Capital Assurance Agreement - NextBank NA and NextCard Inc.
CAPITAL ASSURANCE AGREEMENT
This Capital Assurance Agreement (the "Agreement") is entered into
effective as of October 26, 2000 by and between NextBank, National Association,
a national bank ("Bank"), and NextCard, Inc., a Delaware Corporation ("Parent").
RECITALS
A. The Bank is a national bank chartered by the Office of the
Comptroller of the Currency (the "OCC") and is authorized to due business as a
national bank limited to credit card operations; and
B. The OCC has requested that the Parent and the Bank enter into an
agreement setting forth the Parent's obligations to provide necessary capital
support to the Bank; and
C. The Board of Directors of the Bank has passed a Board Resolution
that requires the Bank to maintain certain capital levels and to develop a
Capital Plan (Capital Plan); and
D. For purposes of the OCC's regulations under 12 CFR Part 6, this
Agreement shall not be deemed to have been issued by the OCC and shall not
prevent the Bank from being deemed "well capitalized" so long as the Bank
satisfies the numerical standards of Section 6.4(b)(1) of such Part.
In consideration of the mutual covenants and conditions contained
herein, the parties hereby agree as follows:
AGREEMENT
1. Capital Assurance. The Parent hereby commits to support the
Bank's policy of maintaining a capital-to-assets ratio that exceeds all
regulatory requirements for well-capitalized institutions. In accordance with
current OCC rules and regulations, well-capitalized institutions must maintain
the following: (i) a Total Risk Based Capital to Risk Weighted Assets ratio of
10%; (ii) a Tier 1 Risk Based Capital to Risk Weighted Assets ratio of at least
6%; and (iii) a Tier 1 capital to average total assets of 5%. The Parent
covenants that if the Bank's ratios fall below the ratios required by 12 CFR
Part 6, as presently drafted or hereinafter amended, upon written notification
from the Bank's Board of Directors or the OCC, the Parent will contribute
sufficient additional capital within ten (10) days of such written notification
to return the Bank's ratios to a well-capitalized level. Such capital
contribution shall be in the form of cash or other qualified assets, as allowed
by banking regulations, and will be credited to the Bank's surplus capital
account.
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Exhibit 10.50
(a) The Parent hereby further commits:
(i) until the Capital Plan has been adopted by the Board of
Directors of the Bank, to ensure that the Bank's Total Risk Based
Capital remains above 12% of Risk Weighted Assets (as defined by Call
Report Instructions); and
(ii) after the Capital Plan has been adopted by the Board of
Directors of the Bank, to ensure that the Bank's capital is maintained
at the levels specified in the Capital Plan.
(b) The Parent hereby further commits to ensure that the
Bank's equity capital plus its allowance for loan and lease losses does not fall
below 6.5% of total managed assets; provided that the foregoing commitment will
expire on September 16, 2002 .
2. Term and Termination. The term of this Agreement shall commence
on the date first above written (the "Effective Date") and will continue in
effect until the third anniversary of the effective date of the Capital Plan
referenced in the Resolution of the Board of Directors of NextBank, N.A., of
even date herewith.
3. No Assignments. This Agreement shall not be assigned by either
party and any attempt to assign shall be void and without any effect except upon
the express written consent of the parties.
4. Notices. All notices or other communications hereunder shall be
in writing and shall be made by hand delivery, telex, telecopier or registered
or certified mail, postage prepaid, return receipt requested, addressed as
follows:
NextCard, Inc. NextBank, N.A.
595 Market Street - Suite 1800 c/o Next Card, Inc.
San Francisco, CA 94105 595 Market Street - Suite 1800
ATTN: Corporate Secretary San Francisco, CA 94105
ATTN: Corporate Secretary
or at such other address as shall be furnished by either of the parties by like
notice, and such notice or communication shall be deemed to have been given or
made as of the date so delivered if delivered personally; when answered back, if
telexed; when receipt is acknowledged, if telecopied; and five (5) calendar days
after so mailed, if sent by registered or certified mail.
5. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof, and all prior
arrangements and negotiations between the parties with respect to this Agreement
are hereby deemed to be merged herein. This Agreement may be modified or amended
only by mutual written consent of the parties.
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Exhibit 10.50
6. Confidentiality. The Parent and the Bank understand and agree
that the terms of this Agreement are proprietary and confidential information,
and both parties agree that they shall not disclose such information to any
other person or entity without the other party's prior written consent, or
otherwise as required by law.
7. Governing Law. To the extent that federal law does not control,
this Agreement shall be governed by and construed in accordance with the laws of
the State of California.
8. Severability. If any portion of this Agreement shall be held
invalid or inoperative then, so far as is reasonable and possible, the remainder
of this Agreement shall be considered valid and operative, and effect shall be
given to the intent manifested by the portion held invalid or inoperative.
9. Attorney's Fees. The prevailing party in any action between the
parties arising from or relating to this Agreement shall be entitled to recover
from the other party all reasonable attorney's fees and other costs incurred in
such proceeding.
IN WITNESS WHEREOF, the parties have executed this Agreement.
PARENT (NextCard, Inc.)
By:
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John V. Hashman
President &
Chief Executive Officer
BANK (NextBank, N.A.)
By:
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John V. Hashman
President &
Chief Executive Officer