AGREEMENT
FOR PROVISION OF SERVICES
THIS AGREEMENT FOR THE PROVISION OF SERVICES (the "Agreement") is
entered into effective November 23, 1998, between CALIFORNIA FEDERAL BANK, A
FEDERAL SAVINGS BANK ("Cal Fed") and Golden State Management Inc. ("GSM"), a
Delaware corporation, in reference to the following facts and understandings:
RECITALS
WHEREAS, Cal Fed and GSM mutually benefit from performance of
services by Cal Fed for Golden State Bancorp Inc.and its subsidiaries:
NOW THEREFORE, in consideration of the foregoing, and of their
mutual covenants herein, and intending to be legally bound thereby, the parties
agree as follows:
AGREEMENT
1. Services
1.1 Services Provided. Cal Fed shall, upon the request of GSM, and
subject to the availability of resources and personnel on the part of the Cal
Fed, provide GSM with such services as may be agreed between the parties in the
manner set forth in this Agreement. All services between the parties that are
not the subject of other separate written agreements between the parties shall
be governed by the terms and conditions of this Agreement.
1.2 Compliance with Laws, Regulations, Policies and Procedures.
The services provided by Cal Fed to GSM shall comply with all applicable laws
and regulations, and, except as may be otherwise specifically agreed by the
parties, shall conform to all of the internal policies and procedures of Cal
Fed and GSM that are applicable to such services.
1.3 Operating Rules. The provision of services under this
Agreement, to the extent not inconsistent with the terms of this Agreement,
shall be governed by a set of "Operating Procedures," established by the mutual
agreement of the parties, a copy of which is attached to this Agreement as
Exhibit A. The Operating Procedures may be amended from time to time with the
written agreement of all the parties.
2. Compensation. In consideration of the services provided pursuant to
this Agreement, GSM shall pay Cal Fed fees in amounts and in such a manner as
may be established under the Operating Procedures and such other documents and
agreements adopted thereunder.
3. Independent Contractor. Cal Fed is, and shall be, considered for all
purposes to be an independent contractor of GSM. Cal Fed recognizes and agrees
that as an independent contractor, it, its employees, agents and
representatives shall not be eligible to participate in any of GSM's employee
benefits or similar programs, and the exclusive consideration payable by GSM to
Cal Fed for the provision of products and services hereunder shall be as set
forth in Section 2 of this Agreement.
Cal Fed shall select its own employees, agents and representatives to
provide services to GSM pursuant to this Agreement who shall be and act under
the exclusive supervision and control of Cal Fed and who shall not be, or
deemed for any purpose to be, employees or agents of GSM. Cal Fed is solely and
exclusively responsible for determining and adhering to the terms and
conditions of hiring, employment or engagement of itself, and its employees,
agents and representatives, including hours of work, rates and payment of
compensation and benefits, and the payment, reporting, collection, withholding
and deduction of all federal, state and local taxes.
4. Powers of Attorney. Each party agrees to designate one or more of the
employees, officers, or representatives of another party as its agent-in-fact
under a limited power of attorney, in a form agreeable to both parties and
their legal counsel, as may be necessary or appropriate to facilitate the
performance of the services provided under this Agreement.
5. Indemnification. GSM shall defend and indemnify Cal Fed against and
hold it harmless from any and all claims made by third parties for loss or
damage arising directly or indirectly from any and all services and products
provided by Cal Fed to GSM pursuant to this Agreement, except those claims that
result from the knowing and willful misconduct of Cal Fed or the gross
negligence of Cal Fed. In the foregoing sentence the words "loss or damage"
include, but are not limited to: (1) loss or damage arising directly or
indirectly from any actions or omissions of any employee or authorized
representative of Cal Fed and; (2) the value of time spent, reasonable
attorney's fees and other fees incurred in defending a claim.
6. Term of Agreement. This Agreement shall be effective for five (5)
years from the date hereof.
7. Notices. Except as provided in the Operating Procedures, all notices,
requests, demands, payments or other communications under this Agreement shall
be in writing and shall be deemed to have been given upon personal delivery to
a party's designated representative.
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8. Confidentiality. All information disclosed by one party to another
party under the terms of this Agreement, except such information as may be
generally available to the public or the thrift and banking industries, is and
will be kept confidential unless its disclosure is required by law or is
required to be submitted to the regulatory supervisor(s) of the affected party.
9. Breach. Upon the breach of any obligation under this Agreement by
either party, the aggrieved party shall give to the breaching party prompt
written notice of such breach, which notice shall specify the exact nature of
the breach. If this Agreement is terminated, the right of the aggrieved party
to any damages for such breach shall not be prejudiced.
10. Integration: Amendments. This Agreement, including its attached
exhibits, contains the entire agreement among the parties with respect to its
subject matter, and supersedes all prior oral or written agreements,
understandings, representation and communications. No amendments can be made to
this Agreement except by a writing signed by both of the parties.
11. Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the other provisions hereof, and this Agreement
shall be construed in all respects as if such invalid or unenforceable
provisions were omitted.
12. Termination. Either party may terminate this Agreement upon at least
30 days prior written notice given to the other party.
13. Choice of Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
14. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original but all of which shall
constitute one and the same instrument, and any party may execute this
Agreement by signing any such counterpart.
IN WITNESS WHEREOF, the parties have executed this Agreement
effective on the date first above written by their duly authorized officers.
CALIFORNIA FEDERAL BANK, GOLDEN STATE
A Federal Savings Bank MANAGEMENT INC.,
A Delaware Corporation
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxx Xxxxxxx Tucei
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AGREEMENT
FOR THE PROVISION OF SERVICES
EXHIBIT A
OPERATING PROCEDURES
Effective November 23, 1998
The following Operating Procedures have been adopted by California Federal
Bank, A Federal Savings Bank ("Cal Fed") and Golden State Management Inc.
("GSM"), a Delaware corporation, to the provisions of the AGREEMENT FOR THE
PROVISION OF SERVICES (the "Agreement") dated effective on November 23, 1998.
1. GENERAL MATTERS
The purpose of these Operating Procedures is to establish the procedural basis
for the provision of services between the parties pursuant to the Agreement.
While the majority of all services rendered will be provided pursuant to the
Agreement and these Operating Procedures ("general services" arrangements), the
parties acknowledge that certain services are and may be governed by separate
written agreements and not by the Agreement and these Operating Procedures
("transactional" arrangements). The parties agree that all services that are
not subject to separate written agreement shall be governed by the Agreement
and these Operating Procedures.
2. SERVICE SCHEDULES
Services provided under the Agreement shall be documented for
each six-month period beginning on January 1 and July 1 of each calendar
year.(1) The documentation shall consist of two schedules agreed to among
the parties describing the services rendered and the amounts to be charged
therefor. At the beginning of each six month period described above, the
parties shall agree to a preliminary Services Schedule which shall set forth
the parties' good faith agreed estimates for the services to be provided during
such six month period and the estimated compensation to be paid for such
services. As soon as practicable following the completion of such six month
period, the parties shall agree to a final Services Schedule which shall
describe the actual services provided during the six month period just ended
and the agreed compensation therefor.
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(1) However, the initial services period shall cover the period from
September 14, 1998 through June 30, 1999.
3. PROVISION OF SERVICES
Unless specified in a Services Schedule or in a separate written agreement
among the affected parties, the services described in a Services Schedule shall
be performed in accordance with the terms, conditions, rules and procedures
provided in these Operating Procedures and the Agreement.
4. APPROVALS
Each preliminary and final Services Schedule must be approved by each party.
5. COMPENSATION FOR SERVICES
5.1 Payment for Services. On or before the first day of each calendar
month during the period covered by the Services Schedule, GSM shall pay Cal Fed
the amount identified in the preliminary Services Schedule to be due for
services estimated to be provided as of the date of the payment. (Should a
preliminary Services Schedule be unavailable for any particular month, the
preliminary Services Schedule for the immediately preceding six month period
shall be used.) On the date on which the parties agree to the final Services
Schedule (as provided in Paragraph 2 above), GSM shall pay Cal Fed any
remaining amount due under the final Services Schedule; or Cal Fed shall
reimburse GSM for any overpayment.
5.3 Basis of Charges. Services shall be provided on terms and under
circumstances, including credit standards, that are substantially the same, or
at least as favorable to Cal Fed as those prevailing at the time for comparable
transactions with or involving other nonaffiliated companies. In the absence of
comparable transactions, services shall be provided on terms and under
circumstances, including credit standards, that in good faith would be offered
to, or would apply to, nonaffiliated companies. The parties expect that, in the
absence of comparable transactions with other nonaffiliated companies,
compensation terms will cover Cal Fed's costs and include a reasonable profit
for Cal Fed. In all circumstances, GSM agrees to pay Cal Fed compensation
sufficient to satisfy all applicable regulatory requirements, including, but
not limited to, Section 11 of the Home Owners' Loan Act, Section 23A and 23B of
the Federal Reserve Act, and Section 30 of the Federal Deposit Insurance Act.
5.4 Cost Allocation and Documentation. Where charges to GSM are based on
the cost to Cal Fed, the allocation of the costs of the services provided under
the Agreement by Cal Fed shall be governed, to the greatest extent practicable,
by a specific accounting of the services provided to GSM and documented costs
of providing such services. Appropriate measures for such allocations will
depend on the nature of the services being provided, but might include, as
appropriate, comparisons of numbers of employees or accounts served, number of
transactions
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performed, assets managed, time expended by staff on such services, or
equipment costs attributable to providing such services.
6. REGULATORY OVERSIGHT
Each party acknowledges that the arrangements governed by these Operating
Procedures are subject to the regulatory oversight of the Department of the
Treasury, Office of Thrift Supervision (the "OTS"), the Board of Governors of
the Federal Reserve System (the "Board") and the Federal Deposit Insurance
Corporation (the "FDIC"). Each of the parties agrees to cooperate in any
regulatory inquiries into these arrangements. Further, each party agrees that
it will consent to any adjustment to or reversal of any charges under the
Agreement necessary or appropriate to comply with the authorized mandate of the
OTS, the Board, or the FDIC.
8. AMENDMENTS
These Operating Procedures may be amended from time to time by the mutual
written agreement of the parties. A copy of all amendments to the Operating
Procedures shall be attached to the Agreement.
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