCard Incorporated and the Amendment constitutes the



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legal, valid and binding obligation of MasterCard Incorporated, enforceable against MasterCard
Incorporated in accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting creditors’
rights generally and by general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law).



          (f) No Legal Bar. The performance of the Amendment will not violate any Legal
Requirement or any Contractual Obligation applicable to or binding upon MasterCard Incorporated or
any of its properties or assets, which violations, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, and will not result in the creation or
imposition of (or the obligation to create or impose) any Lien (other than Liens created under the
Security Documents) on any of its properties or assets pursuant to any Legal Requirement applicable
to it or any of its Contractual Obligations.



          (g) No Material Litigation. Except as disclosed in Schedule 8.7 or as previously
disclosed in any report filed with the SEC, no litigation, investigation known to MasterCard
Incorporated or proceeding of or by any Governmental Authority or any other Person is pending or,
to its knowledge, threatened against MasterCard Incorporated (a) with respect to the validity,
binding effect or enforceability of the Amendment, or (b) which, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.



          (h) Investment Company Act. MasterCard Incorporated is not an “investment company” or
a company “controlled” by an “investment company” (as each of the quoted terms is defined or used
in the Investment Company Act of 1940, as amended).



          (i) No Default. MasterCard Incorporated is not in default in the payment or
performance of any of its Contractual Obligations in any respect which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect. MasterCard Incorporated
is not in default under any order, award or decree of any Governmental Authority or arbitrator
binding upon or affecting it or by which any of its properties or assets may be bound or affected
in any respect which default, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect, and no such order, award or decree, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.



          (j) Taxes. MasterCard Incorporated has filed or caused to be filed or has timely
requested an extension to file or has received an approved extension to file all tax returns which,
to the knowledge of MasterCard Incorporated, are required to have been filed, and has paid all
taxes shown to be due and payable on said returns or extension requests or on any assessments made
against it or any of its property and all other taxes, fees or other charges imposed on it or any
of its property by any Governmental Authority (other than those the amount or validity of which is
currently being contested in good faith by appropriate proceedings and with respect to which



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reserves in conformity with GAAP have been provided in the books of MasterCard Incorporated),
except where the failure to make or pay any such filings or taxes, fees or charges, individually or
in the aggregate, could not reasonably be expected to have a Material Adverse Effect; and, to the
knowledge of MasterCard Incorporated, no claims are being asserted with respect to any such taxes,
fees or other charges (other than those the amount or validity of which is currently being
contested in good faith by appropriate proceedings and with respect to which reserves in conformity
with GAAP have been provided in the books of MasterCard Incorporated), except where the failure to
pay any such taxes, fees or other charges, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect. The federal income tax liabilities of MasterCard
Incorporated have been determined by the United States Internal Revenue Service and paid for all
fiscal years up to and including the fiscal year ended December 31, 2003.



          (k) Ownership of Property; Liens. MasterCard Incorporated has good and marketable title to,
or valid and subsisting leasehold interests in, all of its real property, and good title to all its
material other property, except to the extent the failure to have such good title or valid
leasehold interest, individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect; and none of such property is subject, except as permitted hereunder or
under the other Operative Agreements and except, as, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse effect, to any Lien (including, without
limitation, federal, state and other tax Liens).



          (l) ERISA. No “prohibited transaction” (as defined in Section 406 of ERISA or Section
4975 of the Code) or “accumulated funding deficiency” (as defined in Section 302 of ERISA) or
Reportable Event (other than a Reportable Event with respect to which the 30-day notice requirement
under Section 4043 of ERISA has been waived) has occurred during the five years preceding each date
on which this representation is made or deemed made, or will occur, after giving effect to the
transactions contemplated by the Amendment, with respect to any Plan in any case the consequences
of which, individually or in the aggregate, could reasonably be expected to have a Material Adverse
Effect. The present value of all accrued benefits under each Single Employer Plan maintained by
MasterCard Incorporated or a Commonly Controlled Entity (based on those assumptions used to fund
such Plan) did not, as of the most recent annual valuation date in respect of each such Plan,
exceed the fair market value of the assets of the Plan (including for these purposes accrued but
unpaid contributions) allocable to such benefits by an amount which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect. The liability to which
MasterCard Incorporated or any Commonly Controlled Entity would become subject under ERISA if
MasterCard Incorporated or any such Commonly Controlled Entity were to withdraw completely from all
Multiemployer Plans as of the valuation date most closely preceding the date hereof would not have
a Material Adverse Effect. No Multiemployer Plan is either in Reorganization or Insolvent in any
case the consequences of which, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.



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          (m) Solvency. MasterCard Incorporated has received reasonably equivalent value in
exchange for guaranteeing the Guaranteed Obligations. The net cash flow and the fair saleable
value of the business and assets of MasterCard Incorporated, upon giving effect to the Amendment,
shall be not less than the amount that shall be required to pay the probable liabilities of
MasterCard Incorporated (including the Guaranteed Obligations and all contingent, fixed,
subordinated, unsubordinated, matured, unmatured, liquidated and unliquidated liabilities) on
existing debts as they may become absolute and matured. MasterCard Incorporated is not and, upon
giving effect to the Amendment shall not be “insolvent” (as defined in Title 11 of the United
States Code or under any applicable state fraudulent conveyance or transfer statute, in each case
as in effect from time to time), and shall not be engaged in any business or transaction, or about
to engage in any business or transaction, for which MasterCard Incorporated has an unreasonably
small capital, and MasterCard Incorporated has no intent (a) to hinder, delay or defraud any Person
to which MasterCard Incorporated is, or anticipates it shall become, indebted or (b) to incur
indebtedness that would be beyond its ability to pay as such indebtedness matures.”



               3. Subsections 9.1 and 9.2 are hereby amended by deleting each reference to “Guarantor”
contained therein and inserting the term “MasterCard Incorporated” in lieu thereof, in order that
the covenants and obligations of the “Guarantor” contained therein shall be covenants and
obligations of MasterCard Incorporated, only, and not MasterCard International.



          The financial statements required to be delivered pursuant to Subsection 9.1 shall be deemed
to have been delivered to the Noteholders on the date on which MasterCard Incorporated provides
written notice to the Noteholders that such information has been posted on its website on the
Internet at http://www.mastercardintl.com or is available on the website of the SEC or any
successor at http://www.sec.gov (to the extent such information has been posted or is
available as described in such notice). Any of the foregoing to the contrary notwithstanding,
MasterCard Incorporated herby agrees, upon the written request of a Noteholder, to provide to the
Trustee for such Noteholder hard (paper) copies of, or written notice of the posting with the SEC
website of, all quarterly reports prepared and filed with the SEC on form 10-Q and all annual
reports prepared and filed with the SEC on form 10-K or written.



     Subsection 9.2(d) is further amended to add at the end thereof:


“, provided that the filing of any such statement, report, notice or prospectus with the SEC shall
be deemed to have satisfied MasterCard Incorporated’s obligations under this subsection 9.2(d),
provided however, that MasterCard Incorporated herby agrees, upon the written request of a
Noteholder, to provide to the Trustee for such Noteholder hard (paper) copies of, or written notice
of the posting with the SEC website of, all quarterly reports prepared and filed with the SEC on
form 10-Q and all annual reports prepared and filed with the SEC on form 10-K.”




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     4. Subsection 9.2 (b) is hereby deleted and the following is added in lieu thereof:


“(b) within one hundred twenty (120) days after the end of each fiscal year and within sixty (60)
days after the end of each of the first three quarterly periods of each fiscal year of MasterCard
Incorporated, a certificate of a Responsible Officer of each of MasterCard International and
MasterCard Incorporated (i) stating that such officer has reviewed and is familiar with this
Guarantee and the other Operative Agreements and that, to the best of such officer’s knowledge,
the applicable Guarantor has observed or performed all of its covenants and other agreements, and
satisfied every condition, contained in this Guarantee, or in the other Operative Agreements to be
observed, performed or satisfied by it, and that such officer has obtained no knowledge of any
default under this Guarantee or any Lease Default or Lease Event of Default except as specified in
such certificate, and, in the case of MasterCard Incorporated, (ii) showing in detail as of the end
of the related fiscal period the figures and calculations supporting such statement in respect of
Section 10.1;”




     For purposes of Section 9, each reference to “Responsible Officer” shall mean the chief
executive officer, controller or treasurer of MasterCard Incorporated or MasterCard International,
as applicable.



     5. Subsection 9.7 (c) is hereby deleted and the following is added in lieu thereof:


“(c) any litigation or proceeding affecting the Guarantor, not covered by insurance, or in which
injunctive or similar relief is sought which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect;”




     6. Subsection 10.1 of the Guarantee is hereby deleted and the following is added in lieu
thereof:


“10.1 Consolidated Net Worth. Permit Consolidated Net Worth of MasterCard Incorporated at
any time to be less than the sum of (i) $525,000,000 plus (ii) an amount equal to 50% of the sum of
consolidated net income (if positive) of MasterCard Incorporated for each fiscal quarter commencing
with and including the first fiscal quarter of 2004.”




     7. Subsections 10.2 and 10.3 are hereby amended to provide that such covenants shall apply
only with respect to MasterCard International and by deleting each reference to “Guarantor”
contained therein and inserting the term “MasterCard International” in lieu thereof, in order that
the covenants and obligations contained therein shall be covenants and obligations of MasterCard
International, only, and not MasterCard Incorporated.



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     8. The following unnumbered paragraph is hereby added to the end of Section 10, immediately
preceding Section 11:



     “In addition to the foregoing, MasterCard Incorporated hereby agrees that so long as this
Guarantee is in effect and until the Guaranteed Obligations and all amounts owing hereunder are
indefeasibly paid in full, MasterCard Incorporated shall not, at any time, directly or indirectly
consolidate with or merge with, or convey, transfer or lease all or substantially all of its assets
in a single transaction or series of transactions to, any Person; provided that the foregoing
restriction shall not apply to the consolidation or merger of MasterCard Incorporated with, or
conveyance, transfer or lease of all or substantially all of the assets of MasterCard Incorporated
in a single transaction or a series of transactions to, any Person so long as (i) each such
corporation shall have executed and delivered to the Indenture Trustee and the Noteholders its
assumption of the due and punctual performance and observance of each covenant and condition of
this Guarantee; and (ii) immediately before and after giving effect to such transaction, no
Indenture Default or Indenture Event of Default or any default under this Guarantee would exist.”



     9. With respect to Subsection 12(b) of the Guarantee, notices to both MasterCard International
and MasterCard Incorporated, shall be addressed to the address or transmission number for notices
set forth opposite the signature of MasterCard International, as contained in the Guarantee.



     10. MasterCard International hereby reaffirms and remakes, and MasterCard Incorporated hereby
affirms and makes, its obligations to the Noteholders pursuant to the terms of the Guarantee, as
hereby amended.



     11. This Amendment shall be effective as of the date first written above, and any financial
statements or certificates provided after the date hereof pursuant to subsections 9.1 and 9.2 of
the Guarantee, including any statements in respect of Section 10.1 contained therein, shall comply
with the provisions of this Amendment, regardless of whether such financial statements or
certificates relate to a period prior to the date of this Amendment.



     12. Except for the amendments contained herein, all of the provisions of the Guarantee shall
remain unmodified. This Amendment shall be binding upon and inure to the benefit of the respective
successors and permitted assigns and, as applicable, the heirs and legal representatives of the
parties hereto. This Amendment, together with the Guarantee, as modified by this Amendment,
constitutes the entire understanding and agreement between the parties and may not be amended,
supplemented, or modified except by a writing executed by both of the parties.



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     IN WITNESS WHEREOF, this Amendment has been duly executed by the parties hereto as of the day
and year first above written.


	 	 	 	 	 
	 	MASTERCARD INTERNATIONAL INCORPORATED, 

a Delaware non-stock membership corporation

 	 
	 	By  	Andrea Robertson 	 
	 	 	Name:  	Andrea Robertson 	 
	 	 	Title:  	Senior Vice President and Treasurer 	 
	 
	 	MASTERCARD INCORPORATED, a Delaware stock

corporation

 	 
	 	By  	Andrea Robertson 	 
	 	 	Name:  	Andrea Robertson 	 
	 	 	Title:  	Treasurer 	 
	 
	 	UMB BANK & TRUST, N.A., a national banking

association, as Indenture Trustee

 	 
	 	By  	Brian P. Krippner 	 
	 	 	Name:  	Brian P. Krippner 	 
	 	 	Title:  	Vice President 	 
	 





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EXHIBIT A




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Schedule 8.7




None





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