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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1999
COMMISSION FILE NUMBER 0-26019
NEXTCARD, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 68-0384-606
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
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595 MARKET STREET, SUITE 1800, SAN FRANCISCO, CALIFORNIA 94105
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
(415) 836-9700
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
COMMON STOCK, $.001 PAR VALUE
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT: NONE
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
As of February 29, 2000, there were 51,538,983 shares of the registrant's
common stock, par value $.001 per share, outstanding, of which 1,873,888 were
nonvoting. At that date, the aggregate market value of the registrant's common
stock held by non-affiliates was approximately $730,406,223, based upon the
closing price on The Nasdaq Stock Market on February 29, 2000.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrant's Proxy Statement for the 2000 Annual Meeting of
Shareholders are incorporated by reference into Part III of this Report.
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TABLE OF CONTENTS
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PART I
Item 1. Business.................................................... 3
Item 2. Properties.................................................. 21
Item 3. Legal Proceedings........................................... 22
Item 4. Submission of Matters to a Vote of Security Holders......... 22
PART II
Item 5. Market for Registrant's Common Equity and Related
Stockholder Matters......................................... 22
Item 6. Selected Financial Data..................................... 23
Item 7. Management's Discussion and Analysis of Financial Condition
and Results of Operations................................... 24
Item 7A. Quantitative and Qualitative Disclosures about Market
Risk........................................................ 32
Item 8. Financial Statements and Supplementary Data................. 34
Item 9. Changes in and Disagreements with Accountants on Accounting
and Financial Disclosure.................................... 58
PART III
Item 10. Directors and Executive Officers of the Registrant.......... 58
Item 11. Executive Compensation...................................... 58
Item 12. Security Ownership of Certain Beneficial Owners and
Management.................................................. 58
Item 13. Certain Relationships and Related Transactions.............. 58
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form
8-K......................................................... 58
Signatures............................................................. 59
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NextCard is our registered trademark. This Annual Report on Form 10-K also
contains trademarks of other companies.
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PART I
ITEM 1. BUSINESS
This Annual Report on Form 10-K contains forward-looking statements. These
statements relate to future events or our future financial performance. In some
cases, you can identify forward-looking statements by terminology such as "may,"
"will," "should," "expect," "plan," "anticipate," "believe," "estimate,"
"predict," "potential" or "continue," the negative of such terms or other
comparable terminology. These statements are only predictions. Actual events or
results may differ materially. In evaluating these statements, you should
specifically consider various factors, including the risks outlined under
"Factors Affecting Future Results." These factors may cause our actual results
to differ materially from any forward-looking statement.
Although we believe that the expectations reflected in the forward-looking
statements are reasonable, we cannot guarantee our future results, levels of
activity, performance or achievements. Moreover, neither we nor any other person
assumes responsibility for the accuracy and completeness of the forward-looking
statements. We are under no duty to update any of the forward-looking statements
after the date of this Form 10-K to conform such statements to actual results or
to changes in our expectations.
OVERVIEW
We were incorporated in the State of California in June 1996 under the name
Internet Access Financial Corporation and reincorporated in Delaware in May 1999
in connection with our initial public offering. We changed our name to NextCard,
Inc. in October 1998. Our only significant subsidiary at December 31, 1999 was
NextBank, National Association, which, prior to our purchase of all its
outstanding common stock on September 16, 1999 from its former parent, was
called Textron National Bank. In connection with the purchase of Textron
National Bank, all of the issued and outstanding stock of NextCard Funding Corp.
("NCFC"), our wholly owned subsidiary, was contributed to NextBank. Accordingly,
NCFC became a wholly owned subsidiary of NextBank.
PRODUCTS AND SERVICES
We are an Internet-based provider of consumer credit. We offer an online
credit approval system for a Visa card and provide interactive, customized
offers for credit card applicants. We combine expertise in consumer credit, an
exclusive Internet focus and sophisticated direct marketing techniques with the
aim of attracting profitable customer segments on the Internet. Our product, the
NextCard Visa, which we call the First True Internet Visa, is marketed to
consumers through our website, www.nextcard.com. We have entered into marketing
agreements with leading websites on the Internet. We also have marketing
relationships with Internet-based affiliates, co-branded partners and affinity
groups. For example, in November 1999, we entered into a five year exclusive
credit card marketing agreement with Amazon.com L.L.C. We offer our credit card
customers a unique combination of convenience, customization, shopping
enhancements and online customer service. The NextCard Visa, which can be used
for both online and offline purchases, offers the following features:
Customized Application Process and Product Offerings
- At our website, customers can apply easily and quickly for the NextCard
Visa, receive credit approval within seconds, choose customized upgrades,
automatically transfer balances from other credit cards and personalize
their NextCard Visa. Qualifying customers can also receive an active
account number at the time they complete the new account application
process, allowing for instant purchasing. Through the application
process, we are able to gather information we utilize to refine our
direct marketing efforts, thereby increasing the effectiveness of our
future targeted marketing programs and lowering customer acquisition
costs. The automated balance transfer feature enables us to quickly build
our loan portfolio.
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- By acquiring demographic and credit data about an individual consumer, we
can customize our product offerings for that consumer at the time of the
initial offer. This helps us target offers that we believe are attractive
to the customer.
- Our My Visa PictureCard product enables cardholders to personalize the
look of their NextCard Visa by sending us via the Internet their own
picture or selecting from an online library of artwork. We believe that
personalization increases customer loyalty and card usage.
Online Shopping Enhancements
- Our Internet-based shopping services, our pledge of 100% protection
against credit card fraud and our NextCard Rewards program may enhance
our customers' tendency to purchase goods and services, especially over
the Internet. Additionally, we offer the NextCard Concierge, electronic
wallet software that fills in purchase forms on websites and remembers
passwords, creating a more streamlined online shopping experience. By
providing these value-added services, we expect to broaden our
relationship with our customers and help build our brand. Further, by
tracking our customers' ongoing purchases, we intend to target future
offers to particular customers that may be attractive to them and
profitable for us.
Online Customer Service
- At our website, customers can access statements, check recent account
activity, pay their NextCard bills, download information to many personal
financial management software programs and communicate with us by e-mail.
These customer support features are available 24 hours a day, seven days
a week and should assist us in building customer relationships and
improving customer loyalty. Customers can also interact online, or
"chat," with a customer service representative during business hours to
ask questions about their NextCard accounts.
BUSINESS STRATEGY
Our objective is to enhance our position as a leading Internet-based
provider of customized consumer credit products and services. The key elements
of our strategy are:
Direct Marketing Strategy. We will enhance our data analysis techniques to
expand our expertise in Internet direct marketing in order to find and attract
our target customers. Our exclusive focus on the Internet consumer allows us to
apply the power of Internet direct marketing to a significant and growing
market. We plan to continue to develop and use our database and data analysis
capabilities as a competitive advantage to refine our marketing programs, lower
customer acquisition costs and increase potential customer profitability.
Product Strategy. We will continue to offer customized product choices to
our customers, allowing them to design their own products interactively. The
Internet allows us to review an applicant's credit and existing credit card
usage in real time. As a result, we can provide online offers that are
customized to meet the specific needs of particular applicants. For example, our
profile-based pricing capability allows us to use customer information to offer
specific interest rate, credit limit and NextCard Rewards combinations. Such
profile-based pricing improves our ability to match our products to the credit
risk/reward profile of our applicants. We intend to broaden our online banking
products and services, including online checking accounts, retail certificates
of deposit and money market accounts. We also plan to enter at least one
international market in the year 2000 and, in October 1999, we formed NextCard
Limited in the United Kingdom.
Technology Strategy. We seek to apply Internet technology innovations to
provide enhanced customer functionality more rapidly than our competitors. We
believe our technology represents one of the most advanced online application,
credit review, approval and product offering systems available. We believe
technological innovations will continue to transform the Internet and that we
must maintain technological superiority in the delivery of our products and
services. Therefore, we plan to lead in the application of new Internet
technologies to offer enhanced product and services and thereby differentiate
ourselves from our competitors.
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Branding Strategy. We plan to leverage our leadership in Internet consumer
financial services to continue to build brand recognition. Branding on the
Internet is becoming an increasingly important differentiating factor for
consumers. We believe our exclusive focus on the Internet has enabled us to
begin to establish name recognition among online consumers of financial products
and services. We intend to continue to expand our marketing activities to
enhance our brand awareness. As competition increases for online financial
products and services, we believe our brand name will provide us with a
competitive advantage.
Ultimately, our long-term vision is to define and enable the Internet
consumer transaction experience. We are focusing on consumer credit cards
because the credit card business is a proven direct marketing business, there is
significant consumer demand for applying for credit online and we believe the
credit card business is one of the most profitable businesses in consumer
financial services.
UNDERWRITING AND CREDIT MANAGEMENT
We have developed a set of underwriting criteria based on risk models
utilizing industry data as well as our own internally developed decision rules
and analytic techniques. In addition, we consider the potential profitability of
a particular customer prior to making customized offers. Our policies are
designed to balance credit risk and potential profitability by adjusting the
interest rate, credit limit and required minimum balance transfers offered to a
particular customer.
Our credit policies have been written, and are administered, by our credit
committee, comprised of members of our senior management. The credit committee
meets regularly to review actual credit performance as compared to plan
assumptions. The committee reviews proposed changes to credit policies and risk
management procedures with a focus on portfolio profitability. Because we have
an unseasoned credit card portfolio, we may be unable to predict accurately the
level of future credit losses.
Our credit approval process is performed on a fully automated basis.
Although a NextCard Visa applicant receives a credit approval decision within
seconds of applying, during that interval we conduct an automated credit
analysis. We access up to three credit bureau reports on each applicant, and
capture the credit score developed by Fair, Isaac & Company, Inc., a nationally
recognized provider of credit bureau scoring information on each of the credit
reports. The credit score is commonly referred to as a FICO score. We also apply
internally developed credit scores to augment the FICO score. If the applicant
meets minimum FICO score criteria and our internally developed criteria, the
applicant is approved for a NextCard Visa. Certain customers may require further
authentication of information before being issued a NextCard Visa. In instances
where an applicant does not have a FICO score, we will approve the applicant
based on minimum scores from our internally developed criteria. Further, to
prevent customers from obtaining additional accounts and thereby increasing our
credit exposure to them, we automatically verify that the applicant is not
already a NextCard Visa holder and has not submitted a duplicate application.
On a periodic basis, we monitor the effectiveness of our credit algorithm
and credit review process and adjust our procedures as necessary. As we further
refine our credit algorithm and credit process, we may consider using additional
internally developed criteria or scoring algorithms, including a lower minimum
FICO score, to enhance or replace our existing credit approval criteria.
Several objectives are considered in credit line management, including
increasing potential revenue per customer, reducing potential losses and
reducing contingent liabilities. Using credit bureau information, we review the
balances on other credit cards maintained by the applicant. The credit line made
available to the applicant is a function of the customer's risk profile, income
and balances maintained on other cards. Our decisions are based on the
probability of future credit loss projected based on the FICO score, application
of our own criteria and the applicant's income level. In addition, we
periodically monitor our customer accounts and in the future we may adjust
credit lines accordingly.
OPERATIONS
Our operations function is organized and designed to support rapid product
introduction and customer growth. We use internal and external resources for
different functions. For outsourced functions, our
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operations management team provides procedural and management oversight. We will
continue to move certain functions in-house as volumes increase and economies of
scale are achieved. The key functional components of our operations function are
as follows:
Account Origination Support
We have developed an innovative application processing approach, leveraging
an automated credit decision process with a multi-step customer authentication
routine. The authentication and new account risk management process is a central
function for the operations group.
Applicants that have been approved through our credit review process are
assigned a proprietary fraud score. This fraud score consists of a series of
internally-developed algorithms using credit bureau information to determine the
probability that an application may involve fraud. Customers that pass the
proprietary algorithms receive an active account number and line of credit at
the conclusion of the online application process.
Customers that do not pass the automated fraud scoring process are
processed through several customer authentication tests. Each of these potential
customers is processed through a series of third party fraud databases. We also
have developed an internal database of fraud addresses. Based upon the presence
of certain indicators, the customer will either be approved for the card,
declined for the card, sent correspondence requesting additional information or
routed to an operations specialist who has been trained to look for occurrences
of Internet application fraud. After reviewing the account, either the
information will be validated by a third party or we will initiate telephone
contact to attempt to verify the identity of the applicant. We plan to automate
further our authentication process during the next several quarters.
At the conclusion of this authentication process, which typically takes one
to three weeks, the customer is sent their NextCard Visa.
Customer Service and Support
Customer service and support functions are performed by our operations
staff, as well as through an arrangement with First Data Resources ("First
Data"), which provides essential fulfillment and customer service functions, and
host online customer service capabilities. We maintain internal customer service
coverage during the hours of 6:00 a.m. to 11:00 p.m., Pacific time, Monday
through Friday, and 8:00 a.m. to 6:00 p.m. on Saturday and Sunday. After-hours
and weekend hours support is provided through an arrangement with First Data. We
expect to continue the process of moving most customer service and support
activities to our San Ramon and Phoenix operations facility.
Customers can access account information on our website or call a customer
service representative 24 hours a day, seven days a week. Customers may also
interact online with a customer service representative over the Internet in
order to ask questions, verify information or review the activity on their
NextCard Visa. Online chat capabilities are currently available from 8:00 a.m.
to 5:00 p.m., Pacific time, Monday through Friday. The technology that enables
online chat capabilities is provided through an agreement with a third party
vendor. We monitor customer communications to ensure the quality of our customer
service. In addition, we use call management software to monitor call
abandonment, call length and other call center productivity measurements. We
plan to increase the hours of online chat support during the next several
quarters.
Collections
Collections activities are performed at our San Ramon operations facility.
Collection activity involves contacting the customer and taking other
appropriate actions to secure payment if no payment has been received beginning
10-15 days after the payment due date. Accounts are recorded as delinquent one
day after a monthly cycle in which no payment is received for an account that
had a balance in the prior billing cycle.
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Processing
First Data performs certain core processing services for us. These services
include authorizing customer transactions through the Visa system (including
monitoring for purchase-related fraud), performing billing and settlement
processes, generating and monitoring monthly billing statements, and issuing
credit card plastics and new account agreements.
TECHNOLOGY AND SECURITY
Our business model is based on consumer access to the NextCard website both
to acquire new customers as well as to service existing relationships. As a
result, our development efforts are focused on creating and enhancing
specialized software that enhances our Internet-based customer functionality. In
addition, because we offer a financial product, we seek to offer high levels of
data security and integrity to build customer confidence.
Our security infrastructure is designed to protect data from unauthorized
access, both physically and over the Internet. The major components of our
network are located in San Francisco, California, at our corporate headquarters;
San Ramon, California, in our operations center; and Santa Clara, California, in
the Exodus Communications Data Center. Additionally, we rely upon the security
infrastructure of First Data and Response Data Corporation. Each of these key
business locations is connected through privately leased lines. In all
locations, access to the network servers is tightly restricted. Internet
security is addressed with leading technologies, vendors and design approaches.
Our most sensitive data and hardware reside at the Exodus Communications
Data Center located in Santa Clara, California. Exodus Communications provides
Internet co-location services for hundreds of Internet businesses in seven
locations nationwide. With redundant connections to the Internet, as well as
fault tolerant power and waterless fire suppression, Exodus Communications
provides us with the benefits of a high-end data center without the excessive
cost of building and maintaining our own data center. Because of our special
security needs, our equipment is located in an Exodus Communications vault.
Our customer service website was designed and developed in conjunction with
First Data. The site resides on a web server located in their main data center
in Omaha, Nebraska. Security for the system is provided through a multi-tiered
security design, which includes physical and logical components.
COMPETITION
The market for consumer credit card products in the United States is highly
competitive. This competition primarily has been focused in the offline areas of
direct mail, telemarketing and traditional bricks-and-mortar branch banking. In
contrast, our strategy focuses on the Internet channel, a rapidly evolving and
intensely competitive arena. Our ability to compete effectively depends on many
factors, both within and beyond our control.
We believe that the principal factors upon which we will compete for
customers include the pricing of our products and services, reliability and
customer support, the features of our products and services and brand
recognition. In turn, our ability to be an effective competitor against
established and new entrants into the industry will depend on a number of
factors, including our ability to identify and retain attractive customers, the
quality of our credit decisions, the cost of acquiring customers, our ability to
gain technological expertise, the cost of funding our loan portfolio, our
ability to create strategic partnerships with third parties and our ability to
control fraud and delinquencies.
We expect significant additional competition in the future as the Internet
channel grows and many financial institutions become increasingly aware of the
market opportunities available. Many of our current and potential competitors
have greater financial resources and greater name recognition than we have with
the
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public. We currently compete, or anticipate competing, for online consumers,
directly and indirectly, with the following categories of companies:
Traditional Credit Card Companies. Established credit card companies such
as Bank One Corporation, Citibank, N.A., Providian Financial Corp. and American
Express Company, have historically generated accounts through direct mail and
telemarketing. Our products and services compete with the offline offerings of
these companies, as well as the online offerings that certain of these companies
have begun to make available. In particular, certain of these companies are
entering into Internet related branding arrangements, as well as significant
arrangements, including exclusive arrangements, with Internet portals to market
their products.
Traditional Banks. Banks, such as Wells Fargo Bank & Co. and Chase
Manhattan Bank, N.A., have historically issued credit cards to consumers through
traditional channels and have begun to provide online credit card services. As
the Internet channel grows, we expect banks to offer more credit card products
and services over the Internet.
Internet-Focused Entrants. We anticipate the addition of new forms of
financial institutions to compete in the online consumer financial services
industry. Several companies, such as WingspanBank.com, E*Trade Group, Inc. and
Net.B@nk, Inc., are establishing themselves as Internet-based providers of
consumer financial products and services. We also anticipate that established
Internet participants will be attracted into the marketplace, through partnering
or co-branding arrangements with existing financial institutions. For example,
Bank One, in partnership with Yahoo!, has introduced a Yahoo! branded credit
card and promoted that credit card on the Internet. In addition, alternative
forms of payment are emerging online, such as debit cards and micropayment
offerings, which may affect the use of credit cards for online purchases.
GOVERNMENT REGULATION
General
NextBank is a limited purpose credit card bank chartered as a national
banking association. It is a member of the Federal Reserve System. Its deposits
are insured by the Bank Insurance Fund which is administered by the Federal
Deposit Insurance Corporation ("FDIC") and it is subject to comprehensive
regulation and periodic examination by the Office of the Comptroller of the
Currency ("OCC"), its primary regulator. It is also subject to regulation by the
Board of Governors of the Federal Reserve System ("Federal Reserve Board") and
the FDIC, as back-up regulators. NextBank is not a "bank" as defined under the
Bank Holding Company Act of 1956, as amended (the "BHCA") because it (i) engages
only in credit card operations, (ii) does not accept demand deposits or deposits
that the depositor may withdraw by check or similar means for payment to third
parties or others, (iii) does not accept any savings or time deposits of less
than $100,000, except for deposits pledged as collateral for extensions of
credit, (iv) maintains only one office that accepts deposits and (v) does not
engage in the business of making commercial loans. As a result, we are not a
bank holding company under the BHCA.
If NextBank decided to expand its activities beyond those permissible for a
limited purpose national credit card bank, we would be required to file an
application with, and receive the prior approval of, the OCC to amend NextBank's
charter. Moreover, we would be required to file an application with, and receive
the prior approval of, the Federal Reserve Board to become a bank holding
company. If these applications were approved, NextBank could engage in the full
range of permissible banking activities and we would then become a bank holding
company under the BHCA, subject to the regulation (including minimum capital
requirements) of, and supervision by, the Federal Reserve Board. The activities
of bank holding companies are subject to statutory and regulatory limitations.
While we cannot predict, with certainty, the activities that we may in the
future engage in, we do not believe that bank holding company status would
impact materially our business, as currently conducted.
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Dividends and Transfers of Funds
There are various federal law limitations on the extent to which NextBank
can finance or otherwise supply funds to NextCard and its affiliates through
dividends, loans or otherwise. These limitations include: minimum regulatory
capital requirements (discussed below); restrictions concerning the payment of
dividends; and Sections 23A and 23B of the Federal Reserve Act governing
transactions between a bank and its affiliates.
In general, Federal law prohibits a national bank, such as NextBank, from
making dividend distributions on common stock if the dividend would exceed
currently available undivided profits. In addition, NextBank must get OCC prior
approval for a dividend, if the total amount of all dividends (common and
preferred) would exceed current year retained net income to date combined with
retained net income from the prior two years. Also, NextBank may not make a
dividend if the distribution would cause the bank to be "undercapitalized" as
that term is defined in the OCC's capital adequacy regulations.
Section 23A of the Federal Reserve Act imposes various legal restrictions
on the extent to which NextCard may borrow or otherwise obtain credit from, or
engage in certain other transactions with, NextBank. In general, these
restrictions require that any such extensions of credit must be secured by
designated amounts of specified collateral and must be limited, as to any one of
NextCard or its non-bank subsidiaries, to 10 percent of NextBank's capital stock
and surplus, and as to us and all such non-bank subsidiaries in the aggregate,
to 20 percent of NextBank's capital stock and surplus. Extensions of credit and
other transactions between NextBank and us must be on terms and under
conditions, including credit standards, that are substantially the same or at
least as favorable to NextBank as those prevailing at the time for comparable
transactions with non-affiliated companies.
Comptroller of the Currency
Capital Requirements. NextBank is subject to risk-based capital guidelines
adopted by the OCC. Risk-based capital ratios are determined by allocating
assets and specified off-balance sheet commitments to several weighted
categories, with higher levels of capital being required for the categories
perceived as representing greater risk.
Under current guidelines, institutions are required to maintain a minimum
total risk-based capital ratio (total Tier 1 and Tier 2 capital to risk-weighted
assets) of 8%, and a Tier 1 risk-based capital ratio (Tier 1 capital to
risk-weighted assets) of 4%. The OCC may, however, set higher capital
requirements when an institution's particular circumstances warrant. The OCC has
established guidelines prescribing a minimum "leverage ratio" (Tier 1 capital to
adjusted total assets as specified in the guidelines) of 3% for institutions
that meet certain criteria, including the requirement that they have the highest
regulatory rating, and a minimum of 4% for institutions that do not meet the
criteria. Institutions experiencing or anticipating significant growth are
expected to maintain capital ratios well above the minimum.
In 1995, the OCC amended the risk-based capital standards pertaining to
asset transfers in which an institution retains recourse risk but contractually
limits its exposure. Under the "low level recourse" regulation that was adopted,
the amount of risk-based capital required in connection with such asset
transfers will not exceed the institution's maximum contractual liability. In
addition, in February 2000, the federal banking regulators proposed for comment
regulations establishing new risk-based capital requirements for recourse
arrangements and direct credit substitutes. If adopted, these regulations may
increase the capital requirement for credit enhancements provided by banks in
connection with the securitization of consumer loan receivables while possibly
reducing the capital requirement of senior securities issued in such
transactions. NextCard is unable at this time to assess the impact this proposal
would have on its business.
Federal Deposit Insurance Corporation Improvement Act of 1991. The Federal
Deposit Insurance Corporation Improvement Act of 1991 ("FDICIA") expanded the
powers of federal bank regulatory authorities to take corrective action with
respect to banks that do not meet minimum capital requirements. For these
purposes, FDICIA established five capital tiers: well capitalized, adequately
capitalized, undercapitalized, significantly undercapitalized and critically
undercapitalized. Under regulations adopted by the OCC, an
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institution is generally considered to be "well capitalized" if it has a total
risk-based capital ratio of 10% or greater, a Tier 1 risk-based capital ratio of
6% or greater, and a leverage ratio of 5% or greater; "adequately capitalized"
if it has a total risk-based capital ratio of 8% or greater, a Tier 1 risk-based
capital ratio of 4% or greater and, generally, a leverage ratio of 4% or
greater; and "undercapitalized" if it does not meet any of the "adequately
capitalized" tests. An institution is deemed to be "significantly
undercapitalized" if it has a total risk-based capital ratio under 3% and
"critically undercapitalized" if it has a ratio of tangible equity (as defined
in the regulations) to total assets that is equal to or less than 2%."
An "adequately capitalized" institution is permitted to accept brokered
deposits only if it receives a waiver from the FDIC and pays interest on
deposits at a rate that is not more than 75 basis points higher than the
prevailing rate in its market. Undercapitalized institutions cannot accept
brokered deposits, are subject to growth limitations and must submit a capital
restoration plan. "Significantly undercapitalized" institutions may be subject
to a number of additional requirements and restrictions. "Critically
undercapitalized" institutions are subject to appointment of a receiver or
conservator and, beginning 60 days after becoming "critically undercapitalized,"
may not make any payment of principal or interest on their subordinated debt
(subject to certain exceptions).
As of December 31, 1999, NextBank was "well capitalized" in all regulatory
capital ratio categories, as set forth below.
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TOTAL RISK-BASED TIER 1 RISK-BASED TIER 1 LEVERAGE
CAPITAL CAPITAL RATIO
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AMOUNT RATIO AMOUNT RATIO AMOUNT RATIO
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Actual........................... $62,081 13.53% $56,275 12.27% $56,275 14.93%
Minimum capital adequacy......... $36,706 8.00% $18,353 4.00% $15,077 4.00%
Minimum well-capitalized......... $45,882 10.00% $27,529 6.00% $18,846 5.00%
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In addition to the above capital ratios, the Office of the Comptroller of
the Currency requires that for the first three years of operation, NextBank
maintains a ratio of shareholders' equity plus the allowance for loan losses to
total managed assets at no less than 6.5%. As of December 31, 1999, NextBank was
in compliance with this capital requirement. NextBank is limited in its ability
to declare dividends to us in accordance with the national bank dividend
provisions.
FDICIA also required federal banking agencies to revise their risk-based
capital standards to adequately address concentration of credit risk, interest
rate risk and risk arising from non-traditional activities. The OCC has
identified these risks and an institution's ability to manage them as important
factors in assessing overall capital adequacy, but has not quantified them for
use in formula-based capital calculations. The OCC has further revised its
risk-based capital rules to address market risk. Financial institutions with 10%
of total assets in trading activity, or $1 billion in trading, are required to
use internal risk measurement models to calculate their capital exposure and to
hold capital in support of that exposure. NextBank's current activities do not
subject it to the requirement of establishing internal risk measure models.
Deposit Insurance Assessments. Under the FDIC's risk-based insurance
assessment system, each insured institution is placed in one of nine risk
categories, based on its level of capital, supervisory evaluations, and other
relevant information. The assessment rate applicable to NextBank depends in part
on the risk assessment classification assigned to it by the OCC and in part on
the BIF assessment schedule adopted by the FDIC. BIF-insured institutions are
currently assessed premiums at an annual rate between 0% to 0.27% of eligible
deposits. NextBank is currently assessed at the 0% rate. NextBank is also
subject to assessment for payment of Financing Corporation ("FICO") bonds issued
in the 1980s as part of the resolution of the problems of the savings and loan
industry. The amount assessed on individual institutions by the FICO will be in
addition to the amount, if any, paid for deposit insurance according to the
FDIC's risk-related assessment rate schedules. FICO assessment rates may be
adjusted quarterly to reflect a change in assessment base for the BIF. As of
January 1, 1999, the FICO rate on BIF-assessable deposits was one-fifth the rate
on SAIF-assessable deposits.
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Consumer Protection Laws; Exportation of Interest Charges.
The relationship between an issuer of credit cards and its applicants and
customers is extensively regulated by federal and state consumer protection
laws, most particularly the Truth-in-Lending Act, the Equal Credit Opportunity
Act, the Fair Credit Reporting Act, the Telemarketing and Consumer Fraud and
Abuse Prevention Act, the Electronic Funds Transfer Act and the Fair Debt
Collection Practices Act. These statutes, as well as their enabling regulations,
among other things, impose disclosure requirements when a consumer loan is
advertised, when an application is presented, when an application is processed,
when a billing statement is prepared and when a delinquent account is presented
for collection. In addition, various statutes limit the liability of a credit
card holder for unauthorized use, prohibit discriminatory practices when
extending credit, impose limits on the types and amounts of fees and charges
that may be imposed and restrict the use of consumer credit reports and other
account-related information.
Changes in any of these laws or regulations, or in their interpretation or
application, could harm our business. Various proposals which could affect our
business have been introduced in Congress and in the various state legislatures
in recent years, including, among others, proposals relating to imposing a
statutory cap on credit card interest rates, substantially revising the laws
governing consumer bankruptcy, limiting the use of social security numbers,
restricting telemarketing activities, expanding consumer protection laws and
other regulatory restructuring proposals. It is difficult to determine whether
any of these proposals will become law and, if so, what impact they will have on
us.
The National Bank Act authorizes national banks, such as NextBank, to
charge customers interest at the rates allowed by the laws of the state in which
the bank is located, regardless of any inconsistent law of the state in which
the bank's customers are located. NextBank relies on this ability to "export"
rates to facilitate its nationwide credit card and consumer lending businesses.
In 1996, the United States Supreme Court held that late payment fees are
"interest" and therefore can be "exported" under the National Bank Act,
deferring to the OCC's interpretation that interest includes late payment fees,
insufficient funds fees, overlimit fees and certain other fees and charges
associated with credit card accounts.
Legislation
On November 12, 1999, the Gramm-Leach-Bliley Act of 1999 (the "GLBA")
became law. The GLBA repeals certain provisions of the Glass-Steagall Act of
1933, which separated commercial and investment banking, and eliminates the
BHCA's prohibition on insurance underwriting activities by bank holding
companies. As a result, the GLBA permits the affiliation of commercial banks,
insurance companies and securities firms. This change may increase the ability
of insurance companies and securities firms to acquire, or otherwise affiliate
with, commercial banks and likely will increase the number of competitors in the
banking industry and the level of competition for banking products, including
credit cards.
The GLBA creates a new type of bank holding company, a "financial holding
company," that may engage in a range of activities that are financial in nature,
including insurance and securities underwriting, insurance sales, merchant
banking and real estate development and investment. The GLBA also establishes
new privacy requirements applicable to all financial institutions. Financial
institutions are required to establish a privacy policy and to disclose the
policy at the start of a customer relationship and once a year thereafter.
Additionally, financial institutions must give a customer the opportunity to
block the sharing of the customer's nonpublic personal information with
unaffiliated third parties, except in certain limited circumstances. Further,
financial institutions are barred from sharing credit card numbers, account
numbers or access numbers of customers with third-party marketers. State laws
that provide a greater degree of privacy protection are not preempted by federal
law.
The GLBA also specifically authorizes a limited purpose credit card bank,
such as NextBank, to control a foreign bank, subject to certain conditions.
We do not anticipate that the applicable provisions of the GLBA will have a
material effect on our business or practices. Of course, to the extent that the
GLBA promotes competition or consolidation among financial service providers
active in the provision of products and services by means of the Internet, we
could
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experience increased competition for customers, employees and funding. Further,
to the extent that the new privacy requirements impact our ability to market the
products and services of third parties to our customers, our revenue could be
affected. We are, however, unable to predict at this time the scope or extent of
any such impact.
Investment in NextCard and NextBank
Certain direct or indirect acquisitions of our, or NextBank's, capital
stock may be subject to regulatory approval or notice under federal law.
Investors are responsible for insuring that they do not directly or indirectly
acquire shares of our capital stock or NextBank in excess of the amount which
can be acquired without regulatory approval.
Interstate Taxation
Several states have passed legislation which attempts to tax the income
from interstate financial activities, including credit cards, derived from
accounts held by local state residents. We believe that this legislation will
not materially affect us. Our belief is based upon the following: current
interpretations of the enforceability of legislation; prior court decisions; and
the volume of business in states that have passed legislation.
INTELLECTUAL PROPERTY
We rely primarily on a combination of copyrights, trademarks and trade
secrets, as well as certain restrictions on disclosure, to protect our
intellectual property. We have filed several patent applications that are now
pending in the United States to protect certain proprietary systems and
applications covering the method and apparatus for credit analysis, application
approval or rejection and the presentation of multiple credit card offers. We
have received a Notice of Allowance from the U.S. Patent & Trademark Office for
one of our patent applications. In addition, we have applied to register our
trade and service marks in the United States and our United States service mark
for "NextCard" has been issued. We cannot assure you that our patent
applications or other trade or service mark registrations will be approved or
that they will provide us with any competitive advantages. We also enter into
confidentiality agreements with our employees and consultants, and seek to
control access to and distribution of our other proprietary information.
Despite these precautions, it may be possible for a third party to copy or
otherwise obtain and use certain intellectual property without authorization.
These precautions may not prevent misappropriation or infringement of our
intellectual property. In addition, we can not assure you that we will not
infringe upon the intellectual property rights of third parties. The costs of
defending our proprietary rights or claims that we infringe third-party
proprietary rights may be high.
EMPLOYEES
As of December 31, 1999, we employed 287 people, of which 32 were in
marketing, 67 were in technology, 133 were in operations, 38 were in finance and
administration and 17 were in decision analytics. None of our employees are
represented by a collective bargaining agreement. We consider our relations with
our employees to be good, and we will continue to strive to provide a positive
work environment for our employees.
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EXECUTIVE OFFICERS OF THE REGISTRANT
<TABLE>
<CAPTION>
NAME AGE POSITION
---- --- --------
<S> <C> <C>
Jeremy R. Lent....................... 39 Chairman of the Board, Chief Executive Officer and
President
Yinzi Cai............................ 32 Senior Vice President, Decision Analytics
Timothy J. Coltrell.................. 39 Chief Operating Officer
Shaun C. Deane....................... 46 Vice President, Project Integration and Planning
John V. Hashman...................... 40 Chief Financial Officer
Molly Lent........................... 54 Chief Corporate Development Officer
Robert Linderman..................... 47 General Counsel and Secretary
Bruce Rigione........................ 41 Senior Vice President, Business Development and Director
Daniel D. Springer................... 36 Chief Marketing Officer
</TABLE>
Jeremy R. Lent co-founded NextCard with his wife, Molly Lent, in June 1996
and has been Chairman of the Board, Chief Executive Officer and President since
our inception. From May 1991 to January 1995, Mr. Lent served as Chief Financial
Officer of Providian Bancorp, a direct marketing credit card issuer. From 1994
to January 1995, Mr. Lent also served as a Senior Vice President of Providian.
While at Providian, Mr. Lent was responsible for the company's planning,
treasury, securitization, corporate development and accounting functions. Mr.
Lent received a B.A. and an M.A. from Cambridge University and an M.B.A. from
the University of Chicago. In October 1999, Mr. Lent was awarded the Albert
Einstein Technology Medal for innovation in technology.
Yinzi Cai has served as our Senior Vice President, Decision Analytics since
February 1999. From July 1997 to January 1999, she served as our Vice President,
Decision Analytics. From July 1994 to June 1997, Ms. Cai was a Principal in the
Finance Industry Group of American Management Systems, focusing on risk
management and direct marketing strategies for financial institutions. Ms. Cai
served as a Risk Manager for GE Capital from June 1993 to June 1994. Ms. Cai
holds a B.S. from Fudan University and an M.S. from Case Western Reserve
University.
Timothy J. Coltrell has served as our Chief Operating Officer since June
1997. From August 1996 to June 1997, he served as our Senior Vice President of
Operations. From November 1994 to June 1996, he was the Operations Center
Manager, President and Chief Executive Officer of GE Capital Consumer Credit
Card Company. From April 1987 to November 1994, he held a variety of positions
at Providian Bancorp including Assistant Vice President of Collections, Vice
President of Acquisitions, Vice President of Risk Control and Vice President of
Joint Ventures. Most recently, from August 1994 to November 1994, he held the
position of Vice President of Telemarketing at Worldwide Insurance, a
subsidiaries of Providian Corporation. Mr. Coltrell received a B.A. and an
M.B.A. from the University of California at Irvine.
Shaun C. Deane has served as our Vice President, Project Integration and
Planning, since February 1997. From December 1994 to February 1997, Mr. Deane
was the Vice President and founder of the New Media Products Group at
Addison-Wesley Longman, a leading educational publisher. From 1989 to 1994, Mr.
Deane held a variety of positions at Apple Computer, including Director of its
Evangelism Group from March 1993 to December 1994. Mr. Deane holds a B.A. from
Brandeis University and an M.A. from the University of San Francisco.
John V. Hashman has served as our Chief Financial Officer since September
1997. Prior to joining us, Mr. Hashman worked at Providian Financial, where he
served as Vice President, Direct Telemarketing from June 1995 to September 1997,
Vice President, Operations from November 1993 to June 1995 and Treasurer from
November 1989 to November 1993. Mr. Hashman holds a B.S. from Southeast Missouri
State University and an M.B.A. from the University of San Francisco.
Molly Lent co-founded NextCard with her husband, Jeremy Lent, and, since
April 1998, has served as our Chief Corporate Development Officer. Prior to the
founding of NextCard, Ms. Lent was President of Art Forms, an art distribution
company. Ms. Lent graduated Phi Beta Kappa, cum laude, with a B.A. degree from
State University of New York at Buffalo.
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<PAGE> 14
Robert Linderman has served as our General Counsel and Secretary since
October 1997. From January 1993 to January 1996, he served as Associate General
Counsel for San Francisco Federal Savings, and from February 1996 to July 1997,
he served as General Counsel for SIFE Trust Fund. Mr. Linderman received a B.A.
and a J.D. from Boston University.
Bruce G. Rigione has served as our Senior Vice President, Business
Development, since July 1999 and as our Director since March 1997. From January
1999 to August 1999, Mr. Rigione was a private consultant. From April 1996 to
December 1998, he was a Managing Director and Global Head of Asset
Securitization for HSBC Markets, the capital markets subsidiaries of HongKong
Shanghai Banking Corporation. From November 1987 to April 1996, Mr. Rigione was
a Managing Director and Head of Securitization for Chase Securities, Inc., a
subsidiaries of Chase Manhattan Bank. Mr. Rigione holds a B.A. from Fairfield
University and an M.B.A. from Columbia University.
Daniel D. Springer has served as our Chief Marketing Officer since March
1998. Prior to joining us, from September 1991 to December 1997, Mr. Springer
worked at McKinsey & Co., an international consulting firm, where he consulted
for a wide range of enterprises. Mr. Springer holds a B.A. from Occidental
College and an M.B.A. from Harvard University.
FACTORS AFFECTING FUTURE RESULTS
If any of the following occurs, our business, financial condition or
results of operations could be materially adversely affected.
RISKS RELATED TO OUR BUSINESS
Our Limited Operating History Makes Evaluation of Our Business and Prospects
Difficult
We were formed in June 1996. We introduced the NextCard Visa in December
1997. We have only a limited operating history on which you can base an
evaluation of our business and prospects. Our business and prospects must be
considered in light of the risks, uncertainties, expenses and difficulties
frequently encountered by companies in their early stages of development,
particularly companies in new and rapidly evolving markets such as the market
for Internet products and services.
We Have a History of Losses and We Anticipate Significant Future Losses
We incurred net losses of $77.2 million for the year ended December 31,
1999, $16.1 million for the year ended December 31, 1998 and $1.9 million for
the year ended December 31, 1997. As of December 31, 1999, we had an accumulated
deficit of $95.1 million. To date, we have not achieved profitability and we
expect to incur significant net losses for at least the next three years. We
intend to continue to invest significantly in marketing, operations, technology
and the development of statistical analyses. As a result, we will need to
generate significant revenue to achieve profitability. We cannot be certain that
we will be able either to maintain our recent revenue growth rates or to
generate adequate revenue to achieve profitability. If we do achieve
profitability, we cannot be certain that we can sustain or increase
profitability on a quarterly or annual basis in the future. See "Selected
Consolidated Financial Data" and "Management's Discussion and Analysis of
Financial Condition and Results of Operations."
Our Limited Operating History Makes Our Financial Forecasting Difficult
Due to our limited operating history, we cannot forecast operating expenses
based on our historical results. Accordingly, we base our forecast of operating
expenses, in part, on future revenue projections. Most of these expenses are
fixed in the short term and we may not be able to quickly reduce spending if we
achieve lower than anticipated revenue. Our ability to accurately forecast our
revenue is limited. If our revenue does not meet our internally developed
projections, our net losses will be even greater than we anticipate and our
business, operating results and financial condition may be materially and
adversely affected.
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<PAGE> 15
Our Unseasoned Credit Card Portfolio Makes Our Prediction of Delinquency and
Loss Levels Difficult
As of December 31, 1999, the majority of our credit card balances were
generated in the last nine months. As a result, we cannot accurately predict the
levels of delinquencies and losses that can be expected from our portfolio over
time. As our portfolio becomes more seasoned, the level of losses may increase.
Any material increase in delinquencies or losses above our expectations could
materially and adversely impact our results of operations and financial
condition.
We May Be Unable To Retain Customers When We Increase Their Introductory Or
Fixed Interest Rates
To attract new customers, we have offered and may continue to offer low
introductory interest rates that increase after expiration of the introductory
period. In addition, we offer fixed rate products that may increase if customers
fail to pay their credit card bills on a timely, consistent basis. Given our
limited operating history, we do not know what percentage of our customers will
continue to use their NextCard Visa after they are repriced. If fewer customers
than we expect continue to use their NextCard Visa after they are repriced, our
results of operations could be adversely affected. See "Management's Discussion
and Analysis of Financial Condition and Results of Operations" and
"Business -- Underwriting and Credit Management."
We May Encounter Difficulties Due to Our Untested Customer Base
We target our credit card products to Internet users. Lenders historically
have not solicited this market to the same extent as more traditional market
segments. As a result, there is less historical experience with respect to the
credit risk and performance of these consumers. We may not be able to
successfully target and evaluate the creditworthiness of these consumers.
Therefore, we may encounter difficulties managing the expected delinquencies and
losses and appropriately pricing our products. In addition, we may consider
using additional internally developed criteria to enhance or replace our
existing criteria. We have limited experience developing and implementing credit
criteria. As a result, as compared to issuers targeting traditional market
segments, we could experience any or all of the following:
- a greater number of cardholder payment defaults or other unfavorable
payment behavior;
- an increase in fraud by our cardholders and third parties; and
- changes in the traditional patterns of cardholder loyalty and usage.
In addition, because we are targeting a new customer base, we have
comparatively little information about the potential size of our target market,
our customer usage patterns and other factors that could significantly affect
the demand for our products and services. Moreover, general economic factors,
such as the rate of inflation, unemployment levels and interest rates may affect
our target market customers more severely than other market segments, which
could increase our delinquencies and losses. See "Management Discussion and
Analysis -- Asset Quality."
Fluctuations In Our Quarterly Revenue And Operating Results May Affect The
Price Of Our Common Stock
Quarterly fluctuations in our earnings could adversely affect the market
price of our common stock. Our revenue consists of the finance charges paid by
our customers based on their outstanding balances, the amounts received through
the Visa system based upon a percentage of our customers' purchases and the fees
paid by our customers. As a result, we depend substantially on the level of
customer balances, the level of interest rates on our credit card portfolios,
the timing of payments of our cardholders and the volume of NextCard Visa
purchases. Variations of these factors could affect our quarterly revenue. Any
shortfall in our revenue would have a direct impact on our operating results for
a particular quarter. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations."
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Our quarterly operating results may fluctuate significantly as a result of
a variety of factors, many of which are outside of our control. These factors
include:
- the volume of credit card loans generated from our products and our
ability to successfully manage our credit card loan portfolio;
- the announcement or introduction of new websites, services and products
by us or our competitors and the level of price competition for the
products and services we offer;
- our ability to securitize credit card loan receivables and the timing of
such securitizations;
- the amount and timing of our operating costs and capital expenditures
relating to the expansion of our business, operations and infrastructure;
- technical difficulties, system downtime, Internet service problems and
our ability to expand and upgrade our computer systems to handle
increased traffic;
- the success of our brand building, advertising and marketing campaigns,
including our recently announced agreements with Amazon.com, LLC and
priceline.com.
- general economic conditions, including interest rate volatility, and
economic conditions specific to the Internet, online commerce and the
credit card industry.
We May Be Unable To Satisfactorily Fund Our Working Capital Requirements
If our current funding becomes insufficient to support future operating
requirements, we will need to obtain additional funding either by increasing our
lines of credit or by raising additional debt or equity from the public or
private capital markets. There can be no assurance that such additional funding
will be available on terms attractive to us, or at all. Our failure to raise
additional funding when needed could have a material adverse effect on our
business, results of operations and financial condition.
We May Be Unable To Satisfactorily Fund Our Loan Portfolio
Our primary source of funding to date has been the securitization of our
credit card loan portfolio through commercial paper conduit facilities. We
currently fund our loan portfolio through the following commercial paper conduit
facilities: a $300.0 million facility arranged by Barclays Bank PLC, a $150.0
million facility arranged by ING Barings (U.S.) Capital Markets LLC and a $220.0
million facility established November 12, 1999 with First Union Securities, Inc.
As of December 31, 1999, $300.0 million was outstanding under the Barclays Bank
facility and $46.0 million was outstanding under the First Union facility.
Securitization transactions involve the sale of beneficial interests in
credit card loan balances. Until now, we have completed securitization
transactions on terms that we believe are favorable. The availability of
securitization funding, however, depends on the difficulty and expense of the
funding. Securitizations can be affected by many factors, such as whether a
third party will be willing to provide credit enhancement and the rates at which
cardholders have repaid their balances in the past. In addition, legal,
regulatory, accounting and tax changes can make securitization funding more
difficult, more expensive or unavailable on any terms. Securitizations may not
always offer us attractive funding, and we may have to seek other more expensive
funding sources in the future. In general, the amount, type and cost of our
financing affect our financial results. Changes within our organization and
changes in the activities of parties with which we have agreements or
understandings could all make the financings available to us more difficult,
more expensive or unavailable on any terms.
With the acquisition of NextBank, our funding strategy includes the ability
to fund a portion of our loan portfolio through deposits solicited and received
by NextBank. We may not be able to attract or retain sufficient deposits at
attractive interest rates to fund our loan portfolio through NextBank. Moreover,
if adequate capital is not available, we also may be subject to an increased
level of regulatory supervision that could have an adverse effect on our
operating results and financial condition.
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Our Customers May Become Dissatisfied By System Disruptions And Failures
Our website has in the past experienced, and may in the future experience,
slower than normal response times or other problems, such as system
unavailability. Customers may become dissatisfied by any system failure that
interrupts or delays our ability to provide our services to them. Any
interruption or delay in our operations could materially and adversely affect
our business.
If the number of users of our website increases substantially, we will need
to significantly expand and upgrade our technology, transaction processing
systems and network infrastructure. Our website must accommodate a high volume
of users and deliver frequently updated information. The number of visitors and
credit card applicants to our website has increased substantially since we
introduced the NextCard Visa, and we anticipate that this traffic will further
increase over time. However, it is difficult to predict the future traffic on
our website. Marketing efforts and other events could cause traffic to strain
our website's capacity. We do not know whether we will be able to accurately
project the rate or timing of any traffic increases, or expand and upgrade our
systems and infrastructure to accommodate these increases in a timely manner.
Our systems and operations also are vulnerable to damage or interruption
from human error, natural disasters, power losses, telecommunication failures,
break-ins, sabotage, computer viruses, acts of vandalism and similar events. As
we currently do not have back-up systems for most aspects of our operations, a
failure of a single aspect of our system could cause interruptions or delays in
our entire operation. We do not carry sufficient business interruption insurance
to compensate for losses that could occur.
We Depend On A Limited Number Of Vendors For Essential Services
We rely on a number of services furnished to us by either a single vendor
or a limited number of vendors. We also depend, directly and indirectly, on
other key third party vendors to provide essential services. In the event that
any of our agreements with any of these third parties is terminated, we may not
be able to find an alternative source of support on a timely or commercially
reasonable basis, if at all. Any interruption, deterioration or termination in
these third-party services could be disruptive to our business and harm our
results of operations and financial condition.
We May Be Adversely Affected If We Fail To Attract And Retain Key Personnel
Our success depends largely on the skills, experience and performance of
certain key members of our management. If we lose one or more of these key
employees, particularly Jeremy Lent, our Chairman of the Board, Chief Executive
Officer and President, our business, operating results and financial condition
would be materially adversely affected. Our success also depends on our
continued ability to attract, retain and motivate highly skilled employees.
Competition for employees both for Internet-based businesses and for financial
services businesses is intense, particularly for personnel with technical
training and experience. We may be unable to retain our key employees or to
attract, assimilate or retain other highly qualified employees in the future. We
have from time to time in the past experienced, and we expect to experience in
the future, difficulty in hiring and retaining highly skilled employees with
appropriate qualifications.
We May Be Unable To Effectively Manage The Rapid Growth In Our Operations
Since the introduction of our NextCard Visa product in December 1997, we
have experienced rapid growth in our operations. From December 31, 1997 through
December 31, 1999, we grew from approximately 18 to 287 employees, and our loans
under management increased from $0 to $416.0 million. We are planning for
continued rapid growth of our operations. This growth requires us to expand our
marketing, customer service and support, credit and technology organizations.
There can be no assurance that we will be able to attract and retain sufficient
numbers of personnel to satisfy our anticipated growth. In particular, as we
rely heavily on temporary personnel to satisfy our growing personnel demands, we
may be unable to continue to attract and retain a sufficient number of temporary
employees to support our future growth. Rapid growth places a significant strain
on our financial reporting, information and management systems and resources.
Our business, results of operations and financial condition will be materially
adversely affected if we are unable to effectively manage our expanding
operations. For example, if we are unable to maintain and scale our financial
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reporting and information systems, we may not have access to adequate, accurate
and timely financial information.
We May Be Unable To Successfully Develop NextCard As A Brand
The dynamics of a brand name have traditionally worked differently in the
credit card market than in many other industries. In the credit card market,
consumers have responded more to brand names, such as Visa or MasterCard, than
to the identity of the issuer. The Internet may change underlying market
dynamics for brand recognition as compared to the offline market. Accordingly,
we are aggressively implementing our marketing plan to establish brand
recognition with Internet users to persuade customers to switch to our products
and services, particularly because we compete, or expect to compete, with larger
financial institutions that have well-established brand names. We cannot assure
you that we will successfully develop our brand name. If the brand name of
online credit card issuers becomes important, and if other credit card issuers
begin to compete with us for online brand name recognition, our business,
results of operations and financial condition could be materially and adversely
affected.
RISKS RELATED TO OUR INDUSTRY
Our Performance Will Depend On The Growth Of The Internet And Internet
Commerce
Our future success depends heavily on the overall continued growth and
acceptance of the Internet, including its use in electronic commerce. If
Internet usage or electronic commerce does not continue to grow or grows more
slowly than expected, our business, operating results and financial condition
will be adversely affected. Consumers and businesses may reject the Internet as
a viable medium for a number of reasons. These include potentially inadequate
network infrastructure, slow development of enabling technologies and
insufficient commercial support. The Internet infrastructure may not be able to
support the demands placed on it by increased Internet usage and bandwidth
requirements. In addition, delays in the development or adoption of new
standards and procedures required to handle increased levels of Internet
activity, or increased government regulation, could cause the Internet to lose
its viability as a commercial medium. Even if the required infrastructure,
standards, procedures or related products, services and facilities are
developed, we may incur substantial expenses adapting our solutions to changing
or emerging technologies.
Our Performance Will Depend On The Continued Growth Of The Financial Services
Market
Our business would be adversely affected if the growth in Internet
financial products and services does not continue or is slower than expected.
Although we believe the Internet has the potential to transform the delivery of
consumer financial products, consumers' acceptance of recently introduced
financial products and services is at an early stage and is subject to a high
level of uncertainty. Although our long-term vision is to define and enable the
Internet consumers' transaction experience, presently we offer only a single
product, the NextCard credit card. As the online financial services industry
matures, government-imposed regulations could become so stringent that we may be
economically precluded from offering online financial products and services.
Intense And Increasing Competition In Financial Services Could Harm Our
Business
The financial services market is rapidly evolving and intensely
competitive. The recently enacted Gramm-Leach-Bliley Act of 1999, which permits
the affiliation of commercial banks, insurance companies and securities firms,
may increase the level of competition in the financial services market,
including the credit card business. We operate in this competitive environment
with a number of other companies, many of whom have significantly longer
operating histories, greater name recognition, larger customer bases and
significantly greater financial, technical and marketing resources than we do.
Some of our competitors may be able to obtain funding at a more favorable rate
than we can obtain. In addition, our business model anticipates that we will
derive a large majority of our revenue from the interest charged on credit card
balances contained in the portfolio of loans we hold. Increased competition
could require us to reduce the interest rates we charge on our
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customers' balances. This could have a material adverse effect on our business,
results of operations and financial condition.
Other credit card issuers and traditional commercial banks may increasingly
compete in the online credit card market. Existing Internet providers and new
Internet entrants may launch new websites using commercially available software.
In addition, companies that provide alternate online payment methods, such as
debit card and micropayment offerings, may compete for our business. While the
credit card market traditionally has been very fragmented, the Internet could
change traditional market dynamics and enable new competitors to rapidly acquire
significant market share.
Our competitors may respond more quickly than we can to new or emerging
technologies and changes in customer requirements. They may be able to:
- devote greater resources than we can to the development, promotion and
sale of their products and services;
- replicate our products and services;
- engage in more extensive research and development;
- undertake farther-reaching marketing campaigns;
- adopt more aggressive pricing policies;
- make more attractive offers to existing and potential employees and
strategic partners;
- more quickly develop new products and services or enhance existing
products and services;
- bundle consumer products and services in a manner that we cannot provide;
and
- establish cooperative relationships among themselves or with third
parties, including large Internet participants, to increase the ability
of their products and services to address the needs of our prospective
customers.
We cannot assure you that we will be able to compete successfully or that
competitive pressures will not materially and adversely affect our business,
results of operations or financial condition.
Our Operating Results Are Subject To Interest Rate Fluctuations
The majority of our revenue is generated by the interest rates we charge on
outstanding balances in the form of finance charges, which are based on
prevailing interest rates. Accordingly, fluctuations in interest rates will
affect our revenue. At the same time, a significant portion of our outstanding
balances are at fixed rates and do not fluctuate with interest rate movements.
Our borrowing costs may also fluctuate based on general interest rate
fluctuations. A rise in our borrowing costs may not be met by a corresponding
increase in revenue generated by finance charges. Likewise, a decrease in
revenue generated by finance charges may not be met by a corresponding decrease
in borrowing costs. Thus, either a rise or a fall in the prevailing interest
rates could materially and adversely affect our results of operations and
financial condition. We may have to manage our interest rate risk through
interest rate hedging techniques. However, we currently do not use significant
hedging techniques, and they may not be successful in reducing or eliminating
our interest rate risk in the future.
We May Be Unable To Introduce New Services, Features And Functions
The Internet and related financial institutions marketplaces are
characterized by rapidly changing technologies, evolving industry standards,
frequent new product and service introductions and changing customer demands.
Our future success will depend on our ability to adapt to rapidly changing
technologies and to enhance existing products and services, as well as to
develop and introduce a variety of new products and services to address our
customers' changing demands. We may experience difficulties that delay or
prevent the successful design, development, introduction or marketing of our
products and services. In addition, material
19
<PAGE> 20
delays in introducing new products and services and enhancements may cause
customers to forego purchases of our products and services and purchase instead
those of our competitors.
We May Be Unable to Undertake Additional Activities Due to Governmental
Regulations
NextBank is a limited purpose national credit card bank. If NextBank
decided to expand its activities beyond those permissible for a limited purpose
national credit card bank, we would be required to file an application with, and
receive the prior approval of, the OCC to amend NextBank's charter. Moreover, we
would be required to file an application with, and receive the prior approval
of, the Federal Reserve Board to become a bank holding company. If we did not
receive the necessary approval from the OCC and the Federal Reserve Board, we
would be unable to expand our activities beyond those permitted for a limited
purpose national credit card bank.
Security Breaches Could Damage Our Reputation And Business
The secure transmission of confidential information over the Internet is
essential to maintain consumer and supplier confidence in our products and
services. Advances in computer capabilities, new discoveries or other
developments could result in a compromise or breach of the technology used by us
to protect customer transaction data.
A party that is able to circumvent our security systems could steal
proprietary information or cause interruptions in our operations. Security
breaches could damage our reputation and expose us to a risk of loss or
litigation. Our insurance policies carry low coverage limits, which may not be
adequate to reimburse us for losses caused by security breaches. We cannot
guarantee that our security measures will prevent security breaches.
Consumers generally are concerned with security and privacy on the Internet
and any publicized security problems could inhibit the growth of the Internet as
a means of conducting commercial transactions. Our ability to provide financial
services over the Internet would be severely impeded if consumers become
unwilling to transmit confidential information online. As a result, our
operations and financial condition would be materially and adversely affected.
We May Face Increased Governmental Regulation And Legal Uncertainties
To date, communications and commerce on the Internet have not been highly
regulated. However, Congress has held hearings on whether to regulate providers
of services and transactions in the electronic commerce market. It is possible
that Congress or individual states could further enact laws regulating Internet
banking that address issues such as user privacy, pricing and the
characteristics and quality of products and services. For example, the
Gramm-Leach-Bliley Act of 1999 established new privacy requirements applicable
to all financial institutions. Any restrictions on the collection and use of
such consumer information over the Internet could adversely affect our direct
marketing efforts. In addition, several telecommunications companies have
petitioned the Federal Communications Commission to regulate Internet service
providers in a manner similar to long distance telephone carriers and to impose
access fees on these companies. This could increase the cost of transmitting
data over the Internet. Moreover, it may take years to determine the extent to
which existing laws relating to issues such as property ownership, libel and
personal privacy are applicable to the Internet. Any new laws or regulations
relating to the Internet could adversely affect our business.
Our business is subject to extensive federal and state regulation,
including regulation under consumer protection laws. NextBank, our wholly owned
subsidiaries, is a limited purpose national credit card bank, and is subject to
regulation under federal banking laws and certain laws of California and other
states, as well as regulatory supervision by the Office of the Comptroller of
the Currency (OCC) and the FDIC. As an affiliate of NextBank, we are also
subject to oversight by the OCC and the FDIC. Existing and future legislation
and regulatory supervision could have a material adverse effect on our business,
including our credit and authentication policies, pricing and products. See
"Business -- Government Regulation."
20
<PAGE> 21
NextBank is subject to minimum capital, funding and leverage requirements
prescribed by federal statute and the OCC regulations and orders. If NextBank
fails to meet these regulatory capital requirements, NextBank will be subject to
additional restrictions that could have a material adverse effect on our ability
to conduct normal operations and possibly result in the seizure of NextBank by
government regulators under certain circumstances. Our ability to maintain or
increase NextBank's capital levels in the future will be subject to, among other
things, general economic conditions, our ability to raise new capital and our
ability and willingness to make additional capital contributions to NextBank or
a related institution.
We May Face Difficulties Protecting And Enforcing Our Intellectual Property
Rights
Our success and ability to compete are substantially dependent on our
proprietary technology and trademarks, which we attempt to protect through a
combination of patent, copyright, trade secret and trademark laws as well as
confidentiality procedures and contractual provisions. However, any steps we
take to protect our intellectual property may be inadequate, time consuming and
expensive. Furthermore, despite our efforts, we may be unable to prevent third
parties from infringing upon or misappropriating our intellectual property. Any
such infringement or misappropriation could have a material adverse effect on
our business, results of operations and financial condition. In addition, we may
infringe upon the intellectual property rights of third parties, including third
party rights in patents that have not yet been issued. Any such infringement, or
alleged infringement, could have a material adverse effect on our business,
results of operations and financial condition.
We have filed three patent applications and have applied to register
several of our trademarks, both in the United States and abroad. We cannot
assure you that our patent applications or trademark registrations will be
approved. Moreover, even if approved, they may not provide us with any
competitive advantages or may be challenged by third parties. Legal standards
relating to the validity, enforceability and scope of intellectual property
rights in Internet-related industries are uncertain and still evolving, and the
future viability or value of any of our intellectual property rights is
uncertain. Any litigation surrounding such rights could force us to divert
important financial and other resources away from our business operations.
We collect and utilize data derived from applications on the NextCard
website and through transactions made using our products. Although we believe
that we have the right to use such data and compile such data in our database,
we cannot assure you that any intellectual property protection will be available
for such information subject to any limitations related to privacy such as those
contained in the Gramm-Leach-Bliley Act. In addition, third parties may claim
rights to such information.
We have licensed, and may license in the future, elements of our
trademarks, trade dress and similar proprietary rights to third parties. While
we attempt to ensure that the quality of our brand is maintained by such
business partners, such partners may take actions that could materially and
adversely affect the value of our proprietary rights or our reputation. This
could, in turn, have a material adverse effect on our business, results of
operations and financial condition.
We may not be able to acquire or maintain appropriate domain names
We hold rights to various Web domain names including "nextcard.com".
Governmental agencies typically regulate domain names. These regulations are
subject to change. We may not be able to acquire or maintain appropriate domain
names in all countries in which we plan to do business. Furthermore, regulations
governing domain names may not protect our trademarks and similar proprietary
rights. We may be unable to prevent third parties from acquiring domain names
that are similar to, infringe upon or diminish the value of our trademarks and
other proprietary rights.
ITEM 2. PROPERTIES
We have a five-year lease on our principal executive offices of
approximately 14,000 square feet in San Francisco, California. That lease
expires in 2003. In June 1999, we amended the five-year lease agreement to
provide for an additional 28,000 square feet located within the same building as
our current corporate headquarters in San Francisco. On March 7, 2000, we
entered into a six-year lease for approximately 100,000
21
<PAGE> 22
square feet of office space in Phoenix, Arizona in which we house our call
center. We may renew this lease at our option for two additional three-year
periods. In addition, we sublease approximately 17,500 square feet of office
space in San Ramon, California, where most of our operations and customer
service activities are located. That lease expires in June 2001. Our current
facilities will not be sufficient to meet our anticipated growth. We are
currently conducting a site search for additional space. There can be no
assurance we will be able to secure such additional space.
ITEM 3. LEGAL PROCEEDINGS
From time to time we may be involved in litigation concerning claims
arising in the ordinary course of our business. We are not presently a party to
any material legal proceedings.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of our shareholders during the fourth
quarter of 1999.
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS
The information required by Item 201 of Regulation S-K is set forth in the
"Summary Consolidated Quarterly Financial Information and Common Stock Price
Ranges Data" on page 57.
We have never declared or paid any cash dividends on our capital stock and
do not anticipate paying any cash dividends on our capital stock in the
foreseeable future. In addition, our credit facilities contain certain
restrictions on our ability to pay dividends.
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<PAGE> 23
ITEM 6. SELECTED CONSOLIDATED FINANCIAL DATA
The selected consolidated financial data presented below for the years
ended December 31, 1999 and 1998, and for the period from June 5, 1996 (date of
inception) through December 31, 1997 are derived from our consolidated financial
statements, which have been audited by Ernst & Young LLP, independent auditors,
and are included elsewhere in this Annual Report on Form 10-K. The data set
forth is qualified in its entirety by, and should be read in conjunction with,
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and the Consolidated Financial Statements and notes thereto included
elsewhere in this Annual Report on Form 10-K.
<TABLE>
<CAPTION>
PERIOD FROM
JUNE 5, 1996
YEARS ENDED DECEMBER 31, (INCEPTION) TO
------------------------ DECEMBER 31,
1999 1998 1997
----------- --------- --------------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C>
INCOME STATEMENT DATA:
Interest income........................................ $ 22,054 $ 502 $ 93
Interest expense....................................... 10,902 62 --
---------- -------- -------
Net interest income.................................. 11,152 440 93
Provision for loan losses.............................. 12,072 -- --
Non-interest income.................................... 4,506 697 --
Non-interest expense................................... 80,779 17,199 1,977
---------- -------- -------
Loss before income taxes............................. (77,193) (16,062) (1,884)
---------- -------- -------
Income tax expense..................................... 2 2 2
---------- -------- -------
Net loss............................................. $ (77,195) $(16,064) $(1,886)
========== ======== =======
Basic and diluted loss per common share................ $ (2.54) $ (5.07) $ (1.08)
========== ======== =======
STATEMENT OF FINANCIAL CONDITION DATA:
Loans receivable....................................... $ 416,315 -- --
Allowance for credit losses............................ $ 11,500 -- --
Total assets........................................... $ 662,310 $ 45,542 $ 3,688
Deposits............................................... $ 3,800 -- --
Borrowings............................................. $ 357,359 $ 504 --
Equity................................................. $ 278,635 $ 39,937 $ 2,787
OTHER DATA:
Total revenue.......................................... $ 26,560 $ 1,199 $ 93
Loans receivable -- managed............................ $ 416,315 $ 66,042 --
Total number of customer accounts -- managed........... 220 40 --
Net interest margin.................................... 4.25% -- --
Net charge-offs -- managed basis....................... $ 3,085 $ 115
Net charge-off rate -- managed basis................... 1.61% 0.58%
Delinquency rate (30+ days) -- managed basis........... 1.48% 0.71% --
Reserves as a percent of on balance sheet loans........ 2.77% -- --
Equity to earning assets............................... 44.37% -- --
Average equity to average total assets................. 38.9% -- --
Total market capitalization............................ $1,473,262 -- --
Common Shares outstanding.............................. 51,022 -- --
</TABLE>
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<PAGE> 24
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following discussion should be read in conjunction with the
Consolidated Financial Statements and the notes thereto which appear elsewhere
herein. The following discussion contains forward-looking statements that
reflect our plans, estimates and beliefs. Our actual results could differ
materially from those projected in the forward-looking statements. Factors that
could cause or contribute to differences include, but are not limited to, those
discussed below and elsewhere in this annual report on Form 10-K, particularly
in "Factors Affecting Future Results."
OVERVIEW
We are a leading Internet-based provider of consumer credit. We were the
first company to offer an online approval system for a Visa card and to provide
interactive, customized offers to credit card applicants.
We combine expertise in consumer credit, an exclusive Internet focus and
sophisticated direct marketing techniques with the aim of attracting profitable
customer segments on the Internet. Our product, the NextCard Visa, which we call
the First True Internet Visa, is marketed to consumers through our website,
www.nextcard.com. We have entered into marketing agreements with leading
websites on the Internet. We also have marketing relationships with
Internet-based affiliates, co-branded partners and affinity groups.
We were incorporated on June 5, 1996. The NextCard Visa was first offered
to the public on December 23, 1997. During the period from our inception through
December 31, 1997 (the "Inception Period"), we had no operating income. Our
operating activities were limited primarily to developing the necessary computer
infrastructure, planning and developing our website, building our operations
capacity and establishing vendor relationships.
Our operating costs have increased significantly since our inception. This
reflects the costs associated with our formation, as well as increased efforts
to promote the NextCard brand, build market awareness, attract new customers,
recruit personnel, build operating infrastructure and develop our credit card
application system and customer servicing infrastructure.
We have grown rapidly since launching our product in December 1997. As of
December 31, 1997, we had 18 employees and, as of December 31, 1999, we had 287
employees. From December 31, 1997 through December 31, 1999, we significantly
increased the new loans generated through our website as well as the total loans
under our management. These increases were primarily due to our application
process that allows customers to automatically transfer balances from their
other credit cards to their new NextCard Visa. From December 31, 1997 to
December 31, 1999, our loan receivables outstanding grew from $0 to $416.3
million. As of December 31, 1999, we had approximately 220,000 open credit card
accounts.
Since our inception, we have incurred significant net losses. As of
December 31, 1999, we had an accumulated deficit of $95.1 million. The net
losses and accumulated deficit resulted from the significant infrastructure,
marketing, technology and other costs incurred in the development of our
NextCard Visa product. We expect to incur significant additional net losses for
the foreseeable future, and the rate and amount at which such losses will be
incurred may increase significantly from current levels. These expected costs
are related to advertising, marketing and other promotional activities;
expansion of our direct marketing, database and testing capabilities; expansion
of our product offerings; and strategic relationship development.
RESULTS OF OPERATIONS
Earnings Summary
The following discussion provides a summary of our 1999 results compared to
1998 results, and our 1998 results compared to the period from June 5, 1996 to
December 31, 1997 ("Inception Period"). Each component of these results is
discussed in further detail in subsequent sections of this analysis.
Net loss for the year ended December 31, 1999 was $77.2 million, 380%
greater than the $16.1 million net loss for the year ended December 31, 1998.
The $16.1 million net loss for the year ended December 31, 1998 was 747% greater
than the $1.9 million net loss for the Inception Period. Basic and diluted net
loss per
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<PAGE> 25
common share for the years ended December 31, 1999 and 1998, and the Inception
Period was $2.54, $5.07, and $1.08, respectively. These increases in net loss
are the result of an increase in interest expense, the provision for loan losses
and non-interest expenses. These increases were partially offset by increases in
net interest income and non-interest income. These increases are largely
attributable to the growth in average managed loans to $191.9 million for 1999
from $19.9 million in 1998.
Managed Loan Portfolio
Until January 12, 1999, Heritage Bank of Commerce ("Heritage") funded all
of the credit card accounts and loans originated on our website pursuant to our
Consumer Credit Card Program Agreement with Heritage. Under that agreement, we
charged Heritage for origination and servicing of the accounts and shared 50% of
the resulting net profits or losses. Prior to January 12, 1999, we did not own
any portion of our managed loan portfolio and therefore no loans were reported
on our balance sheet prior to that date.
In January 1999, we terminated the Consumer Credit Card Program Agreement
and entered into an Account Origination Agreement with Heritage. We then began
purchasing credit card receivables using secured lending facilities extended to
our subsidiary, NextCard Funding Corp. Pursuant to the terms of our Account
Origination Agreement with Heritage, Heritage continued to fund newly originated
credit card receivables, which were then purchased on a daily basis by NextCard
Funding Corp. using borrowings from its secured lending facilities. The
purchased receivables were pledged as collateral for the secured lending
facilities. Heritage's obligation to establish new credit card accounts
terminated in October 1999.
Our managed loan portfolio is comprised of all credit card loan receivables
generated under the NextCard Visa and outstanding on Heritage's and our balance
sheets. On July 15, 1999, we exercised our option to purchase (through NextCard
Funding Corp.) all remaining credit card receivables from Heritage. The acquired
credit card portfolio had $21.3 million in outstanding loan balances. We
financed the acquisition with a combination of proceeds from one of our secured
borrowing facilities and operating cash. Prior to this purchase, since Heritage
had funded and owned a portion of the managed loan portfolio, that portion of
the loan portfolio was not an asset of ours and, therefore, was not shown on our
consolidated balance sheet.
On September 16, 1999, in connection with our acquisition of NextBank, N.A.
(discussed below), we contributed all of the issued and outstanding capital
stock of NextCard Funding Corp. to NextBank. As of that date, NextCard Funding
Corp. became a wholly owned subsidiary of NextBank, which is our wholly owned
subsidiary.
The following table summarizes our managed loan portfolio for 1999 and
1998. We did not have a managed loan portfolio in the Inception Period.
<TABLE>
<CAPTION>
YEARS ENDED
DECEMBER 31,
-------------------
1999 1998
-------- -------
(IN THOUSANDS)
<S> <C> <C>
YEAR END BALANCES
Credit card loans:
On-balance sheet.......................................... $416,315 $ --
Heritage owned............................................ -- 66,042
-------- -------
Total managed loan portfolio................................ $416,315 $66,042
======== =======
AVERAGE BALANCES
Credit card loans:
On-balance sheet.......................................... $172,372 $ --
Heritage owned............................................ 19,480 19,882
-------- -------
Total managed loan portfolio................................ $191,852 $19,882
======== =======
</TABLE>
On September 16, 1999, we acquired Textron National Bank, a wholly owned
indirect subsidiary of Textron Corporation, for $5.0 million over its net book
value of $2.0 million. Textron had not actively engaged
25
<PAGE> 26
in the banking business for several years, and on the acquisition date held $2.6
million of cash and cash equivalents and a single deposit liability of
approximately $540,000. Immediately prior to the acquisition, Textron converted
into a national bank limited to credit card operations and changed its name to
"NextBank, National Association." In September 1999, NextBank became a member of
the Visa system and in October 1999 commenced the issuance of NextCard Visa
cards.
Net Interest Income
Net interest income consists of interest earned on our credit card loan
portfolio, cash on deposit, and cash equivalents less interest expense on
borrowings to fund these interest earning assets.
Interest income increased by $21.6 million, from $502,000 in 1998 to $22.1
million in 1999. The increase was primarily due to a $172.4 million increase in
on balance sheet average credit card loan receivables and a $78.2 million
increase in average cash and cash equivalents over 1998.
Interest income increased by $409,000, from $93,000 in the Inception Period
to $502,000 for 1998. This increase was attributable to higher average cash and
cash equivalent balances resulting from issuances of our preferred stock during
1998.
Interest expense increased by $10.8 million, from $62,000 for 1998 to $10.9
million in 1999. The increase is primarily due to a $155.3 million increase in
average borrowings over 1998.
We had no interest expense during the Inception Period.
Our net interest margin on average earning assets was 4.25% for the year
ended December 31, 1999. On a quarterly basis, our net interest margin has
steadily increased from 0.08% for the three months ended March 31, 1999 to 5.5%
for the three months ended December 31, 1999. The net interest margin was
favorably impacted by the introduction of fixed rate credit card products, the
repricing of our credit card loan portfolio due to the expiration of
introductory rate periods and a lower cost of funds. Our net interest margin was
negatively impacted by loan fee amortization expense related to warrants we
issued to a finance company in 1999 in connection with a financing transaction.
This loan fee is being amortized over a three year period. For the year ended
December 31, 1999, our net interest spread was 1.43%. Net interest spread is the
annualized yield on average interest-earning assets minus the annualized funding
rate on average interest-bearing liabilities. We expect our net interest spread
to continue to increase as our credit card loan portfolio matures; however, we
cannot be sure that this spread will improve.
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<PAGE> 27
The following table provides an analysis of interest income and expense,
net interest spread, net interest margin and average balance sheet data for the
year ended December 31, 1999. Such a presentation for prior years is not
presented since the information would not be meaningful because we did not carry
any loans on our balance sheet until 1999.
STATEMENT OF AVERAGE BALANCES, INCOME AND EXPENSES, AND YIELDS AND RATES
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, 1999
-----------------------------------------------
AVERAGE BALANCE INCOME/EXPENSE YIELD/RATE
--------------- -------------- ----------
(IN THOUSANDS)
<S> <C> <C> <C>
ASSETS:
Interest-earning assets
Consumer loans................................... $172,372 $17,863 10.36%
Interest-earning cash............................ 89,746 4,191 4.67%
-------- -------
Total interest-earning assets............ 262,118 22,054 8.41%
Allowance for loan losses.......................... (3,750)
Other assets....................................... 17,549
--------
Total assets............................. $275,917
========
LIABILITIES AND EQUITY:
Interest-bearing liabilities
Borrowings....................................... $155,508 $10,900 7.01%
Deposits......................................... 795 2 .25%
-------- -------
Total interest-bearing liabilities....... 156,303 10,902 6.98%
Other liabilities.................................. 12,346
--------
Total liabilities........................ 168,649
Equity............................................. 107,268
--------
Total liabilities and equity............. $275,917
========
NET INTEREST SPREAD................................ 1.43%
=====
Interest income to average interest-earning
assets........................................... 8.41%
Interest expense to average interest-earning
assets........................................... 4.16%
-----
NET INTEREST MARGIN................................ 4.25%
=====
</TABLE>
Non-Interest Income
Interchange and other credit card fees consist of income from the Visa
system for purchases made with the NextCard Visa and fees paid by our
cardholders, such as late fees, overlimit fees and program fees. Non-interest
income increased by $3.8 million, from $697,000 for 1998 to $4.5 million in
1999. This increase relates to approximately $2.6 million of interchange fees
and $1.4 million of other credit card fees we recognized in 1999 related to our
on balance sheet portfolio. As previously discussed, prior to 1999, all credit
card loan receivables generated under the NextCard Visa were outstanding only on
Heritage's balance sheet; accordingly, we did not recognize any interchange or
other credit card fee income. Non-interest income in 1998 consisted only of
origination and servicing fees and our share of profits derived from our
agreement with Heritage. We did not have any non-interest income in the
Inception Period. We expect interchange and other credit card fees to continue
to increase in the future as our credit card portfolio grows.
On July 15, 1999, we exercised our option to purchase all remaining credit
card receivables from Heritage; as a result, servicing and profit-and-loss
sharing income, consisting of amounts arising under the Consumer Credit Card
Program Agreement with Heritage decreased by $322,000, from $662,000 for the
year ended December 31, 1998 to $340,000 for the year ended December 31, 1999.
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<PAGE> 28
Non-Interest Expenses
Non-interest expenses consist primarily of salaries and employee benefits,
occupancy and equipment, professional fees, marketing, and credit card
activation and servicing costs.
Total non-interest expenses for the years ended December 31, 1999 and 1998,
and the Inception Period were $80.8 million, $17.2 million, and $2.0 million,
respectively. These increases were primarily due to higher employee
compensation, credit card activation and servicing costs and marketing expenses.
Employee compensation increased due to staffing needs to support the increase in
credit card accounts and other functions. In addition, the amortization of
deferred stock compensation, which represents the difference between the
exercise price of certain stock option grants and the deemed fair value of our
common stock at the time of the grants, for the years ended December 31, 1999
and 1998, was $10.0 million and $1.8 million, respectively. The increase in
credit card activation and servicing costs was largely due to an increase in the
number of credit card accounts, transaction volumes and loan balances. The
increase in other expenses is primarily due to general growth in the business
and the building of an infrastructure to support this growth.
Asset Quality
Our delinquency and net loan charge-off rates reflect, among other factors,
the credit risk of loans, the average age of our credit card account portfolio,
the success of our collection and recovery efforts and general economic
conditions. Additionally, the credit risk of the loans is affected by the
underwriting criteria we utilize to approve customers. The average age of our
credit card portfolio affects the level and stability of delinquency and loss
rates of the portfolio. We continue to focus our resources on refining our
credit underwriting standards for new accounts, as well as on collections and
post charge-off recovery efforts, to minimize net losses. At December 31, 1999,
the majority of our loan portfolio was less than nine months old. Accordingly,
we believe that our loan portfolio will experience increasing or fluctuating
levels of delinquency and loan losses as the average age of our accounts and
balances increases.
For the year ended December 31, 1999, our managed net charge-off ratio was
1.61%. We believe, based on our statistical models and other credit analyses,
that this rate may continue to fluctuate but will generally rise over the next
year as our portfolio ages and becomes more seasoned.
Our primary strategy for managing loan losses is the development of
underwriting criteria and credit scoring algorithms to assess the
creditworthiness of new customers and provide conservative customer credit line
assignments. Under these strategies, interest rates and credit line assignments
are established for each credit card account based on its perceived risk
profile. Individual accounts and their related credit lines are also continually
managed using various marketing, credit and other management processes in order
to continue to maximize the profitability of accounts. In addition, we monitor
credit lines closely and have built a collections department, as well as use
outside parties, to pursue delinquent customers.
Delinquencies
A credit card account is contractually delinquent if the minimum payment is
not received by the specified date on the cardholder's statement. It is our
policy to continue to accrue interest and fee income on all credit card
accounts, except in limited circumstances, until the account and all related
loans, interest and other fees are charged-off. Credit card loans are generally
charged off when the loan becomes contractually past due for 180 days, with the
exception of bankrupt accounts, which are charged off no later than the month
after formal
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<PAGE> 29
notification of bankruptcy. The following table presents the delinquency trends
of our credit card loan portfolio on a managed portfolio basis in 1999 and 1998.
<TABLE>
<CAPTION>
DECEMBER 31, 1999 DECEMBER 31, 1998
---------------------- ---------------------
LOANS % OF TOTAL LOANS % OF TOTAL
-------- ---------- ------- ----------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
Managed loan portfolio................. $416,315 100.00% $66,042 100.00%
Loans delinquent:
31 - 60 days......................... 2,620 0.63% 256 0.39%
61 - 90 days......................... 1,692 0.41% 131 0.20%
91 or more........................... 1,844 0.44% 80 0.12%
-------- ------ ------- ------
Total........................ $ 6,156 1.48% $ 467 0.71%
======== ====== ======= ======
</TABLE>
Net charge-offs
Net charge-offs include the principal amount of losses from cardholders
unwilling or unable to pay their loan balances, as well as bankrupt and deceased
cardholders, less current period recoveries. Net charge-offs exclude finance
charges and fees, which are charged against the related income at the time of
charge-off. Losses from new account fraud and fraudulent cardholder activity are
included in non-interest expense.
The following table presents our net charge-offs for the periods indicated
as reported in the consolidated financial statements and on a managed portfolio
basis.
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-------------------------
1999 1998
---------- ---------
(IN THOUSANDS)
<S> <C> <C>
ON-BALANCE SHEET:
Average loans outstanding................................. $172,372 $ --
Net charge-offs........................................... 2,472 --
Net charge-offs as a percentage of average loans
outstanding............................................ 1.43% --
MANAGED:
Average loans outstanding................................. $191,852 $19,882
Net charge-offs........................................... 3,085 115
Net charge-offs as a percentage of average loans
outstanding............................................ 1.61% 0.58%
</TABLE>
As our credit card loan portfolio continues to grow and season, net loan
losses will increase, delinquency levels may fluctuate and increase and the
ratio of the allowance for loan losses to on-balance sheet credit card loans
outstanding will increase. We will continue to monitor delinquency amounts and
actual loan losses, and will adjust our allowance for loan losses accordingly.
Provision and Allowance for Loan Losses
The allowance for loan losses is maintained for on-balance sheet loans.
Provisions for loan losses are made in amounts necessary to maintain the
allowance at a level estimated to be sufficient to absorb probable losses
inherent in the existing on-balance sheet loan portfolio. For loans maintained
on Heritage's balance sheet until July 1999, anticipated losses and related
reserves were reflected in the calculations of the servicing and profit-and-loss
sharing income from Heritage.
29
<PAGE> 30
The provision for loan losses for on-balance sheet loans for the year ended
December 31, 1999, totaled $12.1 million. We anticipate that the provision for
loan losses will increase as the credit card loan portfolio continues to
increase and season. The following table presents the changes in our allowance
for loan losses for 1999 (in thousands):
<TABLE>
<S> <C>
Balance at beginning of period.............................. $ --
Provision for loan losses................................... 12,072
Allowance acquired.......................................... 1,900
Charge-offs................................................. (2,518)
Recoveries.................................................. 46
-------
Balance at December 31, 1999................................ $11,500
=======
</TABLE>
Provision for Income Taxes
We have had a net loss for each period since inception. As of December 31,
1999, we had approximately $72.2 million and $43.2 million of net operating loss
carryforwards for federal and state income tax purposes, respectively. The
federal net operating loss carryforwards will start expiring in 2012 and the
state net operating loss carryforwards will start expiring in 2004. Because of
uncertainty regarding realizability, we have provided a full valuation allowance
on our deferred tax assets consisting primarily of net operating loss
carryforwards. See Note 14 of notes to the Consolidated Financial Statements.
Liquidity and Capital Resources
Since inception, we have financed our operations primarily through private
and public sales of preferred and common stock. Net proceeds from these sales
from inception to December 31, 1999 have totaled approximately $335.4 million.
At December 31, 1999, our principal source of liquidity was $189.2 million
of unrestricted cash and cash equivalents. In February and May 1999, we entered
into two $5.0 million lines of credit with a finance company. Borrowings under
these lines of credit accrue interest at 12.25% per year and are secured by a
secondary security interest in all of our tangible and intangible assets. These
lines of credit had an aggregate outstanding balance of $9.6 million at December
31, 1999.
In addition, during 1998, we entered into a $1.3 million equipment loan and
security agreement with a finance company. The loan is secured by a pledge of
all equipment purchased with the proceeds from borrowings under the loan
agreement and bears interest at 7.55% per year. The loan had an outstanding
balance of $962,000 at December 31, 1999.
Also during 1998, we entered into a $1.0 million financing arrangement with
a finance company. The financing arrangement is secured by a pledge of all
equipment leased under the arrangement and bears interest at 7.50% per year. The
loan had an outstanding balance of $828,000 at December 31, 1999.
Until January 12, 1999, Heritage funded all of the credit card amounts and
loans originated through our website. In January 1999, we began purchasing
credit card loan receivables from Heritage. Until May 21, 1999, we utilized a
$100.0 million secured borrowing facility extended to NextCard Funding Corp. by
Credit Suisse First Boston to fund the majority of those receivables. On May 21,
1999, we executed a $300.0 million commercial paper conduit facility through
Barclays Bank PLC and began utilizing this facility to purchase credit card
receivables. Borrowings under the facility are secured by the purchased
receivables. We also used a portion of the Barclays facility to pay off the
$87.8 million balance then outstanding under the Credit Suisse facility. As of
December 31, 1999, $300 million was outstanding under the Barclays facility.
In addition, on June 23, 1999 and November 12, 1999, we entered into
similar facilities with ING Barings (U.S.) Capital Markets LLC for $150.0
million and First Union Securities, Inc. for $220.0 million. Our borrowings
under these facilities are secured by all credit card receivables that may be
purchased by using funds from these facilities. As of December 31, 1999, there
was no amount outstanding under the ING Barings facility and $46.0 million
outstanding under the First Union facility.
30
<PAGE> 31
The weighted average rate paid on borrowed funds through our conduit
facilities was 6.28% for the year ended December 31, 1999. We did not enter into
any conduit facilities during 1998.
We will have the ability to fund new receivables during the revolving
period of these credit facilities. After the revolving period, we will use the
principal collections generated by our receivables to pay the principal amount
we owe. The revolving period ends in June 2001 for the Barclays facility,
January 2002 for the ING Barings facility and February 2003 for the First Union
facility.
We are in discussions with financial institutions related to establishing
additional borrowing facilities to fund the origination of credit card loan
receivables. Such new or increased facilities would increase our capacity to
originate credit card loan receivables. We cannot be sure that any new or
expanded facility will be established. If we establish and draw upon such a
facility, our aggregate borrowings will increase.
In December 1997, we signed a five-year agreement with First Data for
processing of our credit card portfolio. Under that agreement, we are obligated
to make aggregate minimum servicing payments of $7.5 million over the term of
the agreement.
In connection with our principal executive office lease, in October 1999,
we executed a $1.3 million irrevocable standby letter of credit in favor of the
landlord, which expires on October 31, 2000. This letter of credit can be drawn
on by our landlord under certain circumstances if we default under our lease
agreement. In addition, in connection with certain third party funds settlement
services provided to us beginning in January 2000, NextBank executed an
irrevocable standby letter of credit with MasterCard International, Inc. in the
amount of $1.0 million. This letter of credit can be drawn on by Mastercard in
the event that NextBank is unable to fund its daily funds settlement
requirement. In connection with our Phoenix call center lease, in March 2000, we
executed a $1.5 million irrevocable standby letter of credit in favor of the
landlord, which expires on April 1, 2006. This letter of credit can be drawn on
by our landlord under certain circumstances if we default under our lease
agreement.
In September 1999, NextBank began accepting time deposits with terms
ranging from three months to two years. These time certificates of deposit are
in amounts of $100,000 or more and totaled $3.8 million as of December 31, 1999.
We expect that our existing capital resources will adequately satisfy our
working capital requirements for the next 12 months, except for the funding of
our loan portfolio. Future working capital requirements, however, depend on many
factors, including our ability to execute on our business plan. If our current
funding becomes insufficient to support future operating requirements, we will
need to obtain additional funding either by increasing our lines of credit or by
raising additional debt or equity from the public or private capital markets.
Such funding alternatives if available at all, may be on terms that are not
favorable to us. Failure by us to raise additional capital or additional funding
when needed could have a material adverse effect on our business, results of
operations and financial condition.
Our ability to grow our business is limited by the amount of credit we can
extend to our customers and potential customers. Although our credit facilities
are sufficient to fund our current loan portfolio, they are not sufficient to
cover our anticipated loan portfolio over the next 12 months. Therefore, any
loss of funding under our credit facilities or failure to increase or extend the
terms of our credit facilities or obtain alternative financing on commercially
reasonable terms would have a material adverse effect on our results of
operations and financial condition.
Subsequent to our establishment of NextBank, a bank limited to generating
and financing credit card loans, we now fund a portion of our loan portfolio
through short-term deposits raised by NextBank as well as the commercial paper
conduit facilities discussed above. However, we may not be able to attract or
retain sufficient deposits at attractive interest rates to fund a portion of our
loan portfolio. Moreover, if adequate capital is not available, we also may be
subject to an increased level of regulatory supervision that could have an
adverse affect on our operating results and financial condition.
31
<PAGE> 32
Recent Accounting Pronouncements
In June 1998, the FASB issued Statement of Financial Accounting Standards
No. 133, "Accounting for Derivative Instruments and Hedging Activities" (SFAS
133). This statement establishes accounting and reporting standards for
derivative instruments and for hedging activities. It requires that derivatives
be recognized in the balance sheet at fair value and specifies the accounting
for changes in fair value. In June 1999, the FASB issued SFAS 137, "Accounting
for Derivative Instruments and Hedging Activities -- Deferral of the Effective
Date of FASB Statement No. 133" to defer the effective date of SFAS 133, until
fiscal years beginning after June 15, 2000. While we currently have no
derivative financial instruments and do not currently engage in significant
hedging activities, we anticipate engaging in derivative and increased hedging
activities in the future, and therefore expects to be affected by the
pronouncement. The impact of SFAS 133 on our consolidated financial statements,
however, will depend on a variety of factors including the level of future
hedging activities, the types of hedging instruments used and the effectiveness
of such instruments.
Impact of Year 2000
In late 1999, we completed our remediation and testing of systems. We have
experienced no significant disruptions in mission critical information
technology and non-information technology systems and believe those systems
successfully responded to the Year 2000 date change. We expensed approximately
$450,000 during 1999 in connection with remediating our systems. We are not
aware of any material problems resulting from Year 2000 issues, either with our
products, internal systems, or the products and services of third parties. We
will continue to monitor our mission critical computer applications and those of
our suppliers and vendors throughout the year 2000 to ensure that any latent
Year 2000 matters that may arise are addressed promptly.
ITEM 7A.QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Market risk is the risk of loss from adverse changes in market prices and
rates. Our principal market risk is changes in interest rates. This affects us
directly in our lending and borrowing activities, as well as indirectly as
interest rates may impact card usage and the payment performance of our
cardholders.
The majority of our revenue is generated by the interest rates we charge on
outstanding loan receivable balances in the form of finance charges. Our
receivables generally yield either a variable interest rate indexed to the prime
rate, or a fixed interest rate, set independently of market interest rates.
Accordingly, fluctuations in interest rates will affect our revenue. At the same
time, our borrowing costs under our commercial paper conduit facilities are
generally indexed to variable commercial paper rates, and may also fluctuate
based on general interest rate fluctuations. A rise in our borrowing costs may
not be met by a corresponding increase in revenues generated by finance charges.
Likewise, a decrease in revenues generated by finance charges may not be met by
a corresponding decrease in borrowing costs. Thus, either a rise or a fall in
the prevailing interest rates could materially and adversely affect our results
of operations and financial condition.
To manage our direct risk to market interest rates, management actively
monitors the interest rates and the interest sensitive components of our balance
sheet to minimize the impact changes in interest rates have on the fair value of
assets, liabilities, net income and cash flow. Management seeks to minimize the
impact of changes in interest rates on us primarily by matching assets and
liability repricings and secondarily by entering into interest rate caps. For
instance, a significant portion of our outstanding loan receivable balances
yield a variable annual percentage rate indexed to the prime rate.
Our fixed interest rate loan receivables have no stated maturity or
repricing period. However, we generally have the right to increase rates when
the customer fails to comply with the terms of the account agreement. In
addition, we may reprice our credit card receivables upon providing the required
prior notice to the customer, which is generally no more than 30 days.
32
<PAGE> 33
The following table presents the estimated twelve month effect of positive
and negative parallel shifts in interest rates (assuming no repricing of fixed
rate loans) as calculated at December 31, 1999 and takes into consideration our
current hedging activity.
<TABLE>
<CAPTION>
PERCENTAGE CHANGE IN
---------------------------------
NET INCOME EQUITY MARKET VALUE
---------- -------------------
<S> <C> <C>
+200................................... (2.12)% 5.59%
Flat................................... 0.00% 0.00%
- -200................................... 2.10% (5.61)%
</TABLE>
33
<PAGE> 34
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
NEXTCARD, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31,
1999 1998
------------ ------------
(IN THOUSANDS,
EXCEPT PER SHARE AMOUNTS)
<S> <C> <C>
ASSETS
Cash and cash equivalents................................... $189,178 $ 40,134
Cash and cash equivalents, restricted....................... 31,811 --
Credit card loans receivable, less allowance for loan losses
of $11,500 at December 31, 1999........................... 404,815 --
Interest receivable......................................... 2,160 --
Equipment and leasehold improvements, net................... 8,385 2,102
Prepaid and other assets.................................... 25,961 3,306
-------- --------
Total assets...................................... $662,310 $ 45,542
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Liabilities:
Deposits
Non-interest bearing................................... $ 2,000 $ --
Interest bearing....................................... 1,800 --
-------- --------
Total deposits............................................ 3,800 --
Accounts payable.......................................... 7,962 3,366
Accrued expenses and other liabilities.................... 14,554 1,735
Other borrowings.......................................... 11,359 504
Secured borrowings........................................ 346,000 --
-------- --------
Total liabilities................................. 383,675 5,605
-------- --------
Shareholders' equity:
Convertible preferred stock............................... -- 33
Common stock, par value $.001 per share (authorized:
87,433 shares; issued and outstanding: December 31,
1999 -- 51,022 shares; December 31, 1998 -- 4,932
shares)................................................ 51 5
Additional paid-in capital................................ 385,745 63,875
Deferred stock compensation............................... (12,003) (6,000)
Notes receivable from shareholders........................ (13) (26)
Accumulated deficit....................................... (95,145) (17,950)
-------- --------
Total shareholders' equity........................ 278,635 39,937
-------- --------
Total liabilities and shareholders' equity........ $662,310 $ 45,542
======== ========
</TABLE>
See notes to consolidated financial statements.
34
<PAGE> 35
NEXTCARD, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
PERIOD FROM
JUNE 5, 1996
YEARS ENDED DECEMBER 31, (INCEPTION) TO
------------------------ DECEMBER 31,
1999 1998 1997
---------- ---------- --------------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C>
Interest income:
Credit card loans...................................... $ 17,863 $ -- $ --
Cash and investments................................... 4,191 502 93
-------- -------- -------
Total interest income.................................... 22,054 502 93
-------- -------- -------
Interest expense:
Borrowings............................................. 10,900 62 --
Deposits............................................... 2 -- --
-------- -------- -------
Total interest expense................................... 10,902 62 --
-------- -------- -------
Net interest income...................................... 11,152 440 93
Provision for loan losses................................ 12,072 -- --
-------- -------- -------
Net interest income (loss) after provision for loan
losses.............................................. (920) 440 93
-------- -------- -------
Non-interest income:
Servicing and profit and loss sharing.................. 340 662 --
Interchange fee........................................ 2,630 -- --
Credit card fees and other............................. 1,536 35 --
-------- -------- -------
Total non-interest income................................ 4,506 697 --
-------- -------- -------
Non-interest expenses:
Salaries and employee benefits......................... 21,854 6,730 1,495
Marketing, advertising and branding.................... 24,649 4,324 50
Credit card activation and servicing costs............. 11,438 2,328 1
Occupancy and equipment................................ 4,232 958 137
Professional fees...................................... 1,923 520 167
Amortization of deferred stock compensation............ 10,028 1,800 --
Amortization of loan structuring fee................... 3,706 -- --
Other.................................................. 2,949 539 127
-------- -------- -------
Total non-interest expenses.............................. 80,779 17,199 1,977
-------- -------- -------
Loss before income taxes................................. (77,193) (16,062) (1,884)
Provision for income taxes............................... 2 2 2
-------- -------- -------
Net loss................................................. $(77,195) $(16,064) $(1,886)
======== ======== =======
Basic and diluted net loss per common share.............. $ (2.54) $ (5.07) $ (1.08)
======== ======== =======
Weighted average common shares used in net loss per
common share calculation............................... 30,399 3,166 1,747
======== ======== =======
</TABLE>
See notes to consolidated financial statements.
35
<PAGE> 36
NEXTCARD, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS' EQUITY
<TABLE>
<CAPTION>
CONVERTIBLE
PREFERRED NOTES
STOCK SERIES A-D COMMON STOCK ADDITIONAL DEFERRED RECEIVABLE
---------------- --------------- PAID-IN STOCK FROM
SHARES AMOUNT SHARES AMOUNT CAPITAL COMPENSATION SHAREHOLDERS
------- ------ ------ ------ ---------- ------------ ------------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
Issuance of common stock................. -- $ -- 6,773 $ 7 $ 8 $ -- $ --
Issuance of convertible preferred stock
Series A................................ 2,756 3 -- -- 1,201 -- (35)
Issuance of convertible preferred stock
Series B................................ 6,354 6 -- -- 3,488 -- --
Return of common stock................... -- -- (630) (1) 1 -- --
Repurchase of common stock............... -- -- (1,248) (1) (4) -- --
Net loss from inception to
December 31, 1997....................... -- -- -- -- -- -- --
------- ---- ------ --- -------- -------- ----
Balances at December 31, 1997............ 9,110 9 4,895 5 4,694 -- (35)
Issuance of convertible preferred stock
Series C................................ 9,133 9 -- -- 11,662 -- --
Issuance of convertible preferred stock
Series D................................ 14,404 15 -- -- 38,351 -- --
Issuance of common stock upon exercise of
stock options........................... -- -- 37 -- 2 -- --
Issuance of preferred stock warrants..... -- -- -- -- 1,375 -- --
Return of convertible preferred stock
Series A in settlement of notes
receivable.............................. (21) -- -- -- (9) -- 9
Deferred stock compensation.............. -- -- -- -- 7,800 (7,800) --
Amortization for deferred stock
compensation............................ -- -- -- -- -- 1,800 --
Net loss................................. -- -- -- -- -- -- --
------- ---- ------ --- -------- -------- ----
Balances at December 31, 1998............ 32,626 33 4,932 5 63,875 (6,000) (26)
Issuance of common stock upon exercise of
stock options and warrants.............. -- -- 2,064 2 678 -- --
Issuance of common stock from IPO, net of
expenses................................ -- -- 6,900 7 126,969 -- --
Issuance of common stock from secondary
offering, net of expenses............... -- -- 4,500 4 153,001 -- --
Issuance of stock warrants............... -- -- -- -- 25,191 -- --
Conversion of preferred stock to common
stock................................... (32,626) (33) 32,626 33 -- -- --
Deferred stock compensation.............. -- -- -- -- 16,031 (16,031) --
Amortization for deferred stock
compensation............................ -- -- -- -- -- 10,028 --
Settlement of note receivable............ -- -- -- -- -- -- 13
Net loss................................. -- -- -- -- -- -- --
------- ---- ------ --- -------- -------- ----
Balances at December 31, 1999............ -- $ -- 51,022 $51 $385,745 $(12,003) $(13)
======= ==== ====== === ======== ======== ====
<CAPTION>
TOTAL
ACCUMULATED SHAREHOLDERS'
DEFICIT EQUITY
----------- -------------
(IN THOUSANDS)
<S> <C> <C>
Issuance of common stock................. $ -- $ 15
Issuance of convertible preferred stock
Series A................................ -- 1,169
Issuance of convertible preferred stock
Series B................................ -- 3,494
Return of common stock................... -- --
Repurchase of common stock............... -- (5)
Net loss from inception to
December 31, 1997....................... (1,886) (1,886)
-------- --------
Balances at December 31, 1997............ (1,886) 2,787
Issuance of convertible preferred stock
Series C................................ -- 11,671
Issuance of convertible preferred stock
Series D................................ -- 38,366
Issuance of common stock upon exercise of
stock options........................... -- 2
Issuance of preferred stock warrants..... -- 1,375
Return of convertible preferred stock
Series A in settlement of notes
receivable.............................. -- --
Deferred stock compensation.............. -- --
Amortization for deferred stock
compensation............................ -- 1,800
Net loss................................. (16,064) (16,064)
-------- --------
Balances at December 31, 1998............ (17,950) 39,937
Issuance of common stock upon exercise of
stock options and warrants.............. -- 680
Issuance of common stock from IPO, net of
expenses................................ -- 126,976
Issuance of common stock from secondary
offering, net of expenses............... -- 153,005
Issuance of stock warrants............... -- 25,191
Conversion of preferred stock to common
stock................................... -- --
Deferred stock compensation.............. -- --
Amortization for deferred stock
compensation............................ -- 10,028
Settlement of note receivable............ -- 13
Net loss................................. (77,195) (77,195)
-------- --------
Balances at December 31, 1999............ $(95,145) $278,635
======== ========
</TABLE>
See notes to consolidated financial statements.
36
<PAGE> 37
NEXTCARD, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
PERIOD FROM
JUNE 5, 1996
YEARS ENDED DECEMBER 31, (INCEPTION) TO
------------------------- DECEMBER 31,
1999 1998 1997
----------- ---------- --------------
(IN THOUSANDS)
<S> <C> <C> <C>
OPERATING ACTIVITIES:
Net loss................................................ $ (77,195) $(16,064) $(1,886)
Adjustments to net loss to arrive at cash used in
operating activities:
Provision for loan losses............................. 12,072 -- --
Deprecation and amortization.......................... 5,497 252 15
Amortization of deferred stock compensation........... 10,028 1,800 --
Change in operating assets and liabilities:
Increase in accounts payable....................... 4,596 3,231 135
Increase in accrued expenses and other
liabilities...................................... 12,836 969 766
Increase in prepaid and other assets............... (18,396) (1,377) (554)
--------- -------- -------
Net cash used in operating activities................... (50,562) (11,189) (1,524)
INVESTING ACTIVITIES:
Net loan originations................................... (397,363) -- --
Loan portfolio acquisition.............................. (22,240) -- --
Acquisition of Textron National Bank, net of cash
acquired.............................................. (4,459) -- --
Purchase of equipment and leasehold improvements........ (7,809) (2,060) (309)
--------- -------- -------
Net cash used in investing activities................... (431,871) (2,060) (309)
FINANCING ACTIVITIES:
Net change in deposits.................................. 3,259 -- --
Net change in secured borrowings........................ 346,000 -- --
Proceeds from other borrowings.......................... 11,689 545 --
Payments made on other borrowings....................... (834) (41) --
Proceeds from issuance of convertible preferred stock... -- 50,037 4,663
Proceeds from issuance of common stock.................. 280,661 2 10
Proceeds from settlement of notes receivable............ 13 -- --
Proceeds from sale of common stock warrants............. 22,500 -- --
--------- -------- -------
Net cash provided by financing activities............... 663,288 50,543 4,673
Net increase in cash and cash equivalents............... 180,855 37,294 2,840
Cash and cash equivalents at the beginning of the
period................................................ 40,134 2,840 --
--------- -------- -------
Cash and cash equivalents at the end of the period...... $ 220,989 $ 40,134 $ 2,840
========= ======== =======
SUPPLEMENTAL DISCLOSURES:
Cash paid during the period for interest.............. $ 9,314 $ 23 $ 2
SUPPLEMENTAL DISCLOSURES OF NONCASH INVESTING AND
FINANCING ACTIVITIES:
Unearned stock based compensation..................... $ 16,031 $ 7,800 $ --
Issuance of preferred stock warrants for loan
structuring/origination fee........................ $ 2,691 $ 1,375 $ --
Issuance (return) of convertible preferred stock
Series A........................................... $ -- $ (9) $ 35
Issuance of convertible preferred stock Series C...... $ -- $ 11,671 $ --
</TABLE>
See notes to consolidated financial statements.
37
<PAGE> 38
NEXTCARD, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. ORGANIZATION AND BUSINESS
NextCard, Inc., formerly known as Internet Access Financial Corporation
("NextCard"), was incorporated in the State of California on June 5, 1996 and
reincorporated in Delaware in May 1999 in connection with its initial public
offering ("IPO") (See Note 2), for the purpose of offering Internet-based
consumer financial services. For the period from June 5, 1996 (inception) to
December 31, 1996, NextCard developed and implemented its corporate structure.
Operations during that period consisted of approximately $50,000 in expenses.
Beginning in 1997, NextCard focused on the initial planning and development of
an Internet-based credit card ("NEXTCARD VISA"), and the development of the
necessary systems infrastructure, website, and supporting operations. Prior to
1998, NextCard was in the development stage.
On December 23, 1997, NextCard began accepting applications for the
NEXTCARD(R) VISA(R), which through September 30, 1999 was issued solely through
a strategic alliance with Heritage Bank of Commerce ("Heritage Bank" or
"Heritage"), a San Jose, California based depository institution. During that
period, NextCard originated credit card relationships and serviced the related
credit card accounts on behalf of Heritage pursuant to a profit and loss sharing
agreement.
On September 16, 1999, NextCard acquired all of the outstanding common
stock of Textron National Bank ("TNB"), a wholly owned subsidiary of Textron
Corporation, for $5.0 million over its net book value. TNB had not actively
engaged in the banking business for several years, and on the acquisition date
held $2.6 million of cash and cash equivalents and a single deposit liability of
approximately $540,000. Immediately prior to the closing of the acquisition, TNB
converted into a national bank limited to credit card operations and changed its
name to "NextBank, National Association" ("NextBank"). On September 16, 1999, in
connection with the acquisition and formation of NextBank, all of the issued and
outstanding capital stock of NextCard Funding Corp. ("NCFC") was contributed to
NextBank. Accordingly, NCFC became a wholly owned subsidiary of NextBank, which,
in turn, is a wholly owned subsidiary of NextCard. The acquisition was accounted
for using the purchase method.
Subsequent to the purchase of NextBank, NextCard began originating accounts
on its own behalf. NextCard markets its credit card products solely through the
Internet and provides online approval and customized customer product pricing.
Other key product features include a customer service interface, which enables
the customer to review statements online, review recent account activity online,
and download data into different formats.
NextCard has experienced operating losses to date and had an accumulated
deficit at December 31, 1999 and December 31, 1998. Significant net losses are
expected for the foreseeable future. Since its formation, NextCard has raised
significant capital through two public offerings and private placements of
equity securities. Future capital requirements, however, depend on many factors
including NextCard's ability to execute its business plan. NextCard may need to
raise additional capital through the issuance of debt or equity securities.
There can be no assurance that such financing will be available on terms
satisfactory to NextCard, if at all.
2. SIGNIFICANT ACCOUNTING POLICIES
INITIAL PUBLIC OFFERING
On May 19, 1999, NextCard completed its IPO in which it sold 6.9 million
shares of its common stock at a price of $20.00 per share, raising $138.0
million in gross proceeds. Net offering proceeds to NextCard, net of
approximately $9.7 million in aggregate underwriters' discounts and commissions
and $1.3 million in related costs, were approximately $127.0 million.
38
<PAGE> 39
NEXTCARD, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
2. SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
FOLLOW-ON OFFERING
On December 14, 1999, NextCard completed a follow-on offering in which it
sold 4.5 million shares of its common stock (an additional 3.8 million shares
were sold by selling shareholders) at a price of $35.94 per share raising $161.7
million in gross proceeds. Net offering proceeds to NextCard, net of $8.1
million in aggregate underwriters' discounts and commissions and $0.6 million in
related costs, were approximately $153.0 million.
CONSOLIDATION AND BASIS OF PRESENTATION
The consolidated financial statements include NextCard and its wholly owned
subsidiaries, NextBank and NextCard Limited, a company incorporated in England
and Wales. All significant intercompany transactions and balances have been
eliminated. Certain reclassifications have been made to prior year financial
statements to conform to the 1999 presentation.
CASH AND CASH EQUIVALENTS AND CONCENTRATION OF CREDIT RISK
Cash and cash equivalents are stated at cost, which approximates fair
value. NextCard includes in cash equivalents all highly liquid investments that
mature within three months after their purchase date. Cash equivalents consist
primarily of high-grade commercial paper and money market funds. Restricted cash
and cash equivalents relates to NextCard's requirements under its credit
facilities and secured borrowings.
Financial instruments that potentially subject NextCard to concentrations
of credit risk consist primarily of cash and cash equivalents at financial
institutions. NextCard places its cash and cash equivalents with major financial
institutions and such deposits exceed the Federal Deposit Insurance Corporation
(FDIC) limit of $100,000 per account.
ALLOWANCE FOR LOAN LOSSES
Provisions for loan losses are made in amounts necessary to maintain the
allowance for loan losses at a level considered by management to be sufficient
to absorb probable net credit losses inherent in the existing loan portfolio. In
evaluating the adequacy of the allowance for loan losses, management considers
several factors including: historical charge-off and recovery activity by age
(vintage) of each loan portfolio (noting any particular trends over recent
periods); recent delinquency and collection trends by vintage; current economic
conditions and the impact such conditions might have on borrowers' ability to
repay; the risk characteristics of the portfolios; and other factors. Credit
card accounts are generally charged off at the end of the month in which the
loan becomes contractually 180 days past due, with the exception of bankrupt
accounts, which are charged off no later than the month after formal
notification of bankruptcy.
EQUIPMENT AND LEASEHOLD IMPROVEMENTS
Equipment and leasehold improvements are carried at cost, less accumulated
depreciation and amortization computed on a straight-line basis over the
estimated useful lives of the respective assets or lease term. Depreciation is
computed using a three-year life for computer equipment and a five-year life for
furniture and office equipment.
INTANGIBLE ASSETS
Intangible assets, including the value of acquired customer relationships
and goodwill, are amortized over the periods benefited which range from 3 to 15
years.
39
<PAGE> 40
NEXTCARD, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
2. SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
PROVISION FOR INCOME TAXES
The liability method of accounting is used for income taxes. Under the
liability method, deferred tax assets and liabilities are recognized for the
expected future tax consequences of existing differences between financial
reporting and tax reporting basis of assets and liabilities, as well as for
operating losses and tax credit carryforwards, using enacted tax laws and rates.
Deferred tax expense represents the net change in the deferred tax asset or
liability balance during the year. This amount, together with income taxes
currently payable or refundable for the current year, represents the total
income tax expense for the year.
SERVICING AND PROFIT AND LOSS SHARING REVENUE RECOGNITION
Through January 12, 1999, NextCard generated servicing and profit and loss
sharing non-interest income pursuant to the Consumer Credit Card Program
Agreement between NextCard and Heritage. Under this agreement, NextCard charged
Heritage for certain credit card origination and servicing costs associated with
credit card accounts originated and shared equally with Heritage in the profit
and loss sharing income (as defined in the agreement) generated from these
credit card accounts. The servicing and profit or loss sharing income was
recognized when realized based on the terms of the agreement.
INTEREST INCOME ON CREDIT CARD LOANS
Interest income on credit card loans is recognized based on the principal
amount of the loans outstanding in accordance with the terms of the applicable
account agreement until the outstanding balance is paid or charged off. At that
time, the accrued interest portion of the charged off balance is deducted from
current period interest income. Subsequent collections on charged off balances
are recognized first as principal recoveries and then as interest income.
CREDIT CARD AND INTERCHANGE FEE INCOME
Credit card and interchange fee income includes late and overlimit charges,
cash advance fees, bonus reward fees, processing fees, interchange activity and
other miscellaneous fees. Credit card and interchange fee income is recognized
in the month realized.
CREDIT CARD FRAUD LOSSES
NextCard experiences fraud losses from the unauthorized use of credit
cards. Transactions suspected of being fraudulent are charged to non-interest
expense 120 days from the date identified as fraudulent.
MARKETING, ADVERTISING AND CREDIT CARD ORIGINATION COSTS
NextCard expenses all marketing and advertising costs as incurred. NextCard
defers direct credit card origination costs paid to independent third parties
and amortizes these costs on a straight-line basis over 12 months.
COMPREHENSIVE INCOME (LOSS)
NextCard adopted Statement of Financial Accounting Standards No. 130,
"Reporting Comprehensive Income" ("SFAS 130") at December 31, 1998. Under SFAS
130, NextCard is required to display comprehensive income (loss) and its
components as part of the financial statements. Other comprehensive income
(loss) includes certain changes in equity that are excluded from net income
(loss). Specifically, SFAS 130 requires unrealized holding gains and losses on
available-for-sale securities, to be included in
40
<PAGE> 41
NEXTCARD, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
2. SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
accumulated other comprehensive income (loss). NextCard has no material
components of other comprehensive loss and, accordingly, the comprehensive loss
is the same as net loss for all periods presented.
SEGMENT INFORMATION
The Financial Accounting Standards Board (the "FASB") issued Statement of
Financial Accounting Standards No. 131, "Disclosures About Segments of an
Enterprise and Related Information" ("SFAS 131"), which is effective for
financial statements for periods beginning after December 15, 1997. SFAS 131
establishes standards for the way that public business enterprises report
financial and other descriptive information about reportable operating segments
in annual financial statements and interim reporting to shareholders. NextCard
adopted SFAS 131 in 1998. NextCard has determined that, through December 31,
1999, it has only one operating and reportable segment, origination and
servicing of Internet-based credit card relationships for United States
cardholders, which is further described in Note 1.
USE OF ESTIMATES IN THE PREPARATION OF CONSOLIDATED FINANCIAL STATEMENTS
The preparation of NextCard's consolidated financial statements in
accordance with generally accepted accounting principles requires management to
make estimates and assumptions that affect amounts reported in the consolidated
financial statements and the accompanying notes. Actual results could differ
from those estimates.
STOCK-BASED COMPENSATION
Statement of Financial Accounting Standards No. 123, "Accounting for
Stock-Based Compensation" ("SFAS 123"), encourages but does not require
companies to record compensation cost for stock-based employee compensation
plans at fair value. NextCard has chosen to continue to account for stock-based
compensation using the intrinsic value method prescribed in Accounting
Principles Board Opinion No. 25, "Accounting for Stock Issued to Employees," and
related interpretations ("APB Opinion No. 25") in accounting for its stock
options plans.
NET LOSS PER COMMON SHARE
Basic net loss per common share and diluted net loss per common share are
presented in conformity with Statement of Financial Accounting Standards No.
128, "Earnings Per Share" ("SFAS 128"), for all periods presented. In accordance
with SFAS 128, basic and diluted net loss per common share has been computed
using the weighted-average number of shares of common stock outstanding during
the period, less shares subject to repurchase. Shares associated with stock
options and convertible preferred stock are not included because their inclusion
would be antidilutive (i.e., reduce the net loss per common share).
41
<PAGE> 42
NEXTCARD, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
2. SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
The following table presents the calculation of basic and diluted net loss
per common share (in thousands, except per share data):
<TABLE>
<CAPTION>
PERIOD FROM
JUNE 5, 1996
YEARS ENDED DECEMBER 31, (INCEPTION) TO
------------------------ DECEMBER 31,
1999 1998 1997
---------- ---------- --------------
<S> <C> <C> <C>
Net loss................................................. $(77,195) $(16,064) $(1,886)
======== ======== =======
Basic and diluted:
Weighted average shares of common stock outstanding.... 31,192 4,907 5,242
Less: Weighted average shares subject to repurchase.... (793) (1,741) (3,495)
-------- -------- -------
Weighted average shares used in computing basic and
diluted net loss per common shares.................. 30,399 3,166 1,747
======== ======== =======
Basic and diluted net loss per common share.............. $ (2.54) $ (5.07) $ (1.08)
======== ======== =======
</TABLE>
NextCard has excluded all convertible preferred stock, warrants for common
stock, warrants for convertible preferred stock, outstanding stock options and
shares subject to repurchase from the calculation of diluted loss per common
share because their inclusion would be antidilutive (i.e., reduce the net loss
per common share) for all periods presented. The total number of shares excluded
from the calculations of diluted net loss per common share are 14,078,628,
42,130,854, and 13,975,817 for the years ended December 31, 1999 and 1998, and
the Inception Period, respectively. Such securities, had they been dilutive,
would have been included in the computations of diluted net loss per common
share using the treasury stock method.
RECENT ACCOUNTING PRONOUNCEMENTS
In June 1998, the FASB issued Statement of Financial Accounting Standards
No. 133, "Accounting for Derivative Instruments and Hedging Activities" ("SFAS
133"). This statement establishes accounting and reporting standards for
derivative instruments and for hedging activities. It requires that derivatives
be recognized in the balance sheet at fair value and specifies the accounting
for changes in fair value. In June 1999, the FASB issued SFAS 137, "Accounting
for Derivative Instruments and Hedging Activities -- Deferral of the Effective
Date of FASB Statement No. 133," to defer the effective date of SFAS 133 until
fiscal years beginning after June 15, 2000. While NextCard currently has no
derivative financial instruments and does not currently engage in significant
hedging activities, NextCard anticipates engaging in derivative and increased
hedging activity in the future, and therefore expects to be impacted by the
pronouncement. The impact of SFAS 133 on NextCard's consolidated financial
statements, however, will depend on a variety of factors including the level of
future hedging activity, the types of hedging instruments used and the
effectiveness of such instruments.
3. SIGNIFICANT CONCENTRATION OF CREDIT RISK
NextCard is active in originating consumer loans in the United States.
NextCard reviews each potential customer's application and evaluates the
applicant's financial history and ability and willingness to repay. Loans are
made on an unsecured basis. The geographic distribution of NextCard's loan
portfolio at December 31, 1999 was as follows (in thousands):
42
<PAGE> 43
NEXTCARD, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
3. SIGNIFICANT CONCENTRATION OF CREDIT RISK (CONTINUED)
GEOGRAPHIC REGION
<TABLE>
<CAPTION>
LOANS PERCENTAGE
RECEIVABLE OF TOTAL
---------- ----------
<S> <C> <C>
West................................................... $117,951 28%
Midwest................................................ 83,489 20%
South.................................................. 102,058 25%
Northeast.............................................. 112,817 27%
-------- ---
Total........................................ $416,315 100%
======== ===
</TABLE>
NextCard owned no loans in 1998; therefore this geographic information is
not presented for 1998.
4. ALLOWANCE FOR LOAN LOSSES
At December 31, 1998 and 1997, there was no allowance for loan losses as
NextCard did not own any loans until January 1999 (see Note 8). The following
table presents the change in NextCard's allowance for loan losses for the year
ended December 31, 1999 (in thousands):
<TABLE>
<S> <C>
Balance at December 31, 1998................................ $ --
Provision for loan losses................................... 12,072
Allowance acquired.......................................... 1,900
Charge-offs................................................. (2,518)
Recoveries.................................................. 46
-------
Balance at December 31, 1999................................ $11,500
=======
</TABLE>
On July 15, 1999, NextCard exercised its option to purchase (through NCFC)
all remaining credit card receivables from Heritage. The acquired credit card
portfolio had $21.3 million in outstanding balances. NextCard recorded an
allowance for loan losses of $1.9 million for the Heritage portfolio upon
purchase to reflect the expected loan losses of the acquired portfolio.
5. EQUIPMENT AND LEASEHOLD IMPROVEMENTS
The following is a summary of equipment and leasehold improvements (in
thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
----------------
1999 1998
------ ------
<S> <C> <C>
Computer equipment......................................... $6,855 $1,360
Furniture and office equipment............................. 1,955 490
Leasehold improvements..................................... 1,372 518
------ ------
10,182 2,368
Less: Accumulated depreciation and amortization............ 1,797 266
------ ------
$8,385 $2,102
====== ======
</TABLE>
6. DEPOSITS
In September 1999, NextBank began accepting time deposits with terms
ranging from three months to two years. These time certificates of deposit are
in amounts of $100,000 or more and totaled $3.8 million as of December 31, 1999.
43
<PAGE> 44
NEXTCARD, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
6. DEPOSITS (CONTINUED)
At December 31, 1999, the above deposits mature as follows (in thousands):
<TABLE>
<CAPTION>
MATURITY AMOUNT
-------- ------
<S> <C>
3 months or less............................................ $ 200
Over 3 months through 6 months.............................. 200
Over 6 through 12 months.................................... 2,100
Over 12 months.............................................. 1,300
------
$3,800
======
</TABLE>
7. BORROWINGS
During 1998, NextCard entered into a $1,250,000 equipment loan and security
agreement with a finance company. Borrowings under the loan agreement bear
interest at 7.55% per year and are secured by related equipment purchases. As of
December 31, 1999 and 1998, the loan had an outstanding balance of $962,000 and
$504,000, respectively.
In addition, during 1998 NextCard entered into a $1.0 million lease/loan
financing arrangement with a financing company. The lease/loan financing
arrangement is secured by a pledge of all equipment leased under the arrangement
and bears interest at 7.5% per year. As of December 31, 1999, the lease/loan had
an outstanding balance of $828,000. There was no outstanding balance as of
December 31, 1998.
In February and May 1999, NextCard entered into two separate $5.0 million
lines of credit with a finance company. Borrowings under the lines of credit
accrue interest at 12.25% per year, are repayable in monthly installments and
final payment is due in May 2000 and April 2002, respectively. These lines are
secured by subordinated security interests in all tangible and intangible
assets. These lines of credit had an aggregate outstanding balance of $9,569,000
at December 31, 1999.
At December 31, 1999, the above borrowings mature as follows (in
thousands):
<TABLE>
<S> <C>
2000............................................... $ 7,240
2001............................................... 2,695
2002............................................... 1,424
-------
$11,359
=======
</TABLE>
8. CREDIT FACILITIES AND SECURED BORROWINGS
Until January 12, 1999, Heritage funded all of the credit card accounts and
loans originated through NextCard's website. Beginning in January 1999, NextCard
began purchasing such credit card receivables from Heritage. Until May 21, 1999,
NextCard utilized a $100.0 million secured borrowing facility extended to NCFC
by Credit Suisse First Boston ("Credit Suisse") to fund the majority of those
receivables. On May 21, 1999, NextCard obtained a $300.0 million commercial
paper conduit facility through Barclays Bank PLC ("Barclays") and began
utilizing this facility to purchase credit card receivables. Borrowings under
this facility are secured by the purchased receivables. NextCard also used a
portion of the Barclays facility to pay off the $87.8 million balance then
outstanding under the Credit Suisse facility. As of December 31, 1999, $300.0
million was outstanding under this facility.
In connection with the $100.0 million secured borrowing facility with
Credit Suisse described above, NextCard paid the bank a fee for services
rendered in connection with structuring the revolving credit facility of
$2,100,000 consisting of $725,000 in cash and warrants to purchase 562,500
shares of preferred stock. The warrants' estimated fair market value was
$1,375,000. These warrants, which were outstanding at Decem-
44
<PAGE> 45
NEXTCARD, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
8. CREDIT FACILITIES AND SECURED BORROWINGS (CONTINUED)
ber 31, 1999, are immediately exercisable at a price of $0.22 per warrant. This
loan structuring fee was capitalized and was being amortized on a straight-line
basis over the term of the revolving credit facility. Upon the termination of
this facility in May 1999, the then unamortized amount was expensed.
On June 23, 1999, NextCard entered into a $150.0 million facility with ING
Barings (U.S.) Capital Markets ("ING Barings"). NextCard's borrowings under this
facility are secured by all credit card receivables that it purchases using this
facility. As of December 31, 1999, there were no amounts outstanding under the
ING Barings facility.
In addition, on November 12, 1999, NextCard entered into a $220.0 million
commercial paper conduit facility with First Union Securities. NextCard's
borrowings under this facility are secured by all credit card receivables that
it purchases using funds from this facility. As of December 31, 1999, $46.0
million was outstanding under this facility.
The weighted average rate paid on borrowed funds through these conduit
facilities was 6.28% for the year ended December 31, 1999 and was based on the
rate at which the conduit provider issues commercial paper. Interest is payable
monthly. NextCard did not enter into any conduit facilities during 1998.
9. COMMITMENTS AND CONTINGENCIES
Credit
As of December 31, 1999, NextCard had outstanding credit lines of
approximately $1.2 billion committed to its customers. Of the total commitment,
approximately $785.0 million was unused. While this amount represented the total
available lines of credit to customers, NextCard has not experienced, and does
not anticipate, that all of its customers will exercise their entire available
line at any given point in time. NextCard generally has the right to increase,
reduce, cancel, alter or amend the terms of these available lines of credit at
any time.
Rental Commitments
NextCard leases its office space under separate lease agreements and has
operating leases for office equipment. The minimum aggregate, non-cancelable
payments, by year, under lease obligations with initial or remaining terms of
one year or more, some of which contain renewal options based on the then
current fair market values, consist of the following at December 31, 1999 (in
thousands):
<TABLE>
<S> <C>
2000................................................ $2,212
2001................................................ 2,044
2002................................................ 1,908
2003................................................ 1,950
2004................................................ 1,602
------
$9,716
======
</TABLE>
In connection with NextCard's principal office lease, NextCard executed a
$1.3 million irrevocable standby letter of credit in favor of the landlord,
which expires on October 31, 2000. This letter of credit can be drawn on by the
landlord under certain circumstances if NextCard defaults on the lease
agreement. Rent expense for the years ended December 31, 1999 and 1998, and the
Inception Period was $1,461,453, $346,855, and $54,800, respectively.
45
<PAGE> 46
NEXTCARD, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
9. COMMITMENTS AND CONTINGENCIES (CONTINUED)
Processing Agreement
In December 1997, NextCard signed a five-year agreement with a third party
for processing of credit card receivables with a renewal option. NextCard's
minimum payments under this agreement, by year and in the aggregate, are as
follows at December 31, 1999 (in thousands):
<TABLE>
<S> <C>
2000................................................ $1,000
2001................................................ 2,500
2002................................................ 3,750
------
$7,250
======
</TABLE>
Under the terms of the processing agreement, NextCard also received, in
January 1998, a $500,000 signing bonus from its third party processor which is
being recognized as a reduction of servicing expense on a pro-rata basis over
the five-year term of the contract. The unamortized portion of this bonus is
included in accrued expenses and other liabilities in the consolidated balance
sheets.
Co-Branding Agreement
On November 8, 1999, NextCard signed a five-year marketing agreement with
Amazon.com, LLC ("Amazon") under which NextCard and Amazon have agreed to
deliver co-branded credit card accounts originated on a customized website.
NextCard will pay to Amazon an origination fee for each co-branded credit card
account, and will pay certain additional compensation including per account
renewal fees on each account's anniversary date. Minimum account payments of
$85.0 million (subject to performance requirements) will be made by NextCard to
Amazon over the term of the agreement. In addition, based on the number of
credit card accounts originated, NextCard could pay up to an additional $17.5
million. Separately, NextCard received $22.5 million in cash from Amazon in
exchange for a warrant to acquire up to 4.4 million common shares of NextCard.
This warrant has an exercise price per share of $39.20, is fully vested and
expires on November 8, 2002.
10. CAPITAL REQUIREMENTS
NextBank is subject to capital adequacy guidelines adopted by the Office of
the Comptroller ("OCC"). Failure to meet these minimum capital requirements can
result in certain mandatory and possibly additional discretionary actions by
regulators that, if undertaken, could have a direct material effect on
NextCard's financial statements. The capital adequacy guidelines and the
regulatory framework for prompt corrective action require NextBank to maintain
specific capital levels based upon quantitative measures of its assets,
liabilities and off-balance sheet items. Core capital (Tier 1) consists
principally of shareholders' equity less goodwill. Total risk-based capital
(Tier 1 + Tier 2) includes a portion of the allowance for loan losses. Based on
these classifications, the capital adequacy regulations establish three capital
ratios that are used to measure whether a financial institution is "well
capitalized." As of December 31, 1999, NextBank was "well capitalized" in all
regulatory capital ratio categories, as set forth below (in thousands):
<TABLE>
<CAPTION>
TOTAL TIER 1 TIER 1
RISK-BASED CAPITAL RISK-BASED CAPITAL LEVERAGE RATIO
------------------ ------------------ ----------------
AMOUNT RATIO AMOUNT RATIO AMOUNT RATIO
-------- ------ -------- ------ ------- -----
<S> <C> <C> <C> <C> <C> <C>
Actual............................. $62,081 13.53% $56,275 12.27% $56,275 14.93%
Minimum capital adequacy........... $36,706 8.00% $18,353 4.00% $15,077 4.00%
Minimum well-capitalized........... $45,882 10.00% $27,529 6.00% $18,846 5.00%
</TABLE>
No conditions or events since December 31, 1999 have occurred that
management believes would change these categorizations. In addition to the above
capital ratios, the OCC requires that for the first three years of
46
<PAGE> 47
NEXTCARD, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
10. CAPITAL REQUIREMENTS (CONTINUED)
operation, NextBank maintains a ratio of shareholders' equity plus the allowance
for loan losses to total managed assets at no less than 6.5%. As of December 31,
1999, NextBank was in compliance with this capital requirement. NextBank is
limited in its ability to declare dividends to NextCard in accordance with the
national bank dividend provisions.
11. SHAREHOLDERS' EQUITY
NextCard has two classes of authorized stock: common stock and preferred
stock. Each share of outstanding convertible preferred stock automatically
converted into a share of common stock immediately upon the consummation of the
IPO. A total of 32,625,734 of new common shares were issued upon conversion of
the preferred stock.
Under the amended and restated certificate of incorporation adopted as of
May 13, 1999, 12,567,285 shares of convertible preferred stock are authorized to
be issued in one or more series. Also, 77,432,715 shares of voting common stock
are authorized and 10,000,000 shares of non-voting common stock are authorized.
Common Stock
On July 15, 1996, the Chairman, Chief Executive Officer and President of
NextCard purchased 4,500,000 shares of newly issued common stock for aggregate
consideration of $5,000, 75% of which were issued subject to NextCard's right,
but not its obligation, to repurchase at the original issue price. NextCard's
repurchase rights lapse semi-annually over a four-year period, subject to
continuing employment by NextCard. On April 2, 1997, the Chairman and Chief
Executive Officer returned 450,000 of such shares to NextCard without
consideration. Accordingly, as of December 31, 1999, 1998 and 1997, there were
393,750, 1,237,500 and 2,081,250, shares subject to repurchase, respectively. On
January 15, 2000, NextCard's right to repurchase these shares expired.
On September 18, 1996, NextCard sold 2,272,500 shares of common stock to
three of its employees (two of who have since left NextCard's employment) for
aggregate consideration of $10,100. Those shares of common stock are subject to
NextCard's right to repurchase at the original issuance price. NextCard's
repurchase rights to ten percent of the stock lapsed at the date of sale and the
repurchase rights to the remaining shares lapse semi-annually over a four year
period subject to continued employment by NextCard. During 1997, one of the
employees returned 180,000 of such shares to NextCard without consideration, and
NextCard exercised its right to repurchase 1,247,625 shares from employees who
left NextCard. As of December 31, 1999, 1998 and 1997, 106,317, 212,625 and
318,938 shares remained subject to repurchase, respectively.
Common stock was reserved for issuances as follows (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
----------------
1999 1998
------ ------
<S> <C> <C>
Conversion of convertible preferred stock................... -- 32,626
Exercise of outstanding stock options....................... 8,181 6,976
Shares of common stock available for grant under the 1997
Stock Plan................................................ 4,816 1,987
Exercise of outstanding warrants............................ 5,398 1,139
1999 Employee Stock Purchase Plan........................... 83 --
------ ------
18,478 42,728
====== ======
</TABLE>
47
<PAGE> 48
NEXTCARD, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
11. SHAREHOLDERS' EQUITY (CONTINUED)
Convertible Preferred Stock
Convertible preferred stock issued and outstanding was as follows (in
thousands):
<TABLE>
<CAPTION>
DECEMBER 31, 1998
---------------------------
SHARES
OUTSTANDING(1) AMOUNT(2)
-------------- ---------
<S> <C> <C>
Series A................................................... 2,735 $ 1,195
Series B-1, B-2............................................ 6,354 3,494
Series C-1, C-2............................................ 9,133 11,671
Series D-1, D-2............................................ 14,404 38,366
------ -------
32,626 $54,726
====== =======
</TABLE>
- ---------------
(1) The per share issuance price for Series A, Series B, Series C, and Series D
was $0.44, $0.56, $1.29 and $2.67, respectively.
(2) Amount is net of issuance costs.
When NextCard completed its IPO, all convertible preferred stock
automatically converted to common stock; therefore, no convertible preferred
stock was issued or outstanding at December 31, 1999.
Dividends on each series of convertible preferred stock were non-cumulative
and were payable, in any fiscal year, when and as declared by NextCard.
Holders of Series C and D Convertible Preferred Stock were entitled to
receive a liquidation preference prior and in preference to any distribution to
the holders of Series A or Series B Convertible Preferred Stock and the common
shareholders in an amount equal to all declared but unpaid dividends, if any,
attributable to the Series C and D Convertible Preferred Stock, plus $1.29 and
$2.67 per share of Series C and D Convertible Preferred Stock, respectively,
adjusted for any combinations, consolidations, stock distributions or dividends.
After payment of the prior liquidation preference to Series C and D
Convertible Preferred Stock, holders of Series A and B Convertible Preferred
Stock were entitled, prior and in preference to any common shareholders to
receive an amount equal to all declared but unpaid dividends, if any,
attributable to the Series A and B Convertible Preferred Stock plus $0.44 and
$0.56 per share of Series A and B Convertible Preferred Stock, respectively, as
adjusted for any combinations, consolidations, stock distributions or dividends.
The liquidation preference for holders of Series A Convertible Preferred Stock
was $1,215,624 at December 31, 1998. The liquidation preference for holders of
Series B Convertible Preferred Stock was $3,530,000 at December 31, 1998.
If the distributable assets were insufficient to permit payment to the
Series C and D Preferred Shareholders of their preferential amount, then the
entire amount of distributable assets, would have been distributed pro rata
among the Series C and D Preferred Shareholders in proportion to their
respective preferential amounts. Similarly, if the remaining distributable
assets after payment of the Series C and D Preferred Shareholders' initial
liquidation amount was insufficient to permit payment to the Series A and B
Preferred Shareholders of their preferred amount, then the remaining
distributable assets would have been distributed pro rata among the Series A and
B Preferred Shareholders in proportion to their respective preferential amounts.
Following payment of such liquidation preference, the remaining assets, if
any, would have been available for distribution to the holders of NextCard's
Common Stock, except that the holders of the Series C and D Convertible
Preferred Stock were entitled to participate with the holders of NextCard's
Common Stock until
48
<PAGE> 49
NEXTCARD, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
11. SHAREHOLDERS' EQUITY (CONTINUED)
holders of Series C Convertible Preferred Stock had received a total of $2.58
per share and the holders of Series D Convertible Preferred Stock had received a
total of $6.67 per share.
Each share of Series A, B-1, C-1 and D-1 Convertible Preferred Stock
carried voting rights ("Voting Preferred"). Each holder of Voting Preferred was
entitled to the number of votes equal to the number of shares of common stock
into which such shares of Voting Preferred held by such Preferred Shareholder
could then have been converted; provided, however, that each holder of Series A
Convertible Preferred Stock would have been entitled to the number of votes
equal to the number of shares of common stock into which such shares of Series A
Convertible Preferred Stock held by such Preferred Shareholder could then be
converted, times 1.1. Shares of Series B-2, C-2 and D-2 Convertible Preferred
Stock were non-voting, except as otherwise required by the relevant provisions
of California law.
12. STOCK OPTION PLAN AND WARRANTS
Stock Option Plan
Under the 1997 Stock Plan, NextCard offers options to purchase shares of
its common stock to employees, including officers and directors of, and
consultants to, NextCard who are not also employees of NextCard. At December 31,
1999, 1998 and 1997 NextCard had reserved 14,625,000, 9,000,000 and 5,130,000
shares of common stock for issuance under the plan. The plan is administered by
the Board of Directors. The plan authorizes the Board of Directors to award a
number of forms of stock-based compensation to eligible participants, including
incentive and nonqualified stock options which generally vest over a four year
period. Restricted stock purchase rights may also be granted under the plan.
The following summarizes stock option activity and related information
during the years ended December 31, 1999, 1998 and during the period from plan
inception to December 31, 1997 (in thousands, except per share amounts):
<TABLE>
<CAPTION>
WEIGHTED AVERAGE
SHARES EXERCISE PRICE EXERCISE PRICE
------ ------------------- ----------------
<S> <C> <C> <C> <C> <C>
Outstanding at April 2, 1997 (Plan Inception)..... -- -- --
Granted......................................... 2,345 $0.04 - $ 0.06 $ 0.05
Forfeited....................................... (315) $0.04 $ 0.04
------ ------------------- ----------------
Outstanding at December 31, 1997.................. 2,030 $0.04 - $ 0.06 $ 0.05
Granted......................................... 5,419 $0.06 - $ 0.56 $ 0.16
Exercised....................................... (37) $0.04 - $ 0.06 $ 0.05
Forfeited....................................... (435) $0.06 - $ 0.33 $ 0.09
------ ------------------- ----------------
Outstanding at December 31, 1998.................. 6,977 $0.04 - $ 0.56 $ 0.13
Granted......................................... 4,185 $1.67 - $29.38 $14.61
Exercised....................................... (1,591) $0.04 - $ 1.67 $ 0.08
Forfeited....................................... (1,390) $0.06 - $29.38 $ 5.39
------ ------------------- ----------------
Outstanding at December 31, 1999.................. 8,181 $0.04 - $29.38 $ 6.66
====== =================== ================
Options exercisable at December 31, 1999.......... 1,323 $0.04 - $ 1.67 $ 0.18
====== =================== ================
Options exercisable at December 31, 1998.......... 802 $0.04 - $ 0.13 $ 0.05
====== =================== ================
Options exercisable at December 31, 1997.......... 204 $0.04 $ 0.04
====== =================== ================
</TABLE>
49
<PAGE> 50
NEXTCARD, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
12. STOCK OPTION PLAN AND WARRANTS (CONTINUED)
Exercise prices for stock options outstanding as of December 31, 1999, and
the weighted average remaining contractual life are as follows (in thousands,
except per share data):
<TABLE>
<CAPTION>
WEIGHTED AVERAGE
EXERCISE PRICES OPTIONS REMAINING NUMBER
PER SHARE OUTSTANDING CONTRACTUAL LIFE EXERCISABLE
- ------------------- ----------- ---------------- -----------
<S> <C> <C> <C> <C> <C>
$ 0.04 - $0.06.. 2,292 3.8 - 8.8 years 633
$ 0.07 - $0.14.. 1,938 3.9 - 8.9 years 479
$ 0.15 - $1.67.. 948 9.0 - 9.2 years 211
$ 1.68 - $15.00.. 1,246 9.3 - 9.4 years --
$15.01 - $29.38.. 1,757 9.6 - 9.9 years --
----- -----
8,181 1,323
===== =====
</TABLE>
The weighted average fair value of options granted in 1999 and 1998, and
the Inception Period was $6.48, $3.87, and $0.05, respectively.
As discussed in Note 2, NextCard has elected to follow APB Opinion No. 25
and related interpretations in accounting for its employee and director
stock-based awards because, as discussed below, the alternative fair value
accounting provided for under SFAS 123 requires use of option valuation models
that were not developed for use in valuing employee stock-based awards. Under
APB Opinion No. 25, NextCard does not recognize compensation expense with
respect to such awards if the exercise price equals or exceeds the fair value of
the underlying security on the date of grant and other terms are fixed.
The fair value of these awards for the purpose of the alternative fair
value disclosures required by SFAS 123 was estimated as of the date of grant
using option pricing models. These models were developed for use in estimating
the fair value of traded options that have no vesting restrictions and are fully
transferable. In addition, option valuation models require the input of highly
subjective assumptions, including the expected life of the options. Because
NextCard's stock-based awards have characteristics significantly different from
those of traded options and because changes in the subjective input assumptions
can materially affect the fair value estimate, in management's opinion, the
existing models do not necessarily provide a reliable single measure of the fair
value of its stock-based awards. For purposes of NextCard's pro forma
disclosures, the fair value of options granted for the year ended December 31,
1999 was determined using the Black-Scholes option-pricing model. The following
weighted-average assumptions were used: dividend yield of zero; expected
volatility of 39%; risk-free interest rate of 6.3%; and expected life of five
years. The fair value of options granted for the year ended December 31, 1998
and the Inception Period was determined using the minimum value method. The
following weighted-average assumptions were used: dividend yield of zero;
risk-free interest rate of approximately 5%; and expected life of five years.
50
<PAGE> 51
NEXTCARD, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
12. STOCK OPTION PLAN AND WARRANTS (CONTINUED)
For purposes of pro forma disclosures, the estimated fair value of the
options is amortized to expense over the option's vesting period. NextCard's pro
forma information follows (in thousands, except per share data):
<TABLE>
<CAPTION>
PERIOD FROM
YEARS ENDED JUNE 5, 1996
DECEMBER 31, (INCEPTION) TO
-------------------- DECEMBER 31,
1999 1998 1997
-------- -------- --------------
<S> <C> <C> <C>
Net Loss:
As reported.................................... $(77,195) $(16,064) $(1,886)
Pro Forma...................................... $(79,047) $(16,533) $(1,889)
Basic and diluted net loss per common share:
As reported.................................... $ (2.54) $ (5.07) $ (1.08)
Pro Forma...................................... $ (2.60) $ (5.22) $ (1.08)
</TABLE>
The compensation cost associated with NextCard's stock-based compensation
plans determined using the methods prescribed above did not result in a material
difference from the reported net loss for the years ended December 31, 1999 and
1998, and the Inception Period. Future pro forma net income results may be
materially different from actual amounts reported.
Deferred Stock Compensation
In connection with certain stock option grants to employees during the year
ended December 31, 1999 and 1998, NextCard recorded deferred stock compensation
of $16.0 million and $7.8 million representing the difference between the
exercise price of the options and the deemed fair value of NextCard's common
stock on the date such stock options were granted. Such amount is included as a
reduction of shareholders' equity and is being amortized by charges to
operations on a graded vesting method over the corresponding vesting period of
each respective option, generally four years. In the years ended December 31,
1999 and 1998, NextCard recorded amortization of deferred stock compensation
expense of $10.0 million and $1.8 million, respectively. At December 31, 1999,
$12.0 million of deferred stock compensation remained unamortized.
Warrants
NextCard had outstanding the following warrants to purchase its securities
(in thousands, except per share data):
<TABLE>
<CAPTION>
DECEMBER 31, 1999 DECEMBER 31, 1998
--------------------------- ---------------------------
NUMBER OF NUMBER OF
WARRANTS EXERCISE PRICE WARRANTS EXERCISE PRICE
DESCRIPTION OF SERIES ISSUED PER SHARE ISSUED PER SHARE
--------------------- --------- -------------- --------- --------------
<S> <C> <C> <C> <C>
Common Stock............................ 5,398 $0.22 - $39.20 515 $0.13 - $0.56
Series C-1 Convertible Preferred
Stock................................. -- -- 39 $1.29
Series D-1 Convertible Preferred
Stock................................. -- -- 585 $0.22 - $2.67
----- -----
5,398 1,139
===== =====
</TABLE>
At December 31, 1999 and 1998, 5,398,000 and 1,079,000 warrants,
respectively, were exercisable. Expenses related to the deemed fair value of
these warrants for services rendered by third parties were not material. In 1998
NextCard paid a loan structuring fee of $2,100,000, consisting of $725,000 in
cash and 562,500 warrants with a deemed fair value of $1,375,000. The warrants
are exercisable from August 15, 1997 to August 15, 2000. During 1999, NextCard
paid loan structuring fees to a finance company of $2,741,000, consisting of
$50,000 in cash and 305,360 warrants with a deemed fair value of $2,691,000. As
described further in Note 9, NextCard issued warrants to acquire 4.4 million
common shares of NextCard to Amazon.
51
<PAGE> 52
NEXTCARD, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
12. STOCK OPTION PLAN AND WARRANTS (CONTINUED)
Stock Purchase Plan
NextCard's 1999 Employee Stock Purchase Plan is available for eligible
employees. A maximum of 100,000 shares of common stock are permitted to be
issued under the stock purchase plan. Under the stock purchase plan, shares of
NextCard's common stock may be purchased at the end of each offering period at
85% of the lower of the fair market value on the first and last day of the
offering period. Eligible employees may designate a portion of their
compensation, not to exceed 10% of their gross compensation during an offering
period, to purchase shares under this plan. The offering periods begin every six
months, on each January 1 and July 1, and have a duration of six months, except
that the first offering period began on May 16, 1999.
13. DEFINED CONTRIBUTION 401(k) PLAN
In October 1999, NextCard adopted a defined contribution plan that is
intended to qualify under section 401(k) of the Internal Revenue Code. The
401(k) plan provides retirement benefits for eligible employees. The 401(k) plan
stipulates that eligible employees may elect to contribute to it upon date of
hire. As of December 31, 1999, NextCard did not match employee contributions.
14. INCOME TAXES
The provision for income taxes consists of the minimum California State
franchise tax of $1,600 and results in an effective tax rate that differs from
the federal statutory rate primarily due to net operating losses for which a
valuation allowance has been established. The following is a summary of deferred
tax assets (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------
1999 1998
-------- -------
<S> <C> <C>
Deferred tax assets:
Net operating loss carryforwards.......................... $ 27,639 $ 6,021
Allowance for loan losses................................. 3,951 --
Deferred start-up costs................................... 388 541
Deferred revenue.......................................... 196 209
Other..................................................... 622 72
-------- -------
Total deferred tax assets................................... 32,796 6,843
Valuation allowance......................................... (32,796) (6,843)
-------- -------
$ -- $ --
======== =======
</TABLE>
At December 31, 1999, NextCard had federal and California net operating
loss carryforwards (NOLs) of approximately $72,200,000 and $43,200,000,
respectively, available to offset future taxable income. The NOLs begin expiring
in 2012 for federal purposes and 2004 for California purposes.
Realization of NOLs is dependent on future taxable earnings, if any, the
timing and the amount of which are uncertain. Accordingly, a valuation allowance
in an amount equal to the deferred tax assets as of December 31, 1999 and 1998
has been established to reflect these uncertainties. The change in the valuation
allowance was a net increase of $25,953,000 and $5,998,000 for the years ended
December 31, 1999 and 1998, respectively. During the Inception Period, NextCard
provided a valuation allowance of $845,000.
Utilization of tax carryforwards may be subject to a substantial annual
limitation due to ownership change limitations provided by the Internal Revenue
Code of 1986 and similar state provisions. The annual limitation could result in
expiration of NOLs before full utilization.
52
<PAGE> 53
NEXTCARD, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
15. INTEREST RATE RISK MANAGEMENT INSTRUMENTS
NextCard has entered into interest rate cap agreements, the effect of which
is to establish maximum interest rates on a portion of its managed funding
sources. To the extent NextCard has funded fixed rate receivables with variable
rate deposits or debt, the interest caps are designed to protect net interest
margin. To the extent NextCard has securitized fixed rate receivables using
variable rate instruments, the interest rate caps are designed to protect loan
servicing income. As of December 31, 1999, NextCard had $520.0 million notional
amount of interest rate caps outstanding which mature in years ranging from 2001
through 2002.
16. FAIR VALUE OF FINANCIAL INSTRUMENTS
NextCard has estimated the fair value of its financial instruments in
accordance with SFAS No. 107, "Disclosures About Fair Value of Financial
Instruments." Financial instruments include both assets and liabilities, whether
or not recognized in the consolidated balance sheets, for which it is
practicable to estimate fair value. Additionally, certain intangible assets
recorded on the consolidated balance sheets, such as purchased credit card
relationships, and other intangible assets not recorded on the balance sheets
(such as the value of the credit card relationships for originated loans) are
not considered financial instruments and , accordingly, are not valued for
purposes of this disclosure. NextCard believes that there is value associated
with these assets based on current market conditions, including the purchase and
sale of such assets.
Quoted market prices generally are not available for all of NextCard's
financial instruments. Accordingly, in cases where quoted market prices are not
available, fair values were estimated using present value and other valuation
techniques that are significantly affected by the assumptions used, including
the discount rate and estimated future cash flows. Such assumptions are based on
historical experience and assessments regarding the collectibility of assets and
related interest, and estimates of product lives and repricing characteristics
used in NextCard's asset/liability management process. These assumptions involve
uncertainties and matters of judgment and, therefore, cannot be determined with
precision. Thus, changes in these assumptions could significantly affect the
fair value estimates.
All of NextCard's financial instruments approximated fair value as of
December 31, 1999. A description of the methods and assumptions used to estimate
the fair value of each class of NextCard's financial instruments is as follows:
Cash and cash equivalents
The carrying amounts approximate fair value due to the short-term nature of
these instruments.
Loans receivable
The fair value of loans is estimated by discounting the estimated future
cash flows adjusted for differences in loan characteristics.
Deposits
The fair values disclosed for fixed rate certificates of deposit are
estimated using a discounted cash flow calculation that applies interest rates
at an assumed marginal market funding rate.
Long-term borrowings
The fair value of NextCard's long-term borrowings is estimated using a
discounted cash flow model. The discount rates used were based on yield-curves
appropriate for the remaining maturities of the instruments.
53
<PAGE> 54
NEXTCARD, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
17. NEXTCARD, INC. (PARENT COMPANY ONLY) CONDENSED FINANCIAL INFORMATION
BALANCE SHEET
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31,
1999 1998
------------ ------------
(IN THOUSANDS)
<S> <C> <C>
ASSETS:
Cash and cash equivalents................................ $222,983 $40,134
Investment in subsidiaries............................... 61,192 2,100
Equipment and leasehold improvements, net................ 7,040 2,102
Prepaid and other assets................................. 18,426 1,206
-------- -------
Total assets..................................... $309,641 $45,542
======== =======
LIABILITIES AND SHAREHOLDERS' EQUITY:
Liabilities:
Accounts payable......................................... $ 7,962 $ 3,366
Accrued expenses and other liabilities................... 11,685 1,735
Other borrowings......................................... 11,359 504
-------- -------
Total liabilities................................ 31,006 5,605
Shareholders' equity....................................... 278,635 39,937
-------- -------
Total liabilities and shareholders' equity....... $309,641 $45,542
======== =======
</TABLE>
STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
------------------------
1999 1998
---------- ----------
(IN THOUSANDS)
<S> <C> <C>
Revenues:
Interest income........................................... $ 3,564 $ 502
Other income.............................................. 527 697
-------- --------
Total revenues.................................... 4,091 1,199
Expenses:
Interest expense.......................................... 1,641 62
Salaries and employee benefits............................ 21,814 6,730
Marketing, advertising, and branding...................... 24,649 4,324
Credit card activation and servicing costs................ 11,438 2,328
General and administration and other...................... 8,320 2,017
Amortization of deferred compensation..................... 10,028 1,800
Less fees received from subsidiaries...................... (15,563) --
-------- --------
Total expenses.................................... 62,327 17,261
Income before income taxes and equity in net loss of
subsidiaries.............................................. (58,236) (16,062)
Provision for income taxes.................................. 2 2
Equity in net loss of subsidiaries.......................... (18,957) --
-------- --------
Net Loss.......................................... $(77,195) $(16,064)
======== ========
</TABLE>
54
<PAGE> 55
NEXTCARD, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
17. NEXTCARD, INC. (PARENT COMPANY ONLY) CONDENSED FINANCIAL INFORMATION
(CONTINUED)
STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
------------------------
1999 1998
---------- ----------
(IN THOUSANDS)
<S> <C> <C>
OPERATING ACTIVITIES:
Net loss.................................................... $(77,195) $(16,064)
Adjustments to net loss to arrive at cash used in operating
activities:
Equity in net loss of subsidiaries........................ 18,958 --
Deprecation and amortization.............................. 1,941 252
Amortization of deferred compensation expense............. 10,028 1,800
Change in operating assets and liabilities:
Increase in accounts payable........................... 4,596 3,231
Increase in accrued expenses and other liabilities..... 9,967 969
Increase in prepaid and other assets................... (15,241) 723
-------- --------
Net cash used in operating activities....................... (46,946) (9,089)
INVESTING ACTIVITIES:
Purchase of equipment and leasehold improvements............ (7,684) (2,060)
Capital contribution to subsidiary.......................... (76,550) (2,100)
-------- --------
Net cash used in investing activities....................... (84,234) (4,160)
FINANCING ACTIVITIES:
Proceeds from other borrowings.............................. 11,689 545
Payments made on other borrowings........................... (834) (41)
Proceeds form issuance of preferred stock................... -- 50,037
Proceeds from issuance of common stock...................... 280,661 2
Proceeds from settlement of notes receivable................ 13 --
Proceeds from sale of warrants.............................. 22,500 --
-------- --------
Net cash provided by financing activities................... 314,029 50,543
Net increase in cash and cash equivalents................... 182,849 37,294
Cash and cash equivalents at the beginning of year.......... 40,134 2,840
-------- --------
Cash and cash equivalents at the end of year................ $222,983 $ 40,134
======== ========
</TABLE>
18. SUBSEQUENT EVENT
On March 1, 2000, NextCard sold approximately $330.0 million of its then
outstanding credit card receivables in a securitization transaction that
qualified for sales treatment in accordance with Statement of Financial
Accounting Standards No. 125, "Accounting for Transfers and Servicing of
Financial Assets and Extinguishments of Liabilities." This sale, including any
gain, will be recorded in March 2000.
55
<PAGE> 56
REPORT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
The Board of Directors and Shareholders
NextCard, Inc. and subsidiaries
We have audited the accompanying consolidated balance sheets of NextCard,
Inc. and subsidiaries as of December 31, 1999 and 1998, and the related
consolidated statements of operations, changes in shareholders' equity, and cash
flows for the years ended December 31, 1999 and 1998 and for the period from
June 5, 1996 (inception) to December 31, 1997. These financial statements are
the responsibility of NextCard, Inc.'s management. Our responsibility is to
express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with auditing standards generally
accepted in the United States. Those standards require that we plan and perform
the audits to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of NextCard,
Inc. and subsidiaries at December 31, 1999 and 1998, and the results of their
operations and their cash flows for the years ended December 31, 1999 and 1998
and for the period from June 5, 1996 (inception) to December 31, 1997 in
conformity with accounting principles generally accepted in the United States.
/s/ ERNST & YOUNG LLP
San Francisco, California
January 26, 2000, except as to Note 18,
as to which the date is
March 1, 2000
56
<PAGE> 57
QUARTERLY DATA (UNAUDITED)
SUMMARY OF CONSOLIDATED QUARTERLY FINANCIAL INFORMATION
<TABLE>
<CAPTION>
MARCH 31, JUNE 30, SEPTEMBER 30, DECEMBER 31,
1998 1998 1998 1998
--------- -------- ------------- ------------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C>
CONSOLIDATED STATEMENTS OF OPERATIONS:
Interest income................................. $ 33 $ 79 $ 116 $ 274
Interest expense................................ -- 1 47 14
------- ------- ------- -------
Net interest income............................. 33 78 69 260
Provision for loan losses....................... -- -- -- --
Non-interest income............................. 34 133 139 391
Non-interest expenses........................... 1,441 3,281 5,009 7,468
------- ------- ------- -------
Loss before income taxes........................ (1,374) (3,070) (4,801) (6,817)
Provision for income taxes...................... -- -- -- 2
------- ------- ------- -------
Net loss........................................ $(1,374) $(3,070) $(4,801) $(6,819)
Basic and diluted loss per share................ $ (0.48) $ (1.03) $ (1.44) $ (1.96)
======= ======= ======= =======
Proforma basic and diluted loss per share(1).... $ (0.15) $ (0.17) $ (0.22) $ (0.22)
SUPPLEMENTAL OPERATING DATA
Total credit card loan receivables
outstanding.................................... $ 1,626 $ 9,402 $35,334 $66,042
Total number of open credit card accounts at
period end..................................... 1 5 19 40
Total revenue: interest income and non-interest
income......................................... $ 67 $ 212 $ 255 $ 665
Net Interest Margin............................. -- -- -- --
<CAPTION>
MARCH 31, JUNE 30, SEPTEMBER 30, DECEMBER 31,
1999 1999 1999 1999
--------- -------- ------------- ------------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C>
CONSOLIDATED STATEMENTS OF OPERATIONS:
Interest income................................. $ 660 $ 3,031 $ 6,886 $ 11,477
Interest expense................................ 647 1,866 3,249 5,142
-------- -------- -------- --------
Net interest income............................. 13 1,165 3,637 6,335
Provision for loan losses....................... 995 1,047 3,185 6,845
Non-interest income............................. 343 613 1,133 2,417
Non-interest expenses........................... 10,343 19,419 24,357 26,660
-------- -------- -------- --------
Loss before income taxes........................ (10,982) (18,688) (22,772) (24,753)
Provision for income taxes...................... -- 2 -- --
-------- -------- -------- --------
Net loss........................................ $(10,982) $(18,690) $(22,772) $(24,753)
Basic and diluted loss per share................ $ (2.84) $ (0.74) $ (0.50) $ (0.53)
======== ======== ======== ========
Proforma basic and diluted loss per share(1).... $ (0.30) $ (0.45) $ (0.50) $ (0.53)
SUPPLEMENTAL OPERATING DATA
Total credit card loan receivables
outstanding.................................... $ 96,293 $163,446 $268,014 $416,315
Total number of open credit card accounts at
period end..................................... 66 85 134 220
Total revenue: interest income and non-interest
income......................................... $ 1,003 $ 3,644 $ 8,019 13,894
Net Interest Margin............................. 0.08% 2.50% 4.49% 5.50%
</TABLE>
- ---------------
(1) Pro forma basic and diluted net loss per common share has been computed as
described in Note 2 to the Consolidated Financial Statements and also gives
effect, under Securities and Exchange Commission guidance, to the conversion
of the convertible preferred stock (using the if-converted method) from the
original date of issuance.
COMMON STOCK PRICE RANGES
Since our initial public offering on May 14, 1999, our common stock has
been traded on the Nasdaq National Market under the symbol "NXCD." At March 15,
2000, we had approximately 330 shareholders of record. We believe there are
approximately 11,500 beneficial holders of our common stock.
The following table sets forth, for the periods indicated, the high and low
sales prices for our common stock as reported by the Nasdaq National Market:
<TABLE>
<CAPTION>
HIGH LOW
------- ------
<S> <C> <C>
Second Quarter (from May 14)....................... $ 50.00 $22.00
Third Quarter...................................... $ 41.50 $19.13
Fourth Quarter..................................... $ 53.12 $22.81
</TABLE>
57
<PAGE> 58
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information required by this item with respect to directors is set
forth in the Company's proxy statement for the annual meeting of shareholders to
be held on May 26, 2000 which will be filed within 120 days after December 31,
1999 (the "Proxy Statement") and is incorporated herein by reference. The
information required by this item with respect to executive officers is,
pursuant to instruction 3 of Item 401(b) of regulation S-K, set forth in Part I
of this Annual Report on Form 10-K under "Executive Officers of the Registrant."
The information required by this item with respect to reports required to be
filed under Section 16(a) of the Securities Exchange Act of 1934 is set forth
under "Section 16(a) Beneficial Ownership reporting Compliance" in the Proxy
Statement and is incorporated herein by reference.
ITEM 11. EXECUTIVE COMPENSATION
The information required by this item is set forth under "Compensation
Tables and Compensation Matters" in the Proxy Statement and is incorporated
herein by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required by this item is set forth under "Company Stock
Owned by Officers and Directors" and "Persons Owning More Than Five Percent of
Company Common Stock" in the Proxy Statement and is incorporated herein by
reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by this item is set forth under "Certain
Relationships and Related Transactions" in the Proxy Statement and is
incorporated herein by reference.
With the exception of the information incorporated by reference in Items
10 - 13 above, the Proxy Statement is not to be deemed filed as part of this
Annual Report on Form 10-K.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) The following documents are made part of this report:
1.FINANCIAL STATEMENT SCHEDULES
All schedules to the consolidated financial statements normally required
by form 10-K are omitted since they are either not applicable or the
required information is shown in the financial statements or the notes
thereto.
(b)REPORTS ON FORM 8-K:
None filed.
(c)EXHIBITS: See exhibit Index on page 60 of this Report.
58
<PAGE> 59
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized on the day of
March, 2000.
NEXTCARD, INC.
(Registrant)
By /s/ JEREMY R. LENT
------------------------------------
Jeremy R. Lent
Chairman of the Board,
Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of NextCard,
Inc., the Registrant, and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ JEREMY R. LENT Chairman of the Board March 30, 2000
- ----------------------------------------------------- Chief Executive Officer
Jeremy R. Lent (Principal Executive Officer)
/s/ JOHN V. HASHMAN President, Chief March 30, 2000
- ----------------------------------------------------- Financial Officer
John V. Hashman (Principal Financial and
Accounting Officer)
/s/ JEFFREY D. BRODY Director March 30, 2000
- -----------------------------------------------------
Jeffrey D. Brody
/s/ ALAN N. COLNER Director March 30, 2000
- -----------------------------------------------------
Alan N. Colner
/s/ DANIEL R. EITINGTON Director March 30, 2000
- -----------------------------------------------------
Daniel R. Eitington
/s/ TOD H. FRANCIS Director March 30, 2000
- -----------------------------------------------------
Tod H. Francis
/s/ SAFI U. QURESHEY Director March 30, 2000
- -----------------------------------------------------
Safi U. Qureshey
/s/ BRUCE G. RIGIONE Director March 30, 2000
- -----------------------------------------------------
Bruce G. Rigione
</TABLE>
59
<PAGE> 60
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------- ----------------------
<C> <S>
3.1 Amended and Restated Certificate of Incorporation
(incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1 (No. 333-74755)).
3.2 Amended and Restated Bylaws (incorporated by reference to
Exhibit 3.2 to the Company's Registration Statement on Form
S-1 (No. 333-74755)).
4.1 Form of Stock Certificate (incorporated by reference to
Exhibit 4.1 to the Company's Registration Statement on Form
S-1 (No. 333-74755)).
10.1 Form of Indemnification Agreement between NextCard and each
of its officers and directors (incorporated by reference to
Exhibit 10.1 to the Company's Registration Statement on Form
S-1 (No. 333-74755)).
10.2 *Amended and Restated Stock Restriction Agreement dated
March 1999 between NextCard and Jeremy Lent (incorporated by
reference to Exhibit 10.2 to the Company's Registration
Statement on Form S-1 (No. 333-74755)).
10.3 *Stock Purchase and Restriction Agreement dated September
18, 1996 between NextCard and Timothy Coltrell (incorporated
by reference to Exhibit 10.3 to the Company's Registration
Statement on Form S-1 (No. 333- 74755)).
10.4 Form of Subscription Agreement for Series A Preferred Stock
(incorporated by reference to Exhibit 10.4 to the Company's
Registration Statement on Form S-1 (No. 333-74755)).
10.5 Series B Preferred Stock Purchase Agreement dated August 15,
1997 among NextCard and certain investors (incorporated by
reference to Exhibit 10.5 to the Company's Registration
Statement on Form S-1 (No. 333-74755)).
10.6 Office Lease dated September 24, 1997 between NextCard and
Market & Second, Inc., as amended (See 10.36) (incorporated
by reference to Exhibit 10.6 to the Company's Registration
Statement on Form S-1 (No. 333-74755)).
10.7 *1997 Stock Plan and form of Option Agreement under 1997
Stock Plan (incorporated by reference to Exhibit 10.7 to the
Company's Registration Statement on Form S-1 (No.
333-74755)).
10.8+ Consumer Credit Card Program Agreement dated November 25,
1997 between NextCard and Heritage Bank of Commerce
(incorporated by reference to Exhibit 10.8 to the Company's
Registration Statement on Form S-1 (No. 333-74755)).
10.9 Remittance Processing Services Agreement dated December 1,
1997 between Heritage Bank of Commerce and National
Processing Company (incorporated by reference to Exhibit
10.9 to the Company's Registration Statement on Form S-1
(No. 333-74755)).
10.10 Professional Services Agreement dated October 14, 1998
between Heritage Bank of Commerce and Response Data
Corporation (incorporated by reference to Exhibit 10.10 to
the Company's Registration Statement on Form S-1 (No.
333-74755)).
10.11 Service Agreement dated December 22, 1997 between NextCard
and First Data Resources Inc. (incorporated by reference to
Exhibit 10.11 to the Company's Registration Statement on
Form S-1 (No. 333-74755)).
10.12 Master Services Agreement dated December 23, 1997 between
NextCard and Exodus Communications, Inc. (incorporated by
reference to Exhibit 10.12 to the Company's Registration
Statement on Form S-1 (No. 333-74755)).
10.13 License Agreement dated May 1, 1998 between NextCard and
Binary Compass Enterprises, Inc. (incorporated by reference
to Exhibit 10.13 to the Company's Registration Statement on
Form S-1 (No. 333-74755)).
</TABLE>
60
<PAGE> 61
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------- ----------------------
<C> <S>
10.14 Series C Preferred Stock Purchase Agreement dated May 13,
1998 among NextCard and certain investors (incorporated by
reference to Exhibit 10.14 to the Company's Registration
Statement on Form S-1 (No. 333-74755)).
10.15 Sublease dated May 15, 1998 between NextCard and KAO
Infosystems Company (incorporated by reference to Exhibit
10.15 to the Company's Registration Statement on Form S-1
(No. 333-74755)).
10.16 Master Lease Agreement dated May 22, 1998 between NextCard
and Comdisco, Inc. (incorporated by reference to Exhibit
10.16 to the Company's Registration Statement on Form S-1
(No. 333-74755)).
10.17 Loan and Security Agreement dated June 17, 1998 by and
between NextCard and Lighthouse Capital Partners II, L.P
(incorporated by reference to Exhibit 10.17 to the Company's
Registration Statement on Form S-1 (No. 333-74755)).
10.18 Cardholder Rewards Program Agreement dated June 22, 1998
between NextCard and Intellipost Corporation (subsequently
renamed MyPoints.com) (incorporated by reference to Exhibit
10.18 to the Company's Registration Statement on Form S-1
(No. 333-74755)).
10.19 Form of Bottom Dollar Network Membership Agreement
(incorporated by reference to Exhibit 10.19 to the Company's
Registration Statement on Form S-1 (No. 333-74755)).
10.20 Series D Preferred Stock Purchase Agreement dated November
5, 1998 among NextCard and certain investors (incorporated
by reference to Exhibit 10.20 to the Company's Registration
Statement on Form S-1 (No. 333-74755)).
10.21+ Loan Agreement dated December 29, 1998 among NextCard
Funding Corp. and Credit Suisse First Boston (incorporated
by reference to Exhibit 10.21 to the Company's Registration
Statement on Form S-1 (No. 333-74755)).
10.22+ Account Origination Agreement dated December 29, 1998 by and
between NextCard and Heritage Bank of Commerce (incorporated
by reference to Exhibit 10.22 to the Company's Registration
Statement on Form S-1 (No. 333-74755)).
10.23 *Employment Agreement dated as of January 1, 1999 between
NextCard and Jeremy R. Lent (incorporated by reference to
Exhibit 10.23 to the Company's Registration Statement on
Form S-1 (No. 333-74755)).
10.24 Subordinated Loan and Security Agreement dated February 9,
1999 between NextCard and Comdisco, Inc. (incorporated by
reference to Exhibit 10.24 to the Company's Registration
Statement on Form S-1 (No. 333-74755)).
10.25 *Consulting Agreement dated as of January 20, 1999 between
NextCard and Bruce Rigione (incorporated by reference to
Exhibit 10.25 to the Company's Registration Statement on
Form S-1 (No. 333-74755)).
10.26 Amendment Number One to Subordinated Loan and Security
Agreement dated as of February 9, 1999 between NextCard,
Inc., as Borrower, and Comdisco, Inc., as Lender
(incorporated by reference to Exhibit 10.26 to the Company's
Registration Statement on Form S-1 (No. 333-74755)).
10.27 *Employee Stock Purchase Plan (incorporated by reference to
Exhibit 10.27 to the Company's Registration Statement on
Form S-1 (No. 333-74755)).
10.28+ Amended and Restated Pooling and Servicing Agreement, dated
as May 21, 1999, among NextCard Funding Corp, as Transferor,
NextCard, Inc., as Servicer, and The Bank of New York, as
Trustee (incorporated by reference to Exhibit 10.1 to the
Company's Quarterly Report on Form 10Q for the period ended
June 30, 1999).
</TABLE>
61
<PAGE> 62
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------- ----------------------
<C> <S>
10.29+ Series 1999-1 Supplement, dated as of May 21, 1999, to the
Amended and Restated Pooling and Servicing Agreement, among
NextCard Funding Corp, as Transferor, NextCard, Inc., as
Servicer, and The Bank of New York, as Trustee (incorporated
by reference to Exhibit 10.2 to the Company's Quarterly
Report on Form 10Q for the period ended June 30, 1999).
10.30+ Series 1999-2 Supplement, dated as of May 21, 1999, to the
Amended and Restated Pooling and Servicing Agreement, among
NextCard Funding Corp, as Transferor, NextCard, Inc., as
Servicer, and The Bank of New York, as Trustee (incorporated
by reference to Exhibit 10.3 to the Company's Quarterly
Report on Form 10Q for the period ended June 30, 1999).
10.31+ Amended and Restated Account Origination Agreement dated May
21, 1999, among NextCard, NextCard Funding Corp. and
Heritage Bank of Commerce (incorporated by reference to
Exhibit 10.4 to the Company's Quarterly Report on Form 10Q
for the period ended June 30, 1999).
10.32+ Amendment No. 1, dated July 15, 1999, to Amended and
Restated Account Origination Agreement, among NextCard,
NextCard Funding Corp. and Heritage Bank of Commerce
(incorporated by reference to Exhibit 10.5 to the Company's
Quarterly Report on Form 10Q for the period ended June 30,
1999).
10.33+ Certificate Purchase Agreement, dated May 21, 1999, among
NextCard Funding Corp., as Transferor, NextCard, Inc. as
Servicer, Sheffield Receivables Corporation, as Purchaser,
and Barclays Bank PLC, as Agent (incorporated by reference
to Exhibit 10.6 to the Company's Quarterly Report on Form
10Q for the period ended June 30, 1999).
10.34+ Certificate Purchase Agreement, dated June 16, 1999, among
NextCard Funding Corp., as Transferor, NextCard, Inc. as
Servicer, Holland Limited Securitization, Inc., as
Purchaser, and ING Baring (U.S.) Capital Markets LLC, as
Agent (incorporated by reference to Exhibit 10.7 to the
Company's Quarterly Report on Form 10Q for the period ended
June 30, 1999).
10.35+ Co-Branded Bankcard Agreement dated as of November 8, 1999
between NextCard, Inc. and Amazon.com LLC (incorporated by
reference to Exhibit 10.34 to the Company's Registration
Statement on Form S-1 (No. 333-91333)).
10.36 Amendment, dated June 30, 1999, to Office Lease between
NextCard and Market & Second, Inc. (incorporated by
reference to Exhibit 10.35 to the Company's Registration
Statement on Form S-1 (No. 333-91333)).
10.37+ Amended and Restated Pooling and Servicing Agreement, dated
May 21, 1999, to the NextCard Master Trust I Series 1999-3,
between NextBank, N.A., as Transferor and Servicer and the
Bank of New York, as Trustee on behalf of the series 1999-3
Certificateholders (incorporated by reference to Exhibit
10.36 to the Company's Registration Statement on Form S-1
(No. 333-91333)).
10.38+ Certificate Purchase Agreement, dated November 10, 1999,
among NextBank, N.A., as the Transferor and the Servicer,
Variable Funding Capital Corporation, as the Purchaser, and
First Union Securities, Inc., as the Administrative Agent
(incorporated by reference to Exhibit 10.37 to the Company's
Registration Statement on Form S-1 (No. 333-91333)).
10.39+ Office Lease dated March 7, 2000 between NextCard and
Carlyle Airport Technology Trust.
21.1 Subsidiaries.
23.2 Consent of Ernst and Young LLP, Independent Auditors.
27.1 Financial Data Schedule.
</TABLE>
- ---------------
+ Portions redacted pursuant to a request for confidential treatment filed with
the Securities and Exchange Commission.
* Compensatory plans or arrangements.
62
<PAGE> 1
EXHIBIT 10.39
OFFICE LEASE
FOR
AIRPORT TECHNOLOGY CENTER
by and between
CARLYLE AIRPORT TECHNOLOGY TRUST,
a Maryland real estate investment trust,
as Landlord,
and
NEXTCARD, INC.,
a Delaware corporation,
as Tenant.
Dated March 7, 2000
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE 1 PREMISES, BUILDING, PROJECT, AND COMMON AREAS...............................4
ARTICLE 2 LEASE TERM..................................................................5
ARTICLE 3 BASE RENT...................................................................5
ARTICLE 4 ADDITIONAL RENT.............................................................6
ARTICLE 5 USE OF PREMISES............................................................15
ARTICLE 6 SERVICES AND UTILITIES.....................................................17
ARTICLE 7 REPAIRS....................................................................19
ARTICLE 8 ADDITIONS AND ALTERATIONS..................................................20
ARTICLE 9 COVENANT AGAINST LIENS.....................................................23
ARTICLE 10 INSURANCE..................................................................23
ARTICLE 11 DAMAGE AND DESTRUCTION.....................................................26
ARTICLE 12 NONWAIVER..................................................................27
ARTICLE 13 CONDEMNATION...............................................................28
ARTICLE 14 ASSIGNMENT AND SUBLETTING..................................................29
ARTICLE 15 SURRENDER OF PREMISES; OWNERSHIP AND REMOVAL OF TRADE FIXTURES.............33
ARTICLE 16 HOLDING OVER...............................................................33
ARTICLE 17 ESTOPPEL CERTIFICATES......................................................34
ARTICLE 18 SUBORDINATION..............................................................34
ARTICLE 19 DEFAULTS; REMEDIES.........................................................35
ARTICLE 20 COVENANT OF QUIET ENJOYMENT................................................39
ARTICLE 21 SECURITY DEPOSIT...........................................................39
ARTICLE 22 INTENTIONALLY DELETED......................................................39
ARTICLE 23 SIGNS......................................................................39
ARTICLE 24 COMPLIANCE WITH LAW........................................................41
ARTICLE 25 LATE CHARGES...............................................................42
ARTICLE 26 LANDLORD'S RIGHT TO CURE DEFAULT; PAYMENTS BY TENANT.......................42
ARTICLE 27 ENTRY BY LANDLORD..........................................................43
ARTICLE 28 TENANT PARKING.............................................................43
ARTICLE 29 MISCELLANEOUS PROVISIONS...................................................44
ARTICLE 30 OPTIONS TO EXTEND..........................................................53
ARTICLE 31 LETTER OF CREDIT...........................................................55
</TABLE>
(i)
<PAGE> 3
EXHIBITS
PAGE
A OUTLINE OF PREMISES
B TENANT WORK LETTER
C FORM OF NOTICE OF LEASE TERM DATES AND AREA CONFIRMATION
D RULES AND REGULATIONS
E FORM OF TENANT'S ESTOPPEL CERTIFICATE
F GUARANTY FEDERAL BANK STANDARD SNDA
G OUTLINE OF BUILDING/PROJECT
H MONUMENT SIGN/LOCATION OF TENANT POSITION
(ii)
<PAGE> 4
AIRPORT TECHNOLOGY CENTER
OFFICE LEASE
This Office Lease (the "LEASE"), dated as of the date set forth in
Section 1 of the Summary of Basic Lease Information (the "SUMMARY"), below, is
made by and between CARLYLE AIRPORT TECHNOLOGY TRUST, a Maryland real estate
investment trust ("LANDLORD"), and NextCard, Inc., a Delaware corporation
("TENANT").
SUMMARY OF BASIC LEASE INFORMATION
TERMS OF LEASE DESCRIPTION
1. Date: March 7, 2000
2. Premises (Article 1).
2.1 Building: Building A consisting of approximately
75,963 rentable square feet of space
located at Airport Technology Center,
4127 East Van Buren, Phoenix, Arizona
("BUILDING A") and Building B
consisting of approximately 120,549
rentable square feet of space located
at Airport Technology Center, 4129 East
Van Buren, Phoenix, Arizona ("BUILDING
B") (collectively, Building A and
Building B shall be referred to herein
as the Building or Buildings, as the
context may require)
2.2 Premises: Approximately 37,851 rentable square
feet of space located on the first
(1st) floor of Building B and
approximately 62,149 rentable square
feet of space located on the second
(2nd) floor of Building B and commonly
known as Suite 200, as further set
forth in EXHIBIT A to the Office Lease.
Figures are approximate only until
Tenant Work reaches the stage where
accurate measurements can be made (See
Section 4.2.9). Once determined, the
exact rentable square feet of the
Premises shall be memorialized in a
Notice of Lease Term Date, a form of
which is Exhibit C to the Lease.
3. Lease Term (Article 2).
3.1 Length of Term: Six (6) years, with two options to
extend for three years each as
described in Article 30 of this Lease.
<PAGE> 5
3.2 Commencement Date: The earlier to occur of (i) the date
upon which Tenant first commences to
conduct business in the Premises, and
(ii) the date that the Premises are
"Ready for Occupancy" as defined in
Section 5.1 of EXHIBIT B to this Lease
or, if earlier, the date that the
Premises would have been Ready for
Occupancy if no "Tenant Delay" or
"Tenant Delays," as defined, on a
net-critical-path basis, in Section 5.2
of EXHIBIT B to the Lease, had
occurred.
3.3 Expiration Date: If the Lease Commencement Date shall be
the first day of a calendar month, then
(subject to Tenant's extension options)
the day immediately preceding the sixth
(6th) anniversary of the Lease
Commencement Date; or, if the Lease
Commencement Date shall be other than
the first day of a calendar month, then
(subject to Tenant's extension options)
the last day of the month in which the
sixth (6th) anniversary of the Lease
Commencement Date occurs.
4. Base Rent (Article 3):
<TABLE>
<CAPTION>
Months Stipulated Annual Rent Annual Rent/RSF
------ ---------------------- ---------------
<S> <C> <C>
[*]
</TABLE>
<TABLE>
<CAPTION>
Square Footage Charged
(approximate; to be adjusted
Months pursuant to Section 4.2.9) Annual Rent/RSF
------ ---------------------------- ---------------
<S> <C> <C>
[*]
</TABLE>
5. Base Year (Article 4): [*] as to the second floor of the
Premises, and [*] as to the first
floor of the Premises.
6. Tenant's Share (Article 4): Approximately [ * ]% (subject to
confirmation in EXHIBIT C).
* Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission.
-2-
<PAGE> 6
7. Permitted Use (Article 5): General office use and any other legal
use consistent with a first-class
office building, including without
limitation, call center, operations
center, general administrative office
uses, including any support systems
related thereto.
8. Security Deposit (Article 21): See Article 21 and Article 31.
9. Parking Space Ratio [*] unreserved parking spaces for
(Article 28): every [*] rentable square feet of
the Premises.
10. Address of Tenant NextCard, Inc.
(Section 29.18): 595 Market Street, Suite 1800
San Francisco, California 94105
Attention: Robert Linderman, Esq.
General Counsel and Secretary
(Prior to Lease Commencement Date)
and
NextCard, Inc.
Airport Technology Center
4129 East Van Buren, Suite 200
Phoenix, Arizona 85008-6911
Attention: Mr. Mark Attinger,
Vice President/Operations Site Manager
(After Lease Commencement Date)
11. Address of Landlord See Section 29.18 of the Lease.
(Section 29.18):
12. Broker(s) (Section 29.24): Walnut Creek office of CB Richard Ellis
on behalf of the Tenant.
Phoenix office of CB Richard Ellis on
behalf of the Landlord.
13. Tenant Improvement [*] per rentable square foot
Allowance (EXHIBIT B):
* Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission.
-3-
<PAGE> 7
ARTICLE 1
PREMISES, BUILDING, PROJECT, AND COMMON AREAS
1.1 PREMISES, BUILDING, PROJECT AND COMMON AREAS.
1.1.1 THE PREMISES. Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord the premises set forth in Section 2.2 of the Summary
(the "Premises"). The outline of the Premises is set forth in EXHIBIT A attached
hereto and each floor or floors of the Premises has the estimated number of
rentable square feet as set forth in Section 2.2 of the Summary. The parties
hereto agree that the lease of the Premises is upon and subject to the terms,
covenants and conditions herein set forth, and Tenant covenants as a material
part of the consideration for this Lease to keep and perform each and all of
such terms, covenants and conditions by it to be kept and performed and that
this Lease is made upon the condition of such performance. The parties hereto
hereby acknowledge that the purpose of EXHIBIT A is to show the approximate
location of the Premises in the "Building," as that term is defined in Section
1.1.2, below, only, and such Exhibit is not meant to constitute an agreement,
representation or warranty as to the construction of the Premises, the precise
area thereof or the specific location of the "Common Areas," as that term is
defined in Section 1.1.3, below, or the elements thereof or of the accessways to
the Premises or the "Project," as that term is defined in Section 1.1.2, below.
Except as specifically set forth in Articles 7 and 8 and other provisions of
this Lease and in the Tenant Work Letter attached hereto as EXHIBIT B (the
"Tenant Work Letter"), Landlord shall not be obligated to provide or pay for any
improvement work or services related to the improvement of the Premises. Tenant
also acknowledges that neither Landlord nor any agent of Landlord has made any
representation or warranty regarding the condition of the Premises, the Building
or the Project or with respect to the suitability of any of the foregoing for
the conduct of Tenant's business, except as specifically set forth in this Lease
and the Tenant Work Letter. The taking of physical possession of the Premises by
Tenant for the purpose of commencement of business therein shall conclusively
establish that the Premises and the Building were at such time in good and
sanitary order, condition and repair, subject only to latent defect and any
"punch-list" items that do not substantially interfere with Tenant's use and
occupancy of the Premises.
1.1.2 THE BUILDING AND THE PROJECT. The Premises are a part of
the building set forth in Section 2.1 of the Summary (the "Building"). The
Building is part of an office project known as "AIRPORT TECHNOLOGY CENTER." The
term "Project," as used in this Lease, shall mean (i) the Building and the
Common Areas, and (ii) the land (which is improved with landscaping, parking
facilities and other improvements) upon which the Building and the Common Areas
are located.
1.1.3 COMMON AREAS. Tenant shall have the non-exclusive right to
use in common with other tenants in the Project, and subject to the Rules and
Regulations referred to in Article 5 of this Lease, those portions of the
Project which are provided, from time to time, for use in common by Landlord,
Tenant and any other tenants of the Project, including, without limitation, the
main lobby of the Building, common corridors and hallways, stairwells,
elevators, restrooms and other public or common areas (such areas, together with
such other portions of the Project designated by Landlord to be shared by
Landlord and certain tenants, are collectively
-4-
<PAGE> 8
referred to herein as the "Common Areas"). The term "Building Common Areas," as
used in this Lease, shall mean the portions of the Common Areas located within
the Building designated as such by Landlord. The manner in which the Common
Areas, including landscaping, are maintained and operated shall be at the
reasonable discretion of Landlord, provided that Landlord shall maintain and
operate the same in a manner consistent with that of other first-class, office
buildings located in the Gateway submarket of Phoenix, Arizona, which buildings
are comparable in size, age, specifications, construction and quality of
appearance, services and amenities to the Building (the "Comparable Buildings"),
and the use thereof shall be subject to such rules, regulations and restrictions
as Landlord may make from time to time. Landlord reserves the right to close
temporarily, make alterations or additions to, or change the location of
elements of the Project and the Common Areas, provided that such action does not
materially and unreasonably interfere with Tenant's use of the Premises.
1.1.4 ACCESS. Subject to those provisions of this Lease which
specify to the contrary, Tenant shall have full and unimpaired access to the
Premises, the Building, the Project (including the parking lot) and the Common
Areas (including the Building elevators).
ARTICLE 2
LEASE TERM
The terms and provisions of this Lease shall be effective as of the date
of this Lease. The term of this Lease (the "Lease Term") shall be as set forth
in Section 3.1 of the Summary, shall commence on the date set forth in Section
3.2 of the Summary (the "Lease Commencement Date"), and shall terminate on the
date set forth in Section 3.3 of the Summary (the "Lease Expiration Date")
unless this Lease is sooner terminated as hereinafter provided. At any time
during the Lease Term, either party may deliver to the other party a notice in
the form as set forth in EXHIBIT C, attached hereto, as a confirmation only of
the information set forth therein, which such party shall execute and return to
the other party within five (5) days of receipt thereof.
ARTICLE 3
BASE RENT
Tenant shall pay, without prior notice or demand, to Landlord or
Landlord's agent at the management office of the Project, or, at Landlord's
option, at such other place as Landlord may from time to time designate in
writing, by a check for currency which, at the time of payment, is legal tender
for private or public debts in the United States of America, base rent ("BASE
RENT") as set forth in Section 4 of the Summary, payable in equal monthly
installments as set forth in Section 4 of the Summary in advance on or before
the first day of each and every calendar month during the Lease Term. The Base
Rent for the first full month of the Lease Term which occurs after the
expiration of any free rent period shall be paid at the time of Tenant's
execution of this Lease. If any Rent payment date (including the Lease
Commencement Date) falls on a day of the month other than the first day of such
month or if any payment of Rent is for a period which is shorter than one month,
the Rent for any fractional month shall accrue on a daily basis for the period
from the date such payment is due to the end of such calendar month or to the
end of the Lease Term at a rate per day which is equal to 1/365 of the
applicable annual Rent. All other
-5-
<PAGE> 9
payments or adjustments required to be made under the terms of this Lease that
require proration on a time basis shall be prorated on the same basis.
ARTICLE 4
ADDITIONAL RENT
4.1 GENERAL TERMS. In addition to paying the Base Rent specified in
Article 3 of this Lease, Tenant shall pay "Tenant's Share" of the annual
"Building Direct Expenses," as those terms are defined in Sections 4.2.8 and
4.2.2 of this Lease, respectively, which are in excess of the Building Direct
Expenses for the calendar year [ * ] as to the second floor of the Premises, and
[ * ] as to the first floor of the Premises, calculated, as more specifically
set forth in the last paragraph of Section 4.2.7 below, utilizing a gross-up
method to include a fully-assessed, fully occupied building. Notwithstanding the
foregoing, there shall be no such payment of excess Building Direct Expenses for
the first eighteen (18) months of the Lease Term other than with respect to
requested use of services and utilities beyond the Standard Tenant Services
defined in Article 6 below. The provisions of this Section 4.1 are subject to
the limitations regarding the "Controllable Operating Expenses" set forth in
Section 4.6 below. Such payments by Tenant, together with any and all other
amounts payable by Tenant to Landlord pursuant to the terms of this Lease, are
hereinafter collectively referred to as the "Additional Rent", and the Base Rent
and the Additional Rent are herein collectively referred to as "Rent." All
amounts due under this Article 4 as Additional Rent shall be payable for the
same periods and in the same manner as the Base Rent. Without limitation on
other obligations of Tenant which survive the expiration of the Lease Term, the
obligations of Tenant to pay the Additional Rent provided for in this Article 4
shall survive the expiration of the Lease Term.
4.2 DEFINITIONS OF KEY TERMS RELATING TO ADDITIONAL RENT. As used in
this Article 4, the following terms shall have the meanings hereinafter set
forth:
4.2.1 "BASE YEAR" shall mean the calendar year [ * ] as to the
second floor of the Premises, and [ * ] as to the first floor of the Premises.
4.2.2 "BUILDING DIRECT EXPENSES" shall mean "Building Operating
Expenses" and "Building Tax Expenses", as those terms are defined in Sections
4.2.3 and 4.2.4, below, respectively.
4.2.3 "BUILDING OPERATING EXPENSES" shall mean the portion of
"Operating Expenses," as that term is defined in Section 4.2.7 below, allocated
to the tenants of the Building pursuant to the terms of Section 4.3 below.
4.2.4 "BUILDING TAX EXPENSES" shall mean that portion of "Tax
Expenses", as that term is defined in Section 4.2.8 below, allocated to the
tenants of the Building pursuant to the terms of Section 4.3 below.
4.2.5 "DIRECT EXPENSES" shall mean "Operating Expenses" and "Tax
Expenses."
4.2.6 "EXPENSE YEAR" shall mean each calendar year in which any
portion of the Lease Term falls, through and including the calendar year in
which the Lease Term expires,
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* Portions redacted pursuant to a request for confidential treatment filed
with the Securities and Exchange Commission.
<PAGE> 10
provided that Landlord, upon notice to Tenant, may change the Expense Year from
time to time to any other twelve (12) consecutive month period, and, in the
event of any such change, Tenant's Share of Building Direct Expenses shall be
equitably adjusted for any Expense Year involved in any such change.
4.2.7 "OPERATING EXPENSES" shall mean all expenses, costs and
amounts of every kind and nature which Landlord pays or accrues during any
Expense Year because of or in connection with the ownership, management,
maintenance, security, repair, replacement, restoration or operation of the
Project, or any portion thereof, calculated in accordance with the custom and
practice with institutional owners of Comparable Buildings in accordance with
this Section 4.2.7. Without limiting the generality of the foregoing, Operating
Expenses shall specifically include any and all of the following: (i) the cost
of supplying all utilities, the cost of operating, repairing, maintaining, and
renovating the utility, telephone, mechanical, sanitary, storm drainage, and
elevator systems, and the cost of maintenance and service contracts in
connection therewith; (ii) the cost of licenses, certificates, permits and
inspections and the cost of contesting any governmental enactments which may
affect Operating Expenses, and the costs incurred in connection with a
governmentally mandated transportation system management program or similar
program; (iii) the cost of all insurance carried by Landlord in connection with
the Project as reasonably determined by Landlord; (iv) the cost of landscaping,
relamping, and all supplies, tools, equipment and materials used in the
operation, repair and maintenance of the Project, or any portion thereof; (v)
the cost of parking area repair, restoration, and maintenance; (vi) fees and
other costs, including reasonable management fees, consulting fees, legal fees
and accounting fees, of all contractors and consultants in connection with the
management, operation, maintenance and repair of the Project; (vii) payments
under any equipment rental agreements and the fair rental value of any
management office space not to exceed 950 square feet; (viii) wages, salaries
and other compensation and benefits, including taxes levied thereon, of all
persons engaged in the operation, maintenance and security of the Project; (ix)
costs under any instrument pertaining to the sharing of costs by the Project;
(x) operation, repair, maintenance and replacement of all systems and equipment
and components thereof of the Project; (xi) the cost of janitorial, alarm,
security and other services, replacement of wall and floor coverings, ceiling
tiles and fixtures in common areas, maintenance and replacement of curbs and
walkways, repair to roofs and re-roofing; (xii) amortization (including interest
on the unamortized cost) over the useful life as Landlord shall reasonably
determine, of the cost of acquiring or the rental expense of personal property
used in the maintenance, operation and repair of the Project, or any portion
thereof; (xiii) the cost of capital improvements or other costs incurred in
connection with the Project (A) which are intended to, and do, effect economies
in the operation or maintenance of the Project, or any portion thereof, (B) that
are required to comply with present or anticipated conservation programs, (C)
which are replacements or modifications of nonstructural items located in the
Common Areas required to keep the Common Areas in good order or condition, or
(D) that are required under any governmental law or regulation; provided,
however, that any capital expenditure shall be amortized (including interest on
the amortized cost) over its useful life as Landlord shall reasonably determine;
and (xiv) costs, fees, charges or assessments imposed by, or resulting from any
mandate imposed on Landlord by, any federal, state or local government for fire
and police protection, trash removal, community services, or other services
which do not constitute "Tax Expenses" as that term is defined in Section 4.2.8
below and (xv) payments under any easement, license, operating agreement,
declaration, restrictive covenant, or instrument pertaining to the sharing of
costs by
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<PAGE> 11
the Building. Notwithstanding the foregoing, for purposes of this Lease,
Operating Expenses shall not, however, include:
(a) costs, including marketing costs, legal fees, space planners' fees,
advertising and promotional expenses, and brokerage fees incurred in connection
with the original construction or development, or original or future leasing of
the Project, and costs, including permit, license and inspection costs, incurred
with respect to the installation of tenant improvements made for new tenants
initially occupying space in the Project after the Lease Commencement Date or
incurred in renovating or otherwise improving, decorating, painting or
redecorating vacant space for tenants or other occupants of the Project
(excluding, however, such costs relating to any common areas of the Project or
parking facilities);
(b) except as set forth in items (xii), (xiii), and (xiv) above,
depreciation, interest and principal payments on mortgages and other debt costs,
if any, penalties and interest, costs of capital repairs and alterations, and
costs of capital improvements and equipment;
(c) costs for which the Landlord is reimbursed by any tenant or occupant
of the Project or by insurance by its carrier or any tenant's carrier or by
anyone else, and electric power costs for which any tenant directly contracts
with the local public service company;
(d) any bad debt loss, rent loss, or reserves for bad debts or rent
loss;
(e) costs associated with the operation of the business of the
partnership or entity which constitutes the Landlord, as the same are
distinguished from the costs of operation of the Project (which shall
specifically include, but not be limited to, accounting costs associated with
the operation of the Project). Costs associated with the operation of the
business of the partnership or entity which constitutes the Landlord including
costs of partnership accounting and legal matters, costs of defending any
lawsuits with any mortgagee (except as the actions of the Tenant may be in
issue), costs of selling, syndicating, financing, mortgaging or hypothecating
any of the Landlord's interest in the Project, and costs incurred in connection
with any disputes between Landlord and its employees, between Landlord and
Project management, or between Landlord and other tenants or occupants, and
Landlord's general corporate overhead and general and administrative expenses;
(f) the wages and benefits of any employee who does not devote
substantially all of his or her employed time to the Project unless such wages
and benefits are prorated to reflect time spent on operating and managing the
Project vis-a-vis time spent on matters unrelated to operating and managing the
Project; provided, that in no event shall Operating Expenses for purposes of
this Lease include wages and/or benefits attributable to personnel above the
level of Project manager;
(g) amount paid as ground rental for the Project by the Landlord;
(h) except for a Project management fee to the extent allowed pursuant
to item (m), below, overhead and profit increment paid to the Landlord or to
subsidiaries or affiliates of the Landlord for services in the Project to the
extent the same exceeds the costs of such services rendered by qualified,
first-class unaffiliated third parties on a competitive basis;
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<PAGE> 12
(i) any compensation paid to clerks, attendants or other persons in
commercial concessions operated by the Landlord;
(j) rentals and other related expenses incurred in leasing air
conditioning systems, elevators or other equipment which if purchased the cost
of which would be excluded from Operating Expenses as a capital cost, except
equipment not affixed to the Project which is used in providing janitorial or
similar services and, further excepting from this exclusion such equipment
rented or leased to remedy or ameliorate an emergency condition in the Project;
(k) all items and services for which Tenant or any other tenant in the
Project reimburses Landlord or which Landlord provides selectively to one or
more tenants (other than Tenant) without reimbursement;
(l) costs, other than those incurred in ordinary maintenance and repair,
for sculpture, paintings, fountains or other objects of art;
(m) any costs expressly excluded from Operating Expenses elsewhere in
this Lease;
(n) rent for any office space occupied by Project management personnel
to the extent the size or rental rate of such office space exceeds the size or
fair market rental value of office space occupied by management personnel of the
Comparable Buildings in the vicinity of the Building, with adjustment where
appropriate for the size of the applicable project;
(o) costs arising from the gross negligence or willful misconduct of
Landlord or its agents, employees, vendors, contractors, or providers of
materials or services;
(p) costs incurred to comply with laws relating to the presence of
Hazardous Materials (as defined under applicable law) which, as to Hazardous
Materials located within the real property (exclusive of any improvements) of
the Project, is in existence during the Lease Term, and which, as to Hazardous
Materials located within any improvements on the Project, was in existence prior
to the Lease Commencement Date and was of such a nature that a federal, State or
municipal governmental authority, if it had then had knowledge of the presence
of such hazardous material, in the state, and under the conditions that it then
existed in the Building or on the Project, would have then required the removal
of such Hazardous Materials or other remedial or containment action with respect
thereto; and costs incurred to remove, remedy, contain, or treat hazardous
material, which Hazardous Materials is brought into the Building or onto the
Project after the date hereof by Landlord or any other tenant of the Project and
is of such a nature, at that time, that a federal, State or municipal
governmental authority, if it had then had knowledge of the presence of such
hazardous material, in the state, and under the conditions, that it then exists
in the Building or on the Project, would have then required the removal of such
Hazardous Materials or other remedial or containment action with respect
thereto;
(q) costs arising from Landlord's charitable or political contributions;
(r) any gifts provided to any entity whatsoever, including, but not
limited to, Tenant, other tenants, employees, vendors, contractors, prospective
tenants and agents;
(s) the cost of any magazine, newspaper, trade or other subscriptions;
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<PAGE> 13
(t) costs incurred for the construction or replacement of the structural
components of the Building, including, without limitation, foundations, exterior
walls, roof, beams, columns, footings and structural slabs;
(u) rental under any ground or underlying lease;
(v) legal, accounting or other professional fees and expenses incurred
in connection with defense of Landlord's title to or interest in the Building or
Project or any part thereof;
(w) costs of any improvements, alterations or equipment, which would be
properly classified as capital expenditures according to generally accepted
accounting principles consistently applied (except as specifically permitted
under clauses (xii) or (xiii) in Section 4.2.7 above);
(x) penalties or other costs incurred due to a violation by Landlord, as
determined by written admission, stipulation, final judgment or arbitration
award, or any of the terms and conditions of the Lease or any other lease
relating the Building or Project except to the extent such costs reflect costs
that would have been incurred by Landlord absent such violation;
(y) payments to subsidiaries or affiliates of Landlord for management or
other services on or to the Building or Project for supplies or other materials
to the extent that the cost of such services, supplies or materials materially
exceed the amounts normally payable to unaffiliated third parties for similar
goods and services under similar circumstances (taking into account the market
factors in effect on the date any relevant contracts were negotiated) in
comparable buildings;
(z) all direct or indirect costs of refinancing, selling or exchanging
the Building or Project, including broker commissions, attorneys' fees and
closing costs; and
(aa) costs arising from latent defects in the Base, Shell or Core of the
Building or improvements installed by Landlord or repair thereof.
(bb) costs arising from the installation of canopy covers and other
specialized parking improvements requested by third-party tenants for their
specific spaces.
If Landlord is not furnishing any particular work or service (the cost
of which, if performed by Landlord, would be included in Operating Expenses) to
a tenant who has undertaken to perform such work or service in lieu of the
performance thereof by Landlord, Operating Expenses shall be deemed to be
increased by an amount equal to the additional Operating Expenses which would
reasonably have been incurred during such period by Landlord if it had at its
own expense furnished such work or service to such tenant. Landlord shall not
interpret the provisions of the preceding sentence in a manner which shall
increase Operating Expenses payable by Tenant under this Lease. If the Project
is not at least one hundred percent (100%) occupied during all or a portion of
any Expense Year, Landlord shall make an appropriate adjustment to the
components of Operating Expenses for such year to determine the amount of
Operating Expenses that would have been incurred had the Project been one
hundred percent (100%) occupied; and the amount so determined shall be deemed to
have been the amount of Operating Expenses for such year. Operating Expenses for
the Expense Year shall not
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<PAGE> 14
include market-wide labor-rate increases due to extraordinary circumstances,
including, but not limited to, boycotts and strikes, and utility rate increases
due to extraordinary circumstances including, but not limited to, conservation
surcharges, boycotts, embargoes or other shortages, or amortized costs relating
to capital improvements. For any charge or cost which Tenant is obligated to pay
under this Lease, no such charge or cost item shall be included more than once
or allocated under more than one expense category. The aggregate sum of all cost
items allocable to tenants or occupants of the Building for any year upon which
an allocation is made shall not exceed the aggregate sum of such expense items
which are actually incurred by Landlord in the year in question. For the
purposes of this Article 4, "variable components" include only those component
expenses that are affected by variations in occupancy levels.
4.2.8 TAXES.
4.2.8.1 "TAX EXPENSES" shall mean all federal, state,
county, or local governmental or municipal taxes, fees, charges or other
impositions of every kind and nature, whether general, special, ordinary or
extraordinary, (including, without limitation, real estate taxes, general and
special assessments, transit taxes, personal property taxes imposed upon the
fixtures, machinery, equipment, apparatus, systems and equipment, appurtenances,
furniture and other personal property used in connection with the Project, or
any portion thereof), which shall be paid or accrued during any Expense Year
(without regard to any different fiscal year used by such governmental or
municipal authority) because of or in connection with the ownership, leasing and
operation of the Project, or any portion thereof, exclusive of any tax which
Tenant is required to pay under Section 4.5.3 or for which Landlord receives a
waiver.
4.2.8.2 Tax Expenses shall include, without limitation:
(i) Any assessment, tax, fee, levy or charge in addition to, or in substitution,
partially or totally, of any assessment, tax, fee, levy or charge previously
included within the definition of real property tax; (ii) Any assessment, tax,
fee, levy or charge, upon this transaction or any document to which Tenant is a
party, creating or transferring an interest or an estate in the Premises; and
(iii) All of the real estate taxes and assessments imposed upon or with respect
to the Building and all of the real estate taxes and assessments imposed on the
land and improvements comprising the Project. Such Tax Expenses shall
specifically exclude (i) all excess profits taxes, franchise taxes, gift taxes,
capital stock taxes, inheritance and succession taxes, estate taxes, federal and
state income taxes, and other taxes applied or measured by Landlord's general or
net income (as opposed to rent, receipts, or income attributable to operations
at the Building), (ii) any item included in Operating Expenses, (iii) any tax
which Tenant is required to pay under Section 4.5.3; and (iv) any item for which
Landlord receives a waiver.
4.2.8.3 Any costs and expenses (including, without
limitation, reasonable attorneys' and consultants' fees) incurred in attempting
to protest, reduce or minimize Tax Expenses shall be included in Tax Expenses in
the Expense Year such expenses are incurred. If Tax Expenses for any period
during the Lease Term or any extension thereof are increased after payment
thereof for any reason, including, without limitation, error or reassessment by
applicable governmental or municipal authorities, Tenant shall pay Landlord upon
demand Tenant's Share of any such increased Tax Expenses included by Landlord as
Building Tax Expenses pursuant to the terms of this Lease. Notwithstanding
anything to the contrary contained in this Section 4.2.8 (except as set forth in
Section 4.2.8.1, above), there shall be
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<PAGE> 15
excluded from Tax Expenses (i) all excess profits taxes, franchise taxes, gift
taxes, capital stock taxes, inheritance and succession taxes, estate taxes,
federal and state income taxes, and other taxes to the extent applicable to
Landlord's general or net income (as opposed to rents, receipts or income
attributable to operations at the Project), (ii) any items included as Operating
Expenses, and (iii) any items paid by Tenant under Section 4.5 of this Lease.
4.2.8.4 The amount of Tax Expenses for the Expense Year
attributable to the valuation of the Project, inclusive of tenant improvements,
shall be known as the "Base Taxes". If in any comparison year subsequent to the
Expense Year, the amount of Tax Expenses decreases below the amount of Base
Taxes, then for purposes of all subsequent comparison years, including the
comparison year in which such decrease in Tax Expenses occurred, the Base Taxes,
and therefore the Expense Year, shall be decreased by an amount equal to the
decrease in Tax Expenses.
4.2.8.5 For the purposes of this Lease, Tax Expenses shall
be calculated as if the tenant improvements in the Building were fully
constructed and the real property, the Building, and all tenant improvements in
the Building were fully assessed for real estate tax purposes. Landlord
specifically agrees that the gross-receipts component of Tax Expenses for the
Base Year and each subsequent year shall be calculated as if the Building were
one hundred percent (100%) occupied with rent paying tenants.
4.2.9 "TENANT'S SHARE" shall mean the percentage set forth in
Section 6 of the Summary. Tenant's Share was calculated based on the ratio of
the rentable square footage of the Premises to the total rentable square footage
of the Building. The rentable square feet in the Premises and Building is
measured pursuant to the Standard Method for Measuring Floor Area in Office
Buildings, ANSI Z65.1 - 1996 ("BOMA"), provided that the rentable square footage
of the Building shall include all of, and the rentable square footage of the
Premises therefore shall include a portion of, the square footage of the ground
floor common areas located within the Building and the common area and occupied
space of the portion of the Building or Project, dedicated to the service of the
Building. Not later than thirty (30) days following the Lease Commencement Date,
Landlord and Tenant shall remeasure the Premises to confirm the accuracy of the
measure of the rentable square footage. Any difference between the results
determined by such remeasurement shall be reflected on EXHIBIT C.
4.3 METHOD OF ALLOCATION OF DIRECT EXPENSES. Landlord and Tenant
acknowledge that the Building is a part of a multi-building project and that the
costs and expenses incurred in connection with the Project (i.e. the Direct
Expenses) should be shared between the tenants of the Building and the tenants
of the other buildings in the Project. Accordingly, as set forth in Section 4.2
above, Direct Expenses (which consists of Operating Expenses and Tax Expenses)
are determined annually for the Project as a whole, and a portion of the Direct
Expenses, which portion shall be determined by Landlord on an equitable basis,
shall be allocated to the tenants of the Building (as opposed to the tenants of
any other buildings in the Project) and such portion shall be the Building
Direct Expenses for purposes of this Lease. Such portion of Direct Expenses
allocated to the tenants of the Building shall include all Direct Expenses
attributable solely to the Building and an equitable portion of the Direct
Expenses attributable to the Project as a whole.
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<PAGE> 16
4.4 CALCULATION AND PAYMENT OF ADDITIONAL RENT. If for any Expense Year
ending or commencing within the Lease Term, Tenant's Share of Building Direct
Expenses for such Expense Year exceeds Tenant's Share of Building Direct
Expenses applicable to the Base Year, then Tenant shall pay to Landlord, in the
manner set forth in Section 4.4.1, below, and as Additional Rent, an amount
equal to the excess (the "Excess").
4.4.1 STATEMENT OF ACTUAL BUILDING DIRECT EXPENSES AND PAYMENT BY
TENANT. Landlord shall endeavor to give to Tenant following the end of each
Expense Year, a statement (the "STATEMENT") which shall state the Building
Direct Expenses incurred or accrued for such preceding Expense Year, and which
shall indicate the amount of the Excess. Upon receipt of the Statement for each
Expense Year commencing or ending during the Lease Term, if an Excess is
present, Tenant shall pay, with its next installment of Base Rent due, the full
amount of the Excess for such Expense Year, less the amounts, if any, paid
during such Expense Year as "Estimated Excess," as that term is defined in
Section 4.4.2, below, and if Tenant paid more as Estimated Excess than the
actual Excess, Tenant shall receive a credit in the amount of Tenant's
overpayment against Rent next due under this Lease. The failure of Landlord to
timely furnish the Statement for any Expense Year shall not prejudice Landlord
or Tenant from enforcing its rights under this Article 4. Even though the Lease
Term has expired and Tenant has vacated the Premises, when the final
determination is made of Tenant's Share of Building Direct Expenses for the
Expense Year in which this Lease terminates, if an Excess is present, Tenant
shall immediately pay to Landlord such amount, and if Tenant paid more as
Estimated Excess than the actual Excess, Landlord shall, within thirty (30)
days, deliver a check payable to Tenant in the amount of the overpayment. The
provisions of this Section 4.4.1 shall survive the expiration or earlier
termination of the Lease Term.
4.4.2 STATEMENT OF ESTIMATED BUILDING DIRECT EXPENSES. In
addition, Landlord shall endeavor to give Tenant a yearly expense estimate
statement (the "ESTIMATE STATEMENT") which shall set forth Landlord's reasonable
estimate (the "ESTIMATE") of what the total amount of Building Direct Expenses
for the then-current Expense Year shall be and the estimated excess (the
"ESTIMATED EXCESS") as calculated by comparing the Building Direct Expenses for
such Expense Year, which shall be based upon the Estimate, to the amount of
Building Direct Expenses for the Base Year. The failure of Landlord to timely
furnish the Estimate Statement for any Expense Year shall not preclude Landlord
from enforcing its rights to collect any Estimated Excess under this Article 4,
nor shall Landlord be prohibited from revising any Estimate Statement or
Estimated Excess theretofore delivered to the extent necessary. Thereafter,
Tenant shall pay, with its next installment of Base Rent due, a fraction of the
Estimated Excess for the then-current Expense Year (reduced by any amounts paid
pursuant to the last sentence of this Section 4.4.2). Such fraction shall have
as its numerator the number of months which have elapsed in such current Expense
Year, including the month of such payment, and twelve (12) as its denominator.
Until a new Estimate Statement is furnished (which Landlord shall have the right
to deliver to Tenant at any time), Tenant shall pay monthly, with the monthly
Base Rent installments, an amount equal to one-twelfth (1/12) of the total
Estimated Excess set forth in the previous Estimate Statement delivered by
Landlord to Tenant.
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<PAGE> 17
4.5 TAXES AND OTHER CHARGES FOR WHICH TENANT IS DIRECTLY RESPONSIBLE.
4.5.1 Tenant shall be liable for and shall pay ten (10) days
before delinquency, taxes levied against Tenant's equipment, furniture, fixtures
and any other personal property located in or about the Premises. If any such
taxes on Tenant's equipment, furniture, fixtures and any other personal property
are levied against Landlord or Landlord's property or if the assessed value of
Landlord's property is increased by the inclusion therein of a value placed upon
such equipment, furniture, fixtures or any other personal property and if
Landlord pays the taxes based upon such increased assessment, which Landlord
shall have the right to do regardless of the validity thereof but only under
proper protest if requested by Tenant, Tenant shall upon demand repay to
Landlord the taxes so levied against Landlord or the proportion of such taxes
resulting from such increase in the assessment, as the case may be.
4.5.2 Tenant shall be treated, economically, as if the provisions
of this Section 4.5.2 were included in all leases within the Project. If the
tenant improvements in the Premises, whether installed and/or paid for by
Landlord or Tenant and whether or not affixed to the real property so as to
become a part thereof, are assessed for real property tax purposes at a
valuation higher than the valuation at which tenant improvements conforming to
Landlord's "building standard" in other space in the Building are assessed, then
the Tax Expenses levied against Landlord or the property by reason of such
excess assessed valuation shall be deemed to be taxes levied against personal
property of Tenant and shall be governed by the provisions of Section 4.5.1,
above.
4.5.3 Notwithstanding any contrary provision herein, and
notwithstanding the fact that this Lease is a "Base Year" Lease, Tenant shall
pay, together with and in addition to the Base Rent specified in this Lease,
prior to delinquency, a sum equal to the aggregate of any municipal, city,
county, state or federal excise, sales, use or transaction privilege taxes
legally levied or imposed, or hereafter legally levied or imposed, during the
term hereof or any extension or renewal hereof, against or on account of any or
all amounts payable hereunder by Tenant or the receipt thereof by Landlord
(except state, federal or any other income taxes imposed or levied against
Landlord), including by way of illustration and not limitation any (i) rent tax
or sales tax, service tax, transfer tax or value added tax, or any other
applicable tax on the rent or services herein or otherwise respecting this
Lease, (ii) taxes assessed upon or with respect to the possession, leasing,
operation, management, maintenance, alteration, repair, use or occupancy by
Tenant of the Premises or any portion of the Project, including the Project
parking facility; or (iii) taxes assessed upon this transaction or any document
to which Tenant is a party creating or transferring an interest or an estate in
the Premises.
4.6 CONTROLLABLE COSTS. Notwithstanding anything to the contrary set
forth in this Article 4, for each Expense Year, Tenant's obligation to pay
"Controllable Costs" (as hereinafter defined) shall not increase, on an annual
and cumulative basis, by an amount greater than [*] per year
following the initial lease year. For purposes of this Section 4.6,
"Controllable Costs" shall mean all Operating Expenses and Tax Expenses except:
(i) property taxes and any and all assessments, including assessment districts,
and government mandated charges with respect to the Building or Project, or any
part thereof; (ii) insurance carried by Landlord with respect to the Project
and/or the operation thereof; and (iii) costs of utilities, including, without
limitation, air conditioning, heating, ventilating, plumbing, and electricity
* Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission.
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<PAGE> 18
costs, water and sewer charges, utility surcharges or assessments and refuse
removal. Such limitations shall be calculated on an annual basis and cumulative
basis only, such that Landlord may carry forward increases in Controllable
Operating Expenses in excess of one hundred five percent (105%) and pass them
through to Tenant in subsequent Expense Years so long as the requirements of the
preceding sentence are satisfied.
4.7 LANDLORD'S BOOKS AND RECORDS. Within forty-five (45) days after
receipt of a Statement by Tenant, if Tenant disputes the amount of Additional
Rent set forth in the Statement, a representative, designated by Tenant, may,
after reasonable notice to Landlord and at reasonable times, inspect Landlord's
records at Landlord's offices, provided that Tenant is not then in a state of
monetary default after the applicable cure period has lapsed under this Lease.
If Tenant disputes a line-item amount in the Statement, Tenant may request a
copy of the supporting documents relating to such line-item. If after such
inspection, Tenant still disputes the amount of the Additional Rent set forth in
the statement, Tenant shall have the right, within the ninety (90) days
thereafter, to cause an independent certified public accountant (which
consultant is a member of a regionally recognized accounting firm), as selected
by Tenant and reasonably approved by Landlord (the "Accountant"), to commence
and complete an audit of Landlord's books and records to determine the proper
amount of the Additional Rent payable by Tenant for the Expense Year which is
the subject of such statement, which audit shall be final and binding upon
Landlord and Tenant. If such audit reveals that Landlord has overcharged Tenant,
then Landlord shall credit against Tenant's rental obligations next falling due
the amount of such over-charge with interest at the Interest Rate. If the audit
reveals that the Tenant was under-charged, then within thirty (30) days after
the results of such audit are made available to Tenant, Tenant shall reimburse
to Landlord the amount of such under-charge with interest at the Interest Rate.
Tenant shall pay the costs of such audit unless the Accountant determines that
the amount of Additional Rent set forth in the Statement which was the subject
of such audit was in error to Tenant's disadvantage by more than [*] of the
Operating Expenses and Tax Expenses, in which case Landlord shall pay the cost
of such audit.
ARTICLE 5
USE OF PREMISES
5.1 PERMITTED USE. Tenant shall use the Premises solely for the
Permitted Use set forth in Section 7 of the Summary and Tenant shall not use or
permit the Premises or the Project to be used for any other purpose or purposes
whatsoever without the prior written consent of Landlord, which may be withheld
in Landlord's sole discretion.
5.2 PROHIBITED USES. Tenant further covenants and agrees that Tenant
shall not use, or suffer or permit any person or persons to use, the Premises or
any part thereof for any use or purpose contrary to the provisions of the "Rules
and Regulations" set forth in EXHIBIT D, attached hereto, or in violation of the
laws of the United States of America, the State of Arizona, or the ordinances,
regulations or requirements of the local municipal or county governing body or
other lawful authorities having jurisdiction over the Project, including,
without limitation, any such laws, ordinances, regulations or requirements
relating to hazardous materials or substances, as those terms are defined by
applicable laws now or hereafter in effect. Landlord shall not modify the Rules
and Regulations without Tenant's consent, which shall not be unreasonably
* Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission.
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<PAGE> 19
withheld or delayed, and which consent shall be deemed to be granted by Tenant
so long as such change shall not require Tenant to pay Additional Rent and shall
not unreasonably interfere with Tenant's use of the Premises. Such amendment is
not binding on Tenant until the tenth (10th) business day after Tenant receives
written notice of the change, and no rule shall apply retroactively. The Rules
and Regulations do not take precedence over the specific terms and conditions of
the lease. Tenant shall not do or permit anything to be done in or about the
Premises which will in any way obstruct or interfere with the rights of other
tenants or occupants of the Building, or injure or annoy them or use or allow
the Premises to be used for any unlawful purpose, nor shall Tenant cause,
maintain or permit any nuisance in, on or about the Premises. Tenant shall
comply with, and Tenant's rights and obligations under the Lease and Tenant's
use of the Premises shall be subject and subordinate to, all recorded easements,
covenants, conditions, and restrictions now or hereafter affecting the Project,
provided that any such easements, covenants, conditions, and restrictions
hereafter affecting the Project do not materially and unreasonably interfere
with Tenant's use of the Premises and do not result in any additional monetary
obligation on the part of Tenant other than minor administrative compliance
costs.
5.3 HAZARDOUS MATERIALS.
5.3.1 PROHIBITION ON USE. Tenant shall not use or allow another
person or entity to use any part of the Premises for the storage, use,
treatment, manufacture or sale of Hazardous Materials, except for such products
in the Premises which are incidental to the operation of its offices, such as
photocopy supplies, secretarial supplies and limited janitorial supplies, which
products contain chemicals which are categorized as Hazardous Materials.
Landlord agrees that the use of such products in the Premises in compliance with
all applicable laws and in the manner in which such products are designed to be
used shall not be a violation by Tenant of this Section 5.3.1.
5.3.2 INDEMNITY. Subject to the provisions of Section 10.1 below,
Landlord and Tenant each agree to indemnify, defend, protect and hold the other
harmless from and against any and all claims, actions, administrative
proceedings (including informal proceedings), judgments, damages, punitive
damages, penalties, fines, costs, liabilities, interest or losses, including
reasonable attorneys' fees and expenses, consultant fees, and expert fees,
together with all other costs and expenses of any kind or nature, that arise
during or after the Lease Term directly or indirectly from or in connection with
the presence, suspected presence, release or suspected release of any Hazardous
Materials in or into the air, soil, surface water or groundwater at, on, about,
under or within the Premises or Project or any portion thereof, caused by the
other party, its assignees or subtenants and/or their respective agents,
employees, contractors, licensees or invitees.
5.3.3 REMEDIAL WORK. In the event any investigation or monitoring
of site conditions or any clean-up, containment, restoration, removal or other
remedial work (collectively, the "Remedial Work") is required under any
applicable federal, state or local laws or by any judicial order, or by any
governmental entity as the result of operations or activities upon, or any use
or occupancy of any portion of the Premises by Tenant or Tenant Affiliates,
Tenant shall perform or cause to be performed the Remedial Work in compliance
with such laws or order. All Remedial Work shall be performed by one or more
contractors, selected by Tenant
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and approved in advance in writing by Landlord. All costs and expenses of such
Remedial Work shall be paid by Tenant, including, without limitation, the
charges of such contractor(s), the consulting engineers, and Landlord's
reasonable attorneys' fees and costs incurred in connection with monitoring or
review of such Remedial Work.
5.3.4 DEFINITION OF HAZARDOUS MATERIALS. As used herein, the term
"Hazardous Materials" means any hazardous or toxic substance, material or waste
which is or becomes regulated by any local governmental authority, the State of
Arizona or the United States, including, without limitation, any material or
substance which is (i) defined or listed as a "hazardous waste," "extremely
hazardous waste," "restricted hazardous waste," "hazardous substance" or
"hazardous material" under any applicable federal, state or local law or
administrative code promulgated thereunder, (ii) petroleum products, (iii)
asbestos, (iv) radioactive materials, or (v) polychlorinated biphenyls ("PCBs")
or substances or compounds containing PCBs.
ARTICLE 6
SERVICES AND UTILITIES
6.1 STANDARD TENANT SERVICES. Tenant shall be allowed to use the
Premises on a twenty-four (24) hour seven (7) day per week basis. Landlord shall
provide the following services on all days (unless otherwise stated below)
during the Lease Term.
6.1.1 Subject to limitations imposed by all governmental rules,
regulations and guidelines applicable thereto, and taking into account the fact
that the Premises have been improved with electronic monitoring systems which
program themselves rather than customary thermostats, Landlord shall provide
heating, ventilation and air conditioning ("HVAC") to the Premises in accordance
with that required for normal comfort, given the location of the Building in
Phoenix, Arizona, for normal office use and delivered to the Comparable
Buildings from 7:00 A.M. to 6:00 P.M. Monday through Friday, and on Saturdays
from 8:00 A.M. to 12:00 Noon (collectively, the "BUILDING HOURS"), except for
the date of observation of New Year's Day, Independence Day, Labor Day, Memorial
Day, Thanksgiving Day, Christmas Day, Martin Luther King, Jr. Day, President's
Day and, at Landlord's discretion, other locally or nationally recognized
holidays which are observed by other Comparable Buildings (collectively, the
"HOLIDAYS"). In the event that the Approved Working Drawings do not reflect HVAC
zoning controls or if Tenant desires to add or revise HVAC zoning controls
within the Premises during the Lease Term as an Alteration, Landlord hereby
approves the concept of HVAC zoning controls subject to its plan approval
requirements and other requirements relating to Alterations as set forth in
Article 8 of this Lease.
6.1.2 Landlord shall provide adequate electrical wiring and
electricity for lighting and power in the Premises, provided that (i) the
connected electrical load of the incidental use equipment does not exceed an
average of five (5) watts per rentable square foot of the Premises, and the
electricity so furnished for incidental use equipment will be at a nominal one
hundred twenty (120) volts and no electrical circuit for the supply of such
incidental use equipment will require a current capacity exceeding twenty (20)
amperes, and (ii) the connected electrical load of Tenant's lighting fixtures
does not exceed an average of one (1) watt per usable
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square foot of the Premises, and the electricity so furnished for Tenant's
lighting will be at a nominal two hundred seventy-seven (277) volts, which
electrical usage shall be subject to applicable laws and regulations. Tenant
shall bear the cost of replacement of lamps, starters and ballasts for
non-Building standard lighting fixtures within the Premises. Landlord shall be
responsible, as an Operating Expense for the ordinary, typical and routine
replacement of lamps, starts and ballasts for Building standard lighting
fixtures within the Premises.
6.1.3 Landlord shall provide city water twenty-four (24) hours a
day, seven (7) days a week, from the regular Building outlets for drinking,
lavatory and toilet purposes in the Common Areas.
6.1.4 Landlord shall provide janitorial services to the Premises
and Common Areas serving the Premises, Monday through Friday, except Holidays.
Such janitorial services shall be provided in a manner consistent with that
provided comparable first-class office buildings in the vicinity of the Project.
Landlord shall provide window washing services in a manner consistent with other
comparable buildings in the vicinity of the Building, but in no event less than
two (2) times per year. Tenant shall have the right to contract for additional
janitorial service, at Tenant's sole cost and expense. Landlord shall provide
landscaping maintenance for the Project in a manner consistent with that
provided comparable first-class office buildings in the vicinity of the Project.
6.1.5 Landlord shall provide nonexclusive, non-attended automatic
passenger/freight elevator service, with all elevators in service (subject to
normal maintenance and repair) during the Building Hours, and shall have one
elevator available at all other times, including on the Holidays.
Tenant shall cooperate fully with Landlord at all times and abide by all
regulations, procedures and requirements that Landlord may reasonably prescribe
for the proper functioning and protection of the HVAC, electrical, mechanical
and plumbing systems.
6.2 OVERSTANDARD TENANT USE. Unless identified on plans approved by
Landlord prior to their installation, Tenant shall not, without Landlord's prior
written consent, use heat-generating machines, machines other than normal
fractional horsepower office machines, or equipment or lighting other than
Building standard lights in the Premises, which may affect the temperature
otherwise maintained by the air conditioning system or increase the water
normally furnished for the Premises by Landlord pursuant to the terms of Section
6.1 of this Lease. If Tenant uses water, electricity (including lighting), heat
or air conditioning in excess of that supplied by Landlord pursuant to Section
6.1 of this Lease, Tenant shall pay to Landlord, upon billing, the actual cost
of such excess consumption, the cost of the installation, operation, and
maintenance of equipment which is installed in order to supply such excess
consumption, and the cost of the increased wear and tear on existing equipment
caused by such excess consumption; and Landlord may install devices to
separately meter any increased use and in such event Tenant shall pay the
increased cost directly to Landlord, on demand, at the rates charged by the
public utility company furnishing the same, including the cost of such
additional metering devices. Tenant's use of electricity shall never exceed the
capacity of the feeders to the Project or the risers or wiring installation, and
subject to the terms of Section 29.32, below, Tenant shall not install or use or
permit the installation or use of any computer or electronic data processing
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equipment (other than customary desktop personal computers and similar office
equipment) in the Premises (unless identified on plans approved by Landlord
prior to their installation), without the prior written consent of Landlord. If
Tenant desires to use heat, ventilation or air conditioning during hours other
than those for which Landlord is obligated to supply such utilities pursuant to
the terms of Section 6.1 of this Lease, Tenant shall give Landlord such prior
notice, if any, as Landlord shall from time to time establish as appropriate, of
Tenant's desired use in order to supply such utilities, and Landlord shall
supply such utilities to Tenant at such actual cost to Tenant (which shall be
treated as Additional Rent) as Landlord shall from time to time establish.
Tenant's data center (the "Data Center"), as well as all other portions of the
Premises so designated on the plans, shall be separately metered.
6.3 INTERRUPTION OF USE. Tenant agrees that Landlord shall not be liable
for damages, by abatement of Rent or otherwise, for failure to furnish or delay
in furnishing any service (including telephone and telecommunication services),
or for any diminution in the quality or quantity thereof, when such failure or
delay or diminution is occasioned, in whole or in part, by breakage, repairs,
replacements, or improvements, by any strike, lockout or other labor trouble, by
inability to secure electricity, gas, water, or other fuel at the Building or
Project after reasonable effort to do so, by any riot or other dangerous
condition, emergency, accident or casualty whatsoever, by act or default of
Tenant or other parties, or by any other cause beyond Landlord's reasonable
control; and such failures or delays or diminution shall never be deemed to
constitute an eviction or disturbance of Tenant's use and possession of the
Premises or relieve Tenant from paying Rent or performing any of its obligations
under this Lease; however, notwithstanding Section 29.16, and without limiting
Tenant's remedies hereunder or at law or equity, Landlord agrees that in the
event such interruption prevents Tenant from using some or all of the Premise
and such interruption continues for five (5) days after Landlord's receipt of
notice of same, then Tenant shall be entitled to one (1) day of abated Rent (or
prorated abated Rent if Tenant is using a portion of the Premises) for every one
(1) day which any of the utilities or services described in Section 6.1
generally are not provided to the Premises and the Premises are not occupied by
Tenant as a result thereof, such abatement to be in proportion to the ratio that
the amount of rentable square feet of the Premises which is unfit for occupancy
for the purposes permitted under this Lease bears to the total rentable square
feet of the Premises. If such interruption continues for a period of more than
ninety (90) consecutive days, then Tenant may, at any point after the expiration
of such ninety (90) day period, and so long as such interruption is then
continuing, terminate this Lease and Tenant's remaining obligations hereunder.
Furthermore, Landlord shall not be liable under any circumstances for a loss of,
or injury to, property or for injury to, or interference with, Tenant's
business, including, without limitation, loss of profits, however occurring,
through or in connection with or incidental to a failure to furnish any of the
services or utilities as set forth in this Article 6.
ARTICLE 7
REPAIRS
Tenant shall, at Tenant's own expense, keep the Premises, including all
improvements, fixtures and furnishings therein, and the non-structural floor or
floors of the Building in which the Premises are located, in good order, repair
and condition at all times during the Lease Term. In addition, Tenant shall, at
Tenant's own expense, but under the supervision and subject to the
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prior approval of Landlord, and within any reasonable period of time specified
by Landlord, promptly and adequately repair all damage to the Premises and
replace or repair all damaged, broken, or worn fixtures and appurtenances caused
by Tenant's use of the Premises except for damage caused by ordinary wear and
tear or beyond the reasonable control of Tenant; provided however, that, if
Tenant fails to make such repairs, Landlord may, but need not, make such repairs
and replacements, and Tenant shall pay Landlord the cost thereof, including a
percentage of the cost thereof (to be uniformly, nondiscriminatorily, and
reasonably established for the Building and/or the Project) sufficient to
reimburse Landlord for all overhead, general conditions, fees and other costs or
expenses arising from Landlord's control of such repairs and replacements
forthwith upon being billed for same. Notwithstanding the foregoing, Landlord
shall be responsible for compliance with the American Disabilities Act with
respect to the portions of the Building and Project located outside of the
perimeter of the Premises, and Tenant shall be responsible for compliance with
such Act during the term of the Lease to the extent of its applications to the
area located within the perimeter of the Premises, unless any noncompliance with
such Act within the Premises is a condition which existed due to the design and
construction of the "Base, Shell and Core" as defined in Section 1.1 of EXHIBIT
B to this Lease. Landlord shall also be responsible for repairs to the exterior
walls, foundation and roof of the Building, the structural portions of the
floors of the Building, the systems and equipment of the Building, and the
landscaping, walkways, driveways and parking areas of the Project, except to the
extent that such repairs are required due to the negligence or willful
misconduct of Tenant; provided, however, that if such repairs are due to the
negligence or willful misconduct of Tenant, Landlord shall nevertheless make
such repairs at Tenant's expense. Subject to the limitations of Article 27,
Landlord may, but shall not be required to, enter the Premises at all reasonable
times to make such repairs, alterations, improvements or additions to the
Premises or to the Project or to any equipment located in the Project as
Landlord shall reasonably deem necessary or as Landlord may be required to do by
governmental or quasi-governmental authority or court order or decree. TENANT
HEREBY WAIVES ANY AND ALL RIGHTS UNDER AND BENEFITS OF ARIZONA REVISED STATUTES
SECTION 33-343 OR UNDER ANY SIMILAR LAW, STATUTE, OR ORDINANCE NOW OR HEREAFTER
IN EFFECT.
ARTICLE 8
ADDITIONS AND ALTERATIONS
8.1 LANDLORD'S CONSENT TO ALTERATIONS. Tenant may not make any
improvements, alterations or additions to the Premises or any mechanical,
plumbing or HVAC facilities or systems pertaining to the Premises (collectively,
the "ALTERATIONS") without first procuring the prior written consent of Landlord
to such Alterations, which consent shall be requested by Tenant not less than
five (5) days prior to the commencement thereof, and which consent shall not be
unreasonably withheld or delayed by Landlord, provided it shall be deemed
reasonable for Landlord to withhold its consent to any Alteration which
adversely affects the structural portions or the systems or equipment of the
Building or is visible from the exterior of the Building. The construction of
the initial improvements to the Premises shall be governed by the terms of the
Tenant Work Letter and not the terms of this Article 8.
8.2 MANNER OF CONSTRUCTION. Landlord may impose, as a condition of its
consent to any and all Alterations or repairs of the Premises or about the
Premises, such requirements as
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Landlord in its discretion may deem desirable, including, but not limited to,
the requirement that Tenant utilize for such purposes only contractors,
subcontractors, materials, mechanics and materialmen approved by Landlord, the
requirement that upon Landlord's request, Tenant shall, at Tenant's expense,
remove such Alterations upon the expiration or any early termination of the
Lease Term. At the time of approval of any such alteration, Landlord shall
advise Tenant whether or not Landlord shall require Tenant to remove such
alteration at the end of the Lease Term. Tenant shall construct such Alterations
and perform such repairs in a good and workmanlike manner, in conformance with
any and all applicable federal, state, county or municipal laws, rules and
regulations and pursuant to a valid building permit, issued by the city in which
the Project is located, all in conformance with Landlord's construction rules
and regulations; provided, however, that prior to commencing to construct any
Alteration, Tenant shall meet with Landlord to discuss Landlord's design
parameters and code compliance issues. In the event Tenant performs any
Alterations in the Premises which require or give rise to governmentally
required changes to the "BASE BUILDING," as that term is defined below, then
Landlord shall, at Tenant's expense, make such changes to the Base Building. The
"Base Building" shall include the structural portions of the Building, and the
public restrooms, elevators, exit stairwells and the systems and equipment
located in the internal core of the Building on the floor or floors on which the
Premises are located. In performing the work of any such Alterations, Tenant
shall have the work performed in such manner so as not to obstruct access to the
Project or any portion thereof, by any other tenant of the Project, and so as
not to obstruct the business of Landlord or other tenants in the Project. In
addition to Tenant's obligations under Article 9 of this Lease, upon completion
of any Alterations, Tenant agrees to cause a Notice of Completion to be recorded
in the office of the Recorder of the County in which the Project is located in
accordance with ARIZONA REVISED STATUTES Section 33-993(E) or any successor
statute, and Tenant shall deliver to the Project construction manager a copy of
the "field-grade as-built" drawings of the Alterations as well as all permits,
approvals and other documents issued by any governmental agency in connection
with the Alterations.
8.3 PAYMENT FOR IMPROVEMENTS. If payment is made directly to
contractors, Tenant shall (i) comply with Landlord's requirements for final lien
releases and waivers in connection with Tenant's payment for work to
contractors, and (ii) sign Landlord's standard contractor's rules and
regulations which shall be typical and customary of the contractors rules and
regulations promulgated by institutional owners of the Comparable Buildings. If
Tenant orders any work directly from Landlord, Tenant shall enter into a
construction agreement with Landlord which shall define Landlord's construction
costs, overhead and fee. If Tenant does not order any work directly from
Landlord, Tenant shall reimburse Landlord for Landlord's reasonable, actual,
out-of-pocket costs and expenses actually incurred in connection with Landlord's
review of such work.
8.4 CONSTRUCTION INSURANCE. In addition to the requirements of Article
10 of this Lease, in the event that Tenant makes any Alterations, prior to the
commencement of such Alterations, Tenant shall provide Landlord with evidence
that Tenant carries "Builder's All Risk" insurance in an amount approved by
Landlord covering the construction of such Alterations, and such other insurance
as Landlord may reasonably require, it being understood and agreed that all of
such Alterations shall be insured by Tenant pursuant to Article 10 of this Lease
immediately upon completion thereof.
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8.5 LANDLORD'S PROPERTY.
8.5.1 REMOVAL OBLIGATIONS. All Alterations, improvements,
fixtures, equipment and/or appurtenances which may be installed or placed in or
about the Premises, from time to time, shall be at the sole cost of Tenant and
shall be and become the property of Landlord, except that Tenant may remove any
Alterations, improvements, fixtures and/or equipment which Landlord agreed that
Tenant could remove upon the surrender of the Premises, provided Tenant repairs
any damage to the Premises and Building caused by such removal and returns the
affected portion of the Premises to a building standard tenant improved
condition as determined by Landlord. The following is an itemized list of
Tenant's fixtures which Tenant shall be entitled to remove at the end of the
Lease Term to the extent such items have not been acquired utilizing the Tenant
Improvement Allowance.
<TABLE>
<CAPTION>
Equipment: Furniture, Fixtures and Appliances:
- ---------- -----------------------------------
<S> <C>
Hubs, routers, switches All workstation, office and conference room
Cable/ fiber termination interfaces furniture
file servers Data center racks
voice response units Data center raised floor
voice mail systems Data center cable trays (under the raised
cursor and predictive dialers floor)
phone switches and phones Data center ladder racks (overhead)
security system Wall clocks and whiteboards
security cameras Any related items not aforementioned
card swipes and hand recognition devices
controllers to card swipes
desktop and laptop PC's
printers, fax machines, copiers
Projectors and screens
Video conferencing equipment
Any additional office and/or data equipment
not aforementioned.
</TABLE>
Power and HVAC:
Generator and belly fuel tank
Data Center cooling system and fans
power poles (integrated with workstations)
8.5.2 REMOVAL OBLIGATIONS. Furthermore, Landlord may, by written
notice to Tenant prior to the end of the Lease Term, or given following any
earlier termination of this Lease, require Tenant, at Tenant's expense, to
remove any Alterations or improvements and to repair any damage to the Premises
and Building caused by such removal and return the affected portion of the
Premises to a building standard tenant improved condition as determined by
Landlord. If Tenant fails to complete such removal and/or to repair any damage
caused by the removal of any Alterations or improvements in the Premises and
return the affected portion of
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the Premises to a building standard tenant improved condition as reasonably
determined by Landlord, Landlord may do so and may charge the cost thereof to
Tenant. Tenant hereby protects, defends, indemnifies and holds Landlord harmless
from any liability, cost, obligation, expense or claim of lien in any manner
relating to the installation, placement, removal or financing of any such
Alterations, improvements, fixtures and/or equipment in, on or about the
Premises, which obligations of Tenant shall survive the expiration or earlier
termination of this Lease.
ARTICLE 9
COVENANT AGAINST LIENS
Tenant shall keep the Project and Premises free from any liens or
encumbrances arising out of the work performed, materials furnished or
obligations incurred by or on behalf of Tenant, and shall protect, defend,
indemnify and hold Landlord harmless from and against any claims, liabilities,
judgments or costs (including, without limitation, reasonable attorneys' fees
and costs) arising out of same or in connection therewith. Tenant shall give
Landlord notice at least twenty (20) days prior to the commencement of any such
work on the Premises (or such additional time as may be necessary under
applicable laws) to afford Landlord the opportunity of posting and recording
appropriate notices of non-responsibility. Tenant shall remove any such lien or
encumbrance by bond or otherwise within ten (10) business days after notice by
Landlord, and if Tenant shall fail to do so, Landlord may pay the amount
necessary to remove such lien or encumbrance, without being responsible for
investigating the validity thereof, unless Tenant has commenced legal action to
contest, dispute, or defend the claims of the lienholder and the validity of the
liens and thereafter continues to prosecute this action to a successful judgment
releasing the lienholder's interest in the Premises or the Building. The amount
so paid shall be deemed Additional Rent under this Lease payable upon demand,
without limitation as to other remedies available to Landlord under this Lease.
Nothing contained in this Lease shall authorize Tenant to do any act which shall
subject Landlord's title to the Building or Premises to any liens or
encumbrances whether claimed by operation of law or express or implied contract.
Any claim to a lien or encumbrance upon the Building or Premises arising in
connection with any such work or respecting the Premises not performed by or at
the request of Landlord shall be null and void, or at Landlord's option shall
attach only against Tenant's interest in the Premises and shall in all respects
be subordinate to Landlord's title to the Project, Building and Premises.
ARTICLE 10
INSURANCE
10.1 INDEMNIFICATION AND WAIVER. Tenant hereby assumes all risk of
damage to property or injury to persons in, upon or about the Premises from any
cause whatsoever (including, but not limited to, any personal injuries resulting
from a slip and fall in, upon or about the Premises) and agrees that Landlord,
its partners, subpartners and their respective officers, agents, servants,
employees, and independent contractors (collectively, "LANDLORD PARTIES") shall
not be liable for, and are hereby released from any responsibility for, any
damage either to person or property or resulting from the loss of use thereof,
which damage is sustained by Tenant or by other persons claiming through Tenant.
Tenant shall indemnify, defend, protect,
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and hold harmless the Landlord Parties from any and all loss, cost, damage,
expense and liability (including without limitation court costs and reasonable
attorneys' fees) incurred in connection with or arising from any cause in, on or
about the Premises (including, but not limited to, a slip and fall), any acts,
omissions or negligence of Tenant or of any person claiming by, through or under
Tenant, or of the contractors, agents, servants, employees, invitees, guests or
licensees of Tenant or any such person, in, on or about the Project or any
breach of the terms of this Lease, either prior to, during, or after the
expiration of the Lease Term, provided that the terms of the foregoing indemnity
shall not apply to the negligence or willful misconduct of Landlord. Should
Landlord be named as a defendant in any suit brought against Tenant in
connection with or arising out of Tenant's occupancy of the Premises, Tenant
shall pay to Landlord its costs and expenses incurred in such suit, including
without limitation, its actual professional fees such as reasonable appraisers',
accountants' and attorneys' fees. The provisions of this Section 10.1 shall
survive the expiration or sooner termination of this Lease with respect to any
claims or liability arising in connection with any event occurring prior to such
expiration or termination. Notwithstanding anything to the contrary contained in
this Lease, nothing in this Lease shall impose any obligations on Tenant or
Landlord to be responsible or liable for, and each hereby releases the other
from all liability for, consequential damages other than those consequential
damages incurred by Landlord in connection with a holdover of the Premises by
Tenant after the expiration or earlier termination of this Lease or incurred by
Landlord in connection with any repair, physical construction or improvement
work performed by or on behalf of Tenant in the Project, but Tenant shall not be
responsible for any direct or consequential damages resulting from Landlord's or
contractor's acts in connection with the completion by Landlord of the tenant
improvements in the Premises pursuant to the Tenant Work Letter.
10.2 TENANT'S COMPLIANCE WITH LANDLORD'S FIRE AND CASUALTY INSURANCE.
Tenant shall comply with all non-monetary insurance company requirements
pertaining to the use of the Premises. If Tenant's conduct or use of the
Premises causes any increase in the premium for such insurance policies then
Tenant shall reimburse Landlord for any such increase. Tenant, at Tenant's
expense, shall comply with all rules, orders, regulations or requirements of the
American Insurance Association (formerly the National Board of Fire
Underwriters) and with any similar body.
10.3 TENANT'S INSURANCE. Tenant shall maintain the following coverages
in the following amounts.
10.3.1 Commercial General Liability Insurance covering the
insured against claims of bodily injury, personal injury and property damage
(including loss of use thereof) arising out of Tenant's operations, and
contractual liabilities (covering the performance by Tenant of its indemnity
agreements) including a Broad Form endorsement covering the insuring provisions
of this Lease and the performance by Tenant of the indemnity agreements set
forth in Section 10.1 of this Lease, for limits of liability not less than:
Bodily Injury and Property $3,000,000 each occurrence
Damage Liability $3,000,000 annual aggregate
Personal Injury Liability $3,000,000 each occurrence
$3,000,000 annual aggregate
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0% Insured's participation
10.3.2 Physical Damage Insurance covering (i) all office
furniture, business and trade fixtures, office equipment, free-standing cabinet
work, movable partitions, merchandise and all other items of Tenant's property
on the Premises installed by, for, or at the expense of Tenant, (ii) the "Tenant
Improvements," as that term is defined in the Tenant Work Letter, and any other
improvements which exist in the Premises as of the Lease Commencement Date
(excluding the Base Building) (the "ORIGINAL IMPROVEMENTS"), and (iii) all other
improvements, alterations and additions to the Premises. Such insurance shall be
written on an "all risks" of physical loss or damage basis, for the full
replacement cost value (subject to reasonable deductible amounts) new without
deduction for depreciation of the covered items and in amounts that meet any
co-insurance clauses of the policies of insurance and shall include coverage for
damage or other loss caused by fire or other peril including, but not limited
to, vandalism and malicious mischief, theft, water damage of any type, including
sprinkler leakage, bursting or stoppage of pipes, and explosion, and providing
business interruption and loss-of-earnings coverage for a period of one year.
10.3.3 Worker's Compensation and Employer's Liability or other
similar insurance pursuant to all applicable state and local statutes and
regulations.
10.4 FORM OF POLICIES. The minimum limits of policies of insurance
required of Tenant under this Lease shall in no event limit the liability of
Tenant under this Lease. Such insurance shall (i) name Landlord, and any other
party the Landlord so specifies, as an additional insured, including Landlord's
managing agent, if any; (ii) specifically cover the liability assumed by Tenant
under this Lease, including, but not limited to, Tenant's obligations under
Section 10.1 of this Lease; (iii) be issued by an insurance company having a
rating of not less than A-X in Best's Insurance Guide or which is otherwise
acceptable to Landlord and licensed to do business in the State of Arizona; (iv)
be primary insurance as to all claims thereunder and provide that any insurance
carried by Landlord is excess and is non-contributing with any insurance
requirement of Tenant; (v) be in form and content reasonably acceptable to
Landlord; and (vi) provide that said insurance shall not be canceled or coverage
changed unless thirty (30) days' prior written notice shall have been given to
Landlord and any mortgagee of Landlord. Tenant shall deliver said policy or
policies or certificates thereof to Landlord on or before the Lease Commencement
Date and shall deliver a renewal policy or renewal certificate thereof to
Landlord at least thirty (30) days before the expiration dates thereof. In the
event Tenant shall fail to procure such insurance, or to deliver such policies
or certificate, Landlord may, at its option, procure such policies for the
account of Tenant, and the cost thereof shall be paid to Landlord within five
(5) days after delivery to Tenant of bills therefor.
10.5 SUBROGATION. Landlord and Tenant intend that their respective
property loss risks shall be borne by reasonable insurance carriers to the
extent above provided, and Landlord and Tenant hereby agree to look solely to,
and seek recovery only from, their respective insurance carriers in the event of
a property loss to the extent that such coverage is agreed to be provided
hereunder. The parties each hereby waive all rights and claims against each
other for such losses, and waive all rights of subrogation of their respective
insurers, provided such waiver of subrogation shall not affect the right to the
insured to recover thereunder. The parties agree that their respective insurance
policies are now, or shall be, endorsed such that the waiver of
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subrogation shall not affect the right of the insured to recover thereunder, so
long as no material additional premium is charged therefor.
10.6 ADDITIONAL INSURANCE OBLIGATIONS. Tenant shall carry and maintain
during the entire Lease Term, at Tenant's sole cost and expense, increased
amounts of the insurance required to be carried by Tenant pursuant to this
Article 10 and such other reasonable types of insurance coverage and in such
reasonable amounts covering the Premises and Tenant's operations therein, as may
be reasonably requested by Landlord.
10.7 MINIMUM REQUIREMENTS OF LANDLORD'S INSURANCE. Landlord shall
maintain insurance through individual or blanket policies insuring the Building
against fire and extended coverage (including, if Landlord elects, "all risk"
coverage, earthquake/volcanic action, flood and/or surface water insurance) for
the full replacement cost of the Building, with deductibles and the form and
endorsements of such coverage as reasonably selected by Landlord, together with
rental abatement insurance against loss of Rent in an amount equal to the amount
of Rent for a period of at least twelve (12) months commencing on the date of
loss. Landlord may also carry such other insurance as Landlord may reasonably
deem prudent or advisable, including, without limitation, liability insurance in
such amounts and on such terms as Landlord shall reasonably determine; provided,
however, that such insurance shall be in a form, amount and type of coverage as
carried by other prudent landlords of Comparable Buildings. Tenant shall pay to
Landlord, as a portion of the Operating Expenses, the costs of the insurance
coverages described herein, including, without limitation, Landlord's cost of
any self-insurance deductible or retention.
ARTICLE 11
DAMAGE AND DESTRUCTION
11.1 REPAIR OF DAMAGE TO PREMISES BY LANDLORD. Tenant shall promptly
notify Landlord of any damage to the Premises resulting from fire or any other
casualty. If the Premises or any Common Areas serving or providing access to the
Premises shall be damaged by fire or other casualty, Landlord shall promptly and
diligently, subject to reasonable delays for insurance adjustment or other
matters beyond Landlord's reasonable control, and subject to all other terms of
this Article 11, restore the Base Building, the Premises (including Tenant Work)
and such Common Areas. Such restoration shall be to substantially the same
condition of the Base Building, the Premises (including Tenant Work) and the
Common Areas prior to the casualty, except for modifications required by zoning
and building codes and other laws or by the holder of a mortgage on the Building
or Project. Upon the occurrence of any damage to the Premises, upon notice (the
"LANDLORD REPAIR NOTICE") to Tenant from Landlord, Tenant shall assign to
Landlord (or to any party designated by Landlord) all insurance proceeds payable
to Tenant under Tenant's insurance required under Section 10.3 of this Lease,
and Landlord shall repair any injury or damage to the Tenant Improvements and
the Original Improvements installed in the Premises and shall return such Tenant
Improvements and Original Improvements to their original condition. Landlord
shall not be liable for any inconvenience or annoyance to Tenant or its
visitors, or injury to Tenant's business resulting in any way from such damage
or the repair thereof; provided however, that if such fire or other casualty
shall have damaged the Premises or Common Areas necessary to Tenant's occupancy,
and the Premises are not occupied
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by Tenant as a result thereof, then during the time and to the extent the
Premises are unfit for occupancy, the Rent shall be abated in proportion to the
ratio that the amount of rentable square feet of the Premises which is unfit for
occupancy for the purposes permitted under this Lease bears to the total
rentable square feet of the Premises.
11.2 LANDLORD'S OPTION TO REPAIR. Notwithstanding the terms of Section
11.1 of this Lease, Landlord may elect not to rebuild and/or restore the
Premises, Building and/or Project, and instead terminate this Lease, by
notifying Tenant in writing of such termination within sixty (60) days after the
date of discovery of the damage, such notice to include a termination date
giving Tenant sixty (60) days to vacate the Premises, but Landlord may so elect
only if the Building or Project shall be damaged by fire or other casualty or
cause, whether or not the Premises are affected, and one or more of the
following conditions is present: (i) in Landlord's reasonable judgment, repairs
cannot reasonably be completed within one hundred eighty (180) days after the
date of discovery of the damage (when such repairs are made without the payment
of overtime or other premiums); (ii) the holder of any mortgage on the Building
or Project or ground lessor with respect to the Building or Project shall
require that the insurance proceeds or any portion thereof be used to retire the
mortgage debt, or shall terminate the ground lease, as the case may be; or (iii)
the damage occurs during the last twelve (12) months of the Lease Term. In
addition to Landlord's rights to terminate as set forth above, Tenant shall have
the right to terminate this Lease under this Section 11.2 upon delivery of
thirty (30) days' written notice to Landlord and only if each of the following
conditions is satisfied: (a) the damage to the Project by fire or other casualty
was not caused by the gross negligence or intentional act of Tenant or its
partners or subpartners and their respective officers, agents, servants,
employees, and independent contractors; (b) Tenant is not then in default under
this Lease; (c) as a result of the damage, Tenant cannot reasonably conduct
business from the Premises; and, (d) as a result of the damage to the Project,
Tenant does not occupy or use the Premises at all.
11.3 WAIVER OF STATUTORY PROVISIONS. The provisions of this Lease,
including this Article 11, constitute an express agreement between Landlord and
Tenant with respect to any and all damage to, or destruction of, all or any part
of the Premises, the Building or the Project, and any statute or regulation of
the State of Arizona, including without limitation, Arizona Revised Statutes
Section 33-343, with respect to any rights or obligations concerning damage or
destruction in the absence of an express agreement between the parties, and any
other statute or regulation, now or hereafter in effect, shall have no
application to this Lease or any damage or destruction to all or any part of the
Premises, the Building or the Project.
ARTICLE 12
NONWAIVER
No provision of this Lease shall be deemed waived by either party hereto
unless expressly waived in a writing signed thereby. The waiver by either party
hereto of any breach of any term, covenant or condition herein contained shall
not be deemed to be a waiver of any subsequent breach of same or any other term,
covenant or condition herein contained. The subsequent acceptance of Rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant of any term, covenant or condition of this Lease, other than the
failure of Tenant to pay the particular Rent so accepted, regardless of
Landlord's knowledge of
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such preceding breach at the time of acceptance of such Rent. No acceptance of a
lesser amount than the Rent herein stipulated shall be deemed a waiver of
Landlord's right to receive the full amount due, nor shall any endorsement or
statement on any check or payment or any letter accompanying such check or
payment be deemed an accord and satisfaction, and Landlord may accept such check
or payment without prejudice to Landlord's right to recover the full amount due.
No receipt of monies by Landlord from Tenant after the termination of this Lease
shall in any way alter the length of the Lease Term or of Tenant's right of
possession hereunder, or after the giving of any notice shall reinstate,
continue or extend the Lease Term or affect any notice given Tenant prior to the
receipt of such monies, it being agreed that after the service of notice or the
commencement of a suit, or after final judgment for possession of the Premises,
Landlord may receive and collect any Rent due, and the payment of said Rent
shall not waive or affect said notice, suit or judgment.
ARTICLE 13
CONDEMNATION
If the whole or any part of the Premises, Building or Project shall be
taken by power of eminent domain or condemned by any competent authority for any
public or quasi-public use or purpose, or if any adjacent property or street
shall be so taken or condemned, or reconfigured or vacated by such authority in
such manner as to require the use, reconstruction or remodeling of any part of
the Premises, Building or Project, or if Landlord shall grant a deed or other
instrument in lieu of such taking by eminent domain or condemnation, Landlord
shall have the option to terminate this Lease effective as of the date
possession is required to be surrendered to the authority. If such portion of
the rentable square feet of the Premises is taken such that, in Tenant's
reasonable business judgment, the Premises are no longer suitable for the
conduct of Tenant's business therein, and if the notice of such taking shall be
in effect for at least one hundred eighty (180) days, Tenant shall have the
option to terminate this Lease effective as of the date possession is required
to be surrendered to the authority. Tenant shall not because of such taking
assert any claim against Landlord or the authority for any compensation because
of such taking and Landlord shall be entitled to the entire award or payment in
connection therewith, except that Tenant shall have the right to file any
separate claim available to Tenant for any taking of Tenant's personal property
and fixtures belonging to Tenant and removable by Tenant upon expiration of the
Lease Term pursuant to the terms of this Lease, and for moving expenses, so long
as such claims do not diminish the award available to Landlord, its ground
lessor with respect to the Building or Project or its mortgagee, and such claim
is payable separately to Tenant. All Rent shall be apportioned as of the date of
such termination. If any part of the Premises shall be taken, and this Lease
shall not be so terminated, the Rent shall be proportionately abated.
Notwithstanding anything to the contrary contained in this Article 13, in the
event of a temporary taking of all or any portion of the Premises for a period
of one hundred and eighty (180) days or less, then this Lease shall not
terminate but the Base Rent and the Additional Rent shall be abated for the
period of such taking in proportion to the ratio that the amount of rentable
square feet of the Premises taken bears to the total rentable square feet of the
Premises. Landlord shall be entitled to receive the entire award made in
connection with any such temporary taking.
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ARTICLE 14
ASSIGNMENT AND SUBLETTING
14.1 TRANSFERS. Tenant shall not, without the prior written consent of
Landlord, which shall not be unreasonably withheld or delayed, assign, mortgage,
pledge, hypothecate, encumber, or otherwise transfer, this Lease or any interest
hereunder, permit any assignment, or other transfer of this Lease or any
interest hereunder by operation of law, sublet the Premises or any part thereof
or otherwise permit the occupancy or use of the Premises or any part thereof by
any persons other than Tenant and its employees and contractors (all of the
foregoing are hereinafter sometimes referred to collectively as "TRANSFERS" and
any person to whom any Transfer is made or sought to be made is hereinafter
sometimes referred to as a "TRANSFEREE"). If Tenant desires Landlord's consent
to any Transfer, Tenant shall notify Landlord in writing, which notice (the
"TRANSFER NOTICE") shall include (i) the proposed effective date of the
Transfer, which shall not be less than thirty (30) days nor more than one
hundred eighty (180) days after the date of delivery of the Transfer Notice,
(ii) a description of the portion of the Premises to be transferred (the
"SUBJECT SPACE"), (iii) all of the terms of the proposed Transfer and the
consideration therefor, including calculation of the "Transfer Premium", as that
term is defined in Section 14.3 below, in connection with such Transfer, the
name and address of the proposed Transferee, and a copy of all existing executed
and/or proposed documentation pertaining to the proposed Transfer, including all
existing operative documents to be executed to evidence such Transfer or the
agreements incidental or related to such Transfer, (iv) current financial
statements of the proposed Transferee certified by an officer, partner or owner
thereof, business credit and personal references and history of the proposed
Transferee and any other information reasonably required by Landlord which will
enable Landlord to determine the financial responsibility, character, and
reputation of the proposed Transferee, nature of such Transferee's business and
proposed use of the Subject Space, and (v) an executed estoppel certificate from
Tenant in the form attached hereto as EXHIBIT E. Landlord shall respond to
Tenant within ten (10) business days. Any Transfer made without Landlord's prior
written consent shall, at Landlord's option, be null, void and of no effect, and
shall, at Landlord's option, constitute a default by Tenant under this Lease.
Whether or not Landlord consents to any proposed Transfer, Tenant shall pay
Landlord's reasonable review and processing fees, as well as any reasonable
actual third-party professional fees (including, without limitation, attorneys',
accountants', architects', engineers' and consultants' fees) incurred by
Landlord (which fees, in the case of a Transfer which does not require any
modification of this Lease to accommodate specific requirements of the proposed
Transferee, shall not exceed $1,500), within thirty (30) days after written
request by Landlord.
14.2 LANDLORD'S CONSENT. Landlord shall not unreasonably withhold or
delay its consent to any proposed Transfer of the Subject Space to the
Transferee on the terms specified in the Transfer Notice. Without limitation as
to other reasonable grounds for withholding consent, the parties hereby agree
that it shall be reasonable under this Lease and under any applicable law for
Landlord to withhold consent to any proposed Transfer where one or more of the
following apply:
14.2.1 The Transferee intends to use the Subject Space for
purposes which are not permitted under this Lease;
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14.2.2 The Transferee is either a governmental agency or
instrumentality thereof, and Landlord has not previously approved the occupancy
of any portion of the Project by a governmental entity or instrumentality
thereof;
14.2.3 The Transferee is not a party of reasonable financial
worth and/or financial stability in light of the responsibilities to be
undertaken in connection with the Transfer on the date consent is requested;
14.2.4 The proposed Transfer would cause a violation of another
lease for space in the Project, or would give an occupant of the Project a right
to cancel its lease; or
14.2.5 Either the proposed Transferee, or any person or entity
which directly or indirectly, controls, is controlled by, or is under common
control with, the proposed Transferee, (i) occupies space in the Project at the
time of the request for consent, or (ii) is negotiating with Landlord or has
negotiated with Landlord during the six (6) month period immediately preceding
the date Landlord receives the Transfer Notice, to lease space in the Project.
If Landlord consents to any Transfer pursuant to the terms of this
Section 14.2 (and does not exercise any recapture rights Landlord may have under
Section 14.4 of this Lease), Tenant may within six (6) months after Landlord's
consent, but not later than the expiration of said six-month period, enter into
such Transfer of the Premises or portion thereof, upon substantially the same
terms and conditions as are set forth in the Transfer Notice furnished by Tenant
to Landlord pursuant to Section 14.1 of this Lease, provided that if there are
any changes in the terms and conditions from those specified in the Transfer
Notice (i) such that Landlord would initially have been entitled to refuse its
consent to such Transfer under this Section 14.2, or (ii) which would cause the
proposed Transfer to be more favorable to the Transferee than the terms set
forth in Tenant's original Transfer Notice, Tenant shall again submit the
Transfer to Landlord for its approval and other action under this Article 14
(including Landlord's right of recapture, if any, under Section 14.4 of this
Lease).
14.3 TRANSFER PREMIUM. If Landlord consents to a Transfer, as a
condition thereto which the parties hereby agree is reasonable, Tenant shall pay
to Landlord [*] of any "Transfer Premium," as that term is defined in this
Section 14.3, received by Tenant from such Transferee. "TRANSFER PREMIUM" shall
mean all rent, additional rent or other consideration actually received by
Tenant in connection with the Transfer in excess of the Rent and Additional Rent
payable by Tenant under this Lease during the term of the Transfer on a per
rentable square foot basis if less than all of the Premises is transferred,
after deducting the reasonable expenses incurred by Tenant for (i) any changes,
alterations and improvements to the Premises in connection with the Transfer,
(ii) any free base rent reasonably provided to the Transferee in connection with
the Transfer, (iii) any brokerage commissions in connection with the Transfer,
(iv) legal fees, (v) moving costs, (vi) advertising costs; (vii) lease
takeover/assumption costs, (viii) key money, bonus money or other cash
consideration paid by Transferee to Tenant in connection with such Transfer,
(ix) any payment in excess of fair market value for services rendered by Tenant
to Transferee or for assets, fixtures, inventory, equipment, or furniture
transferred by Tenant to Transferee in connection with such Transfer, and (x)
any other costs necessary to induce the Transferee to enter into the Transfer
with Tenant (collectively, "TENANT'S SUBLEASING COSTS").
* Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission.
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14.4 [INTENTIONALLY DELETED]
14.5 EFFECT OF TRANSFER. If Landlord consents to a Transfer, (i) the
terms and conditions of this Lease shall in no way be deemed to have been waived
or modified, (ii) such consent shall not be deemed consent to any further
Transfer by either Tenant or a Transferee, (iii) Tenant shall deliver to
Landlord, promptly after execution, an original executed copy of all
documentation pertaining to the Transfer in form reasonably acceptable to
Landlord, (iv) Tenant shall furnish upon Landlord's request a complete
statement, certified by an independent certified public accountant, or Tenant's
chief financial officer, setting forth in detail the computation of any Transfer
Premium Tenant has derived and shall derive from such Transfer, and (v) no
Transfer relating to this Lease or agreement entered into with respect thereto,
whether with or without Landlord's consent, shall relieve Tenant or any
guarantor of the Lease from any liability under this Lease, including, without
limitation, in connection with the Subject Space. Landlord or its authorized
representatives shall have the right at all reasonable times to audit the books,
records and papers of Tenant relating to any Transfer, and shall have the right
to make copies thereof. If the Transfer Premium respecting any Transfer shall be
found understated, Tenant shall, within thirty (30) days after demand, pay the
deficiency, and if understated by more than two percent (2%), Tenant shall pay
Landlord's costs of such audit.
14.6 NON-TRANSFERS. Notwithstanding anything to the contrary contained
in Article 14 of this Lease, an assignment or subletting by Tenant of all or a
portion of the Premises or this Lease to (i) a parent or subsidiary of Tenant,
or (ii) any person or entity which controls, is controlled by or under common
control with Tenant, or (iii) any entity which purchases all or substantially
all of the stock or assets of Tenant, or (iv) any entity into which Tenant is
merged or consolidated (all such persons or entities described in (i), (ii),
(iii) and (iv) being sometimes hereinafter referred to as "Affiliates"), shall
not require Landlord's consent and shall not be deemed a Transfer under Article
14 of this Lease, provided that (a) any such Affiliate was not formed as a
subterfuge to avoid the obligations of Article 14 of this Lease; (b) Tenant
gives Landlord at least ten (10) days' prior notice of any such assignment or
sublease to an Affiliate or as soon as reasonably possible as may be provided by
any applicable laws or regulations; (c) such Affiliate shall have, as of the
effective date of any such assignment or sublease, a tangible net worth,
computed in accordance with generally accepted accounting principles (but
excluding goodwill as an asset), which is sufficient to meet the obligations of
Tenant under this Lease and is equal to or greater than the net worth of Tenant
as of the date of the Transfer; (d) any such assignment or sublease shall be
subject and subordinate to all of the terms and provisions of this Lease, and
such Affiliate shall assume, in a written document reasonably satisfactory to
Landlord and delivered to Landlord upon or prior to the effective date of such
assignment or sublease, all the obligations of Tenant under this Lease with
respect to the portion of the Premises which is the subject of such assignment
or sublease (other than the amount of Base Rent payable by Tenant with respect
to a sublease); and (e) Tenant and any guarantor shall remain fully liable for
all obligations to be performed by Tenant under this Lease. Landlord hereby
acknowledges that Tenant has advised Landlord that Tenant will become affiliated
with NextBank, and, upon receipt of notice by Landlord of its formation, agrees
that NextBank shall be an Affiliate for purposes of this Section 14.6. In
addition, a sale or transfer of the capital stock of Tenant shall be permitted
without Landlord's consent, provided, that (A) such sale or transfer occurs in
connection with any bona fide financing or capitalization for the benefit of
Tenant or (B) Tenant initially becomes a publicly traded corporation; provided,
however, that
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(i) any such sale or transfer was not done as a subterfuge to avoid the
obligations of Articles 14 of this Lease; (ii) Tenant gives Landlord at least
ten (10) days prior notice of any such sale or transfer, described in (A) or (B)
above, or as soon as reasonably possible as may be provided by any applicable
laws or regulations; and (iii) if the resulting entity, as of the effective date
of any such sale or transfer does not have a tangible net worth, computed in
accordance with GAAP (but excluding goodwill as an asset) which is sufficient to
meet the obligations of Tenant under this Lease and is not equal to or greater
than the net worth of Tenant as of the date of the Transfer, then Landlord shall
have the right to request an additional amount to add to the Security Deposit
from such resulting entity in order to assure the performance of Tenant's
obligations under this Lease.
14.7 OCCURRENCE OF DEFAULT. Any Transfer hereunder shall be subordinate
and subject to the provisions of this Lease, and if this Lease shall be
terminated during the term of any Transfer, Landlord shall have the right to:
(i) treat such Transfer as canceled and repossess the Subject Space by any
lawful means, or (ii) require that such Transferee attorn to and recognize
Landlord as its landlord under any such Transfer. If Tenant shall be in default
under this Lease, Landlord is hereby irrevocably authorized, as Tenant's agent
and attorney-in-fact, to direct any Transferee to make all payments under or in
connection with the Transfer directly to Landlord (which Landlord shall apply
towards Tenant's obligations under this Lease) until such default is cured. Such
Transferee shall rely on any representation by Landlord that Tenant is in
default hereunder, without any need for confirmation thereof by Tenant. Upon any
assignment, the assignee shall assume in writing all obligations and covenants
of Tenant thereafter to be performed or observed under this Lease. No collection
or acceptance of rent by Landlord from any Transferee shall be deemed a waiver
of any provision of this Article 14 or the approval of any Transferee or a
release of Tenant from any obligation under this Lease, whether theretofore or
thereafter accruing. In no event shall Landlord's enforcement of any provision
of this Lease against any Transferee be deemed a waiver of Landlord's right to
enforce any term of this Lease against Tenant or any other person. If Tenant's
obligations hereunder have been guaranteed, Landlord's consent to any Transfer
shall not be effective unless the guarantor also consents to such Transfer.
14.8 RELEASE OF TENANT. If Landlord approves a Transfer which is an
assignment by Tenant to: (i) in the case of a publicly held company, an entity
with a market share equal to or greater than the "Market Cap" of Tenant (i.e.,
common outstanding shares multiplied by the price per share) as of the date of
execution of this Lease, or, if higher, the Market Cap of Tenant as of the date
of the request for approval of such Transfer (but in no event higher than
[ * ]); or, (ii) in the case of a non-publicly held company, to an entity with
a net worth, as reflected in such entity's most recent audited financial
statements, of [*], Landlord shall, upon the full execution and
delivery of Landlord's consent to such assignment, enter into a release
agreement whereby Tenant shall be relieved of all further liability or
obligation under this Lease.
* Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission.
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ARTICLE 15
SURRENDER OF PREMISES; OWNERSHIP
AND REMOVAL OF TRADE FIXTURES
15.1 SURRENDER OF PREMISES. No act or thing done by either party or its
agent or employee during the Lease Term shall be deemed to constitute an
acceptance by Landlord of a surrender of the Premises unless such intent is
specifically acknowledged in writing by both parties. The delivery of keys to
the Premises to Landlord or any agent or employee of Landlord shall not
constitute a surrender of the Premises or effect a termination of this Lease,
whether or not the keys are thereafter retained by Landlord, and notwithstanding
such delivery Tenant shall be entitled to the return of such keys at any
reasonable time upon request until this Lease shall have been properly
terminated. The voluntary or other surrender of this Lease by Tenant, whether
accepted by Landlord or not, or a mutual termination hereof, shall not work a
merger, and at the option of Landlord shall operate as an assignment to Landlord
of all subleases or subtenancies affecting the Premises or terminate any or all
such sublessees or subtenancies.
15.2 REMOVAL OF TENANT PROPERTY BY TENANT. Within three (3) days
following the expiration of the Lease Term, or upon any earlier termination of
this Lease, Tenant shall, subject to the provisions of this Article 15, quit and
surrender possession of the Premises to Landlord in as good order and condition
as when Tenant took possession and as thereafter improved by Landlord and/or
Tenant, reasonable wear and tear and repairs which are specifically made the
responsibility of Landlord hereunder excepted. Within such three (3) day period,
Tenant shall, without expense to Landlord, remove or cause to be removed from
the Premises all debris and rubbish, and such items of furniture, equipment,
business and trade fixtures, free-standing cabinet work, movable partitions and
other articles of personal property owned by Tenant or installed or placed by
Tenant at its expense in the Premises, and such similar articles of any other
persons claiming under Tenant, as Landlord may, in its sole discretion, require
to be removed, and Tenant shall repair at its own expense all damage to the
Premises and Building resulting from such removal. Within said three (3) day
period Tenant shall not be obligated to pay Rent.
ARTICLE 16
HOLDING OVER
If Tenant holds over after the expiration of the Lease Term or earlier
termination thereof, with or without the express or implied consent of Landlord,
such tenancy shall be from month-to-month only, and shall not constitute a
renewal hereof or an extension for any further term, and in such case Rent shall
be payable at a monthly rate equal to the product of (i) the Rent applicable
during the last rental period of the Lease Term under this Lease, and (ii) a
percentage equal to (A) [*] for the first and second months of such holdover;
(B) [*] for the third month of such holdover; and (C) [*] for the fourth month
and any additional months of such holdover as liquidated damages. Such
month-to-month tenancy shall be subject to every other applicable term, covenant
and agreement contained herein. Nothing contained in this Article 16 shall be
construed as consent by Landlord to any holding over by Tenant, and Landlord
expressly reserves the right to require Tenant to surrender possession of the
Premises to Landlord as
* Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission.
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provided in this Lease upon the expiration or other termination of this Lease.
The provisions of this Article 16 shall not be deemed to limit or constitute a
waiver of any other rights or remedies of Landlord provided herein or at law. If
Tenant fails to surrender the Premises upon the termination or expiration of
this Lease, in addition to any other liabilities to Landlord accruing therefrom,
Tenant shall protect, defend, indemnify and hold Landlord harmless from all
loss, costs (including reasonable attorneys' fees) and liability resulting from
such failure, including, without limiting the generality of the foregoing, any
claims made by any succeeding tenant founded upon such failure to surrender and
any lost profits to Landlord resulting therefrom.
ARTICLE 17
ESTOPPEL CERTIFICATES
Within ten (10) days following a request in writing by Landlord, which
request shall be given no more frequently than once in any consecutive twelve
(12) month period and which may only be given in the context of a proposed
financing to be secured by a lien on the Project or a proposed sale of the
Project, Tenant shall execute, acknowledge and deliver to Landlord an estoppel
certificate, which, as submitted by Landlord, shall be substantially in the form
of EXHIBIT E, attached hereto (or such other form as may be required by any
prospective mortgagee or purchaser of the Project, or any portion thereof),
indicating therein any exceptions thereto that may exist at that time, and shall
also contain any other information reasonably requested by Landlord or
Landlord's mortgagee or prospective mortgagee. Any such certificate may be
relied upon by any prospective mortgagee or purchaser of all or any portion of
the Project. Tenant shall execute and deliver whatever other instruments may be
reasonably required for such purposes. Within ten (10) days following a request
in writing by Tenant, Landlord shall execute and deliver to Tenant an estoppel
certificate similar in form and substance to EXHIBIT E, taking into account the
context of the fact that the Landlord is executing such certificate. At any time
during the Lease Term, Landlord may require Tenant to provide Landlord with a
current financial statement and financial statements of the two (2) years prior
to the current financial statement year, audited if such statements had been
prepared by a third-party auditor or, if internally prepared, certified by an
officer of Tenant. Failure of Tenant to timely execute, acknowledge and deliver
such estoppel certificate or other instruments shall constitute an acceptance of
the Premises and an acknowledgment by Tenant that statements included in the
estoppel certificate are true and correct, without exception.
ARTICLE 18
SUBORDINATION
This Lease shall be subject and subordinate to all present and future
ground or underlying leases of the Building or Project and to the lien of any
mortgage, trust deed or other encumbrances now or hereafter in force against the
Building or Project or any part thereof, if any, and to all renewals,
extensions, modifications, consolidations and replacements thereof, and to all
advances made or hereafter to be made upon the security of such mortgages or
trust deeds, unless the holders of such mortgages, trust deeds or other
encumbrances, or the lessors under such ground lease or underlying leases,
require in writing that this Lease be superior thereto. Landlord shall provide a
commercially reasonable subordination, attornment and nondisturbance
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agreement ("SNDA") from Guaranty Federal Bank which currently holds a first
mortgage lien encumbering the Project. The standard form of SNDA issued by
Guaranty Federal Bank, attached as EXHIBIT F, has been delivered to Tenant and
any modifications thereto which shall be necessary to cause such SNDA to be
"commercially reasonable" shall be negotiated by Landlord, Tenant and Guaranty
Federal Bank in a diligent manner so as to complete, execute and record the SNDA
not later than sixty (60) days following the date of this Lease. Further,
Landlord shall use its best good faith, diligent and commercially reasonable
efforts to provide Tenant with a nondisturbance agreement in a commercially
reasonable and recordable form from any future lender holding a deed of trust on
the Project. Tenant covenants and agrees in the event any proceedings are
brought for the foreclosure of any such mortgage or deed in lieu thereof (or if
any ground lease is terminated), to attorn, without any deductions or set-offs
whatsoever except as expressly provided in this Lease or in any SNDA, to the
lienholder or purchaser or any successors thereto upon any such foreclosure sale
or deed in lieu thereof (or to the ground lessor), if so requested to do so by
such purchaser or lienholder or ground lessor, and to recognize such purchaser
or lienholder or ground lessor as the lessor under this Lease, provided such
lienholder or purchaser or ground lessor shall agree to accept this Lease and
not disturb Tenant's occupancy, so long as Tenant timely pays the rent and
observes and performs the terms, covenants and conditions of this Lease to be
observed and performed by Tenant. Landlord's interest herein may be assigned as
security at any time to any lienholder. Tenant shall, within ten (10) days of
request by Landlord, execute such further instruments or assurances as Landlord
may reasonably deem necessary to evidence or confirm the subordination or
superiority of this Lease to any such mortgages, trust deeds, ground leases or
underlying leases.
ARTICLE 19
DEFAULTS; REMEDIES
19.1 EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute a default of this Lease by Tenant:
19.1.1 Any failure by Tenant to pay any Rent or any other charge
required to be paid under this Lease, or any part thereof, when due unless such
failure is cured within five (5) business days after Tenant's receipt of notice;
or
19.1.2 Except where a specific time period is otherwise set forth
for Tenant's performance in this Lease, in which event the failure to perform by
Tenant within such time period shall be a default by Tenant under this Section
19.1.2, any failure by Tenant to observe or perform any other provision,
covenant or condition of this Lease to be observed or performed by Tenant where
such failure continues for thirty (30) days after written notice thereof from
Landlord to Tenant; provided that if the nature of such default is such that the
same cannot reasonably be cured within a thirty (30) day period, Tenant shall
not be deemed to be in default if it diligently commences such cure within such
period and thereafter diligently proceeds to rectify and cure such default; or
19.1.3 Abandonment of the Premises for a period of fifteen (15)
days following delivery of notice to Tenant that Tenant has failed to pay a
scheduled Base Rent or Additional Rent payment hereunder, or vacation of all or
a substantial portion of the Premises by Tenant
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unless adequate security procedures have been approved by Landlord and
maintained in force by Tenant at Tenant's sole cost and expense in order to
avoid vandalism at the Premises and in order to minimize increases in insurance
premiums for the Building; or
19.1.4 To the extent permitted by law, a general assignment by
Tenant or any guarantor of the Lease for the benefit of creditors, or the taking
of any corporate action in furtherance of bankruptcy or dissolution whether or
not there exists any proceeding under an insolvency or bankruptcy law, or the
filing by or against Tenant or any guarantor of any proceeding under an
insolvency or bankruptcy law, unless in the case of a proceeding filed against
Tenant or any guarantor the same is dismissed within sixty (60) days, or the
appointment of a trustee or receiver to take possession of all or substantially
all of the assets of Tenant or any guarantor, unless possession is restored to
Tenant or such guarantor within thirty (30) days, or any execution or other
judicially authorized seizure of all or substantially all of Tenant's assets
located upon the Premises or of Tenant's interest in this Lease, unless such
seizure is discharged within thirty (30) days.
The notice periods provided herein are in lieu of, and not in addition
to, any notice periods provided by law.
19.2 REMEDIES UPON DEFAULT. Upon the occurrence of any event of default
by Tenant, Landlord shall have, in addition to any other remedies available to
Landlord at law or in equity (all of which remedies shall be distinct, separate
and cumulative), the option to pursue any one or more of the following remedies,
each and all of which shall be cumulative and nonexclusive, without any notice
or demand whatsoever.
19.2.1 Terminate this Lease, in which event Tenant shall
immediately surrender the Premises to Landlord, and if Tenant fails to do so,
Landlord may, without prejudice to any other remedy which it may have for
possession or arrearages in rent, enter upon and take possession of the Premises
and expel or remove Tenant and any other person who may be occupying the
Premises or any part thereof, without being liable for prosecution or any claim
or damages therefor; and Landlord may recover from Tenant the following:
(i) The worth at the time of any unpaid rent which has been
earned at the time of such termination; plus
(ii) The worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination until the
time of award exceeds the amount of such rental loss that Tenant proves
could have been reasonably avoided; plus
(iii) The worth at the time of award of the amount by which the
unpaid rent for the balance of the Lease Term after the time of award
exceeds the amount of such rental loss that Tenant proves could have
been reasonably avoided; plus
(iv) Any other amount necessary to compensate Landlord for all
the detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or which in the ordinary course of things
would be likely to result therefrom, specifically including but not
limited to, brokerage commissions and advertising expenses incurred,
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and expenses of remodeling the Premises or any portion thereof for a new
tenant, whether for the same or a different use; and
(v) At Landlord's election, such other amounts in addition to or
in lieu of the foregoing as may be permitted from time to time by
applicable law.
The term "rent" as used in this Section 19.2 shall be deemed to have the
meaning assigned such term in the Lease. As used in Sections 19.2.1(i) and (ii),
above, the "worth at the time of award" shall be computed by allowing interest
at the rate set forth in Article 25 of this Lease, but in no case greater than
the maximum amount of such interest permitted by law. As used in Section
19.2.1(iii) above, the "worth at the time of award" shall be computed by
discounting such amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of award plus one percent (1%).
19.2.2 Landlord shall at all times have all the rights and
remedies available at law or in equity (which shall be cumulative with each
other and cumulative and in addition to those rights and remedies available
under Section 19.2.1 above or other provision of this Lease), without prior
demand or notice except as required by applicable law, to seek any declaratory,
injunctive or other equitable relief, and specifically enforce this Lease, or
restrain or enjoin a violation or breach of any provision hereof, and including,
without limitation, the following:
(i) Landlord may re-enter and take possession of all or any part
of the Premises and remove Tenant and any person claiming under Tenant
from the Premises, using reasonable force, if necessary, and without
committing a trespass or becoming liable for any loss or damage that may
be occasioned thereby. Landlord may also change the locks to the
Premises without notice at Tenant's expense. Re-entry and repossession
of the Premises will not by themselves terminate the Lease.
(ii) Landlord may remove any property, including fixtures, from
the Premises and store the same at Tenant's expense in a warehouse or
any other location, or Landlord may lease the property on the Premises
pending sale or other disposition. If Landlord leaves the property on
the Premises or stores it at another location owned or controlled by
Landlord, then Landlord may charge Tenant a reasonable fee for storing
and handling the property comparable to what Landlord would have had to
pay to a third party for such services. Landlord will not be liable
under any circumstances to Tenant or to anyone else for any damage to
the property. Landlord shall proceed to sell Tenant's property in
accordance with Arizona law.
(iii) Landlord may collect any rents or other payments that
become due from any subtenant, concessionaire or licensee, and may in
his own name or in Tenant's name bring suit for such amounts, and settle
any claims therefor, without approving the terms of the sublease or of
Tenant's agreement with the concessionaire or licensee and without
prejudice to Landlord's right to terminate the sublease or agreement
without cause and remove the subtenant, concessionaire or licensee from
the Premises.
(iv) Landlord may appoint, or have appointed through appropriate
court proceedings, a receiver to take possession of the Premises and
operate Tenant's business
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in accordance with the terms of the Lease, with full power to exercise
all rights and privileges Tenant has under the Lease, including the
power to collect the income and pay the expenses of the business, or
with such limited powers as Landlord or the court appointing the
receiver may deem advisable. The receiver will not be required to post
any bond, and will be entitled to obtain insurance to protect himself
against liability from his errors and omissions or otherwise arising in
the course of performing of his duties. The fees and expenses of the
receiver, including the cost of any errors and omissions or liability
insurance, will be charged to Tenant.
(v) Landlord may relet the Premises at whatever rent and on
whatever terms and conditions are commercially reasonable. The term of
any new lease may be shorter or longer than the remaining term of this
Lease. In reletting the Premises, Landlord may make any alterations or
repairs to the Premises he feels are necessary or desirable; may
subdivide the Premises into more than one unit and lease each portion
separately; may sell Tenant's improvements, fixtures and other property
located on the Premises to the new tenant, or include such improvements,
fixtures and property as part of the Premises without additional cost;
may advertise the Premises for sale or lease; may hire brokers or other
agents; and, may do anything else he deems necessary or helpful in
reletting the Premises. Tenant will be liable to Landlord for all costs
and expenses of the reletting including but not limited to rental
concessions to the new tenant, broker's commissions and tenant
improvements, and will remain liable for the rent and all other charges
arising under the Lease, less any income received from the new tenant,
unless the Lease is terminated as set forth below.
(vi) Landlord may sue Tenant for possession of the Premises, for
damages for breach of the Lease, and for any other appropriate relief,
either in the same or in separate actions. Landlord may recover all
costs and expenses he incurs in any such suit, including reasonable
attorneys' fees.
19.2.3 Landlord shall at all times have the rights and remedies
(which shall be cumulative with each other and cumulative and in addition to
those rights and remedies available under Sections 19.2.1 and 19.2.2, above, or
any law or other provision of this Lease), without prior demand or notice except
as required by applicable law, to seek any declaratory, injunctive or other
equitable relief, and specifically enforce this Lease, or restrain or enjoin a
violation or breach of any provision hereof.
19.3 SUBLEASES OF TENANT. Subject to the provisions of Section 14,
whether or not Landlord elects to terminate this Lease on account of any default
by Tenant, as set forth in this Article 19, Landlord shall have the right to
terminate any and all subleases, licenses, concessions or other consensual
arrangements for possession entered into by Tenant and affecting the Premises or
may, in Landlord's sole discretion, succeed to Tenant's interest in such
subleases, licenses, concessions or arrangements. In the event of Landlord's
election to succeed to Tenant's interest in any such subleases, licenses,
concessions or arrangements, Tenant shall, as of the date of notice by Landlord
of such election, have no further right to or interest in the rent or other
consideration receivable thereunder.
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19.4 EFFORTS TO RELET. No re-entry or repossession, repairs,
maintenance, changes, alterations and additions, reletting, appointment of a
receiver to protect Landlord's interests hereunder, or any other action or
omission by Landlord shall be construed as an election by Landlord to terminate
this Lease or Tenant's right to possession, or to accept a surrender of the
Premises, nor shall same operate to release Tenant in whole or in part from any
of Tenant's obligations hereunder, unless express written notice of such
intention is sent by Landlord to Tenant. Tenant hereby irrevocably waives any
right otherwise available under any law to redeem or reinstate this Lease.
19.5 LANDLORD'S DEFAULT. Landlord's failure to perform any of its
obligations under this Lease shall constitute a default by Landlord under the
Lease if the failure continues for thirty (30) days after written notice of the
failure from Tenant to Landlord itemizing with reasonable particularity the
basis of such claim. If the required performance is factually required of
Landlord and cannot be completed within thirty (30) days, Landlord's failure to
perform shall constitute a default under the Lease unless Landlord undertakes to
cure the failure within thirty (30) days and diligently and continuously
attempts to complete this cure as soon as reasonably possible.
ARTICLE 20
COVENANT OF QUIET ENJOYMENT
Landlord covenants that, so long as Tenant is not in default hereunder,
Tenant shall, during the Lease Term, peaceably and quietly have, hold and enjoy
the Premises subject to the terms, covenants, conditions, provisions and
agreements hereof without interference by any persons lawfully claiming by or
through Landlord.
ARTICLE 21
SECURITY DEPOSIT
In lieu of a cash deposit, Tenant shall, pursuant to the provisions of
Article 31 of this Lease, deposit with Landlord the "Letter of Credit" defined
in said Article 31 to serve as security for the faithful performance by Tenant
of all of its obligations under this Lease. Any reference in this Lease to the
term "Security Deposit" shall mean and refer to the Letter of Credit.
ARTICLE 22
INTENTIONALLY DELETED
ARTICLE 23
SIGNS
23.1 FULL FLOORS. Subject to Landlord's prior written approval, which
shall not be unreasonably withheld or delayed, and provided all signs are in
keeping with the quality, design and style of the Building and Project, Tenant,
if the Premises comprise an entire floor of the Building, at its sole cost and
expense, may install identification signage anywhere in the
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Premises, including in the elevator lobby of the Premises, provided that such
signs must not be visible from the exterior of the Building; provided, however,
that Landlord shall at all times provide at least one (1) sign or directory in
the elevator lobby of such Premises displaying the name and suite number of
Tenant.
23.2 MULTI-TENANT FLOORS. If other tenants occupy space on the floor on
which the Premises is located, Tenant's identifying signage shall be provided by
Landlord, at Tenant's cost, and such signage shall be comparable to that used by
Landlord for other similar floors in the Building and shall comply with
Landlord's then-current Building standard signage program.
23.3 EXTERIOR SIGNAGE. Tenant, at Tenant's sole expense, shall have the
exclusive right to install two (2) prominent back-lit building parapet signs
(facing north and south), as well as the non-exclusive right to install one (1)
blank side strip on both the east and west facing sides of the monuments located
on the Project at Washington Street and Van Buren Street for a total of four (4)
strips. TENANT'S SIDE STRIPS SHALL, AT ALL TIMES DURING ITS TENANCY, OCCUPY THE
TOP AND HIGHEST POSITION ON SUCH MONUMENTS (ALL AS MORE PARTICULARLY SHOWN ON
EXHIBIT H ATTACHED). As used in the foregoing sentence, the word "parapet" shall
mean and refer to the architectural feature of the Building which is the
vertical continuation of the exterior skin of the Building for several feet
above the roof line, the function of which is to screen the roof-mounted
equipment, and to which permitted exterior signage is typically affixed.
Landlord hereby agrees that Tenant shall have the right to transfer its parapet
and monument exterior signage rights to an Affiliate, or an assignee of Tenant
which is approved by Landlord pursuant to the provisions of Article 14 above.
Said signage will be subject to Landlord's reasonable approval on design,
specification, size, location and proposed language. Further, Tenant shall have
the exclusive right to rooftop signage (i.e., viewable only from above) on
Building B, subject to Landlord's reasonable approval on design, specification,
size and location thereof. Landlord hereby agreed that Tenant shall have the
right to transfer its roof top signage rights to an Affiliate or an assignee of
Tenant. All such exterior signage shall be further subject to the approval of
the applicable governmental authorities with jurisdiction.
23.4 PROHIBITED SIGNAGE AND OTHER ITEMS. Subject to the requirements of
any federal, state, county, city or governmental agency law, statute, ordinance,
standard, rule, or order now in effect or hereafter issued, any signs, notices,
logos, pictures, names or advertisements which are installed and that have not
been separately approved by Landlord may be removed without notice by Landlord
at the sole expense of Tenant. Except as specifically provided in Section 23.3
above, Tenant may not install any signs on the exterior or roof of the Project
or the Common Areas. Any signs, window coverings, or blinds (even if the same
are located behind the Landlord-approved window coverings for the Building), or
other items visible from the exterior of the Premises or Building, shall be
subject to the prior approval of Landlord, in its sole discretion.
23.5 BUILDING DIRECTORY. Landlord shall maintain, at Landlord's expense
a building directory located in the lobby of the Building. Tenant shall have the
right to designate name strips to be displayed under Tenant's entry in such
directory at a rate which is in proportion to Tenant's occupancy of rentable
square feet in the Premises.
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ARTICLE 24
COMPLIANCE WITH LAW
Tenant shall not do anything or suffer anything to be done in or about
the Premises or the Project which will in any way conflict with any law,
statute, ordinance or other governmental rule, regulation or requirement now in
force or which may hereafter be enacted or promulgated. At its sole cost and
expense, Tenant shall promptly comply with all such governmental measures to the
extent that such relate to or are triggered by Tenant's particular use of the
Premises, the Tenant Improvements located in the Premises, or any Alterations
located in the Premises; otherwise such compliance shall be undertaken by
Landlord as, to the extent specifically allowed under this Lease, an Operating
Expense. Should any standard or regulation now or hereafter be imposed on
Landlord or Tenant by a state, federal or local governmental body charged with
the establishment, regulation and enforcement of occupational, health or safety
standards for employers, employees, landlords or tenants, then Tenant agrees, at
its sole cost and expense, to comply promptly with such standards or regulations
to the extent that such relate to or are triggered by Tenant's particular use of
the Premises, the Tenant Improvements located in the Premises, or any
Alterations located in the Premises; otherwise such compliance shall be
undertaken by Landlord as, to the extent specifically allowed under this Lease,
an Operating Expense (unless Landlord is required to undertake such compliance
in Landlord's performance of its repair obligations pursuant to the provisions
of this Lease). Tenant shall be responsible, at its sole cost and expense, to
make all alterations to the Premises as are required to comply with the
governmental rules, regulations, requirements or standards described in this
Article 24 to the extent that such relate to or are triggered by Tenant's
particular use of the Premises, the Tenant Improvements located in the Premises,
or any Alterations located in the Premises; otherwise such compliance shall be
undertaken by Landlord as, to the extent specifically allowed under this Lease,
an Operating Expense. The judgment of any court of competent jurisdiction or the
admission of Tenant in any judicial action, regardless of whether Landlord is a
party thereto, that Tenant has violated any of said governmental measures, shall
be conclusive of that fact as between Landlord and Tenant. Landlord, at
Landlord's sole expense, shall, as soon as reasonably possible, make all
repairs, replacements, alterations, or improvements reasonably necessary to
comply with all governmental rules, regulations, requirements or standards
described in this Article 24 to the extent such relate to the Building or the
Project. As of the date of execution of this Lease, Landlord has not received
(i) any notices from any governmental or quasi-governmental agency alleging any
violation of any applicable laws (including Americans With Disabilities Act
("ADA") and Environmental Laws), rules, ordinances, regulations, and other
applicable requirements pertaining to the Project or any portion thereof, (ii)
any notices of any claims made or threatened regarding noncompliance with any
applicable laws (including ADA and Environmental Laws), rules, ordinances,
regulations, and other applicable requirements pertaining to the Project or any
portion thereof, or (iii) any notices of any governmental or regulatory actions
or investigations instituted or threatened regarding noncompliance with any
applicable laws (including ADA and Environmental Laws), rules, ordinances,
regulations, and other applicable requirements pertaining to the Project or any
portion thereof.
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ARTICLE 25
LATE CHARGES
If any installment of Rent or any other sum due from Tenant shall not be
received by Landlord or Landlord's designee within five (5) business days after
said amount is due, then, upon invoice by Landlord, Tenant shall pay to Landlord
a late charge equal to five percent (5%) of the overdue amount plus any
reasonable attorneys' fees incurred by Landlord by reason of Tenant's failure to
pay Rent and/or other charges when due hereunder; provided that for any
consecutive twelve (12) month period of the Lease Term, Landlord shall provide
one (1) five (5) business day late-charge grace period following delivery of
written notice to Tenant that such payment has not been timely received. The
late charge shall be deemed Additional Rent and the right to require it shall be
in addition to all of Landlord's other rights and remedies hereunder or at law
and shall not be construed as liquidated damages or as limiting Landlord's
remedies in any manner. In addition to the late charge described above, any Rent
or other amounts owing hereunder which are not paid within ten (10) days after
the date they are due shall bear interest from the date when due until paid at a
rate per annum equal to the lesser of (i) the annual "Bank Prime Loan" rate
cited in the Federal Reserve Statistical Release Publication G.13(415),
published on the first Tuesday of each calendar month (or such other comparable
index as Landlord and Tenant shall reasonably agree upon if such rate ceases to
be published) plus two (2) percentage points, and (ii) the highest rate
permitted by applicable law.
ARTICLE 26
LANDLORD'S RIGHT TO CURE DEFAULT; PAYMENTS BY TENANT
26.1 LANDLORD'S CURE. All covenants and agreements to be kept or
performed by Tenant under this Lease shall be performed by Tenant at Tenant's
sole cost and expense and without any reduction of Rent, except to the extent,
if any, otherwise expressly provided herein. If Tenant shall fail to perform any
obligation under this Lease, and such failure shall continue in excess of the
time allowed under Section 19.1.2, above, unless a specific time period is
otherwise stated in this Lease, Landlord may, but shall not be obligated to,
make any such payment or perform any such act on Tenant's part without waiving
its rights based upon any default of Tenant and without releasing Tenant from
any obligations hereunder.
26.2 TENANT'S REIMBURSEMENT. Except as may be specifically provided to
the contrary in this Lease, Tenant shall pay to Landlord, upon delivery by
Landlord to Tenant of statements therefor: (i) sums equal to expenditures
reasonably made and obligations incurred by Landlord in connection with the
remedying by Landlord of Tenant's defaults pursuant to the provisions of Section
26.1; (ii) sums equal to all losses, costs, liabilities, damages and expenses
referred to in Article 10 of this Lease; and (iii) sums equal to all
expenditures made and obligations incurred by Landlord in collecting or
attempting to collect the Rent or in enforcing or attempting to enforce any
rights of Landlord under this Lease or pursuant to law, including, without
limitation, all reasonable legal fees and other amounts so expended. Tenant's
obligations under this Section 26.2 shall survive the expiration or sooner
termination of the Lease Term.
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ARTICLE 27
ENTRY BY LANDLORD
27.1 ENTRY BY LANDLORD. Landlord reserves the right at all reasonable
times and upon twenty-four (24) hours' written notice to Tenant (except in the
case of an emergency) to enter the Premises to (i) inspect the Premises; (ii)
show the Premises to prospective purchasers, current or prospective mortgagees,
ground or underlying lessors or insurers; (iii) post notices of
nonresponsibility; (iv) alter, improve or repair the Premises or the Building if
necessary to comply with this Lease, building codes or other laws, or make
necessary repairs to the Building or the Building's structural systems and
equipment; or (v) show the Premises during the final nine (9) months of the
Lease Term to prospective tenants. Notwithstanding anything to the contrary
contained in this Article 27, Landlord may enter the Premises at any time to (A)
perform services required of Landlord, including janitorial service; (B) take
possession due to any uncured event of Default under this Lease; and (C) perform
any covenants of Tenant which Tenant fails to perform. Landlord may make any
such entries without the abatement of Rent, except as otherwise provided in this
Lease, and may take such reasonable steps as required to accomplish the stated
purposes. Tenant hereby waives any claims for damages or for any injuries or
inconvenience to or interference with Tenant's business, lost profits, any loss
of occupancy or quiet enjoyment of the Premises. For entry permitted under this
Article 26, Landlord shall at all times have a key with which to unlock all the
doors in the Premises, excluding Tenant's vaults, safes and special security
areas designated in advance by Tenant. In an emergency, Landlord shall have the
right to use any means that Landlord may deem proper to open the doors in and to
the Premises. Any such entry into the Premises by Landlord in the manner
hereinbefore described shall not be deemed to be a forcible or unlawful entry
into, or a detainer of, the Premises, or an actual or constructive eviction of
Tenant from any portion of the Premises. To the extent reasonably practicable,
Landlord shall exercise its rights under this Section 27.1 at such times and in
such a manner as to minimize the impact on Tenant's business in and occupancy of
the Premises and at all time in conformity with National Banking Act
regulations.
27.2 TENANT'S SPECIAL SECURITY AREAS. The following areas, together with
any additional areas which Tenant may from time to time designate in writing to
Landlord, are "Tenant's Special Security Areas": Money Desk Area and Federal
Wire Area. Except in an emergency posing a threat of imminent bodily harm or
property damage or when accompanied by an authorized representative of Tenant
(and subject to the notice requirements of Section 27.1 above) Landlord shall
not enter Tenant's Special Security Areas.
ARTICLE 28
TENANT PARKING
Tenant shall have the right, at no cost to Tenant (other than with
respect to the Reserve Parking Right below), commencing on the Lease
Commencement Date, to the use of up to the amount of parking spaces set forth in
Section 9 of the Summary, on a monthly basis throughout the Lease Term, which
parking spaces shall be located in the Project parking facility. During any
Renewal Term, Tenant shall be entitled to the same ratio of parking space [ * ].
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In lieu of an equal number of unreserved parking spaces, Tenant shall rent at
least [ * ] and up to [ * ] reserved parking spaces in the Project parking
facility on a monthly basis throughout the Lease Term (the "RESERVED PARKING
RIGHT"). The location of the reserved parking spaces shall be in an area
mutually agreed to by Landlord and Tenant, giving the utmost consideration to
Tenant's preference whenever possible within the confines of already existing
parking contracts, within thirty (30) days following execution of this Lease ,
utilizing the existing canopy covers as mutually agreed upon between Landlord
and Tenant and striped by Landlord per Tenant's reasonable specifications. The
rate for such reserved parking rights shall be [ * ] per stall per month. During
any Renewal Term, Tenant shall have the same Reserved Parking Right at [ * ] per
stall per month. Further, subject to availability, Tenant may rent, on a
month-to-month basis, additional parking spaces for unreserved parking spaces in
the Project parking facility. Tenant may change the number of unreserved parking
spaces rented pursuant to this Article 28 upon at least thirty (30) days prior
written notice to Landlord, and provided that in no event shall Tenant be
entitled to rent more than the amount of parking spaces set forth in Section 9
of the Summary. Tenant shall pay to Landlord for automobile parking spaces on a
monthly basis the prevailing rate charged from time to time at the location of
such parking spaces. In addition, Tenant shall be responsible for the full
amount of any taxes imposed by any governmental authority in connection with the
renting of such parking spaces by Tenant or the use of the parking facility by
Tenant. Tenant's continued right to use the parking spaces is conditioned upon
Tenant abiding by all rules and regulations which are prescribed from time to
time for the orderly operation and use of the parking facility where the parking
spaces are located, including any sticker or other identification system
established by Landlord and Tenant's cooperation in seeing that Tenant's
employees and visitors also comply with such rules and regulations. Such rules
and regulations shall include appropriate notice and cure provisions and shall
be effective only upon written delivery of a copy of any such rules and
regulations to Tenant. Landlord specifically reserves the right to change the
size, configuration, design, layout (excluding the rate for parking stalls) of
the Project parking facility at any time and Tenant acknowledges and agrees that
Landlord may, without incurring any liability to Tenant and without any
abatement of Rent under this Lease, from time to time, close-off or restrict
access to the Project parking facility for purposes of permitting or
facilitating any such construction, alteration or improvements. Landlord may
delegate its responsibilities hereunder to a parking operator in which case such
parking operator shall have all the rights of control attributed hereby to the
Landlord. The parking spaces allocated to Tenant pursuant to this Article 28 are
provided to Tenant solely for use by Tenant's and Tenant Affiliate's own
personnel and such spaces may not be transferred, assigned, subleased or
otherwise alienated by Tenant without Landlord's prior approval, except in
connection with an approved sublease or assignment, which provides to the
Transferee a pro-rata share of Tenant's parking rights. Tenant shall be allowed
to use Tenant Parking on a twenty-four (24) hour seven (7) day per week basis.
ARTICLE 29
MISCELLANEOUS PROVISIONS
29.1 TERMS; CAPTIONS. The words "Landlord" and "Tenant" as used herein
shall include the plural as well as the singular. The necessary grammatical
changes required to make the provisions hereof apply either to corporations or
partnerships or individuals, men or women,
* Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission.
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as the case may require, shall in all cases be assumed as though in each case
fully expressed. The captions of Articles and Sections are for convenience only
and shall not be deemed to limit, construe, affect or alter the meaning of such
Articles and Sections.
29.2 BINDING EFFECT. Subject to Article 14 and Sections 29.5 and 29.13
of this Lease, each of the covenants, conditions and provisions of this Lease
shall extend to and shall, as the case may require, bind or inure to the benefit
not only of Landlord and of Tenant, but also of their respective heirs, personal
representatives, successors or assigns.
29.3 NO AIR RIGHTS. No rights to any view or to light or air over any
property, whether belonging to Landlord or any other person, are granted to
Tenant by this Lease. If at any time any windows of the Premises are temporarily
darkened or the light or view therefrom is obstructed by reason of any repairs,
maintenance or cleaning in or about the Project, there shall be no liability to
Landlord and no reduction or diminution of Tenant's obligations under this
Lease; provided, however, that there is no unreasonable interference with
Tenant' use of the Premises.
29.4 MODIFICATION OF LEASE. Should any current or prospective mortgagee
or ground lessor for the Building or Project require a modification of this
Lease, which modification will not cause an increased cost or expense to Tenant
or in any other way materially and adversely change the rights and obligations
of Tenant or Landlord hereunder, then and in such event, Tenant agrees that this
Lease may be so modified and agrees to execute whatever documents are reasonably
required therefor and to deliver the same to Landlord within ten (10) business
days following a request therefor. At the request of Landlord or any mortgagee
or ground lessor, Tenant agrees to execute a short form of Lease and deliver the
same to Landlord within ten (10) business days following the request therefor.
29.5 TRANSFER OF LANDLORD'S INTEREST. Tenant acknowledges that Landlord
has the right to transfer all or any portion of its interest in the Project or
Building and in this Lease, and Tenant agrees that in the event of any such
transfer, Landlord shall automatically be released from all liability under this
Lease that accrues after the effective date of transfer, subject to the
following restrictions: (i) Landlord shall not be released from its obligations
under this Lease unless the transferee agrees in writing, for the benefit of
Tenant, to assume Landlord's obligations under this Lease from and after the
date of the transfer; (ii) if Landlord assigns its interest in this Lease to a
lender as additional security, this assignment shall not release Landlord from
its obligations under this Lease; and (iii) if the Premises and Building are not
built at the time this Lease is executed, this Section 29.5(iii) shall not apply
to any transfer of Landlord's interest within twelve (12) months after the date
on which Landlord completes construction of the Premises and Building, as
required by the Lease. If Landlord transfers or mortgages its interest in the
Premises, Landlord shall transfer or assign the Letter of Credit to Landlord's
transferee and thereupon be relieved of further responsibility with respect to
the Letter of Credit as long as the transferee agrees in writing to hold the
Letter of Credit under the provisions of this Section 29.5. If Landlord fails to
transfer or assign the Letter of Credit, Tenant shall not be required to replace
the Letter of Credit until the expiration of the Letter of Credit. If Landlord
draws on the Letter of Credit after a transfer or an assignment, the transferee
shall pay to Tenant within ten (10) days from the date of the draw the amount of
the Letter of Credit. If the transferee fails to pay Tenant the amount of the
Letter of Credit within that period, Tenant may
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deduct the amount of the Letter of Credit from the Rent payable by Tenant. If
Landlord fails to transfer or assign the Letter of Credit or the transferee does
not credit Tenant for the amount of the Letter of Credit, Tenant may deduct from
the Rent payable by Tenant under this Lease the amount of the Letter of Credit.
To the extent consistent with the foregoing, Tenant agrees to look solely to
such transferee for the performance of Landlord's obligations hereunder after
the date of transfer and such transferee shall be deemed to have fully assumed
and be liable for all obligations of this Lease to be performed by Landlord;
provided, however, that no such attornment shall be effective unless and until
such transferee executes and delivers to Tenant a commercially reasonable
non-disturbance agreement following good-faith negotiations between Tenant and
such transferee.
29.6 PROHIBITION AGAINST RECORDING. Except as provided in Section 29.4
of this Lease, neither this Lease, nor any memorandum, affidavit or other
writing with respect thereto, shall be recorded by Tenant or by anyone acting
through, under or on behalf of Tenant.
29.7 LANDLORD'S TITLE. Landlord's title is and always shall be paramount
to the title of Tenant. Nothing herein contained shall empower Tenant to do any
act which can, shall or may encumber the title of Landlord.
29.8 RELATIONSHIP OF PARTIES. Nothing contained in this Lease shall be
deemed or construed by the parties hereto or by any third party to create the
relationship of principal and agent, partnership, joint venturer or any
association between Landlord and Tenant.
29.9 APPLICATION OF PAYMENTS. Landlord shall have the right to apply
payments received from Tenant pursuant to this Lease, regardless of Tenant's
designation of such payments, to satisfy any obligations of Tenant hereunder, in
such order and amounts as Landlord, in its sole discretion, may elect.
29.10 TIME OF ESSENCE. Time is of the essence with respect to the
performance of every provision of this Lease in which time of performance is a
factor.
29.11 PARTIAL INVALIDITY. If any term, provision or condition contained
in this Lease shall, to any extent, be invalid or unenforceable, the remainder
of this Lease, or the application of such term, provision or condition to
persons or circumstances other than those with respect to which it is invalid or
unenforceable, shall not be affected thereby, and each and every other term,
provision and condition of this Lease shall be valid and enforceable to the
fullest extent possible permitted by law.
29.12 NO WARRANTY. Except to the extent specifically provided to the
contrary in this Lease, Tenant hereby represents that, in executing and
delivering this Lease, Tenant has not relied on any representations, including,
but not limited to, any representation as to the amount of any item comprising
Additional Rent or the amount of the Additional Rent in the aggregate or that
Landlord is furnishing the same services to other tenants, at all, on the same
level or on the same basis, or any warranty or any statement of Landlord which
is not set forth herein or in one or more of the exhibits attached hereto.
29.13 LANDLORD EXCULPATION. The liability of Landlord or the Landlord
Parties to Tenant for any default by Landlord under this Lease or arising in
connection herewith or with
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Landlord's operation, management, leasing, repair, renovation, alteration or any
other matter relating to the Project or the Premises shall be limited solely and
exclusively to an amount which is equal to the interest of Landlord in the
Building. Neither Landlord, nor any of the Landlord Parties shall have any
personal liability therefor, and Tenant hereby expressly waives and releases
such personal liability on behalf of itself and all persons claiming by, through
or under Tenant. The limitations of liability contained in this Section 29.13
shall inure to the benefit of Landlord's and the Landlord Parties' present and
future partners, beneficiaries, officers, directors, trustees, shareholders,
agents and employees, and their respective partners, heirs, successors and
assigns.
29.14 ENTIRE AGREEMENT. It is understood and acknowledged that there are
no oral agreements between the parties hereto affecting this Lease and this
Lease constitutes the parties' entire agreement with respect to the leasing of
the Premises and supersedes and cancels any and all previous negotiations,
arrangements, brochures, agreements and understandings, if any, between the
parties hereto or displayed by Landlord to Tenant with respect to the subject
matter thereof, and none thereof shall be used to interpret or construe this
Lease. None of the terms, covenants, conditions or provisions of this Lease can
be modified, deleted or added to except in writing signed by the parties hereto.
29.15 RIGHT TO LEASE. Except as specifically restricted in this Lease,
including without limitation Section 29.26, Landlord reserves the absolute right
to effect such other tenancies in the Project as Landlord in the exercise of its
sole business judgment shall determine to best promote the interests of the
Building or Project. Tenant does not rely on the fact, nor does Landlord
represent, that any specific tenant or type or number of tenants shall, during
the Lease Term, occupy any space in the Building or Project.
29.16 FORCE MAJEURE. Any prevention, delay or stoppage due to strikes,
lockouts, labor disputes, acts of God, inability to obtain services, labor, or
materials or reasonable substitutes therefor, governmental actions, civil
commotions, fire or other casualty, and other causes beyond the reasonable
control of the party obligated to perform, except with respect to the
obligations imposed on Landlord or Tenant with regard to payment of money under
this Lease (collectively, a "Force Majeure"), notwithstanding anything to the
contrary contained in this Lease, shall excuse the performance of such party for
a period equal to any such prevention, delay or stoppage and, therefore, if this
Lease specifies a time period for performance of an obligation of either party,
that time period shall be extended by the period of any delay in such party's
performance caused by a Force Majeure.
29.17 WAIVER OF REDEMPTION BY TENANT. Tenant hereby waives, for Tenant
and for all those claiming under Tenant, any and all rights now or hereafter
existing to redeem by order or judgment of any court or by any legal process or
writ, Tenant's right of occupancy of the Premises after any termination of this
Lease.
29.18 NOTICES. All notices, demands, statements, designations, approvals
or other communications (collectively, "NOTICES") given or required to be given
by either party to the other hereunder or by law shall be in writing and shall
be (A) sent by United States certified or registered mail, postage prepaid,
return receipt requested ("MAIL"), (B) transmitted by telecopy, if such telecopy
is promptly followed by a Notice sent by Mail, (C) delivered by a nationally
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recognized overnight courier, or (D) delivered personally. Any Notice shall be
sent, transmitted, or delivered, as the case may be, to Tenant at the
appropriate address set forth in Section 10 of the Summary, or to such other
place as Tenant may from time to time designate in a Notice to Landlord, or to
Landlord at the addresses set forth below, or to such other places as Landlord
may from time to time designate in a Notice to Tenant. Any Notice will be deemed
given (i) the date delivery is confirmed by return receipt if sent by Mail, (ii)
the date the telecopy is transmitted, (iii) the date the overnight courier
delivery is made, or (iv) the date personal delivery is made. As of the date of
this Lease, any Notices to Landlord must be sent, transmitted, or delivered, as
the case may be, to the following addresses:
Carlyle Realty
4675 MacArthur Court, Suite 500
Newport Beach, California 92660
Attention: Allen L. Cashion
Telephone: (949) 757-9535
Fax: (949) 757-0720
and
ZKS Real Estate Partners
2425 East Camelback Road, Suite 450
Phoenix, Arizona 85016-4286
Attention: Mr. Joseph Collura
Telephone: (602) 381-2545
Fax: (602) 381-2546
and
Allen, Matkins, Leck, Gamble & Mallory
333 Bush Street, Suite 1700
San Francisco, California 94104
Attention: Richard C. Mallory, Esq.
Telephone: (415) 837-1515
Facsimile: (415) 837-1516
As of the date of this Lease, any Notices to Tenant must be sent, transmitted,
or delivered, as the case may be, to the following addresses:
NextCard, Inc.
595 Market Street, Suite 1800
San Francisco, California 94105
Attention: Robert Linderman, Esq.
General Counsel and Secretary
(Prior to Lease Commencement Date)
and
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NextCard, Inc.
Airport Technology Center
4129 East Van Buren, Suite 200
Phoenix, Arizona 85008-6911
Attention: Mr. Mark Attinger,
Vice President/Operations Site Manager
(After Lease Commencement Date)
and
Gibson, Dunn & Crutcher
One Montgomery St., Telesis Tower, 26th Floor
San Francisco, CA 94104-4505
Attn: Fred L. Pillon, Esq.
Telephone: (415) 393-8200
Facsimile: (415) 986-5309
29.19 JOINT AND SEVERAL. If more than one individual or entity comprises
Tenant, the obligations imposed upon each individual or entity comprising Tenant
under this Lease shall be joint and several.
29.20 AUTHORITY. Each of the persons executing this Lease on behalf of
an entity does hereby represent and warrant that such entity is a duly
authorized and existing entity, that the entity has and is qualified to do
business in the State of Arizona, that the entity has full right and authority
to execute and deliver this Lease, and that each person signing on behalf of the
entity was authorized to do so. Each party shall, within ten (10) days after the
execution and delivery of this Lease, deliver to the other party satisfactory
evidence of (i) such authority, (ii) good standing in such entity's state of
formation, and (iii) qualification to do business in the State of Arizona.
29.21 ATTORNEYS' FEES. In the event that either Landlord or Tenant
should bring suit for the possession of the Premises, for the recovery of any
sum due under this Lease, or because of the breach of any provision of this
Lease or for any other relief against the other, then all costs and expenses,
including reasonable attorneys' fees, incurred by the prevailing party therein
shall be paid by the other party, which obligation on the part of the other
party shall be deemed to have accrued on the date of the commencement of such
action and shall be enforceable whether or not the action is prosecuted to
judgment.
29.22 GOVERNING LAW; WAIVER OF TRIAL BY JURY. This Lease shall be
construed and enforced in accordance with the laws of the State of Arizona. IN
ANY ACTION OR PROCEEDING ARISING HEREFROM, LANDLORD AND TENANT HEREBY CONSENT TO
(I) THE JURISDICTION OF ANY COMPETENT COURT WITHIN THE STATE OF ARIZONA, (II)
SERVICE OF PROCESS BY ANY MEANS AUTHORIZED BY ARIZONA LAW, AND (III) IN THE
INTEREST OF SAVING TIME AND EXPENSE, TRIAL WITHOUT A JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE
OTHER OR THEIR SUCCESSORS IN RESPECT OF ANY MATTER ARISING OUT OF OR IN
CONNECTION
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WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE OR
OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM FOR INJURY OR DAMAGE, OR ANY
EMERGENCY OR STATUTORY REMEDY. IN THE EVENT LANDLORD COMMENCES ANY SUMMARY
PROCEEDINGS OR ACTION FOR NONPAYMENT OF BASE RENT OR ADDITIONAL RENT, TENANT
SHALL NOT INTERPOSE ANY COUNTERCLAIM OF ANY NATURE OR DESCRIPTION (UNLESS SUCH
COUNTERCLAIM SHALL BE MANDATORY) IN ANY SUCH PROCEEDING OR ACTION, BUT SHALL BE
RELEGATED TO AN INDEPENDENT ACTION AT LAW.
29.23 SUBMISSION OF LEASE. Submission of this instrument for examination
or signature by Tenant does not constitute a reservation of, option for or
option to lease, and it is not effective as a lease or otherwise until execution
and delivery by both Landlord and Tenant.
29.24 BROKERS. Landlord and Tenant hereby warrant to each other that
they have had no dealings with any real estate broker or agent in connection
with the negotiation of this Lease, except the real estate brokers or agents
specified in Section 12 of the Summary (the "Brokers"), and that they know of no
other real estate broker or agent who is entitled to a commission in connection
with this Lease. Each party agrees to indemnify and defend the other party
against and hold the other party harmless from any and all claims, demands,
losses, liabilities, lawsuits, judgments, costs and expenses (including without
limitation reasonable attorneys' fees) with respect to any leasing commission or
equivalent compensation alleged to be owing on account of any dealings with any
real estate broker or agent, other than the Brokers, occurring by, through, or
under the indemnifying party. The terms of this Section 29.24 shall survive the
expiration or earlier termination of the Lease.
29.25 INDEPENDENT COVENANTS. This Lease shall be construed as though the
covenants herein between Landlord and Tenant are independent and not dependent
and Tenant hereby expressly waives the benefit of any statute to the contrary
and agrees that if Landlord fails to perform its obligations set forth herein,
Tenant shall not be entitled to make any repairs or perform any acts hereunder
at Landlord's expense or to any setoff of the Rent or other amounts owing
hereunder against Landlord.
29.26 PROJECT OR BUILDING NAME AND SIGNAGE. Subject to the provisions of
Article 23 of this Lease, Landlord shall have the right at any time to change
the name of the Project or Building and to install, affix and maintain any and
all signs on the exterior and on the interior of the Project or Building as
Landlord may, in Landlord's sole discretion, desire; provided, however, that, so
long as Tenant is occupying at least 65,000 rentable square feet in the Project,
Tenant shall have an "exclusive" and Landlord shall not have the right to lease
space in Building B to any call center or financial services entities (excluding
call centers or financial services entities to which existing (as of the date of
this Lease) tenants in Building B elect to sublease space or assign their
interests in their respective leases with Landlord's reasonable approval) or to
change the name of the Project or the Building without Tenant's prior approval,
which approval shall be in Tenant's sole discretion. Landlord's rights hereunder
shall be subject to Tenant's signage rights under Article 23. Tenant shall not
use the name of the Project or Building or use pictures or illustrations of the
Project or Building in advertising or other publicity or for any purpose other
than as the address of the business to be conducted by Tenant in the Premises,
without the prior written consent of Landlord.
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29.27 COUNTERPARTS. This Lease may be executed in counterparts with the
same effect as if both parties hereto had executed the same document. Both
counterparts shall be construed together and shall constitute a single lease.
29.28 CONFIDENTIALITY. Both parties acknowledge that the content of this
Lease and any related documents are confidential information. Both parties shall
keep such confidential information strictly confidential and shall not disclose
such confidential information, other than the identification of the parties, the
building name and its location, to any person or entity other than such party's
financial, legal, and space planning consultants.
29.29 DEVELOPMENT OF THE PROJECT.
29.29.1 SUBDIVISION. Landlord reserves the right to further
subdivide all or a portion of the Project. Tenant agrees to execute and deliver,
upon demand by Landlord and in the form requested by Landlord, any additional
documents needed to conform this Lease to the circumstances resulting from such
subdivision; provided, however, that nothing required herein shall materially
affect Tenant's right under this Lease and that Landlord shall reimburse Tenant
for Tenant's reasonable costs in connection with such execution and delivery.
29.29.2 THE OTHER IMPROVEMENTS. If portions of the Project or
property adjacent to the Project (collectively, the "OTHER IMPROVEMENTS") are
owned by an entity other than Landlord, Landlord, at its option, may enter into
an agreement with the owner or owners of any or all of the Other Improvements to
provide (i) for reciprocal rights of access and/or use of the Project and the
Other Improvements, (ii) for the common management, operation, maintenance,
improvement and/or repair of all or any portion of the Project and the Other
Improvements, (iii) for the allocation of a portion of the Direct Expenses to
the Other Improvements and the operating expenses and taxes for the Other
Improvements to the Project, and (iv) for the use or improvement of the Other
Improvements and/or the Project in connection with the improvement,
construction, and/or excavation of the Other Improvements and/or the Project.
Nothing contained herein shall be deemed or construed to limit or otherwise
affect Landlord's right to convey all or any portion of the Project or any other
of Landlord's rights described in this Lease, provided that any such conveyance
does not materially and unreasonably interfere with Tenant's use of the Premises
and does not result in any additional monetary obligation on the part of Tenant
other than minor administrative compliance costs.
29.29.3 CONSTRUCTION OF PROJECT AND OTHER IMPROVEMENTS. Tenant
acknowledges that portions of the Project and/or the Other Improvements may be
under construction following Tenant's occupancy of the Premises, and that such
construction may result in levels of noise, dust, obstruction of access, etc.
which are in excess of that present in a fully constructed project but which
shall not unreasonably and materially interfere with Tenant's use of the
Premises.
29.30 BUILDING RENOVATIONS. It is specifically understood and agreed
that Landlord has no obligation and has made no promises to alter, remodel,
improve, renovate, repair or decorate the Premises, Building, or any part
thereof and that no representations respecting the condition of the Premises or
the Building have been made by Landlord to Tenant except as specifically set
forth herein or in the Tenant Work Letter. However, Tenant hereby acknowledges
that Landlord
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is currently renovating or may during the Lease Term renovate, improve, alter,
or modify (collectively, the "RENOVATIONS") the Project, the Building and/or the
Premises.
29.31 NO VIOLATION. Tenant hereby warrants and represents that neither
its execution of nor performance under this Lease shall cause Tenant to be in
violation of any agreement, instrument, contract, law, rule or regulation by
which Tenant is bound, and Tenant shall protect, defend, indemnify and hold
Landlord harmless against any claims, demands, losses, damages, liabilities,
costs and expenses, including, without limitation, reasonable attorneys' fees
and costs, arising from Tenant's breach of this warranty and representation.
29.32 COMMUNICATIONS AND TELECOM EQUIPMENT. Tenant may install,
maintain, replace, remove or use any communications or computer wires and
cables, fiber optic cable, microwave satellite dishes or other
telecommunications devices and/or services to the Premises (collectively, the
"TELECOM EQUIPMENT") at the Project or in or serving the Premises, provided that
(i) such installation, if any, shall be undertaken pursuant to the provisions of
either the Tenant Work Letter attached hereto as EXHIBIT B or the alterations
provisions set forth in Article 8 above, (ii) an acceptable number of spare
Telecom Equipment and space for additional Telecom Equipment shall be maintained
for existing and future occupants of the Project, as determined in Landlord's
reasonable opinion, (iii) the Telecom Equipment therefor (including riser
cables) shall be appropriately insulated to prevent excessive electromagnetic
fields or radiation, and shall be surrounded by a protective conduit reasonably
acceptable to Landlord, (iv) any new or existing Telecom Equipment servicing the
Premises shall comply with all applicable governmental laws and regulations, (v)
as a condition to permitting the installation of new Telecom Equipment, Landlord
may require that Tenant remove existing Telecom Equipment located in or serving
the Premises and repair any damage in connection with such removal, and (vi)
Tenant shall pay all reasonable costs in connection therewith; provided,
however, that, as to the Premises, Landlord shall not charge any fees either to
Tenant or to any third party telecommunications service providers associated
with the installation of fiber optic cable, microwave satellite dishes or other
telecommunications devices and/or services to the Premises. The method of
installation of said Tenant's cabling/phone wiring/satellite dishes, etc. shall
be subject to Landlord's reasonable approval. Landlord reserves the right to
require that Tenant remove any Telecom Equipment located in or serving the
Premises which are installed in violation of these provisions, or which are at
any time in violation of any laws or represent a dangerous or potentially
dangerous condition. Landlord acknowledges that Tenant desires an expeditious
review and approval process by Landlord in connection with the Telecom Equipment
proposed to be installed or modified at the Premises by Tenant.
29.33 GENERATOR AND TANK. Subject to Landlord's reasonable approval of
design, specification and size, and subject to all applicable governmental laws
and regulations, Tenant has the right to install (i) a generator and (ii) an
associated so-called "belly" fuel tank at the location indicated on EXHIBIT G,
or such other location as required by the City of Phoenix . Tenant shall provide
appropriate insurance coverage for such generator and tank as reasonably
required by Landlord after consultation between Landlord's and Tenant's
respective insurance representatives. Landlord shall provide an "expeditor" to
assist Tenant in obtaining necessary City of Phoenix approval
29.34 [INTENTIONALLY DELETED]
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ARTICLE 30
OPTIONS TO EXTEND
30.1 OPTION RIGHTS. Landlord hereby grants Tenant two (2) consecutive
options to extend the then current Lease Term for the entire Premises for
periods of three (3) years each (together the "Option Terms"), which options
shall be exercisable only by written Exercise Notice (as defined below)
delivered by Tenant to Landlord as provided below, provided that, as of the date
of delivery of such Exercise Notice, Tenant is not then in a state of uncured
monetary or other default following the expiration of the applicable cure
periods under the Lease. Upon the proper exercise of such option to extend, and
provided that, as of the end of the then current Lease Term, Tenant is not in
default, as described above, under the Lease, the then current Lease Term shall
be extended for the Option Term.
30.2 OPTION RENT. The annual base rent payable by Tenant during the
Option Term (the "Option Rent") shall be equal to [*] which for purposes hereof
means [*]
All other terms and conditions of the Lease shall apply throughout the Option
Term; provided, however, any obligation of Landlord to construct tenant
improvements or provide an allowance shall not apply during the Option Term,
except to the extent such provisions are included in [*], and Tenant shall, in
no event, have the option to extend the then current Lease Term beyond the
Option Term described in Section 30.1 above.
30.3 EXERCISE OF OPTIONS. The option contained in this Article 30 shall
be exercised by Tenant, if at all, on or before the date (the "Exercise Date")
which is at least nine (9) months prior to the expiration of the then current
Lease Term by delivering written notice ("Exercise Notice") thereof to Landlord.
The Exercise Notice may not be delivered earlier than twelve (12) months prior
to the expiration of the then current Lease Term. Tenant may notify Landlord
earlier than the Exercise Date of its intent to exercise its option and Landlord
will work with Tenant to establish [*] at that time. After the Exercise Date,
the parties shall follow the procedure and [*] shall be determined as set forth
in Section 30.4 below. Tenant's failure to deliver the Exercise Notice on or
before the Exercise Date shall be deemed to constitute Tenant's waiver of its
extension right hereunder.
30.4 Determination of Option Rent. Landlord and Tenant shall attempt to
agree upon [*], using their best good-faith efforts. If Landlord and Tenant fail
to reach agreement upon [*] within fifteen (15) business days following Tenant's
delivery of the Exercise Notice (the "Outside Agreement Date"), then each party
shall submit to the other party a separate written determination of [*] within
fifteen (15) business days after the Outside Agreement Date, and such
determinations shall be submitted to arbitration in accordance with Sections
30.4.1 through 30.4.7 below. Failure of Tenant or Landlord to submit
* Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission.
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a written determination of [*] within such fifteen (15) business day period
shall conclusively be deemed to be the non-determining party's approval of [*]
submitted within such fifteen (15) business day period by the other party.
30.4.1 Landlord and Tenant shall each appoint one arbitrator who
shall by profession be an independent real estate broker who shall individually
have no ongoing business relationship with Tenant or Landlord and who shall have
been active over the eight (8) year period ending on the date of such
appointment in the leasing of first-class office buildings in the Project Area.
The determination of the arbitrators shall be limited solely to the issue of
whether Landlord's or Tenant's submitted [*] is the closest to the actual [*] as
determined by the arbitrators, taking into account the requirements of Section
30.2. Each such arbitrator shall be appointed within thirty (30) days after the
Outside Agreement Date.
30.4.2 The two (2) arbitrators so appointed shall within ten (10)
business days of the date of the appointment of the last appointed arbitrator
agree upon and appoint a third arbitrator who shall be qualified under the same
criteria as set forth hereinabove for qualification of the initial two (2)
arbitrators.
30.4.3 The three (3) arbitrators shall within thirty (30) days
after the appointment of the third arbitrator reach a decision as to whether
Landlord's or Tenant's submitted [*] is the closest to the actual [*], and shall
use the closest of Landlord's or Tenant's submitted [*] as [*] for purposes of
calculating the Option Rent, and shall notify Landlord and Tenant thereof.
30.4.4 The decision of the majority of the three (3) arbitrators
shall be binding upon Landlord and Tenant.
30.4.5 If either Landlord or Tenant fails to appoint an
arbitrator within thirty (30) days after the Outside Agreement Date, the
arbitrator appointed by one of them shall reach a decision, notify Landlord and
Tenant thereof, and such arbitrator's decision shall be binding upon Landlord
and Tenant.
30.4.6 If the two (2) arbitrators fail to agree upon and appoint
a third arbitrator within the time period provided in Section 30.2 above, then
the parties shall mutually select the third arbitrator, who shall be qualified
under the same criteria as set forth in Section 30.4.1 above. If Landlord and
Tenant are unable to agree upon the third arbitrator within ten (10) days, then
either party may, upon at least five (5) days' prior written notice to the other
party, request the Presiding Judge of the Superior Court of the County which the
Project is located, acting in his private and nonjudicial capacity, to appoint
the third arbitrator who shall be qualified under the same criteria as set forth
in Section 30.4.1. Following the appointment of the third arbitrator, the panel
of arbitrators shall within thirty (30) days thereafter reach a decision as to
whether Landlord's or Tenant's submitted [*] shall be used and shall notify
Landlord and Tenant thereof.
30.4.7 The cost of the arbitrators and the arbitration proceeding
shall be paid by the non-prevailing party.
* Portions redacted pursuant to a request for confidential treatment filed with
the Securities and Exchange Commission.
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ARTICLE 31
LETTER OF CREDIT
31.1 LETTER OF CREDIT. Within five (5) business days of mutual execution
of this Lease by Landlord and Tenant, Tenant shall deliver to Landlord an
irrevocable standby letter of credit in the amount of One Million Five Hundred
Thousand Dollars ($1,500,000) ("Letter of Credit") as additional security for
the faithful performance by Tenant of its obligations under this Lease. The
Letter of Credit shall be upon the terms and subject to the following provisions
of this Article 31.
31.1.1 If Tenant fails to pay Rent or other charges due hereunder
beyond any applicable cure periods, or otherwise defaults beyond any applicable
cure periods with respect to any provision of this Lease, in addition to any
other rights held by Landlord, Landlord may draw upon and apply all or any part
of the Letter of Credit as is necessary to the payment of any actual Rent or
other charge in default. Any draw under the Section 31.1.1 shall be Landlord's
exclusive remedy with respect to such failure to pay Rent or other charges due.
failure to do so shall be a default under this Lease.
31.1.2 The Letter of Credit shall commence five (5) business days
after mutual execution of this Lease and, unless otherwise released pursuant to
Article 31.1.2.3 below, Tenant shall renew the Letter of Credit from time to
time through the initial Term, at least thirty (30) days prior to the expiration
thereof and deliver to Landlord a new Letter of Credit or an endorsement to the
Letter of Credit and any other evidence required by Landlord that the Letter of
Credit has been renewed. The Letter of Credit shall be (i) issued by a bank
reasonably approved by Landlord ("Bank"), with Landlord hereby approving [*],
with draws permitted to be presented at any major branch thereof located in
California or Arizona, and (ii) in a form containing the required provisions set
forth in Article 31.1.2.1 through 31.1.2.4 below. The premium or purchase price
of, or any other Bank fees associated with, such Letter of Credit shall be paid
by Tenant. The Letter of Credit shall, without limiting the foregoing, provide
that:
31.1.2.1 Such Letter of Credit shall be transferable,
irrevocable and unconditional, so that Landlord, or its successor(s) in interest
with respect to the Premises, may upon an uncured monetary default with respect
to the Rent or any other charge under this Lease, "call" for any portion of the
then uncalled upon amount thereof without regard to and without the Bank
inquiring as to the right or lack of right of the holder of such Letter of
Credit to effect such calls or the existence or lack of existence of any
defenses by Tenant with respect thereto;
31.1.2.2 Landlord agrees not to draw upon the Letter of
Credit unless Landlord certifies monetary default by Tenant under the Lease
after giving notice thereof to Tenant in accordance with the terms of this Lease
and the expiration of any applicable cure period set forth in this Lease, but if
Landlord does effect such a "draw," such "draw" amount shall be limited to the
amount necessary to compensate Landlord for such default, as permitted by law or
this Lease.
* Portions redacted pursuant to a request for confidential treatment filed with
the Securities and Exchange Commission.
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<PAGE> 59
31.1.2.3 Any failure or delay of Landlord to "draw" any
portion of the Letter of Credit shall not act as a waiver of Landlord's right to
do so at any time thereafter or constitute a waiver of any default with respect
to the Lease.
31.1.2.4 Tenant agrees not to interfere in any way with
payment to Landlord of the proceeds of the Letter of Credit, either prior to or
following a "draw" by Landlord of any portion of the Letter of Credit,
regardless of whether any dispute exists between Tenant and Landlord as to
Landlord's right to "draw" from the Letter of Credit; provided, however, that
Tenant shall have the right to take action against Landlord if Tenant disputes
Landlord's right to have received such payment or the amount which Landlord has
drawn, as provided herein, after such draw has occurred. No condition or term of
this Lease shall be deemed to render the Letter of Credit conditional upon this
Lease or to justify the issuer of the Letter of Credit in failing to honor a
draw upon such Letter of Credit in a timely manner. In the event Landlord is
determined through any dispute resolution procedure agreed upon by the parties
or by a court of competent jurisdiction to have improperly drawn on the Letter
of Credit, then Tenant shall be entitled to receive a prompt refund of such
amount from Landlord. Tenant hereby waives any provisions of law, now or
hereafter in force, which provide that Landlord may claim from a security
deposit (including the Letter of Credit) only those sums reasonably necessary to
remedy defaults in the payment of rent, to repair damage caused by Tenant or to
clean the Premises, it being agreed that Landlord may, in addition, claim those
sums reasonably necessary to compensate Landlord for any other loss or damage,
foreseeable or unforeseeable, caused by the act or omission of Tenant or any
officer, employee, agent or invitee of Tenant.
31.1.3 Release of Letter of Credit. Notwithstanding the
foregoing, in the event that (i) Tenant shall provide Landlord with quarterly
statements as required to be filed with the Securities and Exchange Commission
("SEC") which show that Tenant's most recent quarter of net income as
established by generally accepted accounting principles excluding non-cash
goodwill amortization and in-process research and development is greater than
zero (the "Qualifying Quarterly Statement"), (ii) Tenant's most recent month-end
Market Cap is greater than [*]; and (iii) Tenant, as of the date of each such
reduction, is not in a state of monetary default under this Lease beyond the
expiration of any applicable notice and cure periods, Tenant shall have the
right to reduce the Letter of Credit as follows: (A) if the requirements of
clauses (i) through (iii) above have been met, then, as to the next following
[*] of the Lease Term, then Tenant shall have the right to reduce the Letter of
Credit to One Million Two Hundred Thousand Dollars ($1,200,000) (the "First
Reduction"); (B) after the First Reduction, if the requirements of clauses (i)
through (iv) above have been met, then, as to the next following [*] of the
Lease Term, then Tenant shall have the right to further reduce the Letter of
Credit to Nine Hundred Thousand Dollars ($900,000) (the "Second Reduction"); and
(C) after the Second Reduction, if the requirements of clauses (i) through (iv)
above have been met, then, as to the next following [*] of the Lease Term, then
Tenant shall have the right to further reduce the Letter of Credit to Six
Hundred Thousand Dollars ($600,000) (the "Third Reduction"); and (C) following
the Third Reduction, if the requirements of clauses (i) through (iv) above have
been met, then, as to the next following [*] of the Lease Term, then Tenant
shall have the right to further reduce the Letter of Credit to Five Hundred
Thousand Dollars ($500,000) which will represent the base amount of the Letter
of Credit. If the conditions which would qualify the reductions are not met with
respect to the applicable [*], and are met in the subsequent [*]
* Portions redacted pursuant to a request for confidential treatment filed with
the Securities and Exchange Commission.
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<PAGE> 60
[*], then the non-effectuated reduction shall occur at the time of the
qualifying reduction, with the effect that Tenant has "caught up" on its
scheduled reductions, notwithstanding the fact that, at the time that the
reduction would otherwise have been effectuated, Tenant had not qualified as
aforesaid.
31.1.4 Tenant acknowledges and agrees that the Letter of Credit
constitutes a separate and independent contract between Landlord and the Bank,
that Tenant is not a third-party beneficiary of such contract, and that
Landlord's claim under the Letter of Credit for the full amount due and owing
thereunder shall not be, in any way, restricted, limited, altered or impaired by
virtue of any provision of the Bankruptcy Code, including, but not limited to,
Section 502(b)(6) of the Bankruptcy Code.
* Portions redacted pursuant to a request for confidential treatment filed with
the Securities and Exchange Commission.
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<PAGE> 61
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed the day and date first above written.
"LANDLORD" CARLYLE AIRPORT TECHNOLOGY TRUST,
a Maryland real estate investment trust
By:
---------------------------------------
Name:
-------------------------------------
Its:
--------------------------------------
"TENANT" NextCard, Inc., a Delaware corporation
By:
---------------------------------------
Name:
-------------------------------------
Its:
--------------------------------------
By:
---------------------------------------
Name:
-------------------------------------
Its:
--------------------------------------
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<PAGE> 62
EXHIBIT A
AIRPORT TECHNOLOGY CENTER
OUTLINE OF PREMISES
[SEE ATTACHED]
EXHIBIT A
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<PAGE> 63
EXHIBIT B
AIRPORT TECHNOLOGY CENTER
TENANT WORK LETTER
This Tenant Work Letter shall set forth the terms and conditions
relating to the construction of the tenant improvements in the Premises. This
Tenant Work Letter is essentially organized chronologically and addresses the
issues of the construction of the Premises, in sequence, as such issues may
arise during the actual construction of the Premises. All references in this
Tenant Work Letter to Articles or Sections of "this Lease" shall mean the
relevant portion of that certain Office Lease dated as of March __, 2000,
between CARLYLE AIRPORT TECHNOLOGY TRUST, a Maryland real estate investment
trust, ("Landlord") and NextCard, Inc., a Delaware corporation ("Tenant"), to
which this Tenant Work Letter is attached as EXHIBIT B and of which this Tenant
Work Letter forms a part, and all references in this Tenant Work Letter to
Sections of "this Tenant Work Letter" shall mean the relevant portion of this
Tenant Work Letter.
SECTION 1
LANDLORD'S INITIAL CONSTRUCTION IN THE PREMISES
1.1 BASE, SHELL AND CORE. Landlord shall provide the improvements
presently constituting the Project, including the "base, shell, and core," as
defined below, of the Building on which the Premises is located (collectively,
the "Base, Shell, and Core") in accordance with all applicable codes and laws
and in good working order as of the Lease Commencement Date. Tenant shall accept
the Base, Shell and Core in its presently existing, "as is" condition, subject
to latent defects and Landlord completion of any incomplete "punch-list" type
items in accordance with this Section 1.1, which Base, Shell and Core shall
include only the following items:
1.1.1 Restrooms (one each on the first and second floors of
Building B).
1.1.2 First and second floor finished lobbies, including two (2)
passenger elevators which can be converted to freight elevators with appropriate
protective padding.
1.1.3 Smooth concrete floor.
1.1.4 Unfinished ceilings which may include exposed structure at
underside of second floor and roof structure. Landlord to provide, as a charge
to the "Tenant Improvement Allowance" (defined below) and without including any
"markup" of the cost thereof to Landlord, the building standard ceiling grid and
tile.
1.1.5 Gypsum board, taped and filled, on tenant side of core,
demising and fire exit corridor walls.
1.1.6 HVAC heat pump/units located at the underside of the
floor/roof structure. Electrical power provided to units. Condensate drains
included and in place. Landlord has
EXHIBIT B
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<PAGE> 64
thermostats in storage at the Project which conform to the "DDC" system/sensors
to be utilized by Tenant without chargeback to the Tenant Improvement Allowance
for the cost of such thermostats.
1.1.7 Primary electrical system which will service both floors of
the Building in which the Premises are located.
1.1.8 Life-safety systems, including wet sprinklers in place with
heads turned up (which sprinkler heads shall not include those Omega sprinkler
heads identified on SCHEDULE A as being ineffective), fire alarm and fire panel
connected to the Fire Department, (but without strobe light or exit signage) as
required by applicable building code ("Code") on an unoccupied or shell building
basis.
1.1.9 Main telephone terminal panel located in the center of
Building B on the first floor (provided that for Tenant's Premises the main
access point may be through the telephone closet on the east side of the floor)
in the telephone/electrical room designated by Landlord and available for
secondary branching by Tenant of lines to the Premises. All subpanels and
related equipment shall be located either in the main telephone/electrical room
or in the other telephone rooms located within the Premises, at Tenant's
election as designated on the "Approved Working Drawings" as defined below.
1.1.10 All Common Areas for Building B, including, but not
limited to, fire exit corridors and, where applicable, the actual public
corridor wall which is adjacent to the Premises but only as to that portion of
the Premises, if any, which occupies only a portion of a floor, rather than an
entire floor, of the Building; provided that Landlord shall pay for the cost of
constructing the corridor wall, Tenant shall pay for the finish to the interior
side of all demising and corridor walls with Landlord to be responsible for the
cost of the drywall studs, insulation and any finishes on the exterior, common
area side of the demising and corridor walls.
1.1.11 Parking areas.
1.1.12 Landscape and walkway areas.
SECTION 2
TENANT IMPROVEMENTS
2.1 TENANT IMPROVEMENT ALLOWANCE. Tenant shall be entitled to a one-time
tenant improvement allowance (the "Tenant Improvement Allowance") in the amount
of [ * ] per rentable square foot of the Premises for the costs relating to the
construction of Tenant's improvements which are permanently affixed to the
Premises and the construction of the Generator and Tank as contemplated by
Section 29.33 of the Lease (the "Tenant Improvements"). To the extent that any
portion of the Tenant Improvement Allowance remains following the completion of
construction the Tenant's Improvements, such amount may be applied by Tenant
toward its architectural and engineering expenses. The Tenant Improvement
Allowance may be allocated at Tenant's election over any portion of the Premises
or phased occupancy thereof (e.g., if the Tenant Improvement construction
process is phased over three (3) areas of the Premises approximately equal in
size and Tenant elects to spend [*] per rentable
EXHIBIT B
* Portions redacted pursuant to a request for confidential treatment filed with
the Securities and Exchange Commission.
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<PAGE> 65
square foot on the first phase, there shall be no Tenant Improvement Allowance
for the second or the third phase). In no event shall Landlord be obligated to
make disbursements pursuant to this Tenant Work Letter in a total amount which
exceeds the Tenant Improvement Allowance. Subject to Tenant's rights under
Section 8.5 of the Lease, all Tenant Improvements for which the Tenant
Improvement Allowance has been actually used shall be deemed Landlord's property
under the terms of the Lease.
2.2 DISBURSEMENT OF THE TENANT IMPROVEMENT ALLOWANCE. Except as
otherwise set forth in this Tenant Work Letter, the Tenant Improvement Allowance
shall be disbursed by Landlord (each of which disbursements shall be made
pursuant to Landlord's disbursement process, which shall be typical and
customary of the disbursement process for similar improvements being constructed
in the Comparable Buildings, with one draw/reimbursement procedure each month
pursuant to timely submitted and approved invoices with respect to the
construction of the Tenant Improvements, together with full or partial lien
releases as customary under the disbursement standards set forth in this
sentence) for the costs related to the construction of the Tenant Improvements
and for the following items and costs (collectively, the "Tenant Improvement
Allowance Items"): (i) payment of the fees of the "Architect" and the
"Engineers," as those terms are defined in Section 3.1 of this Tenant Work
Letter, and payment of the fees incurred by, and the cost of documents and
materials supplied by, the Architect and Engineers selected by Landlord and
Tenant pursuant to the provisions of this Work Letter in connection with the
preparation and review of the "Construction Drawings," as that term is defined
in Section 3.1 of this Tenant Work Letter; (ii) the cost of any changes in the
Base, Shell and Core when such changes are required by the Construction
Drawings; (iii) the cost of any changes to the Construction Drawings or Tenant
Improvements required by all applicable building codes (the "Code"); (iv) the
"Landlord Supervision Fee", as that term is defined in Section 4.3.2 of this
Tenant Work Letter; and (v) the costs of finishing the tenant side of the
demising and corridor walls, as referenced in Section 1.1.10 above.
2.3 STANDARD TENANT IMPROVEMENT PACKAGE. Landlord has established
specifications (the "Specifications") for some of the Building standard
components which Tenant may elect to construct in the Premises (collectively,
the "Standard Improvement Package"), which Specifications are set forth in
Schedule 1 hereto. The quality of such Tenant Improvements shall at a minimum
comply with the applicable Specifications.
SECTION 3
CONSTRUCTION DRAWINGS
3.1 SELECTION OF ARCHITECT/CONSTRUCTION DRAWINGS. Tenant has selected
Unisys to design Tenant's the Data Center and, at Tenant's selection, Unisys may
be the Contractor for portions of the Tenant Improvements as designated by
Tenant, including the Tenant Improvements related to the construction of the
Data Center. Tenant has retained Interform Architects for all other space
planning design development and architectural services for the Premises.
Interform Architects shall retain the architect/space planner designated by
Landlord (the "Architect") to prepare the "Construction Drawings," as that term
is defined in this Section 3.1. Interform Architects shall also retain the
engineering consultants designated by Landlord (the "Engineers") to prepare all
plans and engineering working drawings relating to the
EXHIBIT B
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<PAGE> 66
structural, mechanical, electrical, plumbing, HVAC, lifesafety, and sprinkler
work of the Tenant Improvements. The plans and drawings to be prepared by
Architect and the Engineers hereunder shall be known collectively as the
"Construction Drawings." All Construction Drawings shall comply with the drawing
format and specifications as determined by Landlord, and shall be subject to
Landlord's reasonable approval. Tenant and Architect shall verify, in the field,
the dimensions and conditions as shown on the relevant portions of the base
Building plans, and, as between Tenant and Architect, Tenant shall be solely
responsible for the same, and Landlord shall have no responsibility in
connection therewith, except for Landlord Delay (as defined in Section 5.2.8
below). Landlord's review of the Construction Drawings as set forth in this
Section 3, shall be for its sole purpose and shall not imply that Landlord has
reviewed the same, or obligate Landlord to review the same, or impose liability
on Landlord with respect to the review of, the quality, design, Code compliance
or other like matters with respect to the Premises.
3.2 FINAL SPACE PLAN. On or before the date set forth in Schedule 2,
attached hereto, Tenant and the Architect shall prepare the final space plan for
Tenant Improvements in the Premises (collectively, the "Final Space Plan"),
which Final Space Plan shall include a layout and designation of all offices,
rooms and other partitioning, their intended use, and equipment to be contained
therein, and shall deliver the Final Space Plan to Landlord for Landlord's
approval.
3.3 FINAL WORKING DRAWINGS. On or before the date set forth in Schedule
2, Tenant, the Architect and the Engineers shall complete the architectural and
engineering drawings for the Premises, and the final architectural working
drawings in a form which is complete to allow subcontractors to bid on the work
and to obtain all applicable permits (collectively, the "Final Working
Drawings") and shall submit the same to Landlord for Landlord's approval.
3.4 PERMITS. The Final Working Drawings shall be approved by Landlord
(the "Approved Working Drawings") prior to the commencement of the construction
of the Tenant Improvements. Tenant shall immediately submit the Approved Working
Drawings to the appropriate municipal authorities for all applicable building
permits necessary to allow "Contractor," as that term is defined in Section 4.1
of this Tenant Work Letter, below, to commence and fully complete the
construction of the Tenant Improvements (the "Permits"), and, in connection
therewith, Tenant shall coordinate with Landlord in order to allow Landlord, at
its option, to take part in all phases of the permitting process and shall
supply Landlord, as soon as possible, with all plan check numbers and dates of
submittal and obtain the Permits on or before the date set forth in Schedule 2.
Notwithstanding anything to the contrary set forth in this Section 3.4, Tenant
hereby agrees that neither Landlord nor Landlord's consultants shall be
responsible for obtaining any building permit or certificate of occupancy for
the Premises and that the obtaining of the same shall be Tenant's
responsibility; provided however that Landlord shall, in any event, cooperate
with Tenant in executing permit applications and performing other ministerial
acts reasonably necessary to enable Tenant to obtain any such permit or
certificate of occupancy. No changes, modifications or alterations ("Tenant
Change")in the Approved Working Drawings may be made without the prior written
consent of Landlord. Landlord shall within three (3) business days after receipt
of request therefor, either (i) approve the Tenant Change, or (ii) disapprove
the Tenant Change and deliver notice to Tenant specifying in detail the reasons
for Landlord's disapproval; provided, however, that Landlord may only disapprove
of the change if the Tenant Change would result in (i) an adverse effect upon
the structural integrity
EXHIBIT B
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<PAGE> 67
of the Building; (ii) non-compliance with any applicable law or regulation;
(iii) an adverse effect on the systems and equipment of the Building; or (iv) an
adverse effect on the exterior appearance of the Building. .
3.5 TIME DEADLINES. Tenant shall use its best, good faith, efforts and
all due diligence to cooperate with the Architect, the Engineers, and Landlord
to complete all phases of the Construction Drawings and the permitting process
and to receive the permits, and with Contractor for approval of the "Cost
Proposal," as that term is defined in Section 4.2 of this Tenant Work Letter, as
soon as possible after the execution of the Lease, and, in that regard, shall
meet with Landlord on a scheduled basis to be determined by Landlord, to discuss
Tenant's progress in connection with the same. The applicable dates for approval
of items, plans and drawings as described in this Section 3, Section 4, and any
other dates for approval required by this Tenant Work Letter, are set forth in
Schedule 2 attached hereto (the "Time Deadlines"). Tenant agrees to use its best
good-faith efforts and all due diligence to comply with the Time Deadlines.
SECTION 4
CONSTRUCTION OF THE TENANT IMPROVEMENTS
4.1 CONTRACTOR. The general contractor in charge of construction shall
be Ticor Construction.
4.2 COST PROPOSAL. After the Approved Working Drawings are signed by
Landlord and Tenant, Tenant shall provide Landlord with a cost proposal in
accordance with the Approved Working Drawings, which cost proposal shall
include, as nearly as possible, the cost of all Tenant Improvement Allowance
Items to be incurred by Tenant in connection with the design and construction of
the Tenant Improvements (the "Cost Proposal"). Within three (3) business days of
the delivery by Tenant to Landlord of the Cost Proposal, or earlier if
reasonably elected by Landlord and Tenant, Landlord shall be released by Tenant
to purchase the items set forth in the Cost Proposal and to commence the
construction relating to such items. The date by which Tenant must approve and
deliver the Cost Proposal to Landlord shall be known hereafter as the "Cost
Proposal Delivery Date".
4.3 CONSTRUCTION OF TENANT IMPROVEMENTS BY CONTRACTOR UNDER THE
SUPERVISION OF LANDLORD.
4.3.1 OVER-ALLOWANCE AMOUNT. Tenant shall be responsible for the
payment of an amount (the "Over-Allowance Amount") equal to the difference
between (i) the amount of the Cost Proposal and (ii) the amount of the Tenant
Improvement Allowance. Tenant shall pay pro-rata portions of the Over-Allowance
Amount, together with Landlord's disbursement of the Tenant Improvement
Allowance on a ratio which shall be a fraction, the numerator of which is the
Over-Allowance Amount, and the denominator of which is the total of the
Over-Allowance Amount and the Tenant Improvement Allowance; i.e., the Tenant
Improvement Allowance and the Over-Allowance Amount shall be disbursed to the
Contractor on a monthly basis upon approval of disbursement of the Tenant
Improvement Allowance under Section 2.2 of this Work Letter. For example, if the
fraction described above is [*], and the total of the invoices from
EXHIBIT B
* Portions redacted pursuant to a request for confidential treatment filed with
the Securities and Exchange Commission.
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<PAGE> 68
the Contractor for the month is [*], Tenant shall pay to Landlord within five
(5) business days of request therefor, [*] as the Over-Allowance Amount portion
of the invoice, and Landlord shall pay [*] as the Tenant Improvement Allowance
amount of such invoice. In the event that, after the Cost Proposal Delivery
Date, any revisions, changes, or substitutions shall be made to the Construction
Drawings or the Tenant Improvements, any additional costs which arise in
connection with such revisions, changes or substitutions or any other additional
costs shall be paid by Tenant pursuant to the payment procedures described
above, as an addition to the Over-Allowance Amount.
4.3.2 LANDLORD'S RETENTION OF CONTRACTOR. Landlord shall
independently retain Contractor, on behalf of Tenant, to construct the Tenant
Improvements in accordance with the Approved Working Drawings and the Cost
Proposal and Landlord shall retain CB Richard Ellis as Landlord's construction
manager to supervise the construction by Contractor. Tenant shall pay a
construction supervision and management fee (the "Landlord Supervision Fee") to
Landlord in an amount equal to the lesser of (i) the product of [*] of the
actual construction cost of the Tenant Improvements and (ii) [*]. There shall be
no other Landlord or supervisory fees associated with the Tenant Improvements
and/or subsequent alterations thereto. All Tenant Improvement costs shall be
documented on an open book basis.
4.3.3 TENANT'S COVENANTS. Within ten (10) days after completion
of construction of the Tenant Improvements, Tenant shall cause Contractor and
Architect to cause a Notice of Completion to be recorded in the office of the
County Recorder of the county in which the Building is located in accordance
with applicable law and furnish a copy thereof to Landlord upon recordation,
failing which, Landlord may itself execute and file the same on behalf of Tenant
as Tenant's agent for such purpose. In addition, immediately after the
Substantial Completion of the Premises, Tenant shall have prepared and delivered
to the Building a copy of the "as built" plans and specifications (including all
working drawings) for the Tenant Improvements.
SECTION 5
COMPLETION OF THE TENANT IMPROVEMENTS;
LEASE COMMENCEMENT DATE
5.1 READY FOR OCCUPANCY. The Premises shall be deemed "Ready for
Occupancy" upon the Substantial Completion of the Premises. For purposes of this
Lease, "Substantial Completion" of the Premises shall mean and refer to the date
one (1) week following the later of (i) the date as of which the Contractor
certifies to Landlord and Tenant that the Tenant Improvements in the Premises
have been completed pursuant to the Approved Working Drawings, with the
exception of any punch list items (which punch list items will be corrected by
Landlord as soon as reasonably possible, and in no event later than thirty (30)
days from the date of the creation of the punch list, unless the same is may not
be completed due to Tenant Delays (as defined in Section 5.2 below) or events of
Force Majeure (as limited by Section 5.3 below)) and with the exception of any
tenant fixtures, work-stations, built-in furniture, or equipment to be installed
by Tenant or under the supervision of Contractor, and (ii) the date by which all
EXHIBIT B
* Portions redacted pursuant to a request for confidential treatment filed with
the Securities and Exchange Commission.
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<PAGE> 69
appropriate sign-offs and permits for the legal occupancy of the Premises have
been received from the applicable governmental authorities.
5.2 DELAY OF THE SUBSTANTIAL COMPLETION OF THE PREMISES. Except as
provided in this Section 5.2, the Lease Commencement Date shall occur as set
forth in the Lease and Section 5.1 of this Tenant Work Letter, above. If there
shall be an actual delay or there are any actual delays in the Substantial
Completion of the Premises or in the occurrence of any of the other conditions
precedent to the Lease Commencement Date, as set forth in the Lease, as a
direct, indirect, partial, or total result of any of the following acts or
omissions which are under the control of Tenant or agents of Tenant, after
taking into account the "net critical path" effect of delays caused by Landlord
(as defined below) and any event of Force Majeure and after Tenant has received
written notice from Landlord identifying any of the following and one business
day has elapsed after receipt of such notice to allow Tenant an opportunity to
cure the same (a "Tenant Delay"):
5.2.1 Tenant's failure to comply with the Time Deadlines;
5.2.2 Tenant's failure to timely approve any matter requiring
Tenant's approval;
5.2.3 A breach by Tenant of the terms of this Tenant Work Letter
or the Lease;
5.2.4 Changes in any of the Construction Drawings after
disapproval of the same by Landlord or because the same do not comply with Code
or other applicable laws;
5.2.5 Tenant's request for changes in the Approved Working
Drawings;
5.2.6 Tenant's requirement for materials, components, finishes or
improvements which are not available in a commercially reasonable time given the
anticipated date of Substantial Completion of the Premises, as set forth in the
Lease, or which are different from, or not included in, the Standard Improvement
Package;
5.2.7 Changes to the Base, Shell and Core required by the
Approved Working Drawings; or
5.2.8 Any other acts or omissions of Tenant, or its agents, or
employees;
then, notwithstanding anything to the contrary set forth in the Lease or this
Tenant Work Letter and regardless of the actual date of the Substantial
Completion of the Premises, the Lease Commencement Date shall be deemed to be
the date the Lease Commencement Date would have occurred if no Tenant Delay or
Delays, as set forth above, had occurred.
For the purposes of this Tenant Work Letter, "Landlord Delay" shall mean
any actual delays to extent resulting from the acts or omissions of Landlord,
including, without limitation, (i) failure of Landlord to timely approve or
disapprove the Architect/Construction Drawings, the Final Space Plan, the Final
Working Drawings or a Tenant Change; (ii) material interference by Landlord, its
agents or contractors with the completion of the Tenant Improvements and which
objectively preclude construction of Tenant Improvements in the Premises by any
person, which interference relates to access by Tenant, its agents and
contractors to the Premises, Building or
EXHIBIT B
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<PAGE> 70
Project or any facilities (such as elevators or parking areas) during normal
construction hours, or activities required pursuant to this EXHIBIT B during
normal business hours (subject to the requirements of Section 6.1 below); (iii)
delays due to the acts or failure to act of Landlord, its agents or contractors
with respect to payment of the Tenant Improvement Allowance and/or cessation of
work upon the Tenant Improvements as a result thereof; and (iv) Landlord's
failure to substantially complete and deliver the Base, Core and Shell in
compliance with Section 1.1 hereof.
5.3 OUTSIDE DATES. The dates set forth in Schedule 2 hereto contemplate
Substantial Completion by [*], and toward that end, the Contractor has generated
a critical-path schedule which has been delivered to Landlord and Tenant. Such
critical path schedule reflects a date of [*] as the date by which a certain
portion of the Tenant Improvements is to be "walked through" in order to
determine whether the Tenant Improvements are on schedule for Substantial
Completion by [*], during which "walk-through" Landlord and Tenant will develop
a punch list (the "[*] Walk Through"). If the [*] Walk Through does not occur by
[*], Base Rent shall be abated, following the Commencement Date, on a
day-of-Rent for day-of-delay basis for up to two (2) weeks, and thereupon Base
Rent shall be abated on a two-day-of-Rent for day-of-delay basis for a total
abatement period equal the number to date between [*] and the date of the Walk
Through. Further if there is not Substantial Completion by [*], Tenant shall
have the right to request that the Contractor certify to both parties as to the
projected date of Substantial Completion. If within five (5) business days
following such request, Contractor is unable for any reason to certify that
Substantial Completion will occur by [*], then Tenant shall have ten (10)
business days to notify Landlord that it has elected to terminate this Lease,
and if Tenant has timely notified Landlord of its election, Tenant may so
terminate and shall be released from all obligation under the Lease. All dates
prior to [*] shall be extended by Tenant Delays and Force Majeure, and all dates
from [*] shall be extended only for Tenant Delays.
SECTION 6
MISCELLANEOUS
6.1 TENANT'S ENTRY INTO THE PREMISES PRIOR TO SUBSTANTIAL COMPLETION.
Provided that Tenant and its agents do not interfere with Contractor's work in
the Building and the Premises, Contractor shall allow Tenant access to the
Premises prior to the Substantial Completion of the Premises for the purpose of
Tenant installing overstandard equipment or fixtures (including Tenant's data
and telephone equipment) in the Premises. Prior to Tenant's entry into the
Premises as permitted by the terms of this Section 6.1, Tenant shall submit a
schedule to Landlord and Contractor, for their approval, which schedule shall
detail the timing and purpose of Tenant's entry. Tenant shall hold Landlord
harmless from and indemnify, protect and defend Landlord against any loss or
damage to the Building or Premises and against injury to any persons caused by
or arising out of Tenant's actions taken or inaction with respect to the early
entry described in this Section 6.1.
EXHIBIT B
* Portions redacted pursuant to a request for confidential treatment filed with
the Securities and Exchange Commission.
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<PAGE> 71
6.2 ELEVATORS. Landlord shall allow the use of the passenger elevators
for Tenant's freight elevator use, subject to Landlord's reasonable requirements
for protective padding in connection with initial decorating, furnishing and
moving into the Premises.
6.3 TENANT'S REPRESENTATIVE. Tenant has designated Mark Attinger as its
sole representative with respect to the matters set forth in this Tenant Work
Letter, who, until further notice to Landlord, shall have full authority and
responsibility to act on behalf of the Tenant as required in this Tenant Work
Letter.
6.4 LANDLORD'S REPRESENTATIVE. Landlord has designated Joe Nunes of CB
Richard Ellis, Inc. Asset Services as its sole representatives with respect to
the matters set forth in this Tenant Work Letter, who, until further notice to
Tenant, shall have full authority and responsibility to act on behalf of the
Landlord as required in this Tenant Work Letter.
6.5 TIME OF THE ESSENCE IN THIS TENANT WORK LETTER. Unless otherwise
indicated, all references herein to a "number of days" shall mean and refer to
business days.
6.6 PERFORMANCE PER APPLICABLE LAW. All work performed by Landlord or
Contractor pursuant to this Tenant Work Letter shall be undertaken and completed
in accordance with all applicable law, including the Americans with Disabilities
Act ("ADA") with respect to the work to be performed by Contractor outside of
the perimeter of the Premises, it being acknowledged by Tenant that all work
within the Premises is to conform with the requirements of all applicable law,
including the ADA; provided, however, that if in order to conform with the
requirements of applicable law in connection with the construction of the Tenant
Improvements, Tenant is required to remove Hazardous Materials from the Base,
Core and Shell, such removal shall be at Landlord's expense and any delay
resulting therefrom shall be a Landlord Delay.
EXHIBIT B
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SCHEDULE A TO TENANT WORK LETTER
OMEGA SPRINKLER HEADS
CENTRAL SPRINKLER COMPANY OMEGA SERIES MODELS: C-1, C-1A, C-1A PRO, C-1A
PRO ID, EC-20, EC-20A, EC-20AID, HEC 12, HEC 12 ID, HEC-12 PRO, HEC-12A PRO,
HEC-12 RES, HEC-20 ID, R-1, R-1A, R-1M, AC, M AND FLOW CONTROL.
EXHIBIT B
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<PAGE> 73
SCHEDULE 1 TO TENANT WORK LETTER
SPECIFICATIONS FOR COMPONENTS INCLUDED IN
STANDARD IMPROVEMENTS PACKAGE
[SEE ATTACHED]
EXHIBIT B
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<PAGE> 74
SCHEDULE 2 TO TENANT WORK LETTER
TIME DEADLINES
<TABLE>
<CAPTION>
Dates Actions to be Performed
----- -----------------------
<S> <C>
A. [*] Final Space Plan to be completed by Tenant and delivered to Landlord.
B. [*] Tenant to deliver Final Working Drawings to Landlord.
C. [*] Tenant to deliver Permits to Contractor.
D. [*] Tenant to approve Cost Proposal and deliver Cost Proposal to Landlord.
</TABLE>
* Portions redacted pursuant to a request for confidential treatment filed with
the Securities and Exchange Commission.
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<PAGE> 75
EXHIBIT C
AIRPORT TECHNOLOGY CENTER
NOTICE OF LEASE TERM DATES AND AREA CONFIRMATION
To: _______________________
_______________________
_______________________
_______________________
Re: Office Lease dated March _, 2000 between CARLYLE AIRPORT
TECHNOLOGY TRUST, a Maryland real estate investment trust
("Landlord"), and NextCard, Inc., a Delaware corporation
("Tenant") concerning Suite 200 on the first (1st) and
second (2nd) floor(s) of the office building located at
4129 East Van Buren Phoenix, Arizona.
Ladies and Gentlemen:
In accordance with the above-captioned Office Lease (the "Lease"), we
wish to advise you and/or confirm as follows:
1. The Lease Term shall commence on or has commenced on
________________ for a term of ________________ ending on
_________________.
2. Rent commenced to accrue on ________________________, in the
amount of _________________________.
3. If the Lease Commencement Date is other than the first day of
the month, the first billing will contain a pro rata adjustment.
Each billing thereafter, with the possible exception of the
final billing, shall be for the full amount of the monthly
installment as provided for in the Lease.
4. Your rent checks should be made payable to __________________
and delivered to _______________________________.
5. The exact number of rentable square feet within the Premises is
__________ square feet.
6. Tenant's Share as adjusted based upon the exact number of
rentable square feet within the Premises is _________%.
EXHIBIT C
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"Landlord" CARLYLE AIRPORT TECHNOLOGY TRUST,
a Maryland real estate investment trust
By:
-----------------------------------
Name:
------------------------------
Its:
-------------------------------
Agreed to and Accepted as
of ____________, 20__,
"Tenant" NextCard, Inc.,
a Delaware corporation,
By:
-----------------------------------
Name:
------------------------------
Its:
-------------------------------
EXHIBIT C
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<PAGE> 77
EXHIBIT D
AIRPORT TECHNOLOGY CENTER
RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the following Rules and
Regulations. Landlord shall not be responsible to Tenant for the nonperformance
of any of said Rules and Regulations by or otherwise with respect to the acts or
omissions of any other tenants or occupants of the Project. In the event of any
conflict between the Rules and Regulations and the other provisions of this
Lease, the latter shall control. The following Rules and Regulation shall be
enforced on a good-faith, nondiscriminatory basis by Landlord, taking into
account Tenant's permitted use, the size of Tenant's Premises relative to those
of other tenants in the Building, and the fair application of the custom and
practice with respect to similar rules and regulations in effect for
institutionally-owned Comparable Buildings. The provisions of the foregoing
sentence may not be revised pursuant to Landlord's right to revise or modify
these rules and regulations.
1. Tenant shall not alter any lock or install any new or additional
locks or bolts on any doors or windows of the Premises without obtaining
Landlord's prior written consent which shall not be unreasonably withheld or
delayed. Tenant shall bear the cost of any lock changes or repairs required by
Tenant. Two keys will be furnished by Landlord for the Premises, and any
additional keys required by Tenant must be obtained from Landlord at a
reasonable cost to be established by Landlord. Upon the termination of this
Lease, Tenant shall restore to Landlord all keys of stores, offices, and toilet
rooms, either furnished to, Tenant and in the event of the loss of keys
furnished by Landlord, Tenant shall pay to Landlord the cost of replacing same
or of changing the lock or locks opened by such lost key if Landlord shall deem
it reasonably necessary to make such changes.
2. All doors opening to public corridors shall be kept closed at all
times except for normal ingress and egress to the Premises.
3. Landlord reserves the right to close and keep locked all entrance and
exit doors of the Building during such hours as are customary for comparable
buildings in the vicinity of the Project. Tenant, its employees and agents must
be sure that the doors to the Building are securely closed and locked when
leaving the Premises after the normal hours of business for the Building. Any
tenant, its employees, agents or any other persons entering or leaving the
Building at any time when it is so locked, or any time when it is considered to
be after normal business hours for the Building, may be required to sign the
Building register. Access to the Building may be refused unless the person
seeking access has proper identification or has a previously arranged pass for
access to the Building. Landlord will furnish passes to persons for whom Tenant
requests same in writing. In case of invasion, mob, riot, public excitement, or
other commotion, Landlord reserves the right to prevent access to the Building
or the Project during the continuance thereof by any means it deems appropriate
for the safety and protection of life and property.
4. Tenant shall use its best efforts to give Landlord prior notice
before furniture, freight or equipment of any kind shall be brought into the
Building without prior notice to
EXHIBIT D
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<PAGE> 78
Landlord. When possible, all moving activity into or out of the Building shall
be scheduled with Landlord and done only at such reasonable time and in such
manner as Landlord designates. Landlord shall have the right to prescribe the
weight, size and position of all safes and other heavy property brought into the
Building and also the times and manner of moving the same in and out of the
Building. Landlord will not be responsible for loss of or damage to any such
safe or property caused by Tenant, its agents or employees. Any damage to any
part of the Building, its contents, occupants or visitors by moving or
maintaining any such safe or other property caused by Tenant, its agents or
employees, shall be the sole responsibility and expense of Tenant.
5. [INTENTIONALLY DELETED]
6. The requirements of Tenant will be attended to only upon application
at the management office for the Project or at such office location designated
by Landlord. Employees of Landlord shall not perform any work or do anything
outside their regular duties unless under special instructions from Landlord.
7. Subject to the requirements of any federal, state, county, city or
governmental agency law, statute, ordinance, standard, rule, or order now in
effect or hereafter issued, and Tenant's signage rights more particularly
described in Paragraph 23 of the Lease, no sign, advertisement, notice or
handbill shall be exhibited, distributed, painted or affixed by Tenant on any
part of the Premises or the Building without the prior written consent of the
Landlord. Tenant shall not disturb, solicit, peddle, or canvass any occupant of
the Project and shall cooperate with Landlord and of Landlord to prevent same.
This clause is drafted in an overly broad which would appear to prohibit
displays of wage -hour regulations, etc. In addition, it needs to be revised to
properly indicate its interaction with Paragraph 23 of the Lease.
8. The toilet rooms, urinals, wash bowls and other apparatus shall not
be used for any purpose other than that for which they were constructed, and no
foreign substance of any kind whatsoever shall be thrown therein. The expense of
any breakage, stoppage or damage resulting from the violation of this rule shall
be borne by the tenant who, or whose servants, employees, agents, visitors or
licensees shall have caused same.
9. Tenant shall not overload the floor of the Premises, nor mark, drive
nails or screws, or drill into the partitions, woodwork or drywall or in any way
deface the Premises or any part thereof without Landlord's prior written consent
which shall not be unreasonably withheld or delayed, provided, however, that
nothing herein shall limit Tenant's right to install art work, framed pictures,
whiteboard and similar non-structural items.
10. [INTENTIONALLY DELETED]
11. Except for vending machines intended for the sole use of Tenant's
employees and invitees, no vending machine or machines other than fractional
horsepower office machines shall be installed, maintained or operated upon the
Premises without the written consent of Landlord which shall not be unreasonably
withheld or delayed.
12. [INTENTIONALLY DELETED]
EXHIBIT D
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<PAGE> 79
13. Tenant shall not permit or allow the Premises to be occupied or used
in a manner offensive or objectionable to Landlord or other occupants of the
Project by reason of noise, odors, or vibrations, or interfere with other
tenants or those having business therein, whether by the use of any musical
instrument, radio, phonograph, or in any other way. Tenant shall not throw
anything out of doors, windows or down passageways.
14. Tenant shall not bring into or keep within the Project, the Building
or the Premises any animals, birds, aquariums, or, except in areas designated by
Landlord, bicycles or other vehicles, excepting therefrom seeing-eye dogs or
other animals or vehicles required by any disabled employee or invitee or
Tenant..
15. No cooking shall be done or permitted on the Premises, nor shall the
Premises be used for lodging or for any improper, objectionable or immoral
purposes. Notwithstanding the foregoing, Underwriters' laboratory-approved
equipment and microwave ovens may be used in the Premises for heating food and
brewing coffee, tea, hot chocolate and similar beverages for employees and
visitors, provided that such use is in accordance with all applicable federal,
state, county and city laws, codes, ordinances, rules and regulations. Nothing
in this clause shall prevent the serving of catered lunches and other meals in
the Premises.
16. The Premises shall not be used for manufacturing or for the storage
of merchandise except as such storage may be incidental to the use of the
Premises provided for in the Summary. Tenant shall not occupy or permit any
portion of the Premises to be occupied as an office for a messenger-type
operation or dispatch office, public stenographer or typist, or for the
manufacture or sale of liquor, narcotics, or tobacco in any form, or as a
medical office, or as a barber or manicure shop, or as an employment bureau
without the express prior written consent of Landlord.
17. Landlord reserves the right to exclude or expel from the Project any
person who, in the judgment of Landlord, is intoxicated or under the influence
of liquor or drugs, or who shall in any manner do any act in violation of any of
these Rules and Regulations. Nothing in this clause shall prevent the serving of
catered lunches and other meals in the Premises.
18. The Building has been designated a non-smoking building. Tenant, its
employees and agents shall not loiter in or on the entrances, corridors,
sidewalks, lobbies, courts, halls, stairways, elevators, vestibules or any
Common Areas for the purpose of smoking tobacco products or for any other
purpose, nor in any way obstruct such areas, and shall use them only as a means
of ingress and egress for the Premises. Landlord shall designate approved
smoking areas from time to time or as reasonably required.
19. Tenant shall not waste electricity, water or air conditioning and
agrees to cooperate fully with Landlord to ensure the most effective operation
of the Building's heating and air conditioning system, and shall refrain from
attempting to adjust any controls; provided, however, that Landlord shall at all
times maintain the Premises at a comfortable temperature."
20. Tenant shall store all its trash and garbage within the interior of
the Premises. No material shall be placed in the trash boxes or receptacles if
such material is of such nature that it may not be disposed of in the ordinary
and customary manner of removing and disposing of
EXHIBIT D
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<PAGE> 80
trash and garbage in the city in which the Project is located without violation
of any law or ordinance governing such disposal. All trash, garbage and refuse
disposal shall be made only through entry-ways and elevators provided for such
purposes at such times as Landlord shall designate. Tenant shall actively
participate in any reasonable Project sponsored recycling programs; provided,
however, that such active participation shall not unduly interfere with Tenant's
Use of the Premises or materially increase Tenant's monetary obligations under
the Lease.
21. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
22. Any persons employed by Tenant to do supplemental janitorial work
shall be subject to the prior written approval of Landlord which shall not be
unreasonably withheld or delayed, and while in the Building and outside of the
Premises, shall be subject to and under the control and direction of the
Building Manager (but not as an agent or servant of such manager or of
Landlord), and Tenant shall be responsible for all acts of such persons. Nothing
in this Rule 22 or elsewhere under the Lease shall prohibit the entry of persons
not directly employed on Premises by Tenant, but reasonably required by Tenant
in its operation of the Premises, including without limitation employees of a
mail/office services such as Pitney Bowes.
23. No awnings or other projection shall be attached to the outside
walls of the Building without the prior written consent of Landlord, and no
curtains, blinds, shades or screens shall be attached to or hung in, or used in
connection with, any window or door of the Premises other than Landlord standard
drapes. All electrical ceiling fixtures hung in the Premises or spaces along the
perimeter of the Building must be fluorescent and/or of a quality, type, design
and a warm white bulb color approved in advance in writing by Landlord. Neither
the interior nor exterior of any windows shall be coated or otherwise
sunscreened without the prior written consent of Landlord which shall not be
unreasonably withheld or delayed. Tenant shall abide by Landlord's reasonable
regulations concerning the opening and closing of window coverings which are
attached to the windows in the Premises, if any, which have a view of any
interior portion of the Building or Common Areas.
24. The sashes, sash doors, skylights, windows, and doors that reflect
or admit light and air into the halls, passageways or other public places in the
Building shall not be covered or obstructed by Tenant, nor shall any bottles,
parcels or other articles be placed on the windowsills.
25. Tenant must comply with requests by the Landlord concerning the
informing of its employees of items of importance to the Landlord.
26. Tenant must comply with any non-smoking ordinance adopted by any
applicable governmental authority.
27. Tenant hereby acknowledges that Landlord shall have no obligation to
provide specific levels guard service or other security measures but shall at
all times maintain reasonable security for the benefit of the Premises, the
Building or the Project comparable to those in similar building. Tenant hereby
assumes all responsibility including keeping doors locked and
EXHIBIT D
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<PAGE> 81
other means of entry to the Premises closed, whether or not Tenant further
assumes the risk that any safety and security devices, services and programs
which Landlord elects, in its sole discretion, to provide may not be effective,
or may malfunction or be circumvented by an unauthorized third party, and Tenant
shall, in addition to its other insurance obligations under this Lease, obtain
its own insurance coverage to the extent Tenant desires protection against
losses related to such occurrences. Tenant shall cooperate in any reasonable
safety or security program developed by Landlord or required by law.
28. All office equipment of any electrical or mechanical nature shall be
placed by Tenant in the Premises in settings approved by Landlord, to absorb or
prevent any vibration, noise and annoyance.
29. Tenant shall not use in any space or in the public halls of the
Building, any hand trucks except those equipped with rubber tires and rubber
side guards.
30. No auction, liquidation, fire sale, going-out-of-business or
bankruptcy sale shall be conducted in the Premises without the prior written
consent of Landlord which shall not be unreasonably withheld or delayed.
31. No tenant shall use or permit the use of any portion of the Premises
for living quarters, sleeping apartments or lodging rooms.
Landlord shall not modify the provisions of these Rules and Regulations
without Tenant's consent, which shall not be unreasonably withheld or delayed,
so long as Tenant shall not be required to consent to any change which would
require Tenant to pay additional rent. Such amendment is not binding on Tenant
until the tenth (10th) business day after Tenant receives written notice of the
change, and no rule shall apply retroactively The Rules and Regulations do not
take precedence over the specific terms and conditions of the lease.
EXHIBIT D
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EXHIBIT E
AIRPORT TECHNOLOGY CENTER
FORM OF TENANT'S ESTOPPEL CERTIFICATE
TENANT:______________________________
COMMENCEMENT DATE:___________________
AMENDED:_____________________________
PREMISES:
The undersigned hereby certifies as to the following:
1. The undersigned is the "Tenant" under a lease consisting of the
following documents (collectively referred to as the "Lease"): dated
_______________, 199___; and ________ ______________________ (insert description
of amendments or state "none" if applicable).
2. The Lease constitutes the entire agreement between
________________________, as landlord under the Lease ("Landlord") and Tenant
with respect to the Premises, and the Lease has not been cancelled, modified,
changed, altered or amended in any respect.
3. The initial term of the Lease is for _______ years and contains the
following renewal options:
________________________________________________________.
4. To the best of Tenant's knowledge, as of the date of this Estoppel
Certificate, there exists no breach or default under the Lease, nor state of
facts which, with notice, the passage of time, or both, would result in a breach
or default under the Lease on the part of Landlord. As of the date of this
Estoppel Certificate, there exists no breach or default under the Lease, nor
state of facts which, with notice, the passage of time, or both, would result in
a breach or default under the Lease on the part of Tenant. To the best of
Tenant's knowledge, no claim, controversy, dispute, quarrel or disagreement
exists between Tenant and Landlord. Tenant has no offset against the rental due
under the Lease.
5. Under the Lease, Tenant shall be obligated to pay as additional rent,
Tenant's proportionate share of [check whichever of the following is
applicable]: 9 common area maintenance in excess of _______; 9 insurance in
excess of _______; 9 taxes in excess of _______. Tenant has deposited a security
deposit of $_______.
6. Tenant has no option, right of first offer or right of first refusal
to lease or occupy any other space within the property of which the Premises are
a part except as expressly set forth in the Lease.
EXHIBIT E
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<PAGE> 83
7. Tenant has no option or preferential right to purchase all or part of
the Premises (or the real property of which the Premises are a part) nor any
right or interest with respect to the Premises other than as Tenant under the
Lease.
8. Tenant has no preferential right to parking spaces or any storage
area.
9. In no event shall Tenant pay rent more than thirty (30) days in
advance. Tenant has made no agreement with Landlord or any agent, representative
or employee of Landlord concerning free rent, partial rent, rebate of rental or
other concession except as expressly set forth in the Lease.
10. There has not been filed by or against Tenant a petition in
bankruptcy, voluntary or otherwise, any assignment for benefit of creditors, any
petition seeking reorganization or arrangement under the bankruptcy laws of the
United States, or any state thereof, or any other action brought under said
bankruptcy laws with respect to Tenant.
11. The Premises contains or shall contain ____________ square feet of
space.
12. [In accordance with Section ____ of the Lease, Tenant's interest in
the Lease is subject to and subordinate to the lien of any [first] deed of trust
or [first] mortgages now on, or which at any time may be a lien upon, the
property or the building, and to all advances made or hereafter made upon the
security thereof.]
13. To the best of Tenant's knowledge there are no leasing commissions
owed with respect to the Lease except as follows:
___________________________________________.
[The balance of this page is intentionally left blank.]
EXHIBIT E
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<PAGE> 84
This Estoppel Certificate is made in connection with the prospective
purchase and/or financing of the building containing the Premises. This Estoppel
Certificate may be relied on by any party who now owns or hereafter acquires an
interest in such building and by any person or entity which may finance or
re-finance the same.
Dated this _____ day of _______________, 199___.
"Tenant" ___________________________________________,
a __________________________________________
By:_________________________________________
Name:____________________________________
Title:___________________________________
EXHIBIT E
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<PAGE> 85
EXHIBIT F
AIRPORT TECHNOLOGY CENTER
GUARANTY FEDERAL BANK STANDARD SNDA
SUBORDINATION, NONDISTURBANCE
AND ATTORNMENT AGREEMENT
THIS AGREEMENT made this ___ day of _________, 2000, between GUARANTY
FEDERAL BANK, F.S.B. (hereinafter called "Mortgagee"), NextCard, Inc.
(hereinafter called "Tenant") and Carlyle Airport Technology Trust (hereinafter
called "Landlord"),
W I T N E S S E T H T H A T:
WHEREAS, Mortgagee is now or will be the owner and holder of a Deed of
Trust (hereinafter called the "Mortgage") covering the real property described
in Exhibit A and the buildings and improvements thereon (hereinafter
collectively called the "Mortgaged Premises") securing the payment of a
promissory note in the stated principal amount of $________ payable to the order
of Mortgagee, and recorded or to be recorded in the official public record in
the county where the Mortgaged Premises is located;
WHEREAS, Tenant is the tenant under a lease (hereinafter called the
"Lease") dated _________, 2000, made with Carlyle Airport Technology Trust, as
landlord, covering certain property (hereinafter called the "Demised Premises")
consisting of all or a part of the Mortgaged Premises; and
WHEREAS, Landlord, Tenant and Mortgagee desire to confirm their
understanding with respect to the Lease and the Mortgage;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, Landlord, Mortgagee and Tenant hereby agree and covenant as
follows:
1. Subordination. The Lease now is, and shall at all times and for all
purposes continue to be, subject and subordinate, in each and every respect, to
the Mortgage, with the provisions of the Mortgage controlling in all respects
over the provisions of the Lease, it being understood and agreed that the
foregoing subordination shall apply to any and all increases, renewals,
modifications, extensions, substitutions, replacements and/or consolidations of
the Mortgage, provided that any and all such increases, renewals,
modifications, extensions, substitutions, replacements and/or consolidations
shall nevertheless be subject to the terms of this Agreement; and in all events
subject to the terms and provisions of this Agreement.
2. Non-Disturbance. So long as (i) Tenant is not in default (beyond any period
given Tenant to cure such default) in the payment of rent or additional rent or
in the performance of any of the
<PAGE> 86
other terms, covenants or conditions of the Lease on Tenant's part to be
performed, (ii) the Lease is in full force and effect according to its original
terms, or with such amendments or modifications as Mortgagee shall have approved
in writing, and (iii) Tenant attorns to Mortgagee or a purchaser of the
Mortgaged Premises as provided in Paragraph 3 below, then (a) Tenant's
possession, occupancy, use and quiet enjoyment of the Demised Premises under the
Lease (or any extensions or renewals thereof or acquisition of additional space
which may be effected in accordance with any option therefor in the Lease) shall
not be terminated, disturbed, diminished or interfered with by Mortgagee in the
exercise of any of its rights under the Mortgage, and (b) Mortgagee will not
join Tenant as a party defendant in any action or proceeding for the purpose of
terminating Tenant's interest and estate under the Lease because of any default
under the Mortgage except as required by applicable law.
3. Attornment. If Mortgagee shall become the owner of the Mortgaged Premises
or if the Mortgaged Premises shall be sold by reason of foreclosure or other
proceedings brought to enforce the Mortgage or if the Mortgaged Premises shall
be conveyed by deed in lieu of foreclosure, then in any such event the Lease
shall continue in full force and effect as a direct Lease between the then owner
of the Mortgaged Premises (who shall succeed to the rights and duties of
Landlord) and Tenant, and Tenants shall attorn to Mortgagee or such purchaser
(as the case may be) upon any such event and shall recognize Mortgagee or such
purchaser (as the case may be) as the Landlord under the Lease. Such attornment
shall be effective and self-operative without the execution of any further
instrument on the part of any of the parties hereto. Tenant agrees, however, to
execute and deliver at any time and from time to time, upon the request of
Landlord or of any holder(s) of any of the indebtedness or other obligations
secured by the Mortgage of any such purchaser, any instrument or certificate
which, in the sole reasonable judgment of the requesting party, is necessary or
appropriate in any such foreclosure proceeding or otherwise to evidence such
attornment.
4. Obligations and Remedies. If Mortgagee shall become the owner of the
Mortgaged Premises or if the Mortgaged Premises shall be sold by reason of
foreclosure or other proceedings brought to enforce the Mortgage or if the
Mortgaged Premises shall be conveyed by deed in lieu of foreclosure, then in any
such event Mortgagee or such purchaser (as the case may be) shall have the
remedies by entry, action or otherwise in the event of any default by Tenant
(beyond any period given Tenant to cure such default) in the payment of rent or
additional rent or in the performance of any of the other terms, covenants and
conditions of the Lease on Tenant's part to be performed that Landlord had or
would have had if Mortgagee or such purchaser had not succeeded to the interest
of Landlord. Upon attornment by Tenant as provided in Paragraph 3 above,
Mortgagee or such purchaser shall be bound to Tenant under all the terms,
covenants and conditions of the Lease and Tenant shall have the same remedies
against Mortgagee or such purchaser for the breach of an agreement contained in
the Lease that Tenant might have had under the Lease against Landlord if
Mortgagee or such purchaser had not succeeded to the interest of Landlord;
provided, however, that Mortgagee or such purchaser shall not be liable or bound
to Tenant:
-2-
<PAGE> 87
(a) for any act or omission of any prior landlord (including Landlord),
provided that successor landlord shall be obligated to cure any continuing
default of the prior landlord of which it has received written notice and
shall be liable for acts or omissions accruing or arising after the earlier
of Mortgagee's commencement of control and management of the Property or
the successor landlord's succession to title; or
(b) for any offsets or defenses which Tenant might have against any prior
landlord (including Landlord) except for such offsets and defenses relating
to continuing acts or omissions with respect to which Mortgagee or such
party has received notice and has failed to cure; or
(c) for or by any rent or additional rent which Tenant might have paid for
more than the current month to any prior landlord (including Landlord); or
(d) by any amendment or modification of the Lease made without Mortgagee's
consent; or
(e) for any security deposit, rental deposit or similar deposit given by
Tenant to a prior landlord (including Landlord) unless such deposit is
actually paid over to Mortgagee or such purchaser by the prior landlord; or
(f) for any repairs or replacements to or required by the Demised Premises
or the Mortgaged Premises arising prior to the date Mortgagee takes
possession of the Mortgaged Premises; or
(g) for any moving, relocation or refurbishment allowance or any
construction of or payment or allowance for tenant improvements to the
Demised Premises or any part thereof or to the Mortgaged Premises or any
part thereof for the benefit of Tenant; or
(h) for the payment of any leasing commissions or other expenses for which
any prior landlord (including Landlord) incurred the obligation to pay; or
(i) by any notice given by Tenant to a prior landlord (including Landlord)
unless a copy thereof was also then given to Mortgagee.
The person or entity to whom Tenant attorns shall be liable to Tenant under the
Lease only for matters arising during such person's or entity's period of
ownership, and such liability shall terminate upon the transfer by such person
or entity of its interest in the Lease and the Mortgaged Premises and the
assumption of such liability by the transferee.
5. No Abridgment. Nothing herein contained is intended, nor shall it be
construed, to abridge or adversely affect any right or remedy of Landlord under
the Lease in the event of any default by Tenant (beyond any period given Tenant
to cure such default) in the payment of rent or
-3-
<PAGE> 88
additional rent or in the performance of any of the other terms, covenants or
conditions of the Lease on Tenant's part to be performed.
6. Notices of Default to Mortgagee. Tenant agrees to give Mortgagee a copy of
any default notice sent by Landlord under the Lease to Tenant or by Tenant to
Landlord and to promptly send written notice to Mortgagee upon learning of any
default under the Lease by any party to the Lease.
7. Representations by Tenant. Tenant represents and warrants to Mortgagee
that Tenant has validly executed the Lease; the Lease is valid, binding and
enforceable and is in full force and effect in accordance with its terms; the
Lease has not been amended except as stated herein; the term of the Lease has
commenced; Tenant has accepted possession of the Demised Premises and any
improvements required by the terms of the Lease have been completed to the
satisfaction of Tenant; no rent under the Lease has been paid more than thirty
(30) days in advance of its due date; there are no defaults existing under the
Lease; and Tenant, as of this date, has no charge, lien, counterclaim or claim
of offset under the Lease, or otherwise, against the rents or other charges due
or to become due under the Lease.
8. Rent Payment. If Mortgagee shall become the owner of the Mortgaged
Premises or the Mortgaged Premises shall be sold by reason of foreclosure or
other proceedings brought to enforce the Mortgage or the Mortgaged Premises
shall be conveyed by deed in lieu of foreclosure, Tenant agrees to pay all
rents directly to Mortgagee or such purchaser, as the case may be, in
accordance with the Lease immediately upon notice of Mortgagee or such
purchaser, as the case may be, succeeding to Landlord's interest under the
Lease. Tenant further agrees to pay all rents directly to Mortgagee immediately
upon notice that Mortgagee is exercising its rights to such rents under the
Mortgage or any other loan documents (including but not limited to any
Assignment of Leases and Rents) following a default by Landlord or other
applicable party.
9. Notice of Mortgage. To the extent that the Lease shall entitle Tenant to
notice of any mortgage or security agreement, this Agreement shall constitute
such notice to the Tenant with respect to the Mortgage and to any and all other
mortgages and security agreements which may hereafter be subject to the terms
of this Agreement.
10. Landlord Defaults. Tenant agrees with Mortgagee that effective as of the
date of this Agreement: (i) Tenant shall not take any steps to terminate the
Lease for any default by Landlord or any succeeding owner of the Mortgaged
Premises until after giving Mortgagee written notice of such default, stating
the nature of the default and giving Mortgagee thirty (30) days from receipt of
such notice to effect cure of the same, or if cure cannot be effected within
said thirty (30) days due to the nature of the default, Mortgagee shall have a
reasonable time to cure provided that it commences cure within said thirty (30)
day period of time and diligently carries such cure to completion; and (ii)
notice to the Landlord under the Lease (oral or written) shall not constitute
notice to Mortgagee.
-4-
<PAGE> 89
13. Modification. This Agreement may not be modified orally or in any manner
other than by an agreement in writing signed by the parties hereto or their
respective successors in interest.
14. Successor Mortgagee. The term "Mortgagee" as used throughout this
Agreement includes any successor or assign of Mortgagee and any holder(s) of
any interest in the indebtedness secured by the Mortgage.
15. Successors and Assigns. This Agreement shall inure to the benefit of and
be binding upon the parties hereto, their successors and assigns, and any
purchaser or purchasers at foreclosure of the Mortgaged Premises, and their
respective heirs, personal representatives, successors and assigns.
16. Paragraph Headings: The paragraph headings contained in this Agreement are
for convenience only and shall in no way enlarge or limit the scope or meaning
of the various and several paragraphs hereof.
17. Gender and Number. Within this Agreement, words of any gender shall be held
and construed to include any other gender, and words in the singular number
shall be held and construed to include the plural and words in the plural
number shall be held and construed to include the singular, unless the context
otherwise requires.
18. Applicable Law. This Agreement and the rights and duties of the parties
hereunder shall be governed for all purposes by the laws of the State of
Arizona and the law of the United States applicable to transactions within such
state.
[THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
-6-
<PAGE> 90
IN WITNESS WHEREOF, the parties hereto have hereunto caused this Agreement
to be duly executed as of the day and year first above written.
TENANT:
NextCard, Inc.
595 Market Street, Suite 1800
San Francisco, CA 94105
By:
Name:
----------------------------------
Title:
---------------------------------
MORTGAGEE:
GUARANTY FEDERAL BANK, F.S.B.,
a federal savings bank
By:
Name:
----------------------------------
Title: Vice President
LANDLORD:
Carlyle Airport Technology Trust, a Maryland real
estate investment trust
By:
Name:
----------------------------------
Title:
---------------------------------
-7-
<PAGE> 91
THE STATE OF ______________ )
)
COUNTY OF _________________ )
This instrument was acknowledged before me on ________________, 2000, by
_________________________, _______________________ of ____________________, a
_____________________________, on behalf of said _________________.
______________________________________
Notary Public, State of ______________
______________________________________
(Typed or Printed Name of Notary)
My Commission Expires:
_____________________
<PAGE> 92
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on ________________, 2000, by
_________________________, ___________ Vice President of GUARANTY FEDERAL BANK,
[ILLEGIBLE COPY] savings bank, on behalf of said federal savings bank.
________________________________
Notary Public, State of Texas
________________________________
(Typed or Printed Name of Notary)
My Commission Expires:
_____________________
<PAGE> 93
THE STATE OF ______________ )
)
COUNTY OF _________________ )
This instrument was acknowledged before me on ________________, 199_, by
_________________________, _______________________ of ____________________, a
_____________________________, on behalf of said _________________.
______________________________________
Notary Public, State of ______________
______________________________________
(Typed or Printed Name of Notary)
My Commission Expires:
_____________________
Prepared by and returned to when recorded:
Paul V. Downey
WINSTEAD SECHREST & MINICK P.C.
5400 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270
<PAGE> 94
EXHIBIT A
(legal description of real property)
EXHIBIT A - Page 1
<PAGE> 95
EXHIBIT H
AIRPORT TECHNOLOGY CENTER
<PAGE> 1
Exhibit 21.1
List of Subsidiaries
NextCard Limited
NextBank, N.A.
<PAGE> 1
Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration
Statement (Form S-8 No. 333-80365) pertaining to the 1997 Stock Plan and 1999
Employee Stock Purchase Plan of NextCard, Inc., of our report dated on January
26, 2000, except as to Note 18, as to which the date is March 1, 2000, with
respect to the consolidated financial statements of NextCard, Inc. included in
the Annual Report on Form 10-K for the year ended December 31, 1999.
/s/ Ernst & Young LLP
San Francisco, California
March 27, 2000
<TABLE> <S> <C>
<ARTICLE> 9
<LEGEND>
This schedule contains Summary Financial Information extracted from the
Consolidated Financial Statements of NextCard, Inc. for the quarter ended
December, 1999 and is qualified in its entirety by reference to such financial
statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 0
<INT-BEARING-DEPOSITS> 220,989
<FED-FUNDS-SOLD> 0
<TRADING-ASSETS> 0
<INVESTMENTS-HELD-FOR-SALE> 0
<INVESTMENTS-CARRYING> 0
<INVESTMENTS-MARKET> 0
<LOANS> 404,815
<ALLOWANCE> 11,500
<TOTAL-ASSETS> 662,310
<DEPOSITS> 3,800
<SHORT-TERM> 353,240
<LIABILITIES-OTHER> 22,516
<LONG-TERM> 4,119
0
0
<COMMON> 51
<OTHER-SE> 278,584
<TOTAL-LIABILITIES-AND-EQUITY> 662,310
<INTEREST-LOAN> 17,863
<INTEREST-INVEST> 4,191
<INTEREST-OTHER> 0
<INTEREST-TOTAL> 22,054
<INTEREST-DEPOSIT> 0
<INTEREST-EXPENSE> 10,902
<INTEREST-INCOME-NET> 11,152
<LOAN-LOSSES> 12,072
<SECURITIES-GAINS> 0
<EXPENSE-OTHER> 80,781
<INCOME-PRETAX> (77,195)
<INCOME-PRE-EXTRAORDINARY> (77,195)
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (77,195)
<EPS-BASIC> (2.54)
<EPS-DILUTED> (2.54)
<YIELD-ACTUAL> 11.96
<LOANS-NON> 0
<LOANS-PAST> 6,156
<LOANS-TROUBLED> 0
<LOANS-PROBLEM> 0
<ALLOWANCE-OPEN> 0
<CHARGE-OFFS> 2,518
<RECOVERIES> 46
<ALLOWANCE-CLOSE> 11,500
<ALLOWANCE-DOMESTIC> 11,500
<ALLOWANCE-FOREIGN> 0
<ALLOWANCE-UNALLOCATED> 0
</TABLE>
