Services Agreement - NextCard Inc. and Federal Deposit Insurance Corp.
RESTATED AND AMENDED SERVICE AGREEMENT
BY AND BETWEEN
NEXTCARD, INC. AND
FDIC AS RECEIVER OF NEXTBANK, N.A.
This Restated and Amended Service Agreement (including the exhibits
hereto, collectively the "AGREEMENT") effective as of March 1, 2002 (the
"EFFECTIVE DATE") is made by and between NextCard, Inc., a Delaware corporation,
("NEXTCARD") and the Federal Deposit Insurance Corporation - Receiver
("FDIC-R"), as receiver of NextBank, National Association (the "BANK") and is
based upon the following facts.
A. On February 7, 2002, the Office of the Comptroller of the Currency
closed the Bank and appointed the FDIC-R as receiver of the Bank, whereupon the
FDIC-R succeeded to all rights, title, powers and privileges of the Bank and,
pursuant to Section 1821 of Title 12, United States Code, is delegated with the
power to conduct all business of the Bank and to preserve and conserve the
Bank's assets and property.
B. NextCard and the Bank are parties to a Service Agreement dated
September 16, 1999 (the "SERVICE AGREEMENT"), pursuant to which, among other
things, NextCard agreed to perform certain servicing functions for the Bank's
credit card portfolio.
C. There exists a Capital Assurance Agreement, dated October 26, 2000
(the "CAPITAL ASSURANCE AGREEMENT"), a copy of which is attached hereto as
EXHIBIT 1.
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E. The FDIC-R has determined, consistent with its powers and
authorities, that it is in the best interests of the Bank that NextCard continue
to perform certain agreed-upon licensing and maintenance functions for the
Bank's credit card portfolio for the term of this Agreement, under the terms and
conditions set forth herein.
F. So long as each party hereto remains in material compliance with each
and every term of this Agreement, and only for the period described in the
Agreement, the parties hereto shall be obligated to perform as set forth herein
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions hereinafter
set forth and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, NextCard and the FDIC-R, intending to be legally
bound hereby agree as follows:
ARTICLE 1
RESTATED AND AMENDED PROVISIONS
1.1 This Agreement constitutes the amended and restated Service
Agreement. Except as restated in their entirety below, all provisions of the
Service Agreement are terminated by mutual agreement as of the Effective Date.
1.2 License
1.2.1 NextCard hereby grants to FDIC-R a royalty-free,
non-exclusive, non-transferable worldwide license to use, during the term of
this Agreement, NextCard's Intellectual Property (which, for purposes of this
Agreement, shall include all trade and service marks, copyrights, patents, trade
secrets and all other information and know-how as well as any systems
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enhancements made available to FDIC-R from time to time by NextCard) for the
purpose of servicing credit card accounts (the "NEXTBANK ACCOUNTS").
1.2.2 Subject to the terms of this Agreement, the NextCard
Intellectual Property is and shall remain the sole and exclusive property of
NextCard, free from any claim (other than the licenses granted herein) on the
part of FDIC-R. FDIC-R shall have no right to disclose, reproduce, use, display
or distribute any of the NextCard Intellectual Property except as expressly
permitted by this Agreement.
1.3 Website Operation
1.3.1 NextCard will own and operate an Internet site on the World
Wide Web to be located at "www.nextcard.com" (the "WEBSITE"), subject to the
following provisions:
1.3.1.1 During the term of this Agreement NextCard shall be
responsible for the operations of the Website, including the development,
maintenance and the upkeep of the Website and its operations. The parties agree
that the NextCard may subcontract operations or activities to third-parties,
each of whom will be bound by the Confidentiality provisions set forth in
Section 1.5 hereof.
1.3.1.2 FDIC-R and its Bank's customers shall have unlimited
use of the Website for purposes of the operations of NextBank and servicing of
NextBank Accounts.
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1.4 Ownership and Administration of Data
1.4.1 NextCard agrees that all information relating to the customer
relationship between holders of NextBank Accounts and the FDIC-R, including
without limitation all books and records of such accounts, the First Data
Resources Master File, all account forms, all customer correspondence,
cardholder agreements, physical plastics, cardholder lists and consumer notices
relating to such accounts ("NEXTBANK ACCOUNT INFORMATION") is the property of
the FDIC-R.
1.4.2 FDIC-R shall have unrestricted access to all NextBank Account
Information. Upon FDIC-R's request at any reasonable time or times while this
Agreement is in effect, NextCard shall immediately deliver to FDIC-R, at
FDIC-R's expense, any or all NextBank Account Information held by NextCard
pursuant to this Agreement in the form requested by FDIC-R.
1.4.3 NextCard shall maintain in accordance with the back-up
procedures maintained by NextCard in connection with its own data processing, as
such may be revised from time to time, duplicate copies of all records and data,
except current work in process, necessary to enable the reconstruction of the
NextBank Account Information maintained by NextCard, and to permit FDIC-R to
continue its operations in the event of damage to or destruction of NextCard's
data processing facilities. NextCard shall maintain any other safeguards against
the destruction, loss or alteration of any such data or the interruption of data
processing services, which it employs in connection with its own data
processing, or which shall be required under law or regulation applicable to
FDIC-R or NextCard.
1.4.4 Should any NextBank Account Information be lost or destroyed
due to any negligent act or omission of NextCard or any other breach of the
security obligations of this
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Agreement, NextCard will be responsible at its own expense for the prompt
reconstruction of such NextBank Account Information with high priority
allocation of time and resources to complete the regeneration as quickly as
possible.
1.5 Confidentiality Matters
1.5.1 It is understood that, in the performance by NextCard of the
services described herein, NextCard may have access to private or confidential
information of FDIC-R's employees and cardholders, including, without
limitation, NextBank Account Information, and that FDIC-R may have access to
confidential information regarding the operation of NextCard's computer systems.
Each party shall use that degree of care it exercises to protect its own private
or confidential information to keep, and to have its employees and agents keep,
any and all private or confidential information of the other party strictly
confidential and to use such information only for the purpose of the services to
be performed under this Agreement or as otherwise agreed to in writing by the
other party. Each party shall disclose such information only to its employees or
agents required to have access thereto for the performance of this Agreement.
1.5.2 NextCard's and FDIC-R's obligations and agreements under the
proceeding Section shall not apply to any information supplied that:
(a) was known to the receiving party prior to the
disclosure by the
other;
(b) is or becomes generally available to the public other
than by breach of this Agreement; or
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(c) otherwise becomes lawfully available on a
nonconfidential basis from a third party that is not
under an obligation of confidence to the other party.
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1.7 Cooperation. Each of the parties hereto shall cooperate fully
with the other in furnishing information, making its employees available or
otherwise in discharging the obligations set forth in this Agreement.
ARTICLE 2
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ARTICLE 6
FURTHER ASSURANCES
6.1 NextCard shall further provide FDIC-R with such additional
information as is reasonably necessary for FDIC-R to determine whether NextCard
is in compliance with this Agreement and its obligations hereunder and shall
cooperate fully with the FDIC-R's reasonable requests with respect to the
assignment of any agreement that FDIC-R may designate for assignment to itself
or a third party.
6.2 In the event that either party shall be in material default with
respect to any of the terms or conditions set forth herein, the non-defaulting
party shall serve upon the defaulting party a notice of default identifying the
provisions of this Agreement with which the
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defaulting party has failed to comply. Thereafter, unless otherwise agreed to by
the non-defaulting party, the defaulting party shall have five (5) business days
to show that such default has not occurred or has been cured. If the default
cannot be cured with reasonable diligence during such five (5) business days,
such five (5) business day period shall be extended for such addition period as
may be required with diligence and good faith to cure such failure.
6.3 From time to time, and upon two (2) business days' notice, NextCard
shall provide the FDIC-R, its attorneys, accountants, employees and agents with
access to (a) its premises during reasonable business hours for the purpose of
examining and appraising performance of this Agreement and (b) its detailed
books and records (including all relevant supporting documentation) for the
purpose of examination and appraising performance of this Agreement.
6.4 Counsel to NextCard shall maintain regular communication with the
FDIC-R's counsel concerning NextCard's attempt to reorganize and with respect to
the development of plans of reorganization.
6.5 The parties shall from time to time after the Effective Date execute
and deliver such further instruments and documents, and take such further
actions, as either party may reasonably request in order to effectuate or
evidence, or further effectuate or evidence, the transactions contemplated by
this Agreement.
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ARTICLE 8
NOTICES
8.1 All notices required to be given hereunder shall be in writing and
made by hand delivery, certified mail, private overnight mail courier service,
or by facsimile transmission. Notice by hand delivery, certified mail or
overnight courier shall be deemed delivered when received and notice by
facsimile transmission shall be deemed delivered when receipt of the
transmission by the receiving facsimile machine has been confirmed. All notices,
if to FDIC-R, shall be delivered to:
Federal Deposit Insurance Corporation
as receiver for NextBank, N.A.
Frank Campagna, RIC
1910 Pacific Avenue
Dallas, TX 75201
Tel: 972-761-8025
Fax: 972-761-2250
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Federal Deposit Insurance Corporation
as receiver for NextBank, N.A.
Thomas J. O'Keefe, Jr.
1910 Pacific Avenue
Dallas, TX 75201
Tel: 972-761-8254
Fax: 972-761-2250
with copies to:
Thad Fenton, Esq.
Steve Pruss, Esq.
Mary Riche, Esq.
FDIC Legal Division
1910 Pacific Avenue
Dallas, TX 75201
Tel: 800-568-9161
Fax: 972-761-2495
All notices, if to NextCard, shall be delivered to:
NextCard, Inc.
John Hashman
Robert Linderman
595 Market Street - Suite 1800
San Francisco, CA 94105
(415) 836-9700
(415) 836-9701 (fax)
with copies to:
Kathryn Coleman, Esq.
Gibson, Dunn & Crutcher, LLP
One Montgomery Street
Telesis Tower - 26th Floor
San Francisco, CA 94104-4505
William S. Eckland, Esq.
Sidley Austin Brown & Wood LLP
1501 K Street, N.W.
Washington, DC 20005
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ARTICLE 9
RESOLUTION OF DISPUTES, ETC.
9.1 Disputes. Any dispute, controversy or claim arising out of or
relating to this Agreement or the negotiation hereof or entry hereunto or any
contract or agreement entered into pursuant hereto or the performance by the
parties of its terms shall first be the subject of good faith negotiation
between the parties. If the parties are, within two (2) business days, unable to
reach a mutually agreeable resolution, further disputes may be settled by any
court with jurisdiction over the parties.
9.2 Assignment. Except as expressly provided herein, the rights and
obligations of a party hereunder may not be assigned, transferred or encumbered
without the prior written consent of the other party.
9.3 Parties in Interest. This Agreement shall be binding upon, inure to
the benefit of, and be enforceable by the respective successors and permitted
assigns of the parties hereto, including any trustee appointed under the
Bankruptcy Code. Nothing contained herein shall be deemed to confer upon any
other person any right or remedy under or by reason of the Agreement. In fact,
it is expressly agreed that there are no third party beneficiaries under this
Agreement. Notwithstanding the general nature of the preceding sentence, none of
the employees of NextCard nor any of the vendors of goods and services to
NextCard for meeting its obligation to the FDIC-R under this Agreement, shall be
deemed a beneficiary of this Agreement. None of those described in the previous
sentence have any claim against the FDIC-R, except as set forth in any escrow
agreement described herein. By entering into this
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Agreement, the FDIC-R does not assume any of the obligations of NextCard to its
employees or to its other creditors other than as expressly set forth herein.
9.4 Law Governing Agreement. This Agreement shall be construed and
interpreted according to federal law, and in the absence thereof, to the
internal laws of the California, excluding any choice of law rules that may
direct the application of the laws of another jurisdiction.
9.5 Amendment and Modification. The parties may amend, modify and
supplement this Agreement in such manner as may be agreed upon by them in
writing, provided however that no amendment, modification or supplement shall be
effective unless in writing and signed by both parties.
9.6 Expenses. Except as otherwise provided herein, each of the parties
shall bear its own expenses and the expenses of its counsel and other agents in
connection with the transactions contemplated hereby and the negotiation and
effectuation of this Agreement.
9.7 Entire Agreement. The parties intend that the Agreement be
interpreted without regard to any prior oral or written understandings,
representations, disclosures, investigations or agreements. This Agreement,
including the exhibits hereto and any other instruments delivered
contemporaneously herewith, embodies the entire agreement between the parties
hereto with respect to the transactions contemplated herein, and there have been
and are no agreements, representations or warranties between the parties other
than those set forth or provided for herein or in any instrument delivered
contemporaneously with the delivery hereof. This Agreement is effective as of,
and from and after, the Effective Date, and shall be given full retroactive
effect to the Effective Date, notwithstanding the date on which the parties
execute and deliver this Agreement.
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9.8 Waiver of Breach, Right or Remedy. The waiver by any party of any
breach or violation by another party of any provision of this Agreement or of
any right or remedy of the waiving party in this Agreement (a) shall not waive
or be construed to waive any subsequent breach or violation of the same
provision, (b) shall not waive or be construed to waive a breach or violation of
any other provision, and (c) shall be in writing and may not be presumed or
inferred from any party's conduct. Except as expressly provided otherwise in
this Agreement no remedy conferred by this Agreement is intended to be exclusive
of any other remedy, and each and every remedy shall be in addition to every
other remedy granted in this Agreement or now or hereafter existing at law or in
equity, by statute or otherwise. The election of any one or more remedies by a
party shall not constitute a waiver of the right of such waiving party to pursue
other available remedies.
9.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement and any
amendments hereto, to the extent signed and delivered by means of a facsimile
machine, shall be treated in all manner and respects as an original agreement
and shall be considered to have the same binding legal effect as if it were the
original signed version thereof delivered in person. At the request of a party,
any other Party hereto so executing and delivering this Agreement or any
amendment hereto by means of a facsimile machine shall reexecute original forms
thereof and deliver them to the requesting Party. No Party hereto or to any such
amendment shall raise the use of a facsimile machine to deliver a signature or
the fact that any signature or agreement was transmitted or communicated through
the use of a facsimile machine as a defense to the formation or enforceability
of a contract and each such Party forever waives any such defense.
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9.10 Headings. The headings in this Agreement are inserted for
convenience only and shall not constitute a part hereof.
9.11 Time Is Of Essence. Time of the essence in the performance of this
Agreement. This section may be waived only in a writing expressly referring
hereto.
9.12 Gender and Number. Reference in this Agreement to any gender or
number shall be deemed to refer to the masculine, feminine, neuter, singular
and/or plural, as the sense of the context requires. As used herein (or in any
document delivered pursuant hereto), unless the context otherwise requires, the
word "or" is not exclusive.
9.13 Relationship of Parties. The relationship of NextCard to Bank under
this Agreement is that of independent contractor. Nothing herein shall be
construed as constituting a partnership, joint venture, or agency between the
parties.
9.15 Licenses and Authorizations. Each party agrees that it will obtain
all licenses and other governmental authorizations and approvals required for
the performance of its obligations under this Agreement and will perform its
obligations hereunder in accordance with all applicable federal, state and local
laws, rules, and regulations now or hereafter in effect.
9.16 This Agreement shall not be repudiated under 12 U.S.C. Section
1821(e) by the FDIC-R or any successor thereto.
9.17 Each party represents and warrants to the other that such party has
the full corporate power to execute, deliver and perform this Agreement, and to
fully discharge its obligations hereunder.
9.18 Nothing contained herein shall be deemed a waiver or release of any
claims held by the FDIC-R against or relating to any of the Bank's directors,
officers or any professionals.
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Dated: March 4, 2002
FEDERAL DEPOSIT INSURANCE CORPORATION,
as Receiver for NextBank, N.A.
By:
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Name:
Title:
NEXTCARD, INC.
By:
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Name:
Title: