Exhibit
10.6


 


CONFIDENTIAL TREATMENT
REQUESTED: INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS
OMITTED AND NOTED WTH “**”.  AN
UNREDACTED VERSION OF THIS DOCUMENT HAS ALSO BEEN PROVIDED TO THE SECURITIES
AND EXCHANGE COMMISSION.


 


 


OUTSOURCING SERVICES


SEPARATION AGREEMENT


 


OUTSOURCING
SERVICES SEPARATION AGREEMENT, dated as of
          
     , 2004 (this “Agreement”), among GE Capital
International Services (“GECIS”), a corporation duly formed and existing under
the laws of India with a place of business at AIFACS Building, 1 Rafi Marg,
Delhi-110001 and a Corporate office at GE Towers, Sector Road, Sector 53, DLF
City, Phase 5, Gurgaon, Haryana, and a wholly-owned subsidiary of General
Electric Capital Corporation, a Delaware corporation (“GECC”), GECC, General
Electric Company (“GE”) and Genworth Financial, Inc., a Delaware corporation.


 


W I T N E S S E T H:


 


WHEREAS,
GE and GECC have determined to consolidate the Genworth business, including
Genworth and certain of its Affiliates (collectively, unless the context
otherwise requires, “Genworth”), into a separate corporate structure with
Genworth acting as the parent entity for the Genworth business, and have
further determined to divest a controlling interest in the stock of Genworth (the
“Separation”) and, as part of such divestiture, to conduct an initial public
offering of the common stock of Genworth (the “IPO”);


 


WHEREAS,
GECIS and certain of its Affiliates (collectively, unless the context otherwise
requires, “GECIS”) and Genworth and certain of its predecessors are parties to
a series of Master Outsourcing Agreements and related Project Specific
Agreements (the “PSAs”) and certain other service agreements (collectively, the
“MOAs”) calling for the provision of certain services by GECIS to Genworth; and


 


WHEREAS,
in anticipation of the proposed Separation, GECIS and Genworth have determined
that it is appropriate to amend the terms of the MOAs as set forth in this
Agreement.


 


NOW,
THEREFORE, in consideration of the premises and the representations,
warranties, covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereby
agree as follows:


 


1.             Agreement to Amend MOAs.


 


The
parties agree to amend and/or restate, or cause to be amended and/or restated,
each of the MOAs  in the form attached as
Exhibit A , with such changes therein as may be necessary to
appropriately reflect any unique provisions of any MOA (such changes to be
negotiated and agreed upon in good faith in a commercially reasonable manner)
or as may be necessary to obtain all necessary approvals of the amended and
restated MOAs by governmental agencies, effective as of the Closing Date of the
IPO or as soon thereafter as practicable.. 
The parties will agree upon the definitive forms of such amendments
and/or restatements prior to the Closing Date and the effectiveness of such
amendments and restatements shall be contingent upon (i) delivery of the Firm
Public Offering Shares to the Underwriters against payment therefor and (ii)
receipt by Genworth of all necessary approvals of such amended and restated
MOAs by all governmental agencies.  GECIS
will cooperate with Genworth as it may reasonably request in obtaining all such
approvals.  In the event of any conflict
between the provisions of such amended and restated MOAs and any effective PSAs
relating to such MOAs, the parties will negotiate in good faith to resolve such
conflicts in a commercially reasonable manner. 
If the parties are unable to resolve such conflicts, the provisions of
the amended and/or restated MOA shall control. 
In the event of any conflict between the provisions of Exhibit A
and any MOA, the provisions of Exhibit A shall control.  Unless otherwise expressly agreed by the
parties to an MOA, matters arising prior to the effective date of any amended
and restated MOA will be governed by the provisions of the MOA in effect prior
to such amendment and restatement.


 
















 


2.             Carve-Out Option.


 


Commencing
with the Closing Date, and until the termination or, expiration of all of the
MOAs, Genworth, or its designee, shall have the option, exercisable upon the
occurrence of any one of the Carve-Out Conditions (as defined in Exhibit A),
to require GECIS or its Affiliates, as applicable, to transfer or cause to be
transferred to Genworth or its designee, the Resources (as defined in Exhibit
A) employed by GECIS or such Affiliates to provide the services to Genworth
and any other entity receiving services from GECIS on the terms and conditions
set forth on Exhibit A.  The
exercise of such option shall, in each case, be subject to the receipt by
Genworth and its Affiliates or its designee and GECIS and its Affiliates of all
necessary approvals of governmental agencies. 
GECIS will cooperate with Genworth and its designees as they may
reasonably request in obtaining all such approvals.  No acquiror of a business operation divested
by Genworth shall be entitled to exercise the Carve-Out Option.


 


3.             Waiver of Change of
Control Provisions.  GECIS agrees
that the transactions contemplated by the Separation and the IPO shall not be
deemed to constitute a “change of control” for purposes of Section 6.3 of the
MOAs (which addresses the acquisition by a party other than GE of more than fifty percent of the voting control or
assets of a party to an MOA), or any similar provision of the MOAs and
PSAs, and irrevocably waives any rights it may have to terminate or modify the
terms of any MOA or PSA as a result of such transactions.


 


4.             Entire Agreement. 
Except as otherwise expressly provided in this Agreement, this Agreement
(including the Exhibits attached hereto) constitutes the entire agreement of
the parties hereto with respect to the subject matter of this Agreement and
supersedes all prior agreements and undertakings, both written and oral,
between or on behalf of the parties hereto with respect to the subject matter
of this Agreement.


 


5.             Severability. 
If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced under any Law or as a matter of public policy, all
other conditions and provisions of this Agreement shall nevertheless remain in
full force and effect.  Upon such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties to this Agreement shall negotiate in good faith
to modify this Agreement so as to effect the original intent of the parties as
closely as possible in a mutually acceptable manner in order that the
transactions contemplated by this Agreement be consummated as originally
contemplated to the greatest extent possible.


 


6.             Assignment; No Third-Party Beneficiaries.  This Agreement shall not be assigned by any
party hereto without the prior written consent of the other parties
hereto.  This Agreement is for the sole
benefit of the parties to this Agreement and their permitted successors and
assigns and, except for beneficiaries of the indemnities set forth in Exhibit
A, nothing in this Agreement, express or implied, is intended to or shall
confer upon any other Person or entity any legal or equitable right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.


 


7.             Amendment. 
No provision of this Agreement may be amended or modified except by a
written instrument signed by all the parties to such agreement.  No waiver by any party of any provision
hereof shall be effective unless explicitly set forth in writing and executed
by the party so waiving.  The waiver by
either party hereto of a breach of any provision of this Agreement shall not
operate or be construed as a waiver of any other subsequent breach.


 


8.             Rules of Construction.  Interpretation of this Agreement shall be
governed by the following rules of construction:  (a) words in the singular shall be held to
include the plural and vice versa and words of one gender shall be held to
include the other gender as the context requires, (b) references to the terms
Article, Section, paragraph, Exhibit and Schedule are references to the
Articles, Sections, paragraphs, Exhibits and Schedules to this Agreement unless
otherwise specified, (c) the word “including” and words of similar import shall
mean “including, without limitation,” (d) provisions shall apply, when appropriate,
to successive events and transactions, (e) the table of contents and headings
contained herein are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement and (f) this Agreement
shall be construed without regard to any presumption or rule requiring
construction or interpretation against the party drafting or causing any
instrument to be drafted.


 


9.             Dispute Resolution.  Any dispute, controversy
or claim arising out of or relating to the transactions contemplated by this
Agreement, or the validity, interpretation, breach or termination of any
provision of this Agreement shall be resolved in accordance with the dispute
resolution mechanism described in Exhibit B.


 


2
















 


10.           Counterparts. 
This Agreement may be executed in one or more counterparts, and by the
different parties to each such agreement in separate counterparts, each of
which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.  Delivery of an executed counterpart of a
signature page to this Agreement by facsimile shall be as effective as delivery
of a manually executed counterpart of any such Agreement.


 


11.           Governing Law. 
This Agreement shall be governed by and construed and interpreted in
accordance with the Laws of the State of New York irrespective of the choice of
laws principles of the State of New York other than Section 5-1401 of the
General Obligations Law of the State of New York.


 


IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on the date first written above by their respective
duly authorized officers.


 


	
   

  	
  GENERAL ELECTRIC COMPANY

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GE CAPITAL INTERNATIONAL
  SERVICES

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GENERAL ELECTRIC CAPITAL
  CORPORATION

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GENWORTH FINANCIAL, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


3
















 


EXHIBIT A


 


Form of Amended and
Restated MOA


 


Each
of the outstanding MOAs shall be amended as set forth in Section 1 of this
Agreement in the form attached hereto:


 


FORM OF AMENDED
AND RESTATED


 


MASTER OUTSOURCING
AGREEMENT


 


by and between


 


[CUSTOMER]


 


and


 


[GE CAPITAL
INTERNATIONAL SERVICES]


 


 


[Date]


 
















 


TABLE OF CONTENTS


 


	
  1.0    

  	
  Services

  	
   

  
	
   

  	
   

  	
   

  
	
  2.0    

  	
  Charges

  	
   

  
	
   

  	
   

  	
   

  
	
  3.0   

  	
  Billing and Payment

  	
   

  
	
   

  	
   

  	
   

  
	
  4.0 

  	
  Performance Standards

  	
   

  
	
   

  	
   

  	
   

  
	
  5.0 

  	
  Record Keeping and Audits

  	
   

  
	
   

  	
   

  	
   

  
	
  6.0 

  	
  Customer Commitments

  	
   

  
	
   

  	
   

  	
   

  
	
  7.0 

  	
  Term

  	
   

  
	
   

  	
   

  	
   

  
	
  8.0
  

  	
  Termination

  	
   

  
	
   

  	
   

  	
   

  
	
  9.0 

  	
  Obligations
  on Expiration and Termination

  	
   

  
	
   

  	
   

  	
   

  
	
  10.0  

  	
  Assignment and
  Subcontracting

  	
   

  
	
   

  	
   

  	
   

  
	
  11.0 
  

  	
  Confidentiality

  	
   

  
	
   

  	
   

  	
   

  
	
  12.0  

  	
  Indemnities

  	
   

  
	
   

  	
   

  	
   

  
	
  13.0  

  	
  Limitation of Liability

  	
   

  
	
   

  	
   

  	
   

  
	
  14.0  

  	
  Provider Employees

  	
   

  
	
   

  	
   

  	
   

  
	
  15.0 
  

  	
  Representation, Warranties and
  Covenants

  	
   

  
	
   

  	
   

  	
   

  
	
  16.0  

  	
  Notices

  	
   

  
	
   

  	
   

  	
   

  
	
  17.0  

  	
  Intellectual Property

  	
   

  
	
   

  	
   

  	
   

  
	
  18.0  

  	
  Non-Compete

  	
   

  
	
   

  	
   

  	
   

  
	
  19.0  

  	
  Change Control Procedure

  	
   

  
	
   

  	
   

  	
   

  
	
  20.0  

  	
  Governance

  	
   

  
	
   

  	
   

  	
   

  
	
  21.0 
  

  	
  Miscellaneous

  	
   

  
	
   

  	
   

  	
   

  
	
  22.0  

  	
  Attachments

  	
   

  



 


 


	
  Exhibit A

  	
  Definitions

  
	
  Exhibit
  B

  	
  Local
  Modifications to Master Agreement

  
	
  Exhibit
  C 

  	
  Form
  of PSA

  
	
  Exhibit
  D

  	
  BCP/DRP
  Plans

  
	
  Exhibit
  E

  	
  Security
  Procedures

  
	
  Exhibit
  F

  	
  Pricing
  Template

  
	
  Exhibit
  G

  	
  Dispute
  Resolution

  
	
  Exhibit
  H

  	
  Carve-Out
  Option

  
	
  Exhibit
  I

  	
  Intellectual
  Property

  
	
  Exhibit
  J

  	
  Business
  Associate Addendum

  
	
  Exhibit
  K

  	
  Change
  Control Procedure

  
	
  Exhibit
  L

  	
  PSAs
  and Base Costs

  



 
















 


FORM OF

AMENDED AND RESTATED

MASTER OUTSOURCING AGREEMENT


 


AMENDED
AND RESTATED MASTER OUTSOURCING AGREEMENT (“Agreement”) entered into as of the
Execution Date, by and between [NAME], a [JURISDICTION][TYPE OF ENTITY], with
offices at [ADDRESS]  (“CUSTOMER”) and [GE Capital International Services,
a corporation duly formed and existing under the laws of India with a place of
business at AIFGECIS Building, 1 Rafi Marg, Delhi-110001 and Corporate office
at 90A Sector 18, Gurgaon, Haryana,] (“PROVIDER”).


 


RECITALS


 


WHEREAS,
[PROVIDER] and CUSTOMER are parties to a Master Outsourcing Services Agreement
and one or more related Project Specific Agreements which incorporate the terms
of such Master Outsourcing Services Agreement, as well as certain other
services agreements (“PSAs”);


 


WHEREAS,
CUSTOMER is a Subsidiary of Genworth Financial, Inc., a Delaware corporation
(“Genworth”);


 


WHEREAS,
General Electric Company and General Electric Capital Corporation have
determined to consolidate the Genworth business, including Genworth and certain
of its Affiliates, into a separate corporate structure with Genworth acting as
the parent entity for the Genworth business, and have further determined to
divest a controlling interest in the stock of Genworth (the “Separation”) and,
as part of such divestiture, to conduct an initial public offering of the
common stock of Genworth (the “IPO”);


 


WHEREAS,
in anticipation of the proposed Separation, PROVIDER and CUSTOMER have
determined that it is appropriate to amend and restate such Master Outsourcing
Services Agreement in the form of this Amended and Restated Master Outsourcing
Services Agreement;


 


WHEREAS,
PROVIDER supplies business and financial and related support services;


 


WHEREAS, CUSTOMER requires the performance of
Services, as defined in the related PSA(s);


 


WHEREAS, the parties contemplate that PROVIDER
will handle a variety of outsourcing projects and services for CUSTOMER and the
parties seek to define the basic terms applicable to outsourcing projects
between the parties; the parties intend to incorporate these provisions by
reference into the outstanding PSAs and PSAs that they enter into for specific
outsourcing projects hereafter;


 


WHEREAS, this Agreement is being executed on, and
shall take effect as of, the closing date of the IPO or, if regulatory approval
occurs on a later date, on and as of such later date (the “Execution
Date”); and


 


WHEREAS, capitalized terms used herein shall have
the meanings given such terms in Exhibit A hereto.


 


NOW,
THEREFORE, in consideration of the premises, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:


 


W I T N E S S E T H


 


1.             Services.


 


a.             Structure
of the Agreement.


 


The Services are governed by the terms
of this Agreement as amended and/or supplemented as set forth in Exhibit B, and the PSAs.  Each PSA executed after the Execution Date
shall be in the form attached as Exhibit C, unless otherwise agreed to
by the parties.


 
















 


PROVIDER
agrees to provide the Services under the terms and conditions of this Agreement
and as more specifically described in the PSAs.


 


b.             Business
Continuity and Disaster Recovery Services. 
PROVIDER shall provide the services set forth in the business continuity
and disaster recovery plans referred to 
in Exhibit D
(collectively, the “BCP/DRP Plans”). 
The BCP/DRP Plans shall address all operations identified by CUSTOMER as
“Mission Critical;” shall meet the substantive requirements specified by
CUSTOMER and shall be agreed upon by CUSTOMER and PROVIDER.  Further, at no additional charge to CUSTOMER
other than as provided in Section 2 and the Pricing Template set forth in Exhibit
F, PROVIDER will (a) actively review and update the BCP/DRP Plans, (b) test
the BCP/DRP Plans at least annually, (c) permit CUSTOMER the opportunity to
participate in such testing, (d) give CUSTOMER access to the results and
analysis of such testing, and (e) correct deficiencies in the BCP/DRP Plans
revealed by such testing.  Failure to
provide the services described in such BCP/DRP Plans will constitute a material
breach of this Agreement, subject to cure as set forth in Section 0.


 


c.             PROVIDER Responsibilities.  Except as otherwise noted in this Agreement,
PROVIDER shall provide, at its expense, all materials, labor, equipment, facilities
and other items necessary to deliver the Services.  Subject to Section 6.3 herein, all employees
performing the Services shall be skilled in their trades and licensed, if
required, by all proper authorities.


 


d.             Service Locations; Security.  Except as provided in the BCP/DRP Plans,
without the prior written consent of CUSTOMER, PROVIDER shall not change or
move the original location for the performance by PROVIDER of the Services
required under this Agreement.  In
performing the Services, operating the Facilities used by it to provide the
Services and protecting CUSTOMER’s data, information and other property,
PROVIDER will comply with the security procedures set forth in Exhibit E of this Agreement.


 


e.             Support of CUSTOMER
Divestitures.  If CUSTOMER divests
any business operation (other than pursuant to a transaction that would
constitute a Change of Control), PROVIDER will provide the Services to such
operation if such operation (i) used the Services prior to being divested, (ii)
after being divested uses either essentially the same services as before being
divested, or CUSTOMER or the acquiring entity compensates PROVIDER to modify
its systems or processes used to perform and provide the Services as necessary
to accommodate the use of the Services as reasonably requested by the acquiring
entity, (iii) the acquiror of such operation agrees to be subject to the
provisions of this Agreement and the PSAs, and (iv) CUSTOMER is not in payment
default at the time of the request, but, in that case, PROVIDER must provide
the Services if paid in advance.  At
CUSTOMER’s option, PROVIDER and such acquiror shall enter into a separate
agreement and PSA(s) providing for the provision of the Services, which
agreements shall be on substantially the same terms and conditions as are set
forth in this Agreement and the PSA(s), with such changes therein as the
parties may agree upon.  PROVIDER shall
charge for the continuing performance and delivery of such Services based on
the then-existing charging methodologies and may charge CUSTOMER or the
acquiring entity for the reasonable implementation and set-up fees relating to
the extension of the Services to such entity approved in writing in
advance.  PROVIDER and the acquiring
entity will negotiate in good faith for up to one hundred twenty (120) days
following the divestiture to agree upon alternative terms and conditions that
will apply to the provision of the Services to such entity by PROVIDER.  If they are unable to so agree, at the
request of the acquiring entity, PROVIDER shall be required to provide the
Services to such acquiring entity until the earlier of (i) the last day of the
twelfth (12th)  month following such 120-day
negotiation period and (ii) the termination date of this Agreement and related
PSAs, provided, that if such termination date is to occur later than
twelve (12) months following the end of such 120-day period and PROVIDER
is requested to provide such Services for less than twelve (12) months
following the end of such period, such acquiring entity or CUSTOMER shall bear
all costs actually incurred by PROVIDER as a result of such reduction in
volume, provided, further, that PROVIDER shall use commercially
reasonable efforts to mitigate such costs. 
Such Services shall be provided by PROVIDER regardless of whether the
acquiring entity is a competitor of the GE Group. PROVIDER shall provide
Services Transfer Assistance as reasonably requested by the acquiror, solely at
the acquiror’s cost, for the period during which PROVIDER is required to
provide Services to such acquiror.


 


2
















 


f.              PROVIDER Divestitures.  If PROVIDER executes a definitive agreement
to divest any or part of any business operation relating to the Services
provided to CUSTOMER other than the CUSTOMER India operations operating on a
stand-alone basis (specifically, the operations responsible for providing
core services exclusively relating to long term care, life insurance, group
insurance, annuities, retirement plans and mortgage insurance to CUSTOMER, but
excluding, inter alia, accounting,
help desk, software solutions, e-learning and other knowledge-based operations,
collectively, the “Genworth Stand-Alone Operations”) (a “PROVIDER
Divestiture”), PROVIDER will provide no less than thirty (30) days’ prior
written notice of the expected closing date of the PROVIDER Divestiture to
CUSTOMER, which notice will include the identity of the acquiror and any
Affiliate which would provide Services to CUSTOMER and a description of the
material terms of the transaction applicable to the Services being transferred
to the acquiror.  PROVIDER will provide
CUSTOMER with such further information regarding the divestiture and the
acquiror as CUSTOMER may reasonably request. 
CUSTOMER may take no action with respect to the proposed PROVIDER
Divestiture (in which case the PROVIDER Divestiture may proceed without
CUSTOMER’s consent) or, within thirty (30) days of receipt of such notice from
PROVIDER, CUSTOMER may at its option (i) exercise the Carve-Out Option (as more
fully described in Section 9.b hereof) only with respect to the
Carve-Out Resources relating to such Services which are being or have been
divested to the acquiring entity at a purchase price equal to the lesser of
book value or the value of the divested operations relating to CUSTOMER implied
by the consideration to be paid by the acquiror and/or (ii) terminate the PSAs
affected by the PROVIDER Divestiture and require PROVIDER and/or the acquiror
to provide Services Transfer Assistance for a period not exceeding fourteen
(14) months from the date of receipt of notice by PROVIDER from CUSTOMER.  Notwithstanding any other provision of this
Agreement, PROVIDER shall be responsible for all transition costs incurred by CUSTOMER
relating to its exercise of the Carve-Out Option or its termination of the PSAs
and transition of the Services in-house or to a new PROVIDER.  Any transfer of the PSAs pursuant to this
paragraph shall be subject to the receipt by CUSTOMER of all necessary
regulatory approvals.  For the avoidance
of doubt, any transfer by PROVIDER of the Genworth Stand-Alone Operations
shall be subject to the limitations described under Section 10 hereof.


 


g.             New Services.  From time to time, CUSTOMER may request that
PROVIDER furnish additional services to CUSTOMER that are not within the scope
of the Services (“New Services”). 
PROVIDER will discuss with CUSTOMER such request and the ramifications
of such additional services on the existing Services, but will not be obligated
to provide such additional services. 
Such requests shall be addressed through the Change Control Procedure
described in Section 19 hereof.  CUSTOMER
shall bear all costs agreed in advance between the parties and incurred by
PROVIDER on account of transition or migration of New Services from CUSTOMER to
PROVIDER.


 


h.             Services Not to be
Withheld; PROVIDER Relief.  Except as
provided in Section 8.2 and 21.1 hereof (it being understood that Force
Majeure will not relieve PROVIDER of its responsibility to provide the Services
set forth in the BCP/DRP Plans), PROVIDER shall not voluntarily refuse to
provide all or any portion of the Services in violation or breach of the terms
of the Agreement or any related PSA. 
PROVIDER shall be relieved from its obligation to perform any Services
and its obligations to pay any service credit under a PSA to the extent it is
unable to perform any Services or to perform in accordance with any applicable
Performance Standard as a result of CUSTOMER’s failure to perform its
obligations under such PSA.  Notwithstanding
the dispute resolution provisions set forth in Section 21.l, if PROVIDER
breaches this covenant, CUSTOMER shall be entitled to apply to a court of
competent jurisdiction for specific performance by PROVIDER of its obligations
under this Agreement and the related PSAs without the necessity of posting any
bond.


 


2.             Charges.


 


a.             Generally.  Notwithstanding any provision
related to fees and charges in a PSA to the contrary, as consideration for the
provision of the Services, CUSTOMER will pay to PROVIDER the charges calculated
as set forth in this Section 2 (the “Charges”).  The Charges in effect immediately prior to
the Execution Date shall be referred to as the “Baseline Charges”.  For existing PSAs, the Baseline Charges


 


3
















 


and
the Charges for the initial Contract Year (or part thereof) shall be as set
forth on Exhibit L.  For PSAs
executed after the Execution Date, the Baseline Charges shall be set forth in
each such PSA.  The Charges shall
be adjusted annually to reflect changes in PROVIDER’s Base Costs and to reflect
scheduled discounts from the Baseline Charges pursuant to the following
formula:


 


New Charges = Baseline Charges *
Discount Factor * Cost Factor


 


b.             Discount
Factor.  For the periods indicated,
the “Discount Factor” shall mean and be as follows:


 


	
  Period

  	
   

  	
  Discount Factor

  
	
  from the Execution Date through the first anniversary of
  the Trigger Date (as defined below)

  	
   

  	
  **

  
	
  from the first anniversary of the Trigger Date through the
  second anniversary of the Trigger Date

  	
   

  	
  **

  
	
  from the second anniversary of the Trigger Date through
  the third anniversary of the Trigger Date

  	
   

  	
  **

  



 


“Cost
Factor” means and shall be calculated as follows:


 


Y(n) Base Cost/Y(0)
Base Cost


 


where
Y(n) Base Cost is determined pursuant to Section 2.c for each Contract
Year, Y(n-1) Base Cost is the Base Cost for the preceding Contract Year and
Y(0) Base Cost is the Base Cost for the initial Contract Year, as set forth in Exhibit
L.


 


c.             Adjustment
of Charges.  Prior to the commencement
of each Contract Year, the parties will negotiate in good faith to agree upon
the elements of Base Cost and the rates to be charged to CUSTOMER for such
elements during such year (excluding the cost of hedging foreign currency
exchange risks, which shall be charged to CUSTOMER on a pass-through
basis as described in Section 2.h). 
The parties will reflect their agreement on such matters in a written
document to be executed by each of them and the Charges for the Services in
such year shall not exceed the agreed amounts. 
Any amendment or addition to such elements or rates must be approved by
CUSTOMER in advance in writing.  If the
parties are unable to agree upon such matters, the Cost Factor for the
applicable year shall be calculated using Base Cost as determined by PROVIDER
in accordance with the definition of Base Cost, provided, that Base Cost
for any Contract Year shall not exceed one hundred five percent (105%) of Base
Cost for the immediately preceding Contract Year.  If Base Cost relating to any PSA for any
Contract Year during the Initial Term exceeds one hundred five percent (105%)
of Base Cost for the immediately preceding Contract Year, CUSTOMER may
terminate that PSA upon at least six (6) months’ written notice to PROVIDER and
shall not be liable for any costs incurred by PROVIDER as a result of such
termination.


 


d.             Renewal
Pricing.  As described in Section
7.b, at least eighteen (18) months prior to the expiration of the Initial
Term, PROVIDER will propose in writing to CUSTOMER revised methods for
calculating Base Cost and Charges to CUSTOMER under the Base Cost and Baseline
Charges methodology described in this Section 2.  The applicable charges proposed by PROVIDER
for the first and second years of the renewal term shall be determined as
provided in this Section 2.4 and Exhibit F, but shall reflect Discount
Factors of ** and **, respectively, provided, that such charges shall be
at least as favorable to CUSTOMER as PROVIDER’s charges for similar services
provided to any other CUSTOMER of PROVIDER. 
If the parties are unable to agree on revised costs, CUSTOMER may elect
to exercise the Carve-Out Option upon expiration of this Agreement and the
related PSAs, as described in Section 9.b.


 


e.             Reduction in Work.  CUSTOMER shall provide PROVIDER with no less
than nine (9) months’ written notice in advance if the amount of Services
consumed by the Genworth Group under all of the


 


4
















 


outstanding MOAs will change in a manner
that will result in a reduction in the Dedicated FTEs necessary to provide the
Services to seventy-five percent (75%) or less of the Dedicated FTEs agreed
upon by the parties for the most recent Contract Year pursuant to Section
2.c, as adjusted pursuant to any notices previously given pursuant to this Section
e.  In such an event, PROVIDER shall
bear all costs relating to such reduction in volume to the extent stated in
such nine-(9) month notice.  If CUSTOMER
does not provide nine (9) months’ advance written notice of such a reduction,
CUSTOMER shall bear any facilities occupancy, technology and telecommunications
costs incurred by PROVIDER resulting from such reduction, provided, that
PROVIDER shall use commercially reasonable efforts to mitigate such costs.


 


f.              Currency.  All currency references in this Agreement are
in the currency of the United States of America and all payments shall be made
in such currency.


 


g.             Taxes.  The Charges for the Services shall be
inclusive of any sales, use, gross receipts or value added, withholding, ad
valorem and other taxes based on or measured by PROVIDER’s cost in acquiring
equipment, materials, supplies or services used by PROVIDER in providing the
Services.  Further, each party shall bear
sole responsibility for any real or personal property taxes on any property it
owns or leases, for franchises or similar taxes on its business, for employment
taxes on its employees, for intangible taxes on property it owns or licenses
and for taxes on its net income.  If a
sales, use, privilege, value added, excise, services and/or similar tax (“Tax”)
is assessed with respect to PROVIDER’S Charges to CUSTOMER for the provision of
the Services, CUSTOMER shall be responsible for and pay the amount of any such
Tax to PROVIDER or as applicable Law otherwise requires, in addition to the
Charges.  CUSTOMER may report and (as
appropriate) pay any Taxes directly if CUSTOMER provides PROVIDER with a direct
pay or exemption certificate.  PROVIDER’s
invoices shall separately state the amounts of any Taxes PROVIDER is proposing
to collect from CUSTOMER.  PROVIDER shall
promptly notify CUSTOMER of any claim for Taxes asserted by any applicable
taxing authorities.  Notwithstanding the
above, CUSTOMER’s liability for such Taxes is conditioned upon PROVIDER
providing CUSTOMER notification within twenty (20) business days of receiving
any proposed assessment of any additional Taxes, interest or penalty due by
PROVIDER.  PROVIDER shall coordinate with
CUSTOMER the response to and settlement of, any such assessment.  CUSTOMER shall be entitled to receive and to
retain any refund of Taxes paid to PROVIDER pursuant to this Agreement.


 


h.             Foreign
Currency Hedging.  PROVIDER shall
bear all costs associated with the purchase, exchange or translation of
currencies as necessary in connection with the performance of the
Services.  If PROVIDER elects to enter
into hedging transactions with third parties relating to such risks, CUSTOMER
will reimburse PROVIDER for the reasonable costs (without mark-up by PROVIDER)
of such hedging transactions, provided, however, that CUSTOMER
approves of the hedging strategy and the hedging contracts related to such
transactions in writing as part of the annual budget process, as further
described in Section 20.d.


 


i.              Continuous Improvement;
Planning.  PROVIDER shall use
commercially reasonable efforts to increase productivity and efficiency in
performing the Services and shall endeavor to reduce Base Cost annually,
depending on the overall reduction in its cost of operations.  The
parties will participate in an annual budgeting process as part of determining
Base Cost that will address improvements in PROVIDER productivity and
efficiency in performing the Services and dedicate appropriate resources to
execute the budgeted improvements.  To support
PROVIDER’s demand planning, each quarter, CUSTOMER shall provide PROVIDER a
good faith estimate of its requirements for the Services for the following
twelve (12) months.


 


3.             Billing and Payment.


 


a.             Invoices.  PROVIDER shall submit an invoice each month
for the Charges relating to the Services provided during the prior month
period.  For the partial month period
prior to the Execution Date, PROVIDER shall submit an invoice for Charges
calculated as provided in the original Master Outsourcing Agreement and
PSAs.  For periods beginning on and after
the Execution Date, Charges shall be calculated


 


5
















 


as set
forth in this Agreement.  Each invoice
shall detail all information relevant to calculation of the Charges and the total
amount due.  PROVIDER agrees to include
the information and prepare the invoice in the form as reasonably requested by
CUSTOMER.


 


b.             Payments.  All payments, due and payable by CUSTOMER to
PROVIDER, will be made within sixty (60) days of CUSTOMER’s receipt of invoice
(“Payment Date”).  CUSTOMER shall use its
good faith efforts to provide PROVIDER as promptly as practicable with the
details of any objection it may have to any invoice, but any failure to provide
such details shall not foreclose CUSTOMER’s right to dispute such invoice.  CUSTOMER shall pay the part of any invoiced
amount that is not in dispute by the Payment Date.


 


c.             Reimbursements.  Payment of all reimbursable expenses approved
by CUSTOMER in writing in advance will be made within sixty (60) days after
CUSTOMER’s receipt of invoice together with copies of receipts and other
verification.


 


d.             Method of Payment.  The method of payment shall be by electronic
fund transfer to PROVIDER’s designated bank account or such other manner as
agreed upon by the parties.


 


e.             Notice
of Default.  If CUSTOMER does not pay
any invoice by the Payment Date, PROVIDER shall serve CUSTOMER a notice
pursuant to Section 16 (a “Payment Default Notice”) and simultaneously
initiate the procedures for consideration of Disputes by senior executives of
the parties by giving notice as described under Section 1.b of Exhibit
G.


 


f.              PROVIDER
Termination for Non-Payment.


 


PROVIDER shall have the right to
terminate any PSA, without prejudice to any other legal rights to which it may
be entitled, if CUSTOMER fails to pay to PROVIDER any material amount (i) that
is undisputed or determined by the senior executives under Section 1.2 of Exhibit G to be due to PROVIDER, within
five (5) business days following CUSTOMER’s agreement that such amount is not
in dispute or the conclusion of the senior executives’ negotiations, whichever
is earlier, or (ii) that remains in dispute and is not paid following the
conclusion of the senior executives’ negotiations contemplated by Section
3.6(b) hereof.


 


PROVIDER shall have no right to
terminate if CUSTOMER pays any disputed amount within five (5) business days
following the conclusion of the senior executives’ negotiations under Exhibit
G, without
prejudice, and invokes the remainder of the dispute resolution process set
forth in Exhibit G.


 


If pursuant to the dispute resolution
process, PROVIDER is found to have charged improperly, PROVIDER shall promptly
refund such excess amount along with interest at an annual rate equal to the
lesser of (i) the three (3) month London Interbank Offered Rate (LIBOR) plus
100 basis points or (ii) the maximum rate of interest allowed by applicable
law, from the date the payment was made through the date of the refund.


 


g.             Past
Due Amounts.  Past due amounts
(including Charges, reimbursable expenses and credits) will bear interest at an
annual rate equal to the lesser of (i) the three (3) month London Interbank
Offered Rate (LIBOR) plus 100 basis points or (ii) the maximum rate of interest
allowed by applicable law, from the date the payment was due through the date
of payment.


 


4.             Performance Standards.


 


a.             Generally.  All work relating to the Services shall be
completed in a professional, timely manner and shall conform to such additional
Performance Standards, if any, as may be set forth in each PSA.  Such Performance Standards may be revised
from time to time upon the mutual agreement of the parties.


 


6
















 


b.             Measurement and Reporting.  Unless otherwise specified, each
Performance Standard shall be measured on a monthly basis.  PROVIDER shall create, implement, support and
maintain reports for monitoring the metrics associated with the Performance
Standards and such other metrics as are mutually agreed upon by the parties on
a schedule agreed upon in each PSA or within ninety (90) days after the
execution of each PSA.


 


c.             Compliance.  PROVIDER shall perform the
Services in compliance with all applicable Laws, stock exchange rules or
generally accepted, statutory or regulatory accounting or actuarial principle
specified in any PSA or otherwise by CUSTOMER, in each case as applicable to
the business processes of CUSTOMER performed by PROVIDER as part of the
Services, just as if CUSTOMER performed the Services itself.  PROVIDER
shall notify CUSTOMER whenever changes in the Services or Performance Standards
are necessary to comply with applicable Indian Laws. It is understood that any reference in the
PSAs to standards, policies and procedures established by General Electric Company
or its Affiliates, is deemed to include any replacement standards, policies and
procedures established by CUSTOMER or any member of the Genworth Group, and
communicated to PROVIDER, provided, that GECIS shall be entitled
to recover its cost of complying with such standards, policies and procedures
as part of the Charges for the Services established pursuant to Section 2
and Schedule F.


 


d.             Additional
Remedies.  In addition to all other
remedies available under this Agreement, any PSA or at law, CUSTOMER may take
one or more of the following actions in the event of PROVIDER’s failure to
comply with the Performance Standards, provided, that CUSTOMER may not exercise
any of these remedies if the failure in performance is caused by inaccurate or
incomplete data or information provided by CUSTOMER:


 


require training of all PROVIDER
employees involved in performing the affected Services, the length and nature
of such training to be mutually agreed upon by PROVIDER and CUSTOMER;


 


cause the PROVIDER to correct any
deficient Services at no charge or fee to CUSTOMER; or


 


direct PROVIDER to assign additional
employees to perform the Services, which instruction PROVIDER agrees to follow.


 


5.             Record
Keeping and Audits.


 


a.             Generally.  PROVIDER will keep appropriate records
of time and costs related to the Services, as required by Law or as reasonably
requested by CUSTOMER.  PROVIDER
shall maintain a complete audit trail for all financial and non-financial
transactions resulting from or arising in connection with this Agreement and
the PSAs in such manner as is required under the Genworth Records Management
Policies and Indian and United States GAAP.  PROVIDER will maintain such audit
trail for such periods of time as may be specified in the Genworth Records
Management Policies or, if no such period is specified, for such period as the
parties may agree upon.  PROVIDER shall
provide to CUSTOMER, its auditors (including internal audit staff and external
auditors), inspectors, regulators, customers and other representatives as
CUSTOMER may from time to time designate in writing, access at all reasonable
times to any facility or part of a facility at which either PROVIDER or any of
its permitted subcontractors is providing the Services, to PROVIDER personnel,
to PROVIDER’s systems, policies and procedures relating to the Services, and to
data and records relating to the Services for the purpose of performing audits
and inspections of either PROVIDER or any of its subcontractors with respect to
(i) any aspect of PROVIDER’s or such subcontractor’s performance of the
Services, (ii) compliance with the security procedures or (iii) any other
matter relevant to this Agreement, including, without limitation, the
determination and calculation of all elements of Base Cost and all other
elements of the pricing mechanism described in Section 2 hereof and in Exhibit
F.  PROVIDER shall reasonably cooperate with
CUSTOMER in the performance of these audits, including installing and operating
audit software.  If CUSTOMER requires
PROVIDER to conduct any special audit other than as provided in this Section
5.a and if the same 


 


7
















 


results in any increased cost to PROVIDER,
PROVIDER shall be entitled to pass on such extra costs to CUSTOMER through a
special invoice, but only to the extent approved by CUSTOMER in advance.


 


b.             Reports and
Certifications.  PROVIDER shall
provide CUSTOMER such other reports and certifications relating to the Services
as CUSTOMER may reasonably request, including all reports and
sub-certifications necessary for officers of CUSTOMER to make the
certifications required under the Sarbanes-Oxley Act of 2002 and all related
rules and regulations and all related applicable stock exchange listing
requirements.


 


6.             CUSTOMER Commitments.


 


a.             System Access.  CUSTOMER agrees to provide to PROVIDER, at
CUSTOMER’S expense, necessary access to the mainframe computer and related
information technology systems (the “System”) on which CUSTOMER data is
processed during the times (the “Service Hours”) specified in the PSAs, subject
to reasonable downtime for utility outages, maintenance, performance
difficulties and the like.  In the event
of a change in the Service Hours, CUSTOMER will provide PROVIDER with at least
fifteen (15) calendar days written notice of such change.


 


b.             Data Integrity.  CUSTOMER will ensure that all data and
information submitted by it to PROVIDER for performing the Services shall be
accurate and complete and furnished in a timely manner.


 


c.             Training.  CUSTOMER shall provide all PROVIDER employees
who are dedicated to CUSTOMER operations with training or training materials
relating to business processes and regulatory matters uniquely related to the
CUSTOMER business and reasonably required by such employees to meet the
Performance Standards.


 


To the extent any non-performance or failure to meet
Performance Standards by PROVIDER is due to CUSTOMER’s failure to comply with
this Section 6, such non-performance or failure shall not be
considered a breach in Performance Standards and/or a breach of this Agreement
by PROVIDER.


 


7.             Term.


 


a.             Initial
Term.  The term of this Agreement
shall commence on the Execution Date and terminate on the third (3rd)
anniversary of the Trigger Date (the “Common Termination Date”).  The period from the Execution Date to the
Common Termination Date is referred to as the “Initial Term”.


 


b.             Limitation
on Termination of MOAs; Renewal. 
CUSTOMER may terminate individual PSAs prior to the Common Termination
Date either for cause or for convenience as described therein or in this
Agreement.  CUSTOMER, however, may not
terminate this Agreement, other than for cause as described in Section 8,
prior to the Common Termination Date, unless all of the members of the Genworth
Group then party to an MOA terminate all of the existing MOAs at one time.  At least eighteen (18) months prior to the
Common Termination Date, PROVIDER shall propose revised terms and conditions on
which the Agreement may be renewed for an additional two (2) year period (the
“Renewal Period”).  CUSTOMER and all of
the Genworth Affiliates then party to an MOA may at their sole option renew
all, but not less than all, of the MOAs for the Renewal Period, provided,
that CUSTOMER, such Genworth Affiliates and PROVIDER agree upon revised charges
and other terms and conditions to be applicable to the Services during the
Renewal Period prior to the date that is fourteen (14) months prior to the
Common Termination Date (the “Notification Date”).  If the parties are unable to so agree,
CUSTOMER shall inform PROVIDER within fifteen (15) days following the
Notification Date as to whether it will exercise the Carve-Out Option (which
may only be exercised with respect to all of the then-outstanding MOAs), as
described in Section 1.0 of Exhibit H and/or require PROVIDER to provide Services Transfer
Assistance.  If CUSTOMER, such Genworth
Affiliates and PROVIDER fail to agree upon the terms for renewal of the MOAs,
or if CUSTOMER fails to provide PROVIDER the notice described above, all of the
MOAs will


 


8
















 


automatically terminate on the Common
Termination Date and CUSTOMER shall not be entitled to exercise its Carve-Out
Option or require PROVIDER to provide Services Transfer Assistance.


 


8.             Termination.


 


a.             Termination
for Cause by CUSTOMER.  CUSTOMER
shall have the right at any time to terminate any PSA in whole or in part with
respect to the affected Services, effective immediately and without prejudice
to any other legal rights to which CUSTOMER may be entitled, upon the
occurrence of the following events:


 


PROVIDER becomes subject to any
voluntary or involuntary order of any governmental agency prohibiting or
materially impairing the performance of any of the Services;


 


if such Services are inadequate, unsatisfactory
or substantially not in conformance with the Performance Standards or if
PROVIDER’s representations and warranties are materially inaccurate and, upon
receipt of notice thereof from CUSTOMER, PROVIDER (i) does not immediately
undertake action in good faith to cure such default, and (ii) does not provide
to CUSTOMER a preliminary analysis of the root cause of such default and an
initial plan to cure such default within ten (10) days of such notice, and
(iii) has not agreed with CUSTOMER on a definitive plan to cure such default
acceptable to CUSTOMER within thirty (30) days of such notice, and (iv) has not
fully cured such default within ninety (90) days of such notice or such longer
period as may have been approved by CUSTOMER as part of PROVIDER’s plan to cure
such default;


 


if PROVIDER or CUSTOMER, due to the
actions of PROVIDER, is administratively cited by any governmental agency for
materially violating, or is judicially found to have materially violated, any
Law governing the performance of the Services;


 


if a trustee or receiver or similar
officer of any court is appointed for PROVIDER or for a substantial part of the
property of PROVIDER, whether with or without consent;


 


if bankruptcy, composition,
reorganization, insolvency or liquidation proceedings are instituted by or
against PROVIDER without such proceedings being dismissed within ninety (90)
days from the date of the institution thereof; or


 


a material breach of this Agreement or
a PSA by PROVIDER (which shall include a series of non-material or persistent
breaches by PROVIDER, that in the aggregate constitute a material breach or
have a material and significant adverse impact (i) on the administrative,
management, planning, financial reporting or operations functions of CUSTOMER
or (ii) on the management of the Services), and, upon receipt of notice thereof
from CUSTOMER, PROVIDER (i) does not immediately undertake action in good
faith to cure such breach, and (ii) does not provide to CUSTOMER a preliminary
analysis of the root cause of such breach and an initial plan to cure such
breach within ten (10) days of such notice, and (iii) has not agreed with
CUSTOMER on a definitive plan to cure such breach acceptable to CUSTOMER within
thirty (30) days of such notice, and (iv) has not fully cured such default
within ninety (90) days of such notice or such longer period as may have been
approved by CUSTOMER as part of PROVIDER’s plan to cure such breach, provided,
that any breach referred to in Section 1.b shall be fully cured within
thirty (30) days of such notice.


 


Within fifteen (15) days of its notice to PROVIDER of its
intent to terminate any PSA, in whole or in part, under this Section 8.a,
CUSTOMER shall inform PROVIDER as to whether it will exercise its Carve-Out
Option (which may only be exercised with respect to all of the outstanding
MOAs, as described in Section 1.0 of Exhibit H) and/or whether it will
require PROVIDER to provide Services Transfer Assistance for a period not
exceeding twenty-four


 


9
















 


(24) months from the date of such notice.  If CUSTOMER fails to do so, CUSTOMER shall
not be entitled to exercise its Carve-Out Option and/or require PROVIDER to
provide Services Transfer Assistance.


 


b.             Termination
by PROVIDER.


 


PROVIDER may not terminate this
Agreement or any PSA for any reason other than (i) non-payment in accordance
with Section 3.f, (ii) as described below under Section 8.d
(Termination Relating to Damages Cap) hereof and (iii) as described below under
Section 8.e (Change of Control), it being understood that PROVIDER will
be relieved from its obligations to perform in accordance with the terms of
this Agreement or a PSA to the extent that it is prevented from doing so as a
result of the failure by CUSTOMER to perform any of its obligations under this
Agreement or such PSA.


 


Within fifteen (15) days of PROVIDER’s
notice to CUSTOMER of PROVIDER’s intent to terminate any PSA in accordance with
Sections 8.2(a)(i) or 8.2(a)(ii), CUSTOMER shall inform PROVIDER as to whether it
will require PROVIDER to provide Services Transfer Assistance for a period not
exceeding fourteen (14) months from the date of such notice, provided, in the
case of a termination described in clause (i), that CUSTOMER has made all outstanding payments under any
invoice in accordance with Section 3.b hereof.  If CUSTOMER fails to give such notice,
CUSTOMER shall not be entitled to require PROVIDER to provide Services Transfer
Assistance.  At PROVIDER’s option,
CUSTOMER shall be required to pay for Services Transfer Assistance provided
under this paragraph in advance.


 


With respect to any other breach of
this Agreement or a PSA by CUSTOMER, PROVIDER will be entitled to invoke the
applicable dispute resolution process under Section 21.l hereof and
pursue all remedies permitted by that process, but shall not be entitled to
terminate this Agreement or any related PSA or voluntarily withhold any
Services except as authorized pursuant to such process.


 


c.             Termination
for Convenience.


 


CUSTOMER may terminate any PSA in whole
or in part at any time upon at least one (1) year’s prior written notice to
PROVIDER.  Such notice shall include a
commercially reasonable plan for the reduction of Services to be purchased from
PROVIDER that will enable PROVIDER to mitigate all costs of such
termination.  PROVIDER shall be
responsible for all costs that PROVIDER incurs as a result of such termination.


 


Notwithstanding the provisions of the
preceding paragraph, CUSTOMER may terminate any PSA in whole or in part at any
time upon at least ninety (90) days’ prior written notice to PROVIDER.  In such event, CUSTOMER shall be responsible
for all costs that PROVIDER incurs as a result of such termination; provided,
that PROVIDER has taken all commercially reasonable steps to mitigate such
costs.  Such costs shall not include any
element of lost profits or lost opportunity costs.


 


Within fifteen (15) days of its notice
to PROVIDER of its intent to terminate any PSA, in whole or in part, under this
Section 8.c, CUSTOMER shall inform PROVIDER as to whether it will
require PROVIDER to provide Services Transfer Assistance for a period not
exceeding fourteen (14) months from the date of such notice.  If CUSTOMER fails to do so, CUSTOMER shall
not be entitled to require PROVIDER to provide Services Transfer Assistance.


 


d.             Termination Right Related
to Damages Cap.


 


If either the GE Group members or the
Genworth Group members incur liability to the others under one or more MOAs in
excess of the applicable Simple Breach Cap or Excluded Matters Cap


 


10
















 


and do not agree to reset to zero the
amounts counted toward such cap, the members of the group that has not incurred
such excess liability shall have the right to terminate all, but not less than
all, of the then-outstanding MOAs  for
material breach.  Notwithstanding the
preceding sentence, CUSTOMER may only exercise the Carve-Out Option if all of
the Genworth Group members party to an MOA also exercise the Carve-Out Option
under their respective MOAs at the same time.


 


Within fifteen (15) days of the notice
to PROVIDER of termination of the MOAs  under
this Section 8.d, CUSTOMER shall inform PROVIDER as to whether it will
exercise its Carve-Out Option and/or whether it will require PROVIDER to
provide Services Transfer Assistance for a period not exceeding twenty-four
(24) months from the date of such notice. 
If CUSTOMER fails to do so, CUSTOMER shall not be entitled to exercise
its Carve-Out Option and/or require PROVIDER to provide Services Transfer Assistance.


 


e.             Termination
Right Relating to Change of Control of CUSTOMER.  If a Change of Control of Genworth occurs,
PROVIDER shall, unless the parties otherwise agree during a one hundred twenty
(120) day negotiation period following the Change of Control, have the right to
terminate all, but not less than all, of the then-outstanding MOAs upon the
later of (A) the last day of the eighteenth (18th) month following
the effective date of the Change of Control or (B) the expiration of the
Initial Term, provided that such termination right is exercised within fifteen
(15) days following the end of the one hundred twenty (120) day negotiation
period.


 


f.              Continued
Performance.  Termination of this
Agreement for any reason provided herein shall not relieve either party from
its obligation to perform its obligations hereunder up to the effective date of
such termination or to perform such obligations as may survive termination.


 


9.             Obligations on Expiration and
Termination.


 


a.             Services
Transfer Assistance.


 


PROVIDER shall cooperate with CUSTOMER
to assist in the orderly transfer of the Services to CUSTOMER itself or its
designee (including another services provider) in connection with the
expiration, non-renewal or earlier termination of the Agreement and/or each PSA
for any reason, however described, or exercise of the Carve-Out Option.  The Services include “Services Transfer
Assistance,” which includes providing CUSTOMER and its designees and their
agents, contractors and consultants, as necessary, with (i) such cooperation
and other services incidental to the transfer of the Services as they may
reasonably request, (ii) all or such portions of the Services as CUSTOMER may
request, and (iii) such other transition services as may be provided for in any
PSA.  Neither the term of the Agreement
nor the term of any PSA shall be deemed to have expired or terminated until the
Services Transfer Assistance thereunder is completed.


 


Upon CUSTOMER’s request, PROVIDER shall
provide Services Transfer Assistance commencing up to one (1) year prior to
expiration or termination of the Agreement or any PSA and continuing for the
periods described in this Agreement. 
PROVIDER shall provide the Services Transfer Assistance even in the
event of CUSTOMER’s material breach (other than an uncured payment default) of
this Agreement or any PSA.


 


If any Services Transfer Assistance
provided by PROVIDER requires the utilization of additional resources that
PROVIDER would not otherwise use in the performance of the Services, but for
which there is a charging methodology provided for in the Agreement or such
PSAs, CUSTOMER will pay PROVIDER for such usage at the then-current applicable
Charges and in the manner set forth in the Agreement and/or applicable PSAs.  If the Services Transfer Assistance requires
PROVIDER to incur costs that PROVIDER would not otherwise incur in the
performance of the Services under the Agreement and applicable PSAs, then
PROVIDER shall notify CUSTOMER 


 


11
















 


of the identity and scope of the
activities requiring that PROVIDER incur such costs and the projected amount of
the charges that will be payable by CUSTOMER for the performance of such
assistance.  Upon CUSTOMER’s prior authorization,
PROVIDER shall perform the assistance and invoice CUSTOMER for such
charges.  CUSTOMER shall bear all costs
agreed in advance between the parties and incurred by PROVIDER on account of
transition/migration of services/processes from PROVIDER to CUSTOMER or its
designee.


 


b.             Carve-Out Option.  At any time during the term of this Agreement
and prior to the Volume Reduction Date, PROVIDER agrees that CUSTOMER or its
designee shall have the right, upon the occurrence of any one of the Carve-Out
Conditions and to the extent permissible under (i) applicable law or (ii) any
existing contractual obligation of PROVIDER, to require PROVIDER to transfer to
CUSTOMER the Carve-Out Resources used by PROVIDER to provide or support the
provision of the Services as described in Exhibit H hereof (the “Carve-Out
Option”).


 


10.           Assignment
and Subcontracting.


 


a.             PROVIDER Assignment.  Without the prior written consent of
CUSTOMER, PROVIDER shall not voluntarily, involuntarily or by operation of law,
assign or otherwise transfer this Agreement, any related PSA or any of
PROVIDER’s rights hereunder or thereunder, except as permitted under Section
1.f hereof.  Any assignment or
transfer without CUSTOMER’s written consent, except as permitted under Section
1.f hereof, shall be null and void and at the option of CUSTOMER shall
constitute a material breach of this Agreement. 
Notwithstanding anything to the contrary above, PROVIDER shall
have the right to assign this Agreement or any PSA, in whole or in part, to any
Affiliate of PROVIDER upon thirty (30) days prior written notice to CUSTOMER
and subject to receipt by CUSTOMER of all regulatory approvals.  Following any such assignment to an Affiliate
of PROVIDER, PROVIDER shall remain liable for the performance of all of
PROVIDER’s obligations under this Agreement and each PSA.  This Agreement and all of the terms and
provisions hereof will be binding upon, and will inure to the benefit of
PROVIDER’s successors and permitted assigns.


 


b.             Subcontracting.  PROVIDER shall not enter into subcontracts
for the performance of the Services without the prior written consent of
CUSTOMER.  In the event a subcontract is
proposed by PROVIDER, PROVIDER shall furnish such information as reasonably
requested by CUSTOMER to enable CUSTOMER to ascertain to its satisfaction that
such proposed subcontractor of PROVIDER is able to meet CUSTOMER’s quality
standards and comply with the terms and conditions of this Agreement.  Notwithstanding CUSTOMER’s consent to any
subcontract, PROVIDER shall remain liable for the performance of all of PROVIDER’s
obligations under this Agreement and each PSA. 
CUSTOMER shall not be obligated to pay any person other than PROVIDER
for Services rendered by any subcontractor.


 


c.             CUSTOMER
Assignment.   Notwithstanding
anything to the contrary in this Section 10, CUSTOMER shall have the
right to assign this Agreement or any PSA, in whole or in part, to any
Affiliate of CUSTOMER upon thirty (30) days prior written notice to PROVIDER
and subject to receipt by CUSTOMER of all regulatory approvals.  Following any such assignment to an Affiliate
of CUSTOMER, CUSTOMER shall remain liable for the performance of all of
CUSTOMER’s obligations under this Agreement and each PSA.  This Agreement and all of the terms and
provisions hereof will be binding upon, and will inure to the benefit of
CUSTOMER’s successors and permitted assigns.


 


11.           Confidentiality.


 


a.             Obligations
of PROVIDER.  From and after the
Execution Date, subject to Section 11.c  and the rights of PROVIDER
with respect to the CUSTOMER Licensed Technology pursuant to Exhibit I, and except as otherwise
contemplated by this Agreement or any PSA, the PROVIDER shall not, and shall
cause its Affiliates and their respective officers, directors, employees, and
other agents and representatives, including attorneys, agents, customers,
suppliers, contractors, consultants and other representatives of any Person
providing financing (collectively, “Representatives”), not to, directly
or indirectly, disclose, reveal,


 


12
















 


divulge or communicate to any Person other
than Representatives of such party or of its Affiliates who reasonably need to
know such information in providing Services to CUSTOMER or use or otherwise
exploit for its own benefit or for the benefit of any third party, any CUSTOMER
Confidential Information.  If any
disclosures are made in connection with providing Services to CUSTOMER, its
Affiliates or Representatives under this Agreement, then the CUSTOMER
Confidential Information so disclosed shall be used only as required to perform
the Services.  PROVIDER shall use the
same degree of care to prevent and restrain the unauthorized use or disclosure
of the CUSTOMER Confidential Information by any of its Representatives as it
currently uses for its own confidential information of a like nature, but in no
event less than a reasonable standard of care. 
For purposes of this Section 11.a, any Information, material
or documents relating to the Genworth Business currently or formerly conducted,
or proposed to be conducted, by any member of the Genworth Group furnished to
or in possession of the PROVIDER and its Affiliates and Representatives,
irrespective of the form of communication, and all notes, analyses,
compilations, forecasts, data, translations, studies, memoranda or other
documents prepared by PROVIDER, its Affiliates and their respective
Representatives, that contain or otherwise reflect such Information, material
or documents is hereinafter referred to as “CUSTOMER Confidential
Information.”  “CUSTOMER
Confidential Information” does not include, and there shall be no
obligation hereunder with respect to, Information that (i) is or becomes
generally available to the public, other than as a result of a disclosure by
PROVIDER, its Affiliates or Representatives not otherwise permissible
hereunder, (ii) PROVIDER or such Affiliate or Representative can demonstrate
was or became available to such person from a source other than CUSTOMER or its
Affiliates, or (iii) is developed independently by PROVIDER or such Affiliate
or Representative without reference to the CUSTOMER Confidential Information; provided,
however, that, in the case of clause (ii), the source of such
information was not known by such persons to be bound by a confidentiality
agreement with, or other contractual, legal or fiduciary obligation of
confidentiality to, CUSTOMER or any of its Affiliates with respect to such
information.


 


b.             Obligations
of CUSTOMER.  From and after the
Execution Date, subject to Section 11.c and the rights of CUSTOMER with
respect to the PROVIDER Licensed Technology pursuant to Exhibit I,
and except as otherwise contemplated by this Agreement, CUSTOMER shall not, and
shall cause its Affiliates and their respective Representatives, not to,
directly or indirectly, disclose, reveal, divulge or communicate to any Person
other than Representatives of such party or of its Affiliates who reasonably
need to know such information in providing Services to CUSTOMER or any
Affiliate of CUSTOMER or use or otherwise exploit for its own benefit or for the
benefit of any third party, any PROVIDER Confidential Information.  If any disclosures are made in connection
with providing Services to CUSTOMER or any of its Affiliates under this
Agreement, then the PROVIDER Confidential Information so disclosed shall be
used only as required to perform the Services. 
CUSTOMER and its Affiliates shall use the same degree of care to prevent
and restrain the unauthorized use or disclosure of the PROVIDER Confidential
Information by any of their Representatives as they currently use for their own
confidential information of a like nature, but in no event less than a
reasonable standard of care.  For
purposes of this Section 11.b, any Information, material or
documents relating to the businesses currently or formerly conducted, or
proposed to be conducted, by GE or any of its Affiliates (other than any member
of the Genworth Group) furnished to or in possession of CUSTOMER or any of its
Affiliates, irrespective of the form of communication, and all notes, analyses,
compilations, forecasts, data, translations, studies, memoranda or other
documents prepared by CUSTOMER or its officers, directors and Affiliates, that
contain or otherwise reflect such information, material or documents is
hereinafter referred to as  “PROVIDER
Confidential Information.”  “PROVIDER
Confidential Information” does not include, and there shall be no
obligation hereunder with respect to, information that (i) is or becomes
generally available to the public, other than as a result of a disclosure by
CUSTOMER or its Representatives not otherwise permissible hereunder, (ii)
CUSTOMER or such Representative can demonstrate was or became available to it
from a source other than PROVIDER and its Affiliates, or (iii) is developed
independently by CUSTOMER or its Representatives without reference to the
PROVIDER Confidential Information; provided, however, that, in
the case of clause (ii), the source of such information was not known by
CUSTOMER to be bound by a confidentiality agreement with, or other contractual,
legal or fiduciary obligation of confidentiality to, PROVIDER or its Affiliates
with respect to such information.


 


13
















 


c.             Required
Disclosures.  If PROVIDER or its
Affiliates, on the one hand, or CUSTOMER or its Affiliates, on the other hand,
are requested or required (by oral question, interrogatories, requests for
information or documents, subpoena, civil investigative demand or similar
process) by any Governmental Authority or pursuant to applicable Law to
disclose or provide any CUSTOMER Confidential Information or PROVIDER
Confidential Information as applicable, the entity or person receiving such
request or demand shall use all reasonable efforts to provide the other party
with written notice of such request or demand as promptly as practicable under
the circumstances so that such other party shall have an opportunity to seek an
appropriate protective order.  The party
receiving such request or demand agrees to take, and cause its representatives
to take, at the requesting party’s expense, all other reasonable steps
necessary to obtain confidential treatment by the recipient.  Subject to the foregoing, the party that
received such request or demand may thereafter disclose or provide any CUSTOMER
Confidential Information or PROVIDER Confidential Information, as the case may
be, to the extent required by such Law (as so advised by counsel) or by lawful
process or such Governmental Authority.


 


d.             HIPAA Addendum.  If
PROVIDER in connection with the provision of a Service, constitutes a
Business Associate (as defined in HIPAA and/or the HIPAA Privacy Rule) and
uses  Protected Health Information (as
defined in HIPAA and/or the HIPAA Privacy Rule) generated by or entrusted to
Customer, then the terms of Exhibit J shall apply with respect to such Service.  CUSTOMER shall provide notice to PROVIDER of
changes in HIPAA and/or the HIPAA Privacy Rule relevant to the performance of
the Services and appropriate training to PROVIDER regarding compliance with
HIPAA and the HIPAA Privacy Rule in accordance with Section 6.c


 


e.             Data
Ownership.  All data, records, and
reports relating to the Genworth Business and the customers of the Genworth
Group (collectively, “Records”), whether in existence at the Execution Date
hereof or compiled thereafter in the course of performing the Services, shall
be treated by PROVIDER and its subcontractors as the exclusive property of
CUSTOMER or other member of the Genworth Group and the furnishing of such
Records, or access to such items by, PROVIDER and/or its subcontractors, shall
not grant any express or implied interest in or license to PROVIDER and/or its
subcontractors relating to such Records other than as is necessary to perform
and provide the Services to the Genworth Group. 
Upon request by CUSTOMER at any time and from time to time and without
regard to the default status of the parties under the Agreement, PROVIDER
and/or its subcontractors shall promptly deliver to CUSTOMER the Records in
electronic format and in such hard copy as exists on the date of the request by
Customer.


 


12.           Indemnities.


 


a.             Indemnity by PROVIDER.  PROVIDER agrees to indemnify, hold harmless
and defend the members of the Genworth Group and their respective directors,
officers, employees and agents, from and against any and all actions,
liabilities, losses, damages, injuries, judgments and external expenses,
including, without limitation, attorneys’ fees, court costs, sanctions imposed
by a court, experts’ fees, interest or penalties relating to any judgment or settlement,
and other legal expenses (including all incidental expenses in connection with
such liabilities, obligations, claims or Actions based upon or arising out of
damage, illness or injury (including death) to person or property caused by or
sustained in connection with the performance of this Agreement)
(“Liabilities”), brought, alleged or incurred by or awarded to any person who
is not a member of the GE Group or the Genworth Group (a “Third Party Claim”)
arising out of or based upon:


 


any
alleged or actual violation of any Law by PROVIDER or any of its
Affiliates or Representatives (excluding the Genworth Group and excluding any
such violation to the extent caused by a breach of this Agreement or any PSA by
any Member of the Genworth Group);


 


the gross negligence or willful
misconduct of PROVIDER or any of its Affiliates (excluding the Genworth Group);


 


14
















 


PROVIDER’s provision of any services to
any third party from the same facilities from which the Services are provided
to the CUSTOMER;


 


the improper or illegal use or
disclosure of consumer information (including personal, credit or medical
information) regarding any customer or potential customer of CUSTOMER in
contravention of PROVIDER’s obligations under this Agreement or any PSA; and


 


PROVIDER’s tax liabilities arising from
PROVIDER’s provision of Services, as set forth in Section 2.g hereof.


 


b.             Indemnity
by CUSTOMER.  CUSTOMER  agrees to indemnify, hold harmless and
defend PROVIDER, each other member of the GE Group, and their respective
directors, officers, employees and agents, from and against any and all
Liabilities relating to any Third Party Claim arising out of or based upon the
provision of Services by PROVIDER to CUSTOMER, except for Liabilities arising
out of or based upon:


 


negligence of PROVIDER, its Affiliates
or Representatives;


 


any of the Excluded Matters related to
an act or omission of PROVIDER, its Affiliates or Representatives;


 


any matter with respect to which
PROVIDER is required to indemnify CUSTOMER under Section 12.a hereof; or


 


any Third Party Claim that any
resources provided by the CUSTOMER or used by PROVIDER in connection with the
Services infringe, violate or misappropriate any Intellectual Property or
Trademarks of any third party, excluding any such infringement, violation or
misappropriation caused by:


 


any such resources first provided to
PROVIDER after the Execution Date, but excluding any infringement, violation or
misappropriation resulting from modifications by or on behalf of the PROVIDER
to any such resources, combinations of such resources with other items, or use
of such resources, except as specified by CUSTOMER in each case (it being
understood that the use of all Software included in any such resources in combination
with computers or other hardware with which such Software is intended to be
used shall be deemed to be so specified);


 


any such resources first specified by
CUSTOMER after the Execution Date for use by PROVIDER in connection with the
Services, but excluding any infringement, violation or misappropriation
resulting from (A) modifications by or on behalf of the PROVIDER to any such
resources, combinations of such resources with other items, or use of such
resources, except as specified by CUSTOMER in each case (it being understood
that the use of all Software included in any such resources in combination with
computers or other hardware with which such Software is intended to be used
shall be deemed to be so specified) and (B) any failure by PROVIDER to fulfill
its express obligation under any PSA or other applicable written agreement
between the parties to obtain any rights or consents necessary for the use by
PROVIDER of any Intellectual Property of a third party; and


 


modifications by or on behalf of the
CUSTOMER after the Execution Date to any such resources provided by PROVIDER
and/or its Affiliates and Representatives to the CUSTOMER in the course of
performing the Services, combinations of such resources


 


15
















 


with other items, or use of such
resources, except as specified by PROVIDER in each case (it being understood
that the use of any and all Software in any such resources in combination with
computers or other hardware with which such Software is intended to be used
shall be deemed to be so specified).


 


c.             Indemnification
Obligations Net of Insurance Proceeds and Other Amounts, On an After-Tax Basis.


 


Any Liability subject to
indemnification pursuant to this Section 12 will be net of Insurance Proceeds
that actually reduce the amount of the Liability and will be determined on an
After-Tax Basis.  Accordingly, the amount
which any party (an “Indemnifying Party”) is required to pay to any
Person entitled to indemnification hereunder (an “Indemnified Party”)
will be reduced by any Insurance Proceeds theretofore actually recovered by or
on behalf of the Indemnified Party in respect of the related Liability.  If an Indemnified Party receives a payment
(an “Indemnity Payment”) required by this Agreement from an Indemnifying
Party in respect of any Liability and subsequently receives Insurance Proceeds,
then the Indemnified Party will pay to the Indemnifying Party an amount equal
to the excess of the Indemnity Payment received over the amount of the Indemnity
Payment that would have been due if the Insurance Proceeds had been received,
realized or recovered before the Indemnity Payment was made.


 


An insurer who would otherwise be
obligated to pay any claim shall not be relieved of the responsibility with respect
thereto or, solely by virtue of the indemnification provisions hereof, have any
subrogation rights with respect thereto. 
The Indemnified Party shall use its commercially reasonable efforts to
seek to collect or recover any third-party (which shall not include any captive
insurance subsidiary) Insurance Proceeds (other than Insurance Proceeds under
an arrangement where future premiums are adjusted to reflect prior claims in
excess of prior premiums) to which the Indemnified Party is entitled in connection
with any Liability for which the Indemnified Party seeks indemnification
pursuant to this Section 12; provided that the Indemnified Party’s
inability to collect or recover any such Insurance Proceeds shall not limit the
Indemnifying Party’s obligations hereunder.


 


The term “After-Tax Basis” as
used in this Section 12 means that, in determining the amount of the
payment necessary to indemnify any party against, or reimburse any party for,
Liabilities, the amount of such Liabilities will be determined net of any
reduction in tax derived by the Indemnified Party as the result of sustaining
or paying such Liabilities, and the amount of such indemnification payment will
be increased (i.e., “grossed up”) by the amount necessary to satisfy any income
or franchise tax liabilities incurred by the Indemnified Party as a result of
its receipt of, or right to receive, such Indemnity Payment (as so increased),
so that the Indemnified Party is put in the same net after-tax economic
position as if it had not incurred such Liabilities, in each case without
taking into account any impact on the tax basis that an Indemnified Party has
in its assets.


 


d.             Procedures
for Indemnification of Third Party Claims.


 


If an Indemnified Party shall receive
notice or otherwise learn of the assertion of any Third Party Claim or of the
commencement by any such Person of any Action with respect to which an
Indemnifying Party may be obligated to provide indemnification to such
Indemnified Party pursuant to this Section 12.d, such Indemnified Party
shall give such Indemnifying Party written notice thereof within 20 days after
becoming aware of such Third Party Claim. 
Any such notice shall describe the Third Party Claim in reasonable
detail.  Notwithstanding the foregoing,
the failure of any Indemnified Party or other Person to give notice as provided
in this Section 12.d


 


16
















 


shall not relieve the Indemnifying
Party of its obligations under this Section 12.d, except to the
extent that such Indemnifying Party is actually prejudiced by such failure to
give notice.


 


An Indemnifying Party may elect to
defend (and to seek to settle or compromise), at such Indemnifying Party’s own
expense and by such Indemnifying Party’s own counsel, any Third Party Claim.  Within 30 days after the receipt of notice
from an Indemnified Party in accordance with Section 0.  (or sooner, if the nature of such Third Party
Claim so requires), the Indemnifying Party shall notify the Indemnified Party
of its election whether the Indemnifying Party will assume responsibility for
defending such Third Party Claim, which election shall specify any reservations
or exceptions.  After notice from an
Indemnifying Party to an Indemnified Party of its election to assume the
defense of a Third Party Claim, such Indemnified Party shall have the right to
employ separate counsel and to participate in (but not control) the defense,
compromise, or settlement thereof, but the fees and expenses of such counsel
shall be the expense of such Indemnified Party except as set forth in the next
sentence.  If the Indemnifying Party has
elected to assume the defense of the Third Party Claim but has specified, and
continues to assert, any reservations or exceptions in such notice, then, in
any such case, the reasonable fees and expenses of one separate counsel for all
Indemnified parties shall be borne by the Indemnifying Party, but the
Indemnifying Party shall be entitled to reimbursement by the Indemnified Party
for payment of any such fees and expenses to the extent that it establishes
that such reservations and exceptions were proper.


 


If an Indemnifying Party elects not to
assume responsibility for defending a Third Party Claim, or fails to notify an
Indemnified Party of its election as provided in Section 0.  such Indemnified Party may defend such Third
Party Claim at the cost and expense of the Indemnifying Party.


 


Unless the Indemnifying Party has
failed to assume the defense of the Third Party Claim in accordance with the
terms of this Agreement, no Indemnified Party may settle or compromise any
Third Party Claim without the consent of the Indemnifying Party.  No Indemnifying Party shall consent to entry
of any judgment or enter into any settlement of any pending or threatened Third
Party Claim in respect of which any Indemnified Party is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Party
without the consent of the Indemnified Party if (i) the effect thereof is to
permit any injunction, declaratory judgment, other order or other nonmonetary
relief to be entered, directly or indirectly against such Indemnified Party and
(ii) such settlement does not include an unconditional release of such
Indemnified Party from all liability on claims that are the subject matter of
such Third Party Claim.


 


e.             Additional
Matters.


 


Indemnification
payments in respect of any Liabilities for which an Indemnified Party is
entitled to indemnification under this Section 12.e shall be paid
by the Indemnifying Party to the Indemnified Party as such Liabilities are
incurred upon demand by the Indemnified Party, including reasonably
satisfactory documentation setting forth the basis for the amount of such
indemnification payment, including documentation with respect to calculations made
on an After-Tax Basis and consideration of any Insurance Proceeds that actually
reduce the amount of such Liabilities. 
The indemnities contained in this Section 12.e shall remain
operative and in full force and effect, regardless of (i) any investigation
made by or on behalf of any Indemnified Party; (ii) the knowledge by the
Indemnified Party of Liabilities for which it might be entitled to
indemnification hereunder; (iii) any termination of this Agreement or any PSA;
and (iv) the sale or other transfer by any party of any assets or businesses or
the assignment by it of any liabilities.


 


If payment
is made by or on behalf of any Indemnifying Party to any Indemnified Party in
connection with any Third Party Claim, such Indemnifying Party shall be subrogated
to and shall stand in the place of such Indemnified Party as to any events or
circumstances in respect of which such Indemnified Party may have any right,
defense or claim relating to such Third Party Claim against any claimant or
plaintiff asserting such Third Party Claim or against any other Person.  Such Indemnified Party shall cooperate with
such Indemnifying Party in a reasonable manner, and at the cost and expense of
such Indemnifying Party, in prosecuting any subrogated right, defense or claim.


 


17
















 


In an
Action in which the Indemnifying Party is not a named defendant, if either the
Indemnified Party or Indemnifying Party shall so request, the parties shall
endeavor to substitute the Indemnifying Party for the named defendant if they
conclude that substitution is desirable and practical.  If such substitution or addition cannot be
achieved for any reason or is not requested, the named defendant shall allow
the Indemnifying Party to manage the Action as set forth in this section, and
the Indemnifying Party shall fully indemnify the named defendant against all
costs of defending the Action (including court costs, sanctions imposed by a
court, attorneys’ fees, experts fees and all other external expenses), the
costs of any judgment or settlement, and the cost of any interest or penalties
relating to any judgment or settlement.


 


f.              Remedies
Cumulative; Limitations.


 


The rights provided in this Section 12.f
shall be cumulative and, subject to the provisions of Section 12 and Section
21.l, shall not preclude assertion by any Indemnified Party of any other
rights or the seeking of any and all other remedies against any Indemnifying
Party.


 


PROVIDER’s
indemnity hereunder shall not extend to any Liabilities incurred or suffered by CUSTOMER as a result of
inaccurate or incomplete data or information submitted to PROVIDER by CUSTOMER.


 


The liability of each party (and their
respective Affiliates) to each other with respect to the indemnified matters
shall be included in the calculation of, and limited by, the Excluded Matters
Cap.


 


13.           Limitation of Liability.


 


a.             No System Liability.  PROVIDER
shall have no liability to CUSTOMER for any delay of performance or breach of
this Agreement to the extent caused by or related to any errors in the System
or the lack of availability to PROVIDER of the System provided by CUSTOMER
under Section 6.a.


 


b.             Liability
for Simple Breach.  The parties shall
be liable to one another for fifty percent (50%) of all Direct Damages resulting
from their respective breaches of this Agreement or PSA or negligence in the
performance of the Services during the Initial Term, provided, that
(i) neither party shall have any liability to the other with respect to an
individual breach or negligent act or omission until the losses resulting from
such matter exceed $25,000, and then only to the extent that such losses exceed
$25,000, and (ii) the parties and their Affiliates’ liability to each other for
Direct Damages for such matters arising out of all of the MOAs during the
Initial Term shall not exceed $5,000,000 in the aggregate (the “Simple Breach
Cap”).


 


c.             Liability for Excluded Matters.  Subject
to the Excluded Matters Cap described in the following sentence, the parties
shall be liable to one another for one hundred percent (100%) of all Direct
Damages resulting from (i) a party’s gross negligence or willful misconduct,
(ii) PROVIDER’s improper or illegal use or disclosure of consumer
information (including, but not limited to, personal, credit or medical
information) regarding any customer or potential customer of the CUSTOMER
Group, (iii) PROVIDER’s breach of its agreement not to voluntarily withhold
Services, (iv) a breach of Section 0. , or (v) a party’s violation of Law
(collectively, the “Excluded Matters”). 
The parties and their Affiliates’ liability to each other for Direct
Damages arising out of or relating to the Excluded Matters and their respective
indemnification obligations under ARTICLE XII arising under all of the
MOAs during the Initial Term shall not exceed $25,000,000 in the aggregate (the
“Excluded Matters Cap”).


 


d.             No Liability for Acts in
Accordance with Instructions. 
Notwithstanding anything to the contrary set forth in the Agreement or
any related PSA, neither party shall be liable to the other party or any of its
Affiliates with respect to any act or omission taken or not taken pursuant to
the specific instruction, direction or request, in writing of such other party
made through its authorized representative.


 


18
















 


14.           PROVIDER Employees.


 


a.             Responsibility
for PROVIDER Employees.  PROVIDER
shall be responsible for all payments to its employees including any insurance
coverage and benefit programs required by applicable law and regulation.  Nothing in this agreement shall constitute an
employer-employee relationship between the employees of PROVIDER and the
CUSTOMER.


 


15.           Representations, Warranties and Covenants.


 


a.             PROVIDER
Representations.  PROVIDER
represents, warrants and covenants that:


 


PROVIDER
has the facilities, equipment, staff, experience and expertise to perform and
provide the Services required hereunder;


 


PROVIDER
is solvent and able to meet all financial obligations as they mature, and
agrees to notify CUSTOMER promptly of any change in this status;


 


PROVIDER
has the necessary power and authority
to execute, deliver and perform its obligations under this Agreement and this
Agreement has been or will be duly executed and delivered by PROVIDER and
constitutes or will constitute the valid and binding agreement of PROVIDER,
enforceable in accordance with its terms;


 


Subject
to Section 6.3, the execution and delivery of this Agreement by PROVIDER and
the consummation by PROVIDER of the transactions herein contemplated will not contravene any provision of applicable Law,
and will not constitute a breach of or default under any agreement or other
instrument or any decree, judgment or order to which PROVIDER is currently a
party or by which PROVIDER is bound;


 


PROVIDER has provided to CUSTOMER a
list referring to this paragraph which, to the knowledge of PROVIDER, sets
forth all Software used by PROVIDER (other than such Software provided to
PROVIDER by CUSTOMER) in the performance of the Services as of the Execution Date;


 


After the Execution Date, PROVIDER will
not use any New Provider Materials in performing the Services without the prior
written consent of CUSTOMER; and


 


After the Execution Date, PROVIDER will
not enter into any material agreement for the purchase of Hardware or Third
Party Software or enter into any material Third Party Agreements without the
prior written consent of CUSTOMER.


 


b.             CUSTOMER
Representations.  CUSTOMER
represents, warrants and covenants that:


 


CUSTOMER
has the necessary power and authority to execute, deliver and perform its
obligations under this Agreement and this Agreement has been or will be duly
executed and delivered by CUSTOMER and constitutes the valid and binding
agreement of CUSTOMER, enforceable in accordance with its terms; and


 


The
execution and delivery of this Agreement by CUSTOMER and the consummation by
CUSTOMER of the transactions herein contemplated will not contravene any
provision of applicable law, and will not constitute a breach of or default
under any agreement or other instrument or any decree, judgment or order to
which CUSTOMER is currently a party or by which CUSTOMER is bound.


 


c.             Approvals
and Consents.  Each party shall be
responsible for obtaining all approvals, permissions, consents or grants
required or which may be required for such party to undertake its duties and
responsibilities regarding any Services under this Agreement and any related
PSA.  Additionally, each


 


19
















 


party shall provide such cooperation and
support as may be necessary for the other party to secure such approvals,
permissions, consents or grants.


 


d.             Cooperation.


 


The parties shall timely, diligently
and on a commercially reasonable basis cooperate, facilitate the performance of
their respective duties and obligations under this Agreement and each related
PSA and reach agreement with respect to matters left for future review,
consideration and/or negotiation and agreement by the parties, as specifically
set forth in this Agreement and PSA.  Further,
the parties shall deal and negotiate with each other and their respective
Affiliates in good faith in the execution and implementation of their duties
and obligations under this Agreement.


 


Not in limitation of Sections
12.2(d)(i) and (ii), the parties shall make good faith efforts to share (i)
versions, patches, fixes and other modifications recommended or required by
third party providers of Software provided hereunder by either party to the
other prior to or after the Execution Date and (ii) information regarding the
foregoing (i).


 


PROVIDER agrees, at CUSTOMER’S request
and expense, to provide documentary information and any further assistance
required in order to respond for CUSTOMER to state department of insurance or
third party or administrative demands in regulatory or legal proceedings or in
conjunction with formal department of insurance inquiries related to the
Services performed by PROVIDER.  The
assistance rendered by PROVIDER under this Section 0.  shall include causing PROVIDER’s employees to
travel to the United States to participate in or testify at regulatory or legal
proceedings relating to the Services as required by Law or request of any
Governmental Authority or as otherwise reasonably requested by CUSTOMER, provided,
that CUSTOMER shall reimburse PROVIDER for the reasonable travel and living
expenses incurred by such employees in accordance with CUSTOMER’s reimbursement
policies generally applicable to CUSTOMER’s employees.


 


16.           Notices.


 


All
notices, requests, claims, demands and other communications under this
Agreement shall be given or made (and shall be deemed to have been duly given
or made if the sender has reasonable means of showing receipt thereof) by
delivery in person, by reputable international courier service, by facsimile
with receipt confirmed (followed by delivery of an original via reputable
international courier service) to the respective parties at the following
addresses (or at such other address for a party as shall be specified in a
notice given in accordance with this Section 16):


 


TO PROVIDER:


Attention:              Pramod
Bhasin


Designation:         President
& CEO


Address:                GE Towers, Sector Road, DLF City
Phase V Sector Road, Sector


                                53, Gurgaon, Haryana


Fax:                         91
124 235 6976


E-mail:    Pramod.Bhasin@geind.GE.com


 


Copy To:


Attention:              Raghuram
Raju


Designation:         General
Counsel


Address:                GE Towers, Sector Road, DLF City
Phase V Sector Road, Sector


                                53, Gurgaon, Haryana


Fax:                         91
124 235 6978


E-mail:    raghuram.raju@geind.ge.com


 


20
















 


TO CUSTOMER:


Attention:              Scott
McKay


Designation:         Senior
Vice President, Operations & Quality


Address:                6620
West Broad Street, Richmond, VA 23230


Fax:                         804/662-7766


E-mail:                    scott.mckay@ge.com


 


Copy To:


Attention:              Leon
Roday


Designation:         Senior
Vice President and General Counsel


Address:                6620 West Broad Street,
Richmond, VA  23230


Fax:                         (804)
662-2414


E-mail:    Leon.Roday@ge.com


 


Attention:              [Local President information]


Designation:


Address:


Fax:


E-mail:


 


Attention:              [Local General Counsel information]


Designation:


Address:


Fax:


E-mail:


 


The parties may agree to
additional notice requirements related to specific outsourcing projects from
time to time.


 


17.           Intellectual Property.


 


Exhibit I of this Agreement sets forth certain additional rights and obligations
of the parties with respect to intellectual property.


 


18.           Non-Compete.


 


a.             Limitations on Provision
of Services.  From the Execution Date
until the Volume Reduction Date, to the extent that PROVIDER provides such
Services to CUSTOMER, PROVIDER shall not market, sell or provide the Services
(including granting licenses to use or assigning any interest in any PROVIDER
Licensed Technology, but excluding any such assignment in connection with a
PROVIDER divestiture permitted pursuant to Section 1.f of this
Agreement) to any third party in the business of underwriting, marketing,
issuing or administering any (i) life insurance, long-term care insurance, or
annuities, (ii) mortgage insurance, or (iii) credit life, credit health, credit
unemployment or credit casualty insurance products either directly or through a
re-insurer; provided, however, that PROVIDER shall have a right
to provide the Services to GE and its Affiliates or any party that was an
Affiliate of GE on the Execution Date.


 


b.             Volume Reduction Date.  PROVIDER shall notify CUSTOMER of the
potential occurrence of the Volume Reduction Date.  If, within ten (10) days of its receipt of
such notice, CUSTOMER notifies PROVIDER of its intent to increase the volume of
Services consumed by CUSTOMER such that the level of Dedicated FTEs or
Customer-Controllable Revenues, as applicable, increases above the fifty
percent (50%) threshold, and does so increase such volume within sixty (60)
days of receipt of such notice, then the Volume Reduction Date shall not be
deemed to have occurred.


 


21
















 


c.             Equitable
Relief.  PROVIDER acknowledges that
any violation of the restrictions contained in the foregoing paragraph would
result in irreparable injury to CUSTOMER, and PROVIDER further acknowledges
that, in the event of its violation of any of these restrictions, CUSTOMER
shall be entitled to obtain from any court of competent jurisdiction (in any
jurisdiction) preliminary and permanent injunctive relief, regardless of the
dispute resolution provisions set forth in Exhibit G, as well as damages to which
it may be entitled under such provisions.


 


19.           Change
Control Procedure.


 


If either
party requests a modification of the Agreement or any PSA, including (i) a
change to the scope of the Services, Dedicated FTEs, Performance Standards, or
Charges under any PSA, (ii) a change to the Exhibits or Schedules to the
Agreement, (iii) the addition of New Services, (iv) a change to the features,
functionality, scalability or performance of the Services, or (v) any other
change to the terms of the Agreement or any PSA, the requesting party’s Account
Executive or his or her designee shall submit a written proposal in the form
attached as Exhibit K (a “Change Order Request”) to the other party’s
Account Executive describing such desired change.  Such party’s Account Executive shall review
the proposal and reject or accept the proposal in writing within a reasonable
period of time, but in no event more than thirty (30) days after receipt
of the proposal.  If the proposal is
rejected, the writing shall include the reasons for rejection.  If the proposal is accepted, the parties
shall mutually agree on the changes to be made, if necessary, to the Agreement,
the applicable PSA, or any applicable Exhibits. 
All such changes shall be made only in a written Change Order signed by
the Account Executive of each of the parties or his designee (authorized in
writing by the applicable party), and thereafter embodied in the applicable
documents by appropriate written addenda thereto executed by PROVIDER and
CUSTOMER.


 


20.           Governance.


 


a.             PROVIDER
Account Executive.


 


Designation and Authority.  Immediately after execution of this
Agreement, PROVIDER shall designate a PROVIDER Account Executive for the PROVIDER
engagement under this Agreement.  The
PROVIDER Account Executive, and his/her designee(s), shall have the authority
to act for and bind PROVIDER and its subcontractors in connection with all
aspects of this Agreement.  All of
CUSTOMER’s communications shall be sent to the PROVIDER Account Executive or
his/her designee(s).


 


Selection. Before assigning an
individual to the position of Account Executive, whether the person is
initially assigned or subsequently assigned, PROVIDER shall:


 


notify CUSTOMER of the proposed
assignment for CUSTOMER’s approval;


 


introduce the individual to appropriate
CUSTOMER representatives; and


 


consistent with law and PROVIDER’s
reasonable personnel practices, provide CUSTOMER with any other information
about the individual that is reasonably requested.


 


PROVIDER shall cause the person
assigned to the position of Account Executive to maintain his or her principal
office at a location designated by CUSTOMER and to devote all time and effort
that is reasonably necessary to the provision of the Services under this
Agreement.  PROVIDER shall use
commercially reasonable efforts to maintain the initial PROVIDER Account
Executive at CUSTOMER for the minimum term of eighteen (18) months following the
Execution Date, provided that any term that such Account Executive has already
spent in his or her current position prior to the Execution Date shall be
considered as a part of the 18-month period referred to herein, and each of the
subsequent PROVIDER Account Executives for a minimum term of eighteen (18)
months, unless such Account Executive (i) voluntarily resigns from
PROVIDER, (ii) is dismissed


 


22
















 


by PROVIDER for (A) misconduct or
(B) unsatisfactory performance in respect of his or her duties and
responsibilities to CUSTOMER or PROVIDER, (iii) is unable to work due to
his or her death, injury or disability, or (iv) is removed from the CUSTOMER
assignment at the request of CUSTOMER. 
Whenever possible, PROVIDER shall give CUSTOMER at least
ninety (90) days advance notice of a change of the Account Executive or if
such ninety (90) days notice is not possible, the longest notice otherwise
possible.


 


Removal.  If CUSTOMER determines that it is not in the
best interests of CUSTOMER for the PROVIDER Account Executive to continue in
his or her capacity, then CUSTOMER shall give PROVIDER written notice
requesting that the Account Executive be replaced.  PROVIDER shall replace the Account Executive
as promptly as practicable, but, in any case, within thirty (30) days, in
accordance with this Section 20.a.


 


b.             CUSTOMER
Account Executive.


 


Designation and Authority.  Immediately after execution of this
Agreement, CUSTOMER shall designate a CUSTOMER Account Executive for the
PROVIDER engagement under this Agreement. 
The CUSTOMER Account Executive and his/her designee(s) shall have the
authority to act for and bind CUSTOMER and its contractors in connection with
all aspects of this Agreement.  All of
PROVIDER’s communications shall be sent to the CUSTOMER Account Executive or
his/her designee(s).


 


Term.  CUSTOMER shall cause the person assigned to
the position of Account Executive to devote substantial time and effort to the
management of CUSTOMER’s responsibilities under this Agreement. Whenever
possible, CUSTOMER shall give PROVIDER at least ninety (90) days advance
notice of a change of the Account Executive or if such ninety (90) days
notice is not possible, the longest notice otherwise possible.


 


c.             Key Employees of PROVIDER.  For this Agreement and each PSA executed
pursuant hereto, PROVIDER shall notify CUSTOMER in writing of the names of all
of the PROVIDER employees providing Services under each such agreement who are
at the senior professional band and above (each a “Key Employee”).  Such notice shall be provided within thirty
(30) days of the execution of this Agreement and each PSA.  PROVIDER shall use commercially reasonable
efforts to maintain the initial Key Employees at CUSTOMER for the minimum term
of eighteen (18) months following the Execution Date, provided that any term
that such Key Employee has already spent in his or her current position prior
to the Execution Date shall be considered as a part of the 18-month period
referred to herein, and each of the subsequent Key Employees for a minimum term
of eighteen (18) months, unless any such Key Employee (i) voluntarily
resigns from PROVIDER, (ii) is dismissed by PROVIDER for
(A) misconduct or (B) unsatisfactory performance in respect of his or
her duties and responsibilities to CUSTOMER or PROVIDER, (iii) is unable
to work due to his or her death, injury or disability, or (iv) is removed from
the CUSTOMER assignment at the request of CUSTOMER.  Whenever possible, PROVIDER shall give
CUSTOMER at least ninety (90) days advance notice of a change of a Key
Employee or if such ninety (90) days notice is not possible, the longest
notice otherwise possible.  If CUSTOMER
determines that it is not in the best interests of CUSTOMER for any Key
Employee to continue in his or her capacity, then CUSTOMER shall give PROVIDER
written notice requesting that such Key Employee be replaced.  PROVIDER shall replace the Key Employee as
promptly as practicable, but, in any case, within thirty (30) days, in
accordance with this Section c.


 


d.             Meetings.


 


The
parties will participate in an (i) annual budgeting and pricing process and a
quarterly demand planning process as described in Section 2.i and (ii)
an annual business strategy and productivity enhancement process as directed by
CUSTOMER.


 


23
















 


CUSTOMER may call meetings from time to
time with reasonable notice to be held by telephone or video conference to
generally review matters relating to the terms and conditions of this Agreement
and any PSA, the compliance of each of the parties herewith, and to consider
policies, planning and performance relating to quality controls, production,
efficiency and productivity, costs and any other special matter or matters of
concern.  In addition, either party shall
have the right to call meetings by telephone or video conference, as necessary,
with reasonable notice to the other party, to discuss and resolve specific
matters of concern as they occur.  All
meetings shall be attended by the representatives of the parties who are responsible
for performances as to those matters to be discussed.  Either party may also request an in-person
meeting with reasonable notice to the other party.  The expenses for such meeting, including
travel and lodging shall be borne by the party calling the meeting; however,
such expenses will be agreed upon by the parties prior to such meeting.


 


e.             Operational
Dispute Resolution.  As contemplated
by Section 1.2 of Exhibit G,
the parties may attempt to resolve Disputes in the normal course of business at
the operational level as described in this Section 20.e.  The line managers of the parties shall
attempt in good faith to resolve such Dispute through negotiation.  If the line managers cannot resolve the
Dispute within a reasonable period of time, the Dispute shall be escalated by
CUSTOMER to the applicable operations leader and by PROVIDER to the applicable
service leader.  If such persons can not
resolve the Dispute within a reasonable period of time, the Dispute shall be
escalated to the Account Executives of both parties.  If the Dispute is not resolved by the Account
Executives within a reasonable period of time or, in any case, if such Dispute
is not resolved within ten (10) days after commencement of negotiations
pursuant to this Section 20.e, the Dispute shall be handled in
accordance with Exhibit G.


 


21.           Miscellaneous.


 


a.             Force
Majeure.  No party hereto (or any
Person acting on its behalf) shall have any liability or responsibility for
failure to fulfill any obligation (other than a payment obligation) under this
Agreement or any related PSA, so long as and to the extent to which the
fulfillment of such obligation is prevented, frustrated, hindered or delayed as
a consequence of circumstances of Force Majeure.  A party claiming the benefit of this provision
shall, as soon as reasonably practicable after the occurrence of any such
event:  (i) notify the other parties of
the nature and extent of any such Force Majeure condition and (ii) use due
diligence to remove any such causes and resume performance under this Agreement
as soon as feasible. The preceding sentence shall not relieve PROVIDER of its
obligation to provide the Services described in the BCP/DRP Plans described in Section
1.b hereof.  If PROVIDER’s
performance is affected by Force Majeure for a period of more than ten (10)
calendar days, then CUSTOMER may terminate this Agreement by giving written
notice to PROVIDER before performance has resumed without payment of any amount
other than accrued Charges.


 


b.             Independent Contractors.  The
parties shall be and act as independent 
contractors, and under no circumstances shall this Agreement be
construed as one of agency, partnership, joint venture or employment between
the parties.  Each party agrees and
acknowledges that it neither has nor will give the appearance or impression of
having any legal authority to bind or commit the other party in any way.


 


c.             Failure to Object Not a Waiver.  The
failure of either party to object to or to take affirmative action with respect
to any conduct of the other party which is in violation of the terms hereof
shall not be construed as a waiver thereof, nor of any future breach or
subsequent wrongful conduct.


 


d.             Governing
Law.  This Agreement is to be
governed by and construed and interpreted in accordance with the laws of [domicile of CUSTOMER] of the United
States of America, which is applicable to contracts wholly made and performed
therein.  PROVIDER hereby submits to the
jurisdiction of all courts where CUSTOMER is authorized to do business and all
courts of the United States.  Any action
in regard to the contract or arising out of its terms and conditions shall be
instituted and litigated in the United States.


 


24
















 


e.             No
Third-Party Beneficiaries.  Except as
provided in Section 12 with respect to Indemnified parties, this
Agreement is for the sole benefit of the parties to this Agreement and members
of their respective Group and their permitted successors and assigns and
nothing in this Agreement, express or implied, is intended to or shall confer
upon any other Person or entity any legal or equitable right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement.


 


f.              Public
Announcements.  The parties shall
consult with each other before issuing, and give each other the opportunity to
review and comment upon, any press release or other public statements with
respect to the transactions contemplated by this Agreement and the PSAs, and
shall not issue any such press release or make any such public statement prior
to such consultation, except as may be required by applicable Law, court
process or by obligations pursuant to any listing agreement with any national
securities exchange or national securities quotation system.


 


g.             Entire
Agreement.  Except as otherwise
expressly provided in this Agreement, this Agreement (including the PSAs and
the attachments hereto and thereto) constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and thereof and
supersedes all prior agreements and undertakings, both written and oral,
between or on behalf of the parties hereto with respect to such subject matter,
provided, that, unless otherwise expressly agreed by the parties,
matters arising prior to the Execution Date shall be governed by the provisions
of the Master Outsourcing Agreement (including the PSAs and attachments
thereto) as in effect prior to such date.


 


h.             Amendment.  No provision of this Agreement or any PSA may
be amended or modified except by a written instrument signed by all the parties
to such agreement.  No waiver by any
party of any provision hereof shall be effective unless explicitly set forth in
writing and executed by the party so waiving. 
The waiver by any party hereto of a breach of any provision of this
Agreement or any PSA shall not operate or be construed as a waiver of any other
subsequent breach.


 


i.              Rules
of Construction.  Interpretation of
this Agreement and the PSAs shall be governed by the following rules of
construction:  (a) words in the singular
shall be held to include the plural and vice versa and words of one gender
shall be held to include the other gender as the context requires, (b)
references to the terms Article, Section, paragraph, Schedule and Exhibit are
references to the Articles, Sections, paragraphs, Schedules and Exhibits to
this Agreement and the PSAs unless otherwise specified, (c) the word
“including” and words of similar import shall mean “including, without
limitation,” (d) provisions shall apply, when appropriate, to successive events
and transactions, (e) the table of contents and headings contained herein are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement and the PSAs, and (f) this Agreement and the
PSAs shall be construed without regard to any presumption or rule requiring
construction or interpretation against the party drafting or causing any
instrument to be drafted.  In the event
of any apparent conflict between the provisions of this Agreement, any Exhibit
to this Agreement or any PSA, such provisions shall be construed so as to make
them consistent to the extent possible, and if such is not possible, then the
parties will negotiate in good faith to resolve such conflicts in a
commercially reasonable manner.  If the
parties are unable to resolve such conflicts, then the provisions of this
Agreement shall control, provided, that the provisions of Exhibit B shall control over the
provisions of the Agreement and any other Exhibits.  In the event of any conflict between the
provisions of this Agreement and any PSA, the provisions of this Agreement
shall control.


 


j.              Severability.  If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced under any Law or
as a matter of public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect.  Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties
to this Agreement shall negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible in a
mutually acceptable manner in order that the transactions contemplated by this
Agreement be consummated as originally contemplated to the greatest extent
possible.


 


25
















 


k.             Remedies
Not Exclusive.  No remedy herein
conferred upon or reserved to a party is intended to be exclusive of any other
remedy available at law or in equity, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity, by statute or
otherwise.


 


l.              Dispute
Resolution.  Any dispute, controversy
or claim arising out of or relating to this Agreement or any related PSA, or
the validity, interpretation, breach or termination of any provision of this or
PSA shall be resolved in accordance with the dispute resolution process set
forth in Exhibit G
hereof.


 


m.            Language.  All PSAs, documents, exhibits, schedules,
deliverable items, notices and communications of any kind relating to this
Agreement and the PSAs shall be made in the English language.


 


n.             Survival.  The following sections of this Agreement
shall survive termination of this Agreement and any PSA:


 


	
  9

  	
   

  	
  Obligations on Expiration
  and Termination

  
	
  11

  	
   

  	
  Confidentiality

  
	
  12

  	
   

  	
  Indemnities

  
	
  13

  	
   

  	
  Limitation of Liability

  
	
  16

  	
   

  	
  Notices

  
	
  17

  	
   

  	
  Intellectual Property

  
	
  18

  	
   

  	
  Miscellaneous

  



 


22.           Attachments.


 


The
following Exhibits are attached hereto and are incorporated into this
Agreement:


 


	
  Exhibit A

  	
   

  	
  Definitions

  
	
  Exhibit B

  	
   

  	
  Local Modifications to Master Agreement

  
	
  Exhibit C

  	
   

  	
  Form of PSA

  
	
  Exhibit D

  	
   

  	
  BCP/DRP Plans

  
	
  Exhibit E

  	
   

  	
  Security Procedures

  
	
  Exhibit F

  	
   

  	
  Pricing Template

  
	
  Exhibit G

  	
   

  	
  Dispute Resolution

  
	
  Exhibit H

  	
   

  	
  Carve-Out Option

  
	
  Exhibit I

  	
   

  	
  Intellectual Property

  
	
  Exhibit J

  	
   

  	
  Business Associate Addendum

  
	
  Exhibit K

  	
   

  	
  Change Control Procedure

  
	
  Exhibit L

  	
   

  	
  MOAs and PSAs

  



 


26
















 


IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
by their duly authorized representatives as of the date first written above.


 


	
   

  	
  [CUSTOMER]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Its:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [GE Capital International Services, Inc.]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Its:

  	
   

  
				



 


27
















 


EXHIBIT A



Definitions


 


“Action” means any demand,
action, claim, dispute, suit, countersuit, arbitration, inquiry, proceeding or investigation by or before any
federal, state, local, foreign or international Government Authority or any
arbitration or mediation tribunal.


 


“Addendum” means the terms
which are supplemental to and/or deviate from this Agreement as set forth in Exhibit
B.


 


“Agreement” means this
Agreement, as amended and/or supplemented as set forth in Exhibit A, together with the other Exhibits and Schedules
hereto.


 


“Affiliate” means (and,
with a correlative meaning, “affiliated”) means, with respect to any
Person, any direct or indirect subsidiary of such Person, and any other Person
that directly, or through one or more intermediaries, controls or is controlled
by or is under common control with such first Person; provided, however,
that from and after the Execution Date, no member of the Genworth Group shall
be deemed an Affiliate of any member of the GE Group for purposes of this
Agreement and no member of the GE Group shall be deemed an Affiliate of any
member of the Genworth Group for purposes of this Agreement.  As used in this definition, “control”
(including with correlative meanings, “controlled by” and “under
common control with”) means possession, directly or indirectly, of power to
direct or cause the direction of management or policies or the power to appoint
and remove a majority of directors (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise).


 


“After Tax Basis” shall
have the meaning given in Section (c) hereof.


 


“Appraiser” shall have the
meaning given in Exhibit A


 


Bankruptcy Code” has the meaning set forth in Section 2.04 of Exhibit
I.


 


“Base Cost” shall be PROVIDER’s actual direct cost of
providing the Services reasonably and equitably determined to be attributable
to CUSTOMER by PROVIDER for each year. 
The elements of PROVIDER’s direct cost are described in the attached Exhibit
L, and shall take into account productivity gains or losses.


 


“Baseline Charges” has the meaning set forth in Section 2.1.


 


“Baseline
FTEs” means the number of Dedicated FTEs employed by PROVIDER and its
Affiliates to perform the Services under all of the MOAs as of the Execution
Date, as agreed upon by the parties. 
Upon the occurrence of any event that reduces the number of Dedicated
FTEs employed by PROVIDER to perform Services under the MOAs (including any
transfer by PROVIDER of operations, but excluding the effects of productivity
improvements), other than at the direction of any member of the Genworth Group,
the Baseline FTEs shall be reduced to reflect the reduction in the numbers and
classes of Dedicated Employees affected by such change.


 


“Baseline
Customer-Controllable Revenues” means the budgeted aggregate Compensation and
Benefits expense (as defined in Exhibit F) of the Baseline FTEs for the
first twelve months of the Initial Term, as agreed upon by the parties.  Upon the occurrence of any event that reduces
the number of Dedicated FTEs employed by PROVIDER to perform Services under the
MOAs (including any transfer by PROVIDER of operations, but excluding the
effects of productivity improvements), other than at the direction of any
member of the Genworth Group, the Baseline Customer-Controllable Revenues shall
be reduced to reflect the reduction in the numbers and classes of Dedicated
Employees affected by such change.


 


“BCP/DRP Plans” shall have the meaning given such term in Section
1.b hereof.


 


28
















 


“Carve-Out” means the process set forth in Exhibit H
commencing upon the election by CUSTOMER of the Carve-Out Option.


 


“Carve-Out Conditions” shall have the meaning given such term
in Exhibit H hereof.


 


“Carve-Out Option” shall have the meaning given in Section
9.b hereof.


 


“Carve-Out Resources” shall have the meaning given such term
in Exhibit H hereof.


 


“Change Control Procedure” means the procedure set forth in Section
19 and Exhibit H for amending the Agreement including
(i) a change to the scope of the Services, Dedicated FTEs, Performance
Standards, or Charges under any Transaction Document, (ii) a change to the
Exhibits or Schedules to this Agreement, (iii) the addition of New Services,
(iv) a change to the features, functionality, scalability or performance of the
Services, and (v) any other change to the terms of this Agreement or PSA.


 


“Change of Control” (of CUSTOMER) means any (i) consolidation
or merger of GENWORTH with or into another entity or entities (whether or not
GENWORTH is the surviving entity), excluding any such consolidation or merger
with or into an Affiliate of GENWORTH or GE or an Affiliate of GE, (ii) any
sale or transfer by GENWORTH of fifty percent (50%) or more of its assets,
excluding any such sale to an Affiliate of GENWORTH or to GE or an Affiliate of
GE, (iii) any sale, transfer or issuance or series of sales, transfers or
issuances of shares or other voting securities of GENWORTH by GENWORTH or the
holders thereof, as a result of which one holder, or a group of holders acting
in concert (other than GE or an Affiliate of GE), acquires the voting power
(under ordinary circumstances) to elect a majority of the directors of
GENWORTH.  Notwithstanding the foregoing,
no transaction of the type described in clauses (i), (ii) or (iii) of this
Section shall constitute a Change of Control if, as of immediately following
such transaction, persons that possess the voting power (under ordinary
circumstances) to elect a majority of the directors of GENWORTH as of
immediately prior to such transaction continue to hold (directly or indirectly)
such voting power.


 


“Change of Control” (of PROVIDER) shall have the meaning given
such term in Exhibit H hereof.


 


“Change Order” means a document that amends the Agreement,
including the changes described in (i) through (v) of the definition of “Change
Control Procedure,” executed pursuant to the Change Control Procedure, in
substantially the form set forth in Exhibit H.


 


“Change Order Request” has the meaning given in Section 19
hereof.


 


“Charges” shall have the meaning given such term in Section
2.a


 


“Common Termination Date”
shall have the meaning given such term in Section 7.a hereof.


 


“Contract Year” means the
calendar year or any portion thereof (e.g. the initial Contract Year shall be
the period from the Execution Date through December 31, 2004).


 


“Cost Factor” shall have
the meaning given such term in Section 2.b hereof.


 


“CPR” shall have the
meaning given such term in Exhibit G hereof.


 


“CPR Arbitration Rules”
shall have the meaning given such term in Exhibit G hereof.


 


“CUSTOMER Confidential Information” shall have the meaning
given such term in Section 11.a hereof.


 


“Customer-Controllable
Revenue” means the aggregate salaries of the Dedicated FTEs.


 


A-2
















 


“CUSTOMER Licensed Technology” means all Technology and
Intellectual Property owned by CUSTOMER or its Affiliates and provided to
PROVIDER (or its authorized subcontractors in accordance with Section 10)
by CUSTOMER or its Affiliates for use or necessary for use  in the provision of the Services (which, for
the avoidance of doubt, does not include any Technology or Intellectual
Property owned by a third party). CUSTOMER Licensed Technology shall include
Technology or Intellectual Property developed by PROVIDER (or its authorized
subcontractors in accordance with Section 10) and owned by CUSTOMER,
except as otherwise provided in the Agreement or any PSA relating to such
developed Technology or Intellectual Property.


 


“Dedicated
FTEs” shall mean the full-time equivalent employees, including supervisors,
direct support personnel (e.g. trainers) and other members of the PROVIDER
management identified and agreed to by CUSTOMER, dedicated to the performance
of the Services from time to time.


 


“Delayed Transfer Legal Entities” means Financial Assurance
Company Limited, Financial Insurance Company Limited, Consolidated Insurance
Group Limited, GE Financial Assurance Compania de Seguros y Reaseguros de Vida
SA and GE Financial Insurance Compania de Seguros y Reaseguros SA.


 


“Direct Damages” means actual, direct damages incurred by the
claiming party which include, by way of example (a) erroneous payments
made by PROVIDER or CUSTOMER as a result of a failure by PROVIDER to perform
its obligations under an MOA or PSA, (b) the costs to correct any deficiencies
in the Services, (c) the costs incurred by CUSTOMER to transition to another
provider of Services and/or to take some or all of such functions and
responsibilities in-house, (d) the difference in the amounts to be paid to
PROVIDER hereunder and the charges to be paid to such other provider and/or the
costs of providing such functions, responsibilities and tasks in-house, and (e) similar
damages.  “Direct Damages” shall not
include, and neither party or its Affiliates shall be liable for, any indirect,
special, incidental, exemplary, punitive or consequential damages (including,
without limitation, any loss of data or records, lost profits or other economic
loss) arising out of its breach, negligence or any of the Excluded Matters,
even if the other party or its Affiliates have been advised of the possibility
of or could have foreseen such damages, provided that any such damages relating
to a Third Party Claim shall be considered Direct Damages.  For the avoidance of doubt, PROVIDER shall
remain liable for all Direct Damages regardless of whether such damages are the
subject of any reinsurance arrangement entered into by CUSTOMER.  Direct Damages shall be calculated and
paid on an After-Tax Basis, net of Insurance Proceeds, in the manner described
in Section 12.c.


 


“Discount Factor” shall have the meaning given such term in Sections
2.b and 2.d hereof.


 


“Dispute” shall have the meaning given such term in Exhibit
G hereof.


 


“Excluded Matters” shall have the meaning given such term in Section
13.c hereof.


 


“Excluded Matters Cap” shall have the meaning given such term
in Section 13.c hereof.


 


“Execution Date” means the date of this Agreement as set forth
on the first page hereof.


 


“Facility” shall have the meaning given such term in Exhibit
H hereof.


 


“Fair Market Value” shall have the meaning given such term in Exhibit
H hereof.


 


“Force Majeure” means, with respect to a party, an event
beyond the control of such party (or any Person acting on its behalf), which by
its nature could not have been foreseen by such party (or such Person), or, if
it could have been foreseen, was unavoidable, and includes, without limitation,
acts of God, storms, floods, riots, fires, sabotage, civil commotion or civil
unrest, interference by civil or military authorities, acts of war (declared or
undeclared) or armed hostilities or other national or international calamity or
one or more acts of terrorism or failure of energy sources.


 


“GAAP” means generally accepted accounting principles
prevailing from time to time in the applicable jurisdiction.


 


“GE” means General Electric Company.


 


A-3
















 


“GE Group” means GE and each Person (other than any member of
the Genworth Group) that is an Affiliate of GE immediately after the Execution
Date.


 


“Genworth” shall have the meaning given such term in the
recitals of this Agreement.


 


“Genworth Business” means the businesses of (a) the members of
the Genworth Group; (b) GEFAHI; (c) the Delayed Transfer Legal Entities and (d)
those terminated, divested or discontinued businesses of the members of
Genworth Group, other than those listed on Schedule A-1.


 


“Genworth Common Stock” means the Class A Common Stock,
$0.0001 par value per share and the Class B Common Stock, $0.0001 par value per
share, of Genworth.


 


“Genworth Group” means Genworth, each Subsidiary of Genworth
immediately after the Execution Date and each other Person that is either
controlled directly or indirectly by Genworth immediately after the Execution
Date; provided, that certain assets referred to by the parties as “Delayed
Transfer Asset,” that are transferred to Genworth at any time following the
Closing shall, to the extent applicable, be considered part of the Genworth
Group for all purposes of this Agreement.


 


“Genworth Records Management Policies” means the Genworth
Records Management Policy adopted by Genworth and provided to GECIS,  as
amended from time to time.


 


“Governmental Authority” means any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, including any governmental authority, agency,
department, board, commission or instrumentality whether federal, state, local
or foreign (or any political subdivision thereof), and any tribunal, court or
arbitrator(s) of competent jurisdiction.


 


“Hardware” shall have the meaning given such term in Exhibit
H hereof.


 


“HIPPA”
shall have the meaning given such term in Exhibit J hereof.


 


“Improvement”  means any modification, derivative work
or improvement of any Technology.


 


“Indemnity Payment” shall have the meaning given such term in Section
12.c hereof.


 


“Indemnified Party” shall have the meaning given such term in Section
12.c hereof.


 


“Indemnifying Party” shall have the meaning given such term in
Section 12.c hereof.


 


“Information” means information, whether or not patentable or
copyrightable, in written, oral, electronic or other tangible or intangible
forms, stored in any medium, including studies, reports, records, books,
contracts, instruments, surveys, discoveries, ideas, concepts, know-how,
techniques, designs, specifications, drawings, blueprints, diagrams, models,
prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes,
computer programs or other software, marketing plans, customer names,
communications by or to attorneys (including attorney-client privileged
communications), memoranda and other materials prepared by attorneys or under
their direction (including attorney work product), and other technical,
financial, employee or business information or data, including customer and/or
consumer non-public personal financial information, non-public health
information and protected health information as defined by applicable Law.


 


“Initial Notice” shall have the meaning given such term in Exhibit
G hereof.


 


“Initial Term” shall have the meaning given such term in Section
5.a hereof.


 


“Insurance Proceeds” means those monies: (a) received by an
insured from an insurance carrier; (b) paid by an insurance carrier on behalf
of the insured; or (c) received (including by way of set off) from any third
party in the


 


A-4
















 


nature of insurance, contribution or indemnification in
respect of any Liability; in any such case net of any applicable premium
adjustments (including reserves and retrospectively rated premium adjustments)
and net of any costs or expenses incurred in the collection thereof.


 


“Intellectual
Property” means all of the following, whether protected, created or
arising under the laws of the United States or any other foreign jurisdiction:
(i) patents, patent applications (along with all patents issuing thereon),
statutory invention registrations, divisions, continuations,
continuations-in-part, substitute applications of the foregoing and any
extensions, reissues, restorations and reexaminations thereof, and all rights
therein provided by international treaties or conventions, (ii) copyrights,
mask work rights, database rights and design rights, whether or not registered,
published or unpublished, and registrations and applications for registration
thereof, and all rights therein whether provided by international treaties or
conventions or otherwise, (iii) trade secrets, (iv) intellectual property
rights arising from or in respect of Technology and (v) all other applications
and registrations related to any of the intellectual property rights set forth
in the foregoing clauses (i) — (v) above. 
As used in this Agreement, the term “Intellectual Property” expressly
excludes (x) trademarks, service marks, trade dress, logos and other
identifiers of source, including all goodwill associated therewith and all
common law rights, registrations and applications for registration thereof, and
all rights therein provided by international treaties or conventions, and all
reissues, extensions and renewals of any of the foregoing and (y) intellectual
property rights arising from or in respect of domain names, domain name
registrations and reservations (all of the foregoing collectively, the
“Trademarks”).


 


“Key Employee” shall have the meaning given in Section 20.c
hereof.


 


“Law” means any federal, state, local or foreign law
(including common law), statute, code, ordinance, rule, regulation, order or
other requirement enacted, promulgated, issued or entered by a Governmental
Authority, including without limitation, the Gramm-Leach-Bliley Act, its
implementing regulations, applicable state privacy laws, and HIPPA.


 


“Liabilities” shall have the meaning given such term in Section
12.a.


 


“Licensed Products and Services” means those products and
services that use, practice or incorporate the Licensor’s Intellectual Property
or Technology.


 


“Licensee” means a Person receiving a license or sublicense
under Exhibit I.


 


“Licensor” means a Person granting a license or sublicense
under Exhibit I.


 


“Mission Critical” operations shall mean those operations
identified by CUSTOMER from time to time as mission critical in one (1) or more
written notices to PROVIDER.


 


“MOAs” means (i) all of the Amended and Restated Master
Outsourcing Agreements entered into between Affiliates of Genworth and PROVIDER
in connection with that certain Outsourcing Services Separation Agreement dated
           , 2004
between Genworth, PROVIDER, General Electric Company and General Electric
Capital Corporation, and (ii) all PSAs executed pursuant to such Amended and
Restated Master Outsourcing Agreements, all as identified by the parties as of
the Execution Date.


 


“New
Provider Materials” means all Software first used by PROVIDER or its Affiliates
or their Representatives in performing the Services after [the Execution Date].


 


“New Services” shall have the meaning given such term in Section
1.g hereof.


 


“Non-exclusive Employees” shall have the meaning given such
term in Exhibit H hereof.


 


“Notification Date” shall have the meaning given such term in Section
7.b hereof.


 


A-5
















 


“Payment Date” shall have the meaning given such term in Section
3.e hereof.


 


“Payment Default Notice” shall have the meaning given such
term in Section 3.e hereof.


 


“Performance Standards” means the performance requirements for
PROVIDER set forth in any PSA.


 


“Person” means any individual, corporation, partnership, firm,
joint venture, association, joint-stock company, trust, unincorporated
organization, governmental authority or other entity.


 


“PROVIDER Licensed Technology” means all Technology and
Intellectual Property owned by PROVIDER or its Affiliates and used in the
provision of the Services under the Agreement and PSAs (which, for the
avoidance of doubt, does not include any Technology or Intellectual Property
owned by a third party).


 


“PROVIDER Confidential Information” has the meaning given such
term in Section 11.b hereof.


 


“PROVIDER Divestiture” shall have the meaning given such term
in Section 1.f hereof.


 


“PROVIDER Employees” shall have the meaning given such term in
Exhibit H hereof.


 


“PSA(s)” means the Project Specific Agreements entered into
between the parties under the original Master Outsourcing Agreement and
hereafter and certain other services agreements entered into between the
parties, all of which are and shall be listed on Exhibit G hereof.


 


“Renewal Period” shall have the meaning given such term in Section
5.b hereof.


 


“Response” shall have the meaning given such term in Exhibit
G hereof.


 


“SAP” means statutory accounting practices mandated by state
law or regulation.


 


 “Service Hours” shall
have the meaning given such term in Section 6.a hereof.


 


“Services” means (a) any services described in a PSA, (b) the
services described in the BCP/DRP Plans, and (c) any other functions,
responsibilities, tasks not specifically described in the Agreement or PSA which
are required for the proper performance of and provision of the above services,
or are an inherent part of, or necessary subpart included within, such
services.


 


“Services Transfer Assistance” shall have the meaning given
such term in Section 9.a hereof.


 


“Simple Breach Cap” shall have the meaning given such term in Section
13.b hereof.


 


“Software” means the object and source code versions of
computer programs and associated documentation, training materials and
configurations to use and modify such programs, including programmer,
administrator, end user and other documentation.


 


“Subsidiary” or “subsidiary” means, with respect to any
Person, any corporation, limited liability company, joint venture or
partnership of which such Person (a) beneficially owns, either directly or
indirectly, more than fifty percent (50%) of (i) the total combined voting
power of all classes of voting securities of such entity, (ii) the total
combined equity interests, or (iii) the capital or profit interests, in the
case of a partnership; or (b) otherwise has the power to vote, either directly
or indirectly, sufficient securities to elect a majority of the board of
directors or similar governing body.


 


A-6
















 


“System” shall have the meaning given such term in Section
6.a hereof.


 


“Taxes” shall have the meaning given such term in Section
2.f hereof.


 


“Technology” means, collectively, all designs, formulas,
algorithms, procedures, techniques, ideas, know-how, Software, programs, models,
routines, databases, tools, inventions, creations, improvements, works of
authorship, and all recordings, graphs, drawings, reports, analyses, other
writings, and any other embodiment of the above, in any form, whether or not
specifically listed herein.


 


“Third Party Agreements” shall have the meaning given such
term in Exhibit H hereof.


 


“Third Party Claim” shall have the meaning given such term in Section
12.a hereof.


 


“Third Party Software” shall have the meaning given such term
in Exhibit H hereof.


 


“Trigger Date” means the first date on which members of the GE
Group cease to beneficially own (excluding for such purposes shares of Genworth
Common Stock beneficially owned by GE but not for its own account, including
(in such exclusion) beneficial ownership which arises by virtue of some entity
that is an Affiliate of GE being a sponsor of or advisor to a mutual or similar
fund that beneficially owns shares of Genworth Common Stock) more than fifty
percent (50%) of the outstanding Genworth Common Stock.


 


“Volume Reduction Date” means the date on which either (i) the
number of Dedicated FTEs used by PROVIDER to perform the Services for CUSTOMER
and its Affiliates under all of the MOAs, or (ii) the annualized
Customer-Controllable Revenues relating to Dedicated FTEs performing Services
for CUSTOMER and its Affiliates under all of the MOAs are less than fifty
percent (50%) of the Baseline FTEs or Baseline Customer-Controllable Revenues,
respectively.


 


A-7
















 


Schedule A-1




Discontinued
Businesses


 


GE Property & Casualty Insurance Company


GE Casualty Insurance Company


GE Indemnity Insurance Company


GE Auto & Home Assurance Company


Bayside Casualty Insurance Company


 
















 


EXHIBIT B



Local Modifications to Master Agreement


 
















 


EXHIBIT C


 


Form of PSA


 


PROJECT SPECIFIC AGREEMENT


 


This
Project Specific Agreement (“PSA”) is entered into on
          ,
200    by [NAME] (hereafter “CUSTOMER”) and [GE
Capital International Services] (hereafter “PROVIDER”).


 


WHEREAS,
CUSTOMER and PROVIDER are parties to that certain Amended and Restated Master
Outsourcing Agreement between CUSTOMER and PROVIDER dated
           ,
200    (“ARMOA”);


 


WHEREAS,
CUSTOMER now desires that PROVIDER provide certain services to CUSTOMER and
PROVIDER desires to provide such services pursuant to the terms of the ARMOA;


 


WHEREAS,
this PSA defines certain rights and liabilities of the parties with respect to [Insert
general Project Name or Type of Service]; and


 


WHEREAS,
capitalized terms used herein and not defined shall have the meaning given such
terms in the ARMOA.


 


NOW
THEREFORE, in consideration of the premises, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:


 


Incorporation of ARMOA by Reference. 
The provisions of the ARMOA are hereby incorporated in their entirety
into this PSA by reference.


 


The ARMOA provides substantive terms that the parties agree
will govern and define their rights and liabilities in this PSA.  The ARMOA defines many fundamental provisions
including, but not limited to, a description of the conditions under which the
parties may terminate this PSA, confidentiality requirements, contractual
remedies, limitations on assignment and subcontracting, indemnification rights,
intellectual property rules, limitation of liability, particular
representations and warranties made by the parties, and jurisdictional
issues.  The PSA shall be governed by the
terms and conditions stated in the ARMOA.


 


The provisions of this PSA set forth below describe the term
of this PSA, the Services to be performed, performance standards, if any, fees
that may be charged, regulatory rules applicable to the Services, and other
particulars not otherwise described in the ARMOA.


 


In the event of any conflict between the provisions of the
ARMOA and this PSA, the ARMOA shall control. 
The parties to this PSA may deviate from any terms and conditions of the
ARMOA, only to the extent that the ARMOA permits such deviation. Otherwise,
such deviations are not permissible.


 


Term. 
This PSA shall commence on the
execution date of this PSA and  shall
continue for so long as the ARMOA is effective. 
[The PSA should run concurrently with the ARMOA unless the parties
agree otherwise.]


 


Description of Services.


 


The services to be performed by
PROVIDER are described below and in Exhibit A to this PSA (the
“Services”).  The Services will be
performed with the oversight of and in conjunction with the offices of CUSTOMER
located in the United States of America.


 
















 


Services generally shall be performed
by PROVIDER at certain times of the day to provide for reasonable overlap of
common working hours between PROVIDER and CUSTOMER.


 


[To
the extent CUSTOMER requires specific back-up requirements for records
constituting CUSTOMER’s books of account, such requirements should be inserted
in this Section 3, or if such requirements are regulatory in nature, in Section
6 below.  The inclusion of specific
back-up requirements may increase the Baseline Charges for the Services.]


 


Performance Standards.


 


PROVIDER shall perform the Services in
conformance with CUSTOMER’s guidelines and procedures for the Services as
agreed to by the parties and attached as Schedule     .


 


[Section
4.1 of the ARMOA contemplates the insertion of Performance Standards, if any,
for the Services.  Insert any additional
Performance Standards applicable to this PSA as new subsections of this Section
4 or as a new Schedule to this PSA.]


 


[Section
4.2 of the ARMOA contemplates measuring the Performance Standards monthly, but
allows for deviations.  If different
measurement periods are desired, such should be inserted in this Section 4.]


 


Fees.


 


CUSTOMER agrees to pay the following
Baseline Charges to PROVIDER for performance of the Services:  [Insert
FTE rate].  [Please note that Exhibit
A to the ARMOA requires Baseline Charges for new PSAs to be defined in each
PSA.  The Baseline Charges must be an FTE
rate to avoid problems with the pricing adjustment, volume reduction and
non-compete provisions of the ARMOA.]


 


At the time of execution of the PSA, the parties expect that
     no. of FTEs will be required to complete the
Services.  The volume of services
required under this PSA may increase during the term of the PSA.  In case the volume increases during the term,
the parties may agree to increase the number of FTEs providing the Services
under the PSA, provided that such number will not exceed
           .  [Insert the maximum cap of FTE here. The number of FTEs may be changed
outside this range in accordance with the Change Control Procedure in Section
19.0 of the ARMOA.]


 


[To the extent the fee structure is
subject to regulation and the applicable requirements are not addressed in the
ARMOA, include such requirements here. 
For instance, certain existing PSAs require PROVIDER to satisfy certain
expense and cost allocation requirements, such as New York Insurance Department
Regulation No. 33].


 


C-2
















 


Regulatory Matters.


 


PROVIDER shall (i) assist and cooperate
with CUSTOMER with respect to any regulatory examination or investigation of
CUSTOMER or legal proceeding involving CUSTOMER, (ii) make available personnel
with detailed knowledge of the Services to meet with CUSTOMER or any regulatory
agency with jurisdiction over CUSTOMER at such place as may be requested by
CUSTOMER or such regulatory agency, and (iii) employ a compliance officer to
monitor the performance of the Services.


 


[Section
4.3 of the ARMOA requires PROVIDER to perform the Services in compliance with
all applicable Laws, stock exchange rules or generally accepted, statutory or
regulatory accounting or actuarial principles specified in a PSA.  Therefore, any specific rules that CUSTOMER
must require PROVIDER to comply with in performing the Services should be set
forth in this Section 6.  For instance,
an existing PSA requires that: “CUSTOMER records must be maintained by PROVIDER
and CUSTOMER in accordance with applicable laws and regulations including, but
not limited to, New York Insurance Department Regulation No. 152 (11 NYCRR Part 243).” However,
please review Exhibit B to the ARMOA to ensure the specific rules have not
already been included there.] Customer shall have the responsibility to inform
the Provider about specific compliance and/ or regulatory requirements that the
Provider needs to comply with and provide regular updates and training
regarding the same.


 


Remedies.  [Insert additional remedies, if any, agreed
to by the parties.  See Section 4.4 of
the ARMOA.]


 


Intellectual Property


 


[Under
Section 1.02 of Exhibit I to the ARMOA, all Technology and Intellectual
Property developed jointly by the parties will be owned by PROVIDER.  However, the parties may agree otherwise in a
PSA.  Therefore, any deviations from this
rule should be specified in this Section 8.]


 


[Schedule
I-1 of Exhibit I to the ARMOA contains a list of Technology and
Intellectual Property which may not be sublicensed, assigned or otherwise
provided to a third party by CUSTOMER without the written consent of General
Electric Company.  Section 2.01(e) of Exhibit
I to the ARMOA allows the parties to add additional intellectual property
to this list for a particular PSA.]


 


[Section
2.02(e) of Exhibit I to the ARMOA states that PROVIDER will have no license
to any CUSTOMER Licensed Technology following the termination of the ARMOA or
any related PSA, unless the ARMOA or PSA provides otherwise.  Therefore, to the extent the parties desire
that PROVIDER continue to license certain CUSTOMER Licensed Technology after
termination, this should be inserted in this Section 8.]


 


C-3
















 


[Section
5.03(a) of Exhibit I to the ARMOA states that CUSTOMER, on behalf of
itself and its Affiliates, assumes all risk and liability with their use of the
PROVIDER Licensed Technology, subject to any exclusions set forth in the ARMOA
or PSA.  Therefore, any exclusions to
this rule should be inserted in this Section 8.]


 


[Section
5.03(b) of Exhibit I to the ARMOA states that PROVIDER, on behalf of
itself and its Affiliates, assumes all risk and liability with their use of the
CUSTOMER Licensed Technology, subject to any exclusions set forth in the ARMOA
or PSA.  Therefore, any exclusions to
this rule should be inserted in this Section 8.]


 


[Section
5.04 of Exhibit I to the ARMOA states that the parties may agree in any
PSA to amend the terms and conditions of licenses granted under Exhibit I
to the ARMOA.  Therefore, any additional
or different licensing terms should be included in this Section 8.]


 


Other Matters.


 


Provider will have access to the System
during the following time periods: [Insert time periods] (“Service
Hours”).  [Please refer to Section 6.1 of the ARMOA which contemplates that each
PSA will define the “Service Hours” applicable to such PSA.  CUSTOMER may also desire to define the
parameters or scope of “access” in this Section 9 of the PSA.]


 


[Section
16.0 of the ARMOA contains notice information for the parties.  If representatives at the PSA level are
different than the ARMOA level representatives, the parties should consider
inserting additional notice information under this Section 9.]


 


If known, the process owners for each
party should be inserted into this Section 9.


 


PROVIDER represents and warrants to
CUSTOMER that


 


PROVIDER has the
necessary power and authority to execute, deliver and perform its obligations
under this PSA and this PSA has been or will be duly executed and delivered by
PROVIDER and constitutes or will constitute the valid and binding agreement of
PROVIDER, enforceable in accordance with its terms; and


 


The execution and
delivery of this PSA by PROVIDER and the consummation by PROVIDER of the
transactions herein contemplated will not contravene any provision of
applicable Law, and will not constitute a breach of or default under any
agreement or other instrument or any decree, judgment or order to which
PROVIDER is currently a party or by which PROVIDER is bound.


 


C-4
















 


CUSTOMER represents and warrants to
PROVIDER that


 


CUSTOMER has the
necessary power and authority to execute, deliver and perform its obligations
under this PSA and this PSA has been or will be duly executed and delivered by
CUSTOMER and constitutes or will constitute the valid and binding agreement of
CUSTOMER, enforceable in accordance with its terms; and


 


The execution and
delivery of this PSA by CUSTOMER and the consummation by CUSTOMER of the
transactions herein contemplated will not contravene any provision of
applicable Law, and will not constitute a breach of or default under any
agreement or other instrument or any decree, judgment or order to which
CUSTOMER is currently a party or by which CUSTOMER is bound.


 


FURTHER, THE PARTIES AGREE THAT THE
COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES RELATING
TO THIS SUBJECT SHALL CONSIST OF 1) THIS PSA AND 2) THE ARMOA, INCLUDING
AMENDMENTS TO THOSE DOCUMENTS FROM TIME TO TIME EXECUTED BY THE PARTIES.  THIS STATEMENT OF THE AGREEMENT BETWEEN THE
PARTIES SUPERSEDES ALL PROPOSALS OR OTHER PRIOR AGREEMENTS, ORAL OR WRITTEN,
AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT
DESCRIBED HEREIN.


 


[signatures appear on
the following page]


 


C-5
















 


IN
WITNESS WHEREOF, authorized representatives of the parties have duly
executed this PSA, as of the day and year first written above.


 


 


[CUSTOMER ENTITY]


 


 


	
  By:

  	
   

  	
   

  
	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  
	
   

  
	
  [GE CAPITAL
  INTERNATIONAL SERVICES]

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  
	
  Title:

  	
   

  	
   

  
						



 


C-6
















 


Exhibit A


 


Services


 


C-7
















 


EXHIBIT D




BCP/DRP Plans


 


As of the Execution Date, CUSTOMER has identified the
operational processes set forth in the table below as “Mission Critical” with
respect to the Services provided under all of the MOAs.  PROVIDER shall provide under this Agreement
the Services described in the referenced BCP/DR Plans to the extent the related
processes are included within the Services performed under this Agreement.  The references to the BCP/DR Plans set forth
in the table below include such BCP/DR Plans as they may be amended or
supplemented from time to time by agreement of the parties.


 


	
  Business

  	
   

  	
  Process ID

  	
   

  	
  BCP/DR  Plan Reference

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEMICO

  	
   

  	
  2052

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEMICO

  	
   

  	
  2051

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEMICO

  	
   

  	
  2050

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEMICO

  	
   

  	
  2049

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEMICO

  	
   

  	
  2048

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEMICO

  	
   

  	
  2047

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEFA

  	
   

  	
  2627

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEFA

  	
   

  	
  1761

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEFA

  	
   

  	
  1284

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEFA

  	
   

  	
  1969

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEFA

  	
   

  	
  1754

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEFA

  	
   

  	
  1747

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEFA

  	
   

  	
  1746

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEFA

  	
   

  	
  1745

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEFA

  	
   

  	
  1744

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEFA

  	
   

  	
  1272

  	
   

  	
  *

  



 
















 


	
  GEFA

  	
   

  	
  1991

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEFA

  	
   

  	
  2658

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEFA

  	
   

  	
  3145

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEFA

  	
   

  	
  1266

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEFA

  	
   

  	
  1741

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEFA

  	
   

  	
  2311

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEFA

  	
   

  	
  1739

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEFA

  	
   

  	
  1962

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEFA

  	
   

  	
  2491

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEFA

  	
   

  	
  1243

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEFA

  	
   

  	
  1257

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEFA

  	
   

  	
  2246

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEFA

  	
   

  	
  1960

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEFA

  	
   

  	
  1759

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEFA

  	
   

  	
  3381

  	
   

  	
  *

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GEFA

  	
   

  	
  3384

  	
   

  	
  *

  



 










*As provided by PROVIDER to CUSTOMER by email from
             to
             on
                   ,
2004.


 


D-2
















 


EXHIBIT E




Security
Procedures


 


After the Execution Date, Provider shall comply with (i) the
security procedures and policies generally applicable within the General
Electric Company and its subsidiaries and as observed by PROVIDER immediately
prior to the Execution Date, and (ii) such other security procedures and
policies as CUSTOMER may direct, provided, that GECIS shall be entitled to
recover its cost of complying with such procedures and policies as part of the
Charges for the Services established pursuant to Section 2 and Schedule
F.


 
















 


EXHIBIT F




Pricing Template


 


**
















 


EXHIBIT G




Dispute Resolution


 


The
following provisions shall govern any Dispute arising under the Agreement or
the PSAs:


 


1.1           General
Provisions.


 


(a)           Any dispute, controversy or claim
arising out of or relating to this Agreement or any PSA, or the validity,
interpretation, breach or termination thereof (a “Dispute”), shall be resolved
in accordance with the procedures set forth in this Exhibit G, which
shall be the sole and exclusive procedures for the resolution of any such
Dispute unless otherwise specified below.


 


(b)           Commencing with a request
contemplated by Section 1.2 set forth below, all communications
between the parties or their representatives in connection with the attempted
resolution of any Dispute, including any mediator’s evaluation referred to in Section 1.3
set forth below, shall be deemed to have been delivered in furtherance of a
Dispute settlement and shall be exempt from discovery and production, and shall
not be admissible in evidence for any reason (whether as an admission or
otherwise), in any arbitral or other proceeding for the resolution of the
Dispute.


 


(c)           The parties expressly waive and
forego any right to (i) punitive, exemplary, statutorily-enhanced or similar
damages in excess of compensatory damages, and (ii) trial by jury.


 


(d)           The specific procedures set forth
below, including but not limited to the time limits referenced therein, may be
modified by agreement of the parties in writing.


 


(e)           All applicable statutes of
limitations and defenses based upon the passage of time shall be tolled while
the procedures specified in this Exhibit G are pending.  The parties will take such action, if any,
required to effectuate such tolling.


 


1.2           Consideration
by Senior Executives.


 


If a
Dispute is not resolved in the normal course of business at the operational
level, the parties shall attempt in good faith to resolve such Dispute by negotiation
between executives who hold, at a minimum, the office of President and CEO of
the respective business entities involved in such Dispute.  Either party may initiate the executive
negotiation process by providing a written notice to the other (the “Initial
Notice”).  Fifteen (15) days after
delivery of the Initial Notice, the receiving party shall submit to the other a
written response (the “Response”).  The
Initial Notice and the Response shall include (i) a statement of the Dispute
and of each party’s position, and (ii) the name and title of the executive who
will represent that party and of any other person who will accompany the
executive.  Such executives will meet in
person or by telephone within thirty (30) days of the date of the Initial Notice
to seek a resolution of the Dispute.


 


1.3           Mediation.


 


If a
Dispute is not resolved by negotiation as provided in Section 1.2
within forty-five (45) days from the delivery of the Initial Notice, then
either party may submit the Dispute for resolution by mediation pursuant to the
CPR Institute for Dispute Resolution (the “CPR”) Model Mediation Procedure as
then in effect.  The parties will select
a mediator from the CPR Panels of Distinguished Neutrals.  Either party at commencement of the mediation
may ask the mediator to provide an evaluation of the Dispute and the parties’
relative positions.


 


1.4           Arbitration.


 


(a)           If a Dispute is not resolved by
mediation as provided in Section 1.3 within thirty (30) days of the
selection of a mediator (unless the mediator chooses to withdraw sooner),
either party may submit the


 
















 


Dispute to be finally resolved by arbitration pursuant to the
CPR Rules for Non-Administered Arbitration as then in effect (the “CPR
Arbitration Rules”).  The parties consent
to a single, consolidated arbitration for all known Disputes existing at the
time of the arbitration and for which arbitration is permitted.


 


(b)           The neutral organization for purposes
of the CPR Arbitration Rules will be the CPR. The arbitral tribunal shall be
composed of three arbitrators, of whom each party shall appoint one in
accordance with the “screened” appointment procedure provided in Rule 5.4 of
the CPR Arbitration Rules.  The
arbitration shall be conducted in New York City.  Each party shall be permitted to present its
case, witnesses and evidence, if any, in the presence of the other party.  A written transcript of the proceedings shall
be made and furnished to the parties. 
The arbitrators shall determine the Dispute in accordance with the law
of the State of New York, without giving effect to any conflict of law rules or
other rules that might render such law inapplicable or unavailable, and shall
apply this Agreement, or the applicable MOA or PSA, according to its terms,
provided that the provisions relating to arbitration shall be governed by the
Federal Arbitration Act, 9 U.S.C. §§ 1 et seq.


 


(c)           The parties agree to be bound by any
award or order resulting from any arbitration conducted in accordance with this
Section 1.4 and further agree that judgment on any award or order
resulting from an arbitration conducted under this Section 1.4 may
be entered and enforced in any court having jurisdiction thereof.


 


(d)           Except as expressly permitted by this
Agreement, no party will commence or voluntarily participate in any court
action or proceeding concerning a Dispute, except (i) for enforcement as
contemplated by Section 1.4(c) above, (ii) to restrict or vacate an
arbitral decision based on the grounds specified under applicable law, or (iii)
for interim relief as provided in paragraph (e) below. For purposes of the
foregoing, the parties hereto submit to the non-exclusive jurisdiction of the
courts of the State of New York.


 


(e)           In addition to the authority
otherwise conferred on the arbitral tribunal, the tribunal shall have the
authority to make such orders for interim relief, including injunctive relief,
as it may deem just and equitable.  If
the tribunal shall not have been appointed, either party may seek interim
relief from a court having jurisdiction if the award to which the applicant may
be entitled may be rendered ineffectual without such interim relief.  Upon appointment of the tribunal following
any grant of interim relief by a court, the tribunal may affirm or disaffirm
such relief, and the parties will seek modification or rescission of the court
action as necessary to accord with the tribunal’s decision.


 


Each party will bear its own attorneys’ fees and costs
incurred in connection with the resolution of any Dispute in accordance with
this Exhibit G.


 


1.5           Continued
Performance.


 


The
parties agree to continue to perform their respective obligations under this
Agreement and any related PSA during a Dispute.


 


G-2
















 


EXHIBIT H




Carve-Out Option


 


1.0           Affected Carve-Out Resources.  (a)  If
the Carve-Out Option is exercised in connection with any Carve-Out Condition
other than a PROVIDER Divestiture, the Carve-Out Option shall be exercisable
for all, but not less than all, of the Carve-Out Resources used by PROVIDER in
connection with all of the then-outstanding MOAs and related PSAs.


 


(b)           If the Carve-Out Option is exercised
in connection with a PROVIDER Divestiture, the Carve-Out Option shall be
exercisable for all, but not less than all, of the Carve-Out Resources used by
PROVIDER in connection with Services transferred to the acquiror as part of the
PROVIDER Divestiture.


 


2.0           Warranty.  As of the date hereof, PROVIDER represents
and warrants that to its knowledge there is no law or existing contractual
obligation of PROVIDER that would materially impair the exercise of the
Carve-Out Option by CUSTOMER with relation to any material Hardware,
Third-Party Software or PROVIDER Licensed Technology, or to any PROVIDER
Employees, except to the extent expressly disclosed to and approved in writing
by CUSTOMER.


 


3.0           Notice. CUSTOMER shall notify
PROVIDER of its exercise of the Carve-Out Option (i) at the expiration of the
Initial Term, within fifteen (15) days following the Notification Date; (ii)
within fifteen (15) days of notice to PROVIDER of its intent to terminate the
affected PSAs in the case of a Material Breach, (iii) within one hundred twenty
(120) days following a Change of Control of PROVIDER, and (iv) within thirty
(30) days of PROVIDER’s notice to CUSTOMER of a PROVIDER Divestiture.


 


4.0           Consents. CUSTOMER and
PROVIDER shall cooperate with each other and shall use commercially reasonable
efforts to obtain any approvals, permissions, consents or grants required for
CUSTOMER to exercise the Carve-Out Option with relation to all Carve-Out
Resources, including Third Party Software and Third Party Agreements.


 


5.0           No Carve-Out Option for Acquiror.  No acquiror of a business operation divested
by CUSTOMER shall be entitled to exercise the Carve-Out Option.


 


6.0           Definitions. As used in this Exhibit
H, the following capitalized terms shall have the following meaning:


 


(a)           “PROVIDER” refers to PROVIDER and
each Affiliate of PROVIDER providing Services under any MOA or PSA, as
applicable.


 


(b)           “Carve-Out Resources” refers to the
Hardware, Third Party Software, PROVIDER Licensed Technology, PROVIDER
Employees, Third Party Agreements, and the Facility, to the extent that they
are severable and identifiable, as described below.


 


(c)           “Carve-Out Conditions” means (a) any
Change in Control of PROVIDER, (b) a Material Breach, (c) CUSTOMER’s becoming
entitled to terminate the Agreement under Section 8.d of the
Agreement, (d) the expiration of the Initial Term, or (e) the occurrence of a
PROVIDER Divestiture.


 


For the purposes of this provision only, a “Material Breach”
shall refer to any breach or a series of breaches resulting in the termination
of one or more PSAs where: (i) such breach or breaches are material and relate
to Excluded Matters (other than matters involving the gross negligence of
PROVIDER), (ii) CUSTOMER is entitled to recover damages from PROVIDER in excess
of $2,000,000 relating to such breach or breaches, or (iii) such PSAs accounted
for ten percent (10%) or more of the aggregate billings by PROVIDER to CUSTOMER
and its Affiliates under all of the MOAs during the immediately preceding
twelve (12) months, provided, that any dispute as to whether a matter
constitutes a Material Breach shall be resolved pursuant to the dispute
resolution provisions set forth in Exhibit G and any exercise of the
Carve-Out Option by CUSTOMER based on any such matter shall be deferred until
such dispute is resolved.


 
















 


(d)           A “Change of Control” of PROVIDER
means any (i) consolidation or merger of PROVIDER with or into another entity
or entities (whether or not PROVIDER is the surviving entity), excluding any
such consolidation or merger with or into GE or an Affiliate of GE,
(ii) any sale or transfer by PROVIDER of fifty percent (50%) or more of
its assets, excluding any such sale to GE or an Affiliate of GE, (iii) any
sale, transfer or issuance or series of sales, transfers or issuances of shares
or other voting securities of PROVIDER by PROVIDER or the holders thereof, as a
result of which one holder, or a group of holders acting in concert (other than
GE or an Affiliate of GE), acquires the voting power (under ordinary
circumstances) to elect a majority of the board of directors (or similar
managing group) of PROVIDER. 
Notwithstanding the foregoing, no transaction of the type described in
clauses (i), (ii) or (iii) shall constitute a Change of Control of PROVIDER if,
as of immediately following such transaction, persons that possess the voting
power (under ordinary circumstances) to elect a majority of the board of
directors (or similar managing group) of PROVIDER as of immediately prior to
such transaction continue to hold (directly or indirectly) such voting power.


 


(e)           “Fair Market Value” shall mean the
fair market value of the Carve-Out Resources as proposed by CUSTOMER in its
Carve-Out Option notice, served prior to the Notification Date, and agreed by
PROVIDER. In the event of disagreement between the parties as to the fair
market value of the Carve-Out Resources as specified in the Carve-Out Option
notice, the parties shall appoint one (1) appraiser each and such two (2)
appraisers will jointly appoint a third (3rd) appraiser within
thirty (30) days of such disagreement. Within sixty (60) days of their
appointment, the three (3) appraisers will each determine and certify in
writing the Fair Market Value of the Carve-Out Resources consistent with the
methodology described below.  The Fair
Market Value shall be the average of the three (3) appraised values, which
value shall be final and binding on the parties.  For the purposes of this provision, an
appraiser shall be an investment banker of international repute.  Fair Market Value shall be determined by the
appraisers pursuant to the methodology set forth in Schedule H-1 to this
Exhibit H .


 


7.0           Terms and Conditions of Option.  If the Carve-Out Option is exercised, the
parties agree to consider in good faith and agree upon commercially reasonable
terms and conditions for the exercise of such option proposed by either party,
including, without limitation, the terms and conditions (A) to optimize the
consequences for both parties on their respective tax and regulatory positions
(B) to optimize the fulfillment of the obligations of PROVIDER to its
employees, or (C) to optimize the execution of the transition of the Carve-Out
Resources from PROVIDER to CUSTOMER or its designee, or (D) to optimize the
transaction structure, or combination of transaction structures, to minimize
any adverse financial impact to either party, including, but not limited to,
the consideration of joint ventures or equity ownership or asset sales or some
combination thereof provided, that such optimization does not materially
expand or reduce the rights of CUSTOMER relating to the Carve-Out Option.


 


8.0           Services Transfer Assistance.
PROVIDER shall be obligated to provide Services Transfer Assistance to CUSTOMER
until the Carve-Out is completed, but shall not be required to provide any
portion of the Services provided to CUSTOMER under the MOAs after CUSTOMER has
acquired from PROVIDER the Carve-Out Resources used by PROVIDER to provide such
Services or to provide Services Transfer Assistance for (i) in the case of an
exercise of the Carve-Out Option relating to the expiration of the Initial Term
or a PROVIDER Divestiture, more than fourteen (14) months, and (ii) eighteen
(18) months, in the case of an exercise of the Carve-Out Option relating to a
Change of Control of PROVIDER; AND (iii) in any other case, twenty-four (24)
months.


 


9.0           Payment Obligations.  Upon completion of the Carve-Out, all
outstanding MOAs  and PSAs shall automatically terminate.  The monetary consideration to be paid by
CUSTOMER for the Carve-Out Resources upon the exercise of the Carve-Out Option
shall be equal to (i) the Fair Market Value of the Carve-Out Resources if
CUSTOMER exercises the Carve-out Option upon the expiration of the Initial
Term, (ii) the book value and all related transition costs of the Carve-Out
Resources at the time of transfer if CUSTOMER exercises the Carve-out Option
following (a) a Material Breach of any MOA or PSA by PROVIDER, and (b) a Change
of Control of PROVIDER or (iii) if CUSTOMER exercises the Carve-Out Option
in connection with a PROVIDER Divestiture, the lesser of (y) the book value of
the assets to be purchased by CUSTOMER or (z) the value of the divested operations
relating to CUSTOMER implied by the consideration to be paid by the acquiror in
the PROVIDER Divestiture.  The
methodology for calculating book value for purposes of this paragraph is set
forth in Schedule H-2 to this Exhibit H.


 


H-2
















 


10.           Transfer of Carve-Out Resources.  The Carve-Out Resources shall be transferred
to CUSTOMER as set forth below (subject to any limitations on such transfer
referred to in Section 2.0, above):


 


(a)           Hardware.  “Hardware” means the hardware and other
furniture, fixtures and equipment owned or leased and then currently being used
by PROVIDER exclusively to perform the Services under any MOA or PSA or to
support such performance. To the extent any such items are not used by PROVIDER
exclusively to perform the Services, PROVIDER shall assist CUSTOMER or its
designee in purchasing, leasing or otherwise obtaining the use of comparable
items.


 


(b)           Third-Party Software.  If PROVIDER has licensed or purchased and is
using any Software licensed from a third-party exclusively to provide or
support the provision of the Services under any MOA or PSA (“Third-Party
Software”), CUSTOMER may elect to take, or elect to direct to its designee, a
transfer or an assignment of any and all of the licenses for such software and
any attendant maintenance agreements, provided that such licenses are by their
terms transferable or assignable.  To the
extent any such licenses and the attendant current maintenance agreements are
not used exclusively to provide Services to CUSTOMER or are not transferable or
assignable by PROVIDER to CUSTOMER or its designee, PROVIDER shall assist
CUSTOMER or its designee, in obtaining in the name of CUSTOMER or its designee
and at the expense of CUSTOMER, a license for such software and a maintenance
agreement for such software.


 


(c)           PROVIDER Employees.  CUSTOMER or its designee shall have the right
to make offers of employment to any or all PROVIDER employees exclusively
performing or supporting the performance of the Services (“PROVIDER
Employees”). To the extent any PROVIDER Employees perform or support the
performance of the Services on other than an exclusive basis (including all
employees indirectly supporting the performance of the Services by providing
administrative services, including legal, human resources, compliance and other
services, (“Non-exclusive Employees”), PROVIDER and CUSTOMER shall use
commercially reasonable efforts to allocate such  Non-exclusive Employees in an equitable
manner between the parties.


 


(d)           Third-Party Agreements.  “Third Party Agreements” means any third
party agreements not otherwise treated in this Exhibit H, and used by
PROVIDER exclusively in connection with Services being provided under any MOA
or PSA, including, third party agreements for maintenance, business continuity
and disaster recovery services and other necessary third party services then
being used by PROVIDER to perform the Services. 
To the extent any such agreements are not used by PROVIDER exclusively
to provide such Services or are not transferable by PROVIDER to CUSTOMER,
PROVIDER shall assist CUSTOMER in obtaining in CUSTOMER’s name, an agreement
for comparable services.


 


(e)           Facilities.  PROVIDER will use commercially reasonable
efforts to assist CUSTOMER in obtaining a facility comparable to the facility
used by PROVIDER to provide the Services (the “Facility”).


 


H-3
















 


Schedule H-1




Fair Market Value Calculation


 


General methods for calculation shall be: (1) a Discounted
Cash Flow (DCF) analysis based on the contractual cash flows represented by the
aggregate Genworth MOAs and adjusted for carve-out costs; (2) multiples of
Revenue, Earnings before Interest, Taxes, Depreciation and Amortization
(EBITDA) and EBIT for comparable transactions at the time of carve out.  Projected net cash flow will be discounted on
the basis outlined below.  The final
valuation will consider market factors, making appropriate adjustments to the
variables below.


 


1.  DCF Methodology


 


Cash Flows In.


 


Cash flows in (revenue)
will be calculated using Genworth Group payments as of the valuation date and
projected forward over the Initial Term and Renewal Period, taking into account
any future contractual margin reductions, historical volume trends, and any
known events as documented in the most recent quarterly capacity management
processes.


 


Cash Flows Out.


 


Expenses will be calculated as of the valuation date using
actual expenses and projected forward taking into account the following
categories and trends:


 


C&B up 12%


FX up 6%


Facility down 4%


Technology &
Telecom down 8% and 15% respectively


Direct support down
13%


Other variable down 6%


Overhead down 3%


 


NOTE:  Expense trends
will change over time and will be re-calculated based on the prevailing trends
supported by the most recent annual pricing process.


 


Carve Out Costs Subtracted From DCF Valuation


 


Carve-out costs will include one-time costs including,
without limitation, legal entity set-up, transaction costs, capital
investments, and the costs to replace assets and personnel required for the
Genworth Group to continue the operations of its Insurance business on a
stand-alone basis in substantially the same manner as immediately prior to the
exercise of the Carve-Out Option, but which are not to be transferred from
GECIS to Genworth at the time of the carve-out.


 


Term


 


The term shall be the initial term of the contract and the
renewal term.


 


Discount Rates


 


The discount rate applied to the cash flows shall be
determined to take into account the following factors:


 


(1)  private company with a single customer.


(2)  Cost of Capital of Comparable companies


(3)  sufficient to generate an after tax equity
return


 
















 


(4)  growth rate.


 


Final DCF Valuation.


 


The final DCF valuation
shall take into consideration NPV of future cash flows over the Initial Term
and Renewal Period and may be adjusted for any market conditions that apply to
companies of similar characteristics with respect to market space, company
maturity, cash flow profile and general market conditions.


 


2.  Multiples
Valuation Methodology


 


The multiples valuations will be based upon the stated
revenue and pre-tax earnings for the PROVIDER insurance segment servicing the
Genworth Group under the MOAs in the most recent year.  Multiples will be applied from comparable
transactions to the calculated EBITDA and EBIT amounts, and to the stated
revenue.


 


Final Valuation


 


In case of disagreement, the final valuation shall be
developed by the appraisers appointed in accordance with Section 6.0(e) of
Exhibit H, taking into account the factors outlined above.


 


H-1-2
















 


Schedule H-2




Book Value
Calculation


 


General method for calculating book value shall be
aggregation of transferable assets and transferable liabilities. An
illustrative asset category list is included below for the purposes of
describing the form analysis to be completed as of the valuation date.


 


	
  Un-audited Initial Asset Value

  	
   

  	
  Total

  	
   

  
	
  $K

  	
   

  	
   

  	
   

  
	
  Account
  Head

  	
   

  	
   

  	
   

  
	
  Assets

  	
   

  	
   

  	
   

  
	
  Cash &
  Bank Balance

  	
   

  	
   

  	
   

  
	
  Receivables

  	
   

  	
  236

  	
   

  
	
  Accrued
  Revenues

  	
   

  	
  2,529

  	
   

  
	
  Loans to
  Employees

  	
   

  	
  241

  	
   

  
	
  Travel
  Advances

  	
   

  	
  265

  	
   

  
	
  Security
  Deposit / Adv. Rent

  	
   

  	
  504

  	
   

  
	
  Project
  Advances

  	
   

  	
  —

  	
   

  
	
  Fixed
  Assets (Net)

  	
   

  	
  6,973

  	
   

  
	
  Inter
  Company Deposits/Loans

  	
   

  	
  —

  	
   

  
	
  Investment
  in Countrywide by Mauritius

  	
   

  	
  —

  	
   

  
	
  Inter Co
  Balances(cost sharing)

  	
   

  	
  —

  	
   

  
	
  Other
  Assets

  	
   

  	
  706

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total
  Assets

  	
   

  	
  11,455

  	
   

  



 


Assets


 


At the time the Carve-Out Option is exercised under
circumstances requiring payment of the book value of the Carve-Out Resources (a
“book value carve out”), the parties will analyze each asset and evaluate its
transferability to the Genworth Group in accordance with Exhibit H (i.e. those
that are indentifiable and severable). 
Only such Carve-Out Resources as are actually transferred   shall be included in the calculation of Book
Value.


 


Liabilities


 


The above calculation
assumes that no liabilities (other than Carve-Out Resources) are transferred to
Genworth in a book value carve out situation. 
At the time of a book value carve out, Genworth and PROVIDER will
evaluate the transferability of liabilities pertaining directly to the Genworth
Group and may agree that such liabilities will be transferred to the Genworth
Group All such transferred liabilities will be deducted from the asset values
to arrive at book value to be paid to PROVIDER.


 
















 


EXHIBIT I




Intellectual
Property


 


ARTICLE I

Ownership


 


Section 1.01.  Ownership of Pre-Closing IP and Solely
Developed IP.


 


As
between CUSTOMER and PROVIDER (i) all Technology and Intellectual Property
owned or licensed by CUSTOMER or its Affiliates or PROVIDER or its
Affiliates  prior to the Execution Date
shall continue to be so owned or licensed after the Execution Date, (ii) all
Technology and Intellectual Property acquired, developed or licensed solely by
or on behalf of CUSTOMER or its Affiliates or solely by or on behalf of
PROVIDER or its Affiliates after the Execution Date and used in connection with
the Services provided under the Agreement and PSAs shall continue to be owned
or licensed by the applicable acquiror, developer or licensee.


 


Section 1.02.  Ownership of Post-Closing IP
Jointly-Developed - Default Rule and Modification of Default Rule.


 


After
the Execution Date, as between CUSTOMER and PROVIDER, all Technology and
Intellectual Property developed jointly by or on behalf of PROVIDER and
CUSTOMER pursuant to, or in connection with, the Agreement and PSAs shall be
owned by PROVIDER.  PROVIDER and CUSTOMER
may agree in any PSA executed after the Execution Date that certain Technology
or Intellectual Property that would otherwise be owned by PROVIDER shall be
owned, as between the parties, by CUSTOMER. 
This Agreement and the PSAs shall not assign any rights to Technology or
Intellectual Property between the parties other than as specifically set forth
herein or in a PSA.


 


Section 1.03.  Residual Knowledge.


 


Notwithstanding
anything to the contrary contained in this Agreement or any PSA, PROVIDER and
CUSTOMER may further develop their generalized knowledge, skills and
experience, and the mere subsequent use by the parties of such knowledge,
skills and experience shall not constitute a breach of this Agreement, subject
to their obligations respecting CUSTOMER’s Confidential Information or PROVIDER
Confidential Information, as the case may be, pursuant to the Agreement.


 


ARTICLE II

License Grant


 


Section 2.01.        Grant from PROVIDER to CUSTOMER and
its Affiliates.


 


(a)           PROVIDER hereby grants, and will
cause its Affiliates to grant, to CUSTOMER and its Affiliates a non-exclusive,
irrevocable, royalty-free, fully paid up, worldwide, perpetual right and
license, with no right to sublicense except as provided herein, under the
PROVIDER Licensed Technology:  (i) to
allow employees, directors and officers of CUSTOMER and its Affiliates to use
and practice the PROVIDER Licensed Technology for internal purposes, (ii) to
make, have made, use, sell, have sold, import, and otherwise commercialize
Licensed Products and Services and (iii) to create Improvements in accordance
with Section 2.03 of this Exhibit I.


 


(b)           Subject to paragraph (e), below, CUSTOMER and its Affiliates may
grant sublicenses of the right and license granted under this Section 2.01 of
this Exhibit I to an acquiror of any of the businesses, operations or
assets of CUSTOMER or its Affiliates to which this Agreement relates, which
acquiror executes an agreement to be bound by all obligations of CUSTOMER and
its Affiliates under this Exhibit I relating to such right and license
(a copy of which agreement is provided to PROVIDER).  CUSTOMER and its Affiliates may assign the
right and license granted under this Section 2.01 of this Exhibit I in
accordance with Section 5.01 of this Exhibit I.


 
















 


(c)           Subject to Section 11
(Confidentiality) of the Agreement, CUSTOMER and its Affiliates may permit
their suppliers, contractors and consultants to exercise the right and license
granted to CUSTOMER and its Affiliates under this Section 2.01 of this Exhibit
I on behalf of and at the direction of CUSTOMER and its Affiliates (and not
solely for the benefit of such suppliers, contractors and consultants).


 


(d)           Subject
to Section 11 (Confidentiality), CUSTOMER and its Affiliates may permit
employees, directors and officers of their customers and suppliers in the
ordinary course of CUSTOMER’s business (and not Persons who are customers or
suppliers merely to access and use the PROVIDER Licensed Technology) to use
training and productivity-enhancing Software and documentation that is subject
to the right and license granted under this Section 2.01 of this Exhibit I
and is for general use by customers and suppliers, provided that CUSTOMER’s or
its Affiliates’ purpose in permitting such use is to benefit the business of
CUSTOMER or its Affiliates, provided further that such customers and suppliers
may not use any such Software and documentation in advertising, publicity or
marketing activities without PROVIDER’S
prior written approval, which approval will not be unreasonably withheld.


 


(e)           Notwithstanding anything in this
Agreement or any PSA to the contrary, CUSTOMER and its Affiliates shall not
sublicense, assign or otherwise provide to any third party (including any
acquiring entity, contractor, consultant, customer or supplier of CUSTOMER or
its Affiliates) any of the Technology or Intellectual Property set forth on Schedule
I-1, without the prior written consent of General Electric Company, which
will not be unreasonably withheld.  For
the avoidance of doubt, it shall not be unreasonable to withhold such consent
if any such acquiring entity, contractor, consultant, customer or supplier is a
competitor of PROVIDER or its Affiliates.  The parties may mutually agree in a PSA
executed after the Execution Date to amend Schedule I-1 to include
additional Technology or Intellectual Property.


 


Section 2.02.        Grant from CUSTOMER to PROVIDER and
its Affiliates.


 


(a)           (i)            CUSTOMER
hereby grants, and will cause its Affiliates to grant, to PROVIDER and its
Affiliates a non-exclusive, royalty-free, irrevocable subject to paragraph (e)
below, fully paid up, worldwide right and license, with no right to sublicense
except as provided herein, under the CUSTOMER Licensed Technology:  (A) to allow employees, directors and
officers of PROVIDER and its Affiliates to use and practice the CUSTOMER
Licensed Technology for internal purposes, (B) to make, have made, use, sell,
have sold, import, and otherwise commercialize Licensed Products and Services
and (C) to create Improvements in accordance with Section 2.03 of this Exhibit
I.


 


                (ii)           In addition to the foregoing right and license, CUSTOMER
hereby grants, and shall cause its Affiliates to grant, to PROVIDER a
non-exclusive, royalty-free, fully paid up, worldwide right and license,
irrevocable during the term of this Agreement and with no right to sublicense,
to use all CUSTOMER Licensed Technology, trademarks, service marks, trade
dress, logos and other identifiers of source owned by CUSTOMER or its
Affiliates and provided to PROVIDER for the sole purpose of providing Services
to CUSTOMER and its Affiliates under the Agreement and PSAs.  PROVIDER shall comply with all reasonable
quality control standards and guidelines provided by CUSTOMER to PROVIDER in
writing that are intended to protect the goodwill associated with such
trademarks, service marks, trade dress, logos and other identifiers of source.  PROVIDER may permit its suppliers,
contractors and consultants to exercise such right and license on behalf of and
at the direction of PROVIDER (and not for the benefit of such suppliers,
contractors and consultants), subject to the prior written consent of CUSTOMER
(which shall not be required in the case of temporary employees of PROVIDER and
which, otherwise, shall not be unreasonably withheld) and the receipt of any
necessary regulatory approval.


 


(b)           Subject to the provisions of Section
10 (Assignment and Subcontracting) of the Agreement, PROVIDER and its
Affiliates may grant sublicenses of the right and license granted under this
Section 2.02 of this Exhibit I to an acquiror of any of the businesses,
operations or assets of PROVIDER or its Affiliates to which this Agreement
relates, which acquiror executes an agreement to be bound by all obligations of
PROVIDER and its Affiliates under this Exhibit I relating to such right
and license (a copy of which agreement is provided to


 


I-2
















 


CUSTOMER).  PROVIDER and
its Affiliates may assign the right and license granted under this Section 2.02
of this Exhibit I in accordance with Section 5.01 of this Exhibit I.


 


(c)           Subject
to the provisions of Section 11 (“Confidentiality”) and Section 10
(“Assignment and Subcontracting”) of the Agreement, PROVIDER and its Affiliates
may permit their suppliers, contractors and consultants to exercise the right
and license granted to PROVIDER and its Affiliates under this Section 2.02 of
this Exhibit I on behalf of and at the direction of PROVIDER and its
Affiliates (and not solely for the benefit of such suppliers, contractors and
consultants).


 


(d)           Subject
to the provisions of Section 11 (“Confidentiality”) of the Agreement,
PROVIDER and its Affiliates may permit employees, directors and officers of
their customers and suppliers in the ordinary course of PROVIDER’ business (and
not Persons who are customers or suppliers merely to access and use the
CUSTOMER Licensed Technology) to use training and productivity-enhancing
Software and documentation that is subject to the right and license granted
under this Section 2.02 of this Exhibit I and is for general use by
customers and suppliers, provided that PROVIDER’ or its Affiliates’ purpose in
permitting such use is to benefit the business of PROVIDER or its Affiliates,
provided further that such customers and suppliers may not use any such
Software and documentation in advertising, publicity or marketing activities
without CUSTOMER’s prior written approval, which approval will not be
unreasonably withheld.


 


(e)           PROVIDER, its Affiliates and their
respective sub-licensees shall have no license to any CUSTOMER Licensed
Technology following the expiration or termination of the Agreement or all PSAs
to which such CUSTOMER Licensed Technology relates (including any termination
in connection with the exercise by CUSTOMER of the Carve-Out Option), unless
otherwise specifically agreed in the Agreement or any PSA.  For the avoidance of doubt, the licenses
under this Section 2.02 of this Exhibit I shall continue during the
provision of any Services Transfer Assistance.


 


Section 2.03.        Improvements.  Improvements and all Intellectual Property
rights therein made solely by or on behalf of the Licensee shall be owned by
the Licensee.  Improvements jointly
developed by Licensee and Licensor shall be owned by PROVIDER.  For the avoidance of doubt, (i) Licensee
shall not own any Intellectual Property rights or Technology licensed to
Licensee hereunder and (ii) each party may freely assign or license
Improvements owned by it but shall not have the right to assign any
Intellectual Property or Technology of the other party and shall only have the
right to sublicense Intellectual Property or Technology of the other party as
expressly set forth herein.  No rights
are granted to the other party to any Improvements owned by each party, unless
such Improvements are otherwise subject to the provisions of Sections 2.01 or 2.02
of this Exhibit I.


 


Section 2.04.        Section 365(n) of the Bankruptcy Code.  All rights and licenses granted under this Exhibit
I are, and shall otherwise be deemed to be, for purposes of Section 365(n)
of the United States Bankruptcy Code (the “Bankruptcy Code”), licenses
of rights to “intellectual property” as defined under Section 101(35A) of the
Bankruptcy Code.  The parties shall
retain and may fully exercise all of their respective rights and elections
under the Bankruptcy Code.


 


Section 2.05.        Customers. 
Each party agrees that it will use reasonable efforts to not knowingly
bring any legal action or proceeding against, or otherwise communicate with,
any customer of the other party with respect to any alleged infringement,
misappropriation or violation of any Intellectual Property of such party
licensed hereunder based on such customer’s use of the other party’s products
or services without first providing the other party written notice of such
alleged infringement, misappropriation or violation.


 


Section 2.06.        Reservation of
Rights.  All rights not
expressly granted by a party hereunder are reserved by such party.  Without limiting the generality of the
foregoing, the parties expressly acknowledge that nothing contained herein
shall be construed or interpreted as a grant, by implication or otherwise, of
any licenses other than the licenses expressly set forth in this Article
II.  The licenses granted in Sections
2.01 and 2.02 of this Exhibit I are subject to, and limited by, any and
all licenses, rights, limitations and restrictions with respect to, as
applicable, the PROVIDER Licensed Technology and the CUSTOMER Licensed
Technology previously granted to or otherwise obtained by any third party that
are in effect as of the Execution Date.


 


I-3
















 


Section 2.07.        Delivery of Software.


 


(a)           Either party may request one (1) copy
of Software or other electronic or written documentation (“Electronic
Materials”) that (i) is subject to the license granted to such requesting party
under this Article II and (ii) has not already been provided to the requesting
party since the Execution Date.  The
delivering party shall make available or deliver to the requesting party a copy
of any such Software or Electronic Materials that are in existence at the time
of such request.


 


(b)           All Software and Electronic Materials
required to be made available to or delivered to a Licensee pursuant to Section
2.07(a) of this Exhibit I will be delivered by the Licensor to the
Licensee electronically, or with the assistance of the Licensor, downloaded by
the Licensee from the Internet, provided that the Licensee complies with all
reasonable security measures implemented by the Licensor.


 


Section 2.08.        Liability for Acts of Permitted Users
and Sublicensees.


 


Each
Licensee shall be liable to the Licensor for the acts and omissions of the
Licensee’s sublicensees and other persons permitted to use any Intellectual
Property or Technology of the Licensor in accordance with this Article II as
though such persons were licensees thereunder.


 


ARTICLE III

Covenants


 


Section 3.01.        Ownership.  No party shall represent that it has any
ownership interest in any Intellectual Property or Technology of the other
party licensed hereunder.


 


Section 3.02.        Prosecution and Maintenance.  Each party retains the sole right to protect
at its sole discretion the Intellectual Property and Technology owned by such
party, including, without limitation, deciding whether to file and prosecute
applications to register patents, copyrights and mask work rights included in such
Intellectual Property, whether to abandon prosecution of such applications, and
whether to discontinue payment of any maintenance or renewal fees with respect
to any patents included in such Intellectual Property.


 


Section 3.03.        Third Party Infringements,
Misappropriations, Violations.


 


(a)           Subject to any confidentiality
restrictions that would prevent such disclosure, each party shall promptly
notify the other party in writing of any actual or possible infringements,
misappropriations or other violations of the Technology or Intellectual
Property of the other party being licensed hereunder by a third party that come
to such party’s attention, as well as the identity of such third party or
alleged third party and any evidence of such infringement, misappropriation or
other violation within such party’s custody or control.  The other party shall have the sole right to
determine at its sole discretion whether any action shall be taken in response
to such infringements, misappropriations or other violations.


 


(b)           Subject to any confidentiality
restrictions that would prevent such disclosure, each party shall promptly
notify the other party in writing upon learning of the existence or possible
existence of rights held by any third party that may be infringed,
misappropriated or otherwise violated by the use or practice of the Technology
or Intellectual Property of the other party (or any element or portion thereof)
licensed hereunder, as well as the identity of such third party and any
evidence relating to such purported infringement, misappropriation or other
violation within such party’s custody or control.  Such party shall cooperate fully with the
other party to avoid infringing, misappropriating or violating any third party
intellectual property rights, and shall discontinue all use and practice of
such Technology or Intellectual Property that is the subject of such purported
infringement, misappropriation or other violation upon the reasonable request
of the other party.


 


(c)           Subject to any confidentiality
restrictions that would prevent such disclosure, each party shall promptly
notify the other party in writing upon learning of the existence or possible
existence of rights held by any third party that may be infringed,
misappropriated or otherwise violated by the use or practice of the Technology


 


I-4
















 


or Intellectual Property (or any element or portion thereof)
licensed to the other party hereunder, as well as the identity of such third
party.  The other party shall cooperate
fully with such party to avoid infringing, misappropriating or violating any
third party intellectual property rights, and shall discontinue all use and
practice of such Technology or Intellectual Property that is the subject of
such purported infringement, misappropriation or other violation upon the
reasonable request of such party, and shall provide such party any evidence
relating to such purported infringement, misappropriation or other violation
within the other party’s custody or control.


 


Section
3.04.        Patent Marking.  Each party acknowledges and agrees that it
will comply with all reasonable requests of the other party relative to patent
markings required to comply with or obtain the benefit of statutory notice or
other provisions.


 


ARTICLE IV

No Termination


 


Notwithstanding
anything to the contrary contained herein or in the Agreement, but subject to Section
2.02(e) of this Exhibit I, the terms and conditions of this Exhibit
I may only be terminated upon the mutual written agreement of the
parties.  In the event of a breach of the
terms or conditions of this Exhibit I, the sole and exclusive remedy of
the non-breaching party shall be to recover monetary damages and/or to obtain
injunctive or equitable relief as otherwise provided in the Agreement.


 


ARTICLE V

General Provisions


 


Section 5.01.        Assignment.


 


(a)           The rights and duties under this Exhibit
I shall not be assignable or delegable, in whole or in part, by any party
hereto to any third party, including, without limitation, Affiliates of any
party, without the prior written consent of the other party hereto and any
necessary regulatory approval, and any attempted assignment or delegation
without such consent shall be null and void. 
Notwithstanding the foregoing, the rights and duties under this Exhibit
I may be assigned by any party as follows without obtaining the prior
written consent of the other party hereto:


 


                (i)            PROVIDER, in its sole discretion, may assign any or all
of its rights under this Exhibit I, and may delegate any or all of its
duties under this Exhibit I to any Affiliate of PROVIDER at any time,
which expressly accepts such assignment in writing and assumes, as applicable,
any such obligations, provided that PROVIDER shall continue to remain liable
for the performance by such assignee;


 


                (ii)           CUSTOMER, in its sole discretion, may assign any or all of
its rights under this Exhibit I, and may delegate any or all of its
duties under this Exhibit I to any Affiliate of CUSTOMER at any time,
which expressly accepts such assignment in writing and assumes, as applicable,
any such obligations, provided that CUSTOMER shall continue to remain liable
for the performance by such assignee; and


 


                (iii)          Subject to Section
2.01(e) of this Exhibit I, each party may assign any
or all of its rights, or delegate any or all of its duties, under this Exhibit
I to (i) an acquiror of all or substantially all of the equity or assets of
the business of such party to which this Agreement relates or (ii) the
surviving entity in any merger, consolidation, equity exchange or
reorganization involving such party, provided that such acquiror or surviving
entity, as the case may be, executes an agreement to be bound by all the
obligations of such party under this Exhibit I (a copy of which
agreement is provided to the other party).


 


(b)           If a party requests the written
consent of the other party to any assignment of this Agreement, the other party
agrees to negotiate in good faith with such party regarding such consent.  The terms and conditions of this Exhibit I
shall also be binding upon and inure to the benefit of and be enforceable by
the successors, legal representatives and permitted assigns of each party
hereto.  All license rights and covenants


 


I-5
















 


contained herein shall run with all Intellectual Property of
any party licensed hereunder and shall be binding on any successors in interest
or assigns thereof.


 


Section 5.02.        Warranty and
Disclaimer.  NOTWITHSTANDING ANYTHING TO THE CONTRARY
HEREIN OR IN ANY PSA, BUT SUBJECT TO THE INDEMNITIES CONTAINED IN SECTION 12
OF THE AGREEMENT, THE INTELLECTUAL PROPERTY AND TECHNOLOGY LICENSED BY EACH
PARTY TO THE OTHER PARTY PURSUANT TO THIS AGREEMENT IS FURNISHED “AS IS”, WITH
ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUALITY,
USEFULNESS, COMMERCIAL UTILITY, ADEQUACY, COMPLIANCE WITH ANY LAW, DOMESTIC OR
FOREIGN AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF
PERFORMANCE.


 


Section 5.03.        Assumption of Risk.


 


(a)           Except as provided in Section 0. of
the Agreement or any PSA entered into after the Execution Date, CUSTOMER, on
behalf of itself and its Affiliates, hereby assumes all risk and liability in
connection with their use of the PROVIDER Licensed Technology.


 


(b)           Except as provided in Section
12.b of the Agreement or any PSA executed after the Execution Date,
PROVIDER, on behalf of itself and its Affiliates, hereby assumes all
risk and liability in connection with their use of the CUSTOMER Licensed
Technology.


 


Section 5.04.        Amendment by PSA. 
The parties may agree in any PSA to amend the terms and conditions of
the licenses granted under this Exhibit I.


 


I-6
















 


Schedule I-1



Restricted Intellectual Property


 


	
   

  	
   

  	
  Name of
  Restricted

  Intellectual Property

  Innovation

  	
   

  	
  US Business

  alignment and COE

  	
   

  	
  Brief Notes

  
	
  1

  	
   

  	
  Migration Toolkit

  	
   

  	
  GECIS

  	
   

  	
   

  
	
  2

  	
   

  	
  Multi Collinearity Macro

  	
   

  	
  GEFA - ACOE

  	
   

  	
  Macro uses advanced features of SAS.  This basically performs the data
  diagnostics before the modeling process begins.

  
	
  3

  	
   

  	
  Reconciliation Reporting tool

  	
   

  	
  GEFA -FCOE

  	
   

  	
  Used across GECIS Finance processes — has the capability
  to capture information at item level (open items for purpose of
  reconciliation).

  



 
















 


EXHIBIT J




Business Associate
Addendum


 


I.              Purpose.


 


In order
to disclose certain information to PROVIDER under this Addendum, some of which
may constitute Protected Health Information (“PHI”) (defined below), CUSTOMER
and PROVIDER mutually agree to comply with the terms of this Addendum for the
purpose of satisfying the requirements of the Health Insurance Portability and
Accountability Act of 1996 (“HIPAA”) and its implementing privacy regulations
at 45 C.F.R. Parts 160-164 (“HIPAA Privacy Rule”).   These provisions shall apply to PROVIDER to
the extent that PROVIDER is considered a “Business Associate” under the HIPAA
Privacy Rule and all references in this section to Business Associates shall
refer to PROVIDER.  Capitalized terms not
otherwise defined herein shall have the meaning assigned in the Agreement.  Notwithstanding anything else to the contrary
in the Agreement, in the event of a conflict between this Addendum and the
Agreement, the terms of this Addendum shall prevail.


 


II.            Permitted Uses and Disclosures.


 


A.            Business Associate agrees to use or
disclose Protected Health Information (“PHI”) that it creates for or receives
from CUSTOMER or any other member of the Genworth Group only as follows.  The capitalized term “Protected Health
Information or PHI” has the meaning set forth in 45 C.F.R. Section 164.501, as
amended from time to time.  Generally,
this term means individually identifiable health information including, without
limitation, all information, data and materials, including without limitation,
demographic, medical and financial information, that relates to the past,
present, or future physical or mental health or condition of an individual; the
provision of health care to an individual; or the past present, or future
payment for the provision of health care to an individual; and that identifies
the individual or with respect to which there is a reasonable basis to believe
the information can be used to identify the individual.  This definition shall include any demographic
information concerning members and participants in, and applicants for, health
benefit plans of the Genworth Group.  All
other terms used in this Addendum shall have the meanings set forth in the
applicable definitions under the HIPAA Privacy Rule.


 


B.            Functions and Activities on
Company’s Behalf.  Business Associate is
permitted to use and disclose PHI it creates for or receives from the Genworth
Group only for the purposes described in this Addendum or the Agreement that
are not inconsistent with the provisions of this Addendum, or as required by
law, or following receipt of prior written approval from members of the
Genworth Group for which the relevant PHI was created or from which the
relevant PHI was received.  In addition
to these specific requirements below, Business Associate may use or disclose
PHI only in a manner that would not violate the HIPAA Privacy Rule if done by
the applicable members of the Genworth Group.


 


C.            Business Associate’s
Operations.  Business Associate is
permitted by this Agreement to use PHI it creates for or receives from the
Genworth Group: (i) if such use is reasonably necessary for Business
Associate’s proper management and administration; and (ii) as reasonably
necessary to carry out Business Associate’s legal responsibilities. Business
Associate is permitted to disclose PHI it creates for or receives from the
Genworth Group for the purposes identified in this Section only if the
following conditions are met:


 


(1)           The disclosure is required by law; or


 


(2)           The disclosure is reasonably
necessary to Business Associate’s proper management and administration, and
Business Associate obtains reasonable assurances in writing from any person or
organization to which Business Associate will disclose such PHI that the person
or organization will:


 


a.             Hold such
PHI as confidential and use or further disclose it only for the purpose for
which Business Associate disclosed it to the person or organization or as
required by law; and


 


b.             Notify
Business Associate (who will in turn promptly notify the members of the
Genworth Group for which the relevant PHI was


 
















 


created or from which the relevant PHI was received) of any
instance of which the person or organization becomes aware in which the
confidentiality of such PHI was breached.


 


D.            Minimum Necessary Standard.  In performing the functions and activities on
behalf of the Genworth Group pursuant to the Agreement, Business Associate
agrees to use, disclose or request only the minimum necessary PHI to accomplish
the purpose of the use, disclosure or request. 
Business Associate must have in place policies and procedures that limit
the PHI disclosed to meet this minimum necessary standard.


 


E.             Prohibition on Unauthorized Use or
Disclosure.  Business Associate will
neither use nor disclose PHI it creates or receives for or from the Genworth
Group, or from another business associate of the Genworth Group, except as
permitted or required by this Addendum or the Agreement that are not
inconsistent with the provisions of this Addendum, or as required by law, or
following receipt of prior written approval from members of the Genworth Group
for which the relevant PHI was created or from which the relevant PHI was received.


 


F.             De-identification of
Information.  Business Associate agrees
neither to de-identify PHI it creates for or receives from the Genworth Group
or from another business associate of the Genworth Group, nor use or disclose
such de-identified PHI, unless such de-identification is expressly permitted
under the terms and conditions of this Addendum or the Agreement and related to
the Genworth Group’s activities for purposes of “treatment”, “payment” or
“health care operations”, as those terms are defined under the HIPAA Privacy
Rule.  De-identification of PHI, other
than as expressly permitted under the terms and conditions of the Addendum for
Business Associate to perform services for the Genworth Group, is not a permitted
use of PHI under this Addendum.  Business
Associate further agrees that it will not create a “Limited Data Set” as
defined by the HIPAA Privacy Rule using PHI it creates or receives, or receives
from another business associate of the Genworth Group, nor use or disclose such
Limited Data Set unless: (i) such creation, use or disclosure is expressly
permitted under the terms and conditions of this Addendum or the Agreement that
are not inconsistent with the provisions of this Addendum; and such creation,
use or disclosure is for services provided by Business Associate that relate to
the Genworth Group’s activities for purposes of “treatment”, “payment” or
“health care operations”, as those terms are defined under the HIPAA Privacy
Rule.


 


G.            Information Safeguards.  Business Associate will develop, document,
implement, maintain and use appropriate administrative, technical and physical
safeguards to preserve the integrity and confidentiality of and to prevent
non-permitted use or disclosure of PHI created for or received from the
Genworth Group.  These safeguards must be
appropriate to the size and complexity of Business Associate’s operations and
the nature and scope of its activities. 
Business Associate agrees that these safeguards will meet any applicable
requirements set forth by the U.S. Department of Health and Human Services,
including (as of the effective date or as of the compliance date, whichever is
applicable) any requirements set forth in the final HIPAA security
regulations.  Business Associate agrees
to mitigate, to the extent practicable, any harmful effect that is known to
Business Associate resulting from a use or disclosure of PHI by Business
Associate in violation of the requirements of this Addendum.


 


III.           Conducting
Standard Transactions.  In the course
of performing services for the Genworth Group, to the extent that Business
Associate will conduct Standard Transactions for or on behalf of the Genworth
Group, Business Associate will comply, and will require any subcontractor or
agent involved with the conduct of such Standard Transactions to comply, with
each applicable requirement of 45 C.F.R. Part 162.  “Standard Transaction(s)” shall mean a
transaction that complies with the standards set forth at 45 C.F.R. parts 160
and 162.  Further, Business Associate
will not enter into, or permit its subcontractors or agents to enter into, any
trading partner agreement in connection with the conduct of Standard
Transactions for or on behalf of the Genworth Group that:


 


a.             Changes the definition, data
condition, or use of a data element or segment in a Standard Transaction;


 


b.             Adds any data element or segment to
the maximum defined data set;


 


c.             Uses any code or data element that
is marked “not used” in the Standard Transaction’s implementation specification
or is not in the Standard Transaction’s implementation specification; or


 


d.             Changes the meaning or intent of
the Standard Transaction’s implementation specification.


 


J-2
















 


IV.           Sub-Contractors,
Agents or Other Representatives. 
Business Associate will require any of its subcontractors, agents or
other representatives to which Business Associate is permitted by this Addendum
or the Agreement (or is otherwise given by the applicable member of the
Genworth Group’s prior written approval) to disclose any of the PHI Business
Associate creates or receives for or from the Genworth Group, to provide
reasonable assurances in writing that subcontractor or agent will comply with
the same restrictions and conditions that apply to the Business Associate under
the terms and conditions of this Addendum with respect to such PHI.


 


IV            Protected
Health Information Access, Amendment and Disclosure Accounting.


 


A.            Access.  Business Associate will promptly upon the
request of a member of the Genworth Group make available to such member, or,
such members, or, at the direction of 
the applicable member of the Genworth Group, to the individual (or the
individual’s personal representative) for inspection and obtaining copies any
PHI about the individual which Business Associate created for or received from
the Genworth Group and that is in Business Associate’s custody or control, so
that the Genworth Group may meet its access obligations under 45 Code of
Federal Regulations § 164.524.


 


B.            Amendment.  Upon the request of a member of the Genworth
Group, Business Associate will promptly amend or permit such member access to
amend any portion of the PHI which Business Associate created for or received
from such member of the Genworth Group, and incorporate any amendments to such
PHI, so that the members of the Genworth Group may meet their amendment
obligations under 45 Code of Federal Regulations § 164.526.


 


C.            Disclosure Accounting.  So that the members of the Genworth Group may
meet their disclosure accounting obligations under 45 Code of Federal
Regulations § 164.528:


 


1.             Disclosure Tracking.  Business Associate will record for each
disclosure, not excepted from disclosure accounting under Section V.C.2 below,
that Business Associate makes to the Genworth Group of PHI that Business
Associate creates for or receives from the Genworth Group, (i) the disclosure
date, (ii) the name and member or other policy identification number of the
person about whom the disclosure is made, (iii) the name and (if known) address
of the person or entity to whom Business Associate made the disclosure, (iv) a
brief description of the PHI disclosed, and (v) a brief statement of the
purpose of the disclosure (items i-v, collectively, the “disclosure
information”).  For repetitive
disclosures Business Associate makes to the same person or entity (including
the Genworth Group) for a single purpose, Business Associate may provide a) the
disclosure information for the first of these repetitive disclosures, (b) the
frequency, periodicity or number of these repetitive disclosures and (c) the
date of the last of these repetitive disclosures.  Business Associate will make this disclosure
information available to the Genworth Group promptly upon the Genworth Group’s
request.


 


2.             Exceptions from Disclosure
Tracking.  Business Associate need not
record disclosure information or otherwise account for disclosures of PHI that
this Addendum or the applicable member of the Genworth Group in writing permits
or requires (i) for the purpose of treatment activities of the Genworth Group’s
payment activities, or health care operations, (ii) to the individual who is
the subject of the PHI disclosed or to that individual’s personal
representative; (iii) to persons involved in that individual’s health care or
payment for health care; (iv) for notification for disaster relief purposes,
(v) for national security or intelligence purposes, (vi) to law enforcement
officials or correctional institutions regarding inmates; or   (vii) pursuant to an authorization; (viii)
for disclosures of certain PHI made as part of a Limited Data Set; (ix) for
certain incidental disclosures that may occur where reasonable safeguards have
been implemented; and (x) for disclosures prior to April 14, 2003.


 


3.             Disclosure Tracking Time
Periods.  Business Associate must have
available for the Genworth Group the disclosure information required by this
section for the 6 years preceding their request for the disclosure information
(except Business Associate need have no disclosure information for disclosures
occurring before April 14, 2003).


 


J-3
















 


VI.           Additional
Business Associate Provisions.


 


A.            Reporting of Breach of Privacy
Obligations.  Business Associate will
provide written notice to the members of the Genworth Group for which the
relevant PHI was created or from which the relevant PHI was received of any use
or disclosure of PHI that is neither permitted by this Addendum nor given prior
written approval by the applicable member of the Genworth Group promptly after
Business Associate learns of such non-permitted use or disclosure.  Business Associate’s report will at least:


 


(i)                                     Identify
the nature of the non-permitted use or disclosure;


 


(ii)                                  Identify
the PHI used or disclosed;


 


(iii)                               Identify
who made the non-permitted use or received the non-permitted disclosure;


 


(iv)                              Identify
what corrective action Business Associate took or will take to prevent further
non-permitted uses or disclosures;


 


(v)                                 Identify
what Business Associate did or will do to mitigate any deleterious effect of
the non-permitted use or disclosure; and


 


(vi)                              Provide
such other information, including a written report, as the applicable member of
the Genworth Group may reasonably request.


 


B.            Amendment.  Upon the effective date of any final
regulation or amendment to final regulations promulgated by the U.S. Department
of Health and Human Services with respect to PHI, including, but not limited to
the HIPAA privacy and security regulations, this Addendum and the Agreement
will automatically be amended so that the obligations they impose on Business
Associate remain in compliance with these regulations.


 


In
addition, to the extent that new state or federal law requires changes to
Business Associate’s obligations under this Addendum, this Addendum shall
automatically be amended to include such additional obligations, upon notice by
any member of the Genworth Group to Business Associate of such
obligations.  Business Associate’s
continued performance of services under the Agreement shall be deemed
acceptance of these additional obligations.


 


C.            Audit and Review of Policies and
Procedures.  Business Associate
agrees to provide, upon request by any member of the Genworth Group, access to
and copies of any policies and procedures developed or utilized by Business
Associate regarding the protection of PHI. 
Business Associate agrees to provide, upon such request, access to
Business Associate’s internal practices, books, and records, as they relate to
Business Associate’s services, duties and obligations set forth in this
Addendum and the Agreement(s) under which Business Associate provides services
and / or products to or on behalf of the Genworth Group, for purposes of their
review of such internal practices, books, and records.


 


J-4
















 


EXHIBIT K


 


Change Control
Procedure


 


PURPOSE:  Establish an efficient and effective means to
control updates, modifications and other changes to the Agreement, including,
without limitation, the scope of the Services, Dedicated FTEs, Performance
Standards, Charges, Exhibits, Schedules and PSAs.


 


PROCESS:  Consistent with the Agreement, the following
process shall be followed to originate, process and maintain control over
Change Order Requests and Change Orders under the Agreement.


 


A.            Either PROVIDER or CUSTOMER may
identify and submit for consideration a proposed change to the Agreement.


 


B.            All requests for changes shall be
submitted in writing to the Account Executives designated by PROVIDER and
CUSTOMER.  The following areas should be
clearly addressed in each Change Order Request:


 


1.             Origination;


 


2.             Clear
statement of requested change;


 


3.             Rationale
for change;


 


4.             Impact of
requested change in terms of operations, cost, schedule and compliance with the
matters referred to in Section 19 of this Agreement;


 


5.             Effect of
change if accepted;


 


6.             Effect of
rejection of change;


 


7.             Recommended
level of priority;


 


8.             Date
final action is required; and


 


9.             Areas for
signature by the approval authorities of each party.


 


C.            The Account Executives shall review
all Change Order Requests, determine whether to recommend the Change Order
Request be accepted or rejected by the parties and forward the Change Order
Request, their individual recommendations and the basis for their recommendations
to PROVIDER and CUSTOMER for a final decision.


 


D.            The Account Executives will be
responsible for the final approval of all Change Order Requests.


 


E.             The Account Executives will be
responsible for the implementation of all Change Orders approved pursuant to
Change Order Requests, including the coordination of the preparation and
execution by the parties of addendums to the Agreement and/or its associated
Exhibits to incorporate each requested and agreed change into the Agreement, as
applicable.


 


F.             No Change Order or change shall be
effective or binding upon the parties to the Agreement until an addendum to the
Agreement and/or its associated Exhibits , as applicable, incorporating such
change into the Agreement and/or its associated Exhibits has been executed by
PROVIDER and CUSTOMER.


 


G.            Requests for changes shall use the
format provided below:


 


J-5
















 


CHANGE ORDER
REQUEST FORM


 


CHANGE ORDER REQUEST NUMBER:


 


ORIGINATOR:


 


REQUESTED CHANGE:


 


RATIONALE FOR CHANGE:


 


EFFECT OF CHANGE ACCEPTANCE:


 


IMPACT OF CHANGE REJECTION:


 


PRIORITY:


 


DATE FINAL ACTION ON CHANGE ORDER IS REQUIRED:


 


DISPOSITION OF REQUEST:


 


CHANGE ORDER NUMBER:


 


[Note:  Attach any
documents, comments or notes that explain, describe or otherwise support the
Change Order Request.]


 


	
   

  	
   

  	
  APPROVED

  	
   

  	
   

  	
   

  	
  APPROVED

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  REJECTED

  	
   

  	
   

  	
   

  	
  REJECTED

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  REJECTED WITH

  	
   

  	
   

  	
   

  	
  REJECTED WITH

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  COMMENT

  	
   

  	
   

  	
   

  	
  COMMENT

  



 


	
  Approved as of:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CUSTOMER Account Executive

  	
   

  	
  PROVIDER Account Executive

  
						



 


J-6
















 


EXHIBIT L


 


PSAs and Base
Costs


 


Original MOA: [Insert title]


 


The following PSAs are governed by this Agreement:


 


	
  PSA (PPC ID

  No.)

  	
   

  	
  Dedicated FTEs as of

  Execution Date

  (Production/Supervisor)

  	
   

  	
  Y(0) Base Cost

  per FTE

  (2003)

  	
   

  	
  Y(0) Baseline

  Charges per

  FTE (2003)

  	
   

  	
  New Charges per FTE for

  Initial Contract Year

  (2004)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 
















 


EXHIBIT B


 


Dispute Resolution


 


1.1   General Provisions.


 


(a)   Any dispute, controversy or claim arising out
of or relating to the Agreement or any MOA or PSA, or the validity,
interpretation, breach or termination thereof (a “Dispute”), shall be resolved
in accordance with the procedures set forth in this Exhibit B, which
shall be the sole and exclusive procedures for the resolution of any such
Dispute unless otherwise specified below.


 


(b)   Commencing with a request contemplated by Section 1.2
set forth below, all communications between the parties or their
representatives in connection with the attempted resolution of any Dispute,
including any mediator’s evaluation referred to in Section 1.3 set
forth below, shall be deemed to have been delivered in furtherance of a Dispute
settlement and shall be exempt from discovery and production, and shall not be
admissible in evidence for any reason (whether as an admission or otherwise),
in any arbitral or other proceeding for the resolution of the Dispute.


 


(c)   The parties expressly waive and forego any
right to (i) punitive, exemplary, statutorily-enhanced or similar damages in
excess of compensatory damages, and (ii) trial by jury.


 


(d)   The specific procedures set forth below,
including but not limited to the time limits referenced therein, may be
modified by agreement of the parties in writing.


 


(e)   All applicable statutes of limitations and
defenses based upon the passage of time shall be tolled while the procedures
specified in this Exhibit C are pending. 
The parties will take such action, if any, required to effectuate such
tolling.


 


1.2   Consideration by Senior Executives.


 


If a
Dispute is not resolved in the normal course of business at the operational
level, the parties shall attempt in good faith to resolve such Dispute by
negotiation between executives who hold, at a minimum, the office of President
and CEO of the respective business entities involved in such Dispute.  Either party may initiate the executive
negotiation process by providing a written notice to the other (the “Initial
Notice”).  Fifteen (15) days after
delivery of the Initial Notice, the receiving party shall submit to the other a
written response (the “Response”).  The
Initial Notice and the Response shall include (i) a statement of the Dispute
and of each party’s position, and (ii) the name and title of the executive who
will represent that party and of any other person who will accompany the
executive.  Such executives will meet in
person or by telephone within thirty (30) days of the date of the Initial
Notice to seek a resolution of the Dispute.


 


1.3   Mediation.


 


If a
Dispute is not resolved by negotiation as provided in Section 1.2
within forty-five (45) days from the delivery of the Initial Notice, then
either party may submit the Dispute for resolution by mediation pursuant to the
CPR Institute for Dispute Resolution (the “CPR”) Model Mediation Procedure as
then in effect.  The parties will select
a mediator from the CPR Panels of Distinguished Neutrals.  Either party at commencement of the mediation
may ask the mediator to provide an evaluation of the Dispute and the parties’
relative positions.


 


1.4   Arbitration.


 


(a)   If a Dispute is not resolved by mediation as
provided in Section 1.3 within thirty (30) days of the selection of
a mediator (unless the mediator chooses to withdraw sooner), either party may
submit the Dispute to be finally resolved by arbitration pursuant to the CPR
Rules for Non-Administered Arbitration as then in effect (the “CPR Arbitration
Rules”).  The parties consent to a
single, consolidated arbitration for all known Disputes existing at the time of
the arbitration and for which arbitration is permitted.


 
















 


(b)   The neutral organization for purposes of the
CPR Arbitration Rules will be the CPR. The arbitral tribunal shall be composed
of three arbitrators, of whom each party shall appoint one in accordance with
the “screened” appointment procedure provided in Rule 5.4 of the CPR
Arbitration Rules.  The arbitration shall
be conducted in New York City.  Each
party shall be permitted to present its case, witnesses and evidence, if any,
in the presence of the other party.  A
written transcript of the proceedings shall be made and furnished to the
parties.  The arbitrators shall determine
the Dispute in accordance with the law of the State of New York, without giving
effect to any conflict of law rules or other rules that might render such law
inapplicable or unavailable, and shall apply this Agreement, or the applicable
MOA or PSA, according to its terms, provided that the provisions relating to
arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq.


 


(c)   The parties agree to be bound by any award or
order resulting from any arbitration conducted in accordance with this Section 1.4
and further agree that judgment on any award or order resulting from an
arbitration conducted under this Section 1.4 may be entered and
enforced in any court having jurisdiction thereof.


 


(d)   Except as expressly permitted by this
Agreement, no party will commence or voluntarily participate in any court
action or proceeding concerning a Dispute, except (i) for enforcement as
contemplated by Section 1.4(c) above, (ii) to restrict or vacate an
arbitral decision based on the grounds specified under applicable law, or (iii)
for interim relief as provided in paragraph (e) below. For purposes of the
foregoing, the parties hereto submit to the non-exclusive jurisdiction of the
courts of the State of New York.


 


(e)   In addition to the authority otherwise
conferred on the arbitral tribunal, the tribunal shall have the authority to
make such orders for interim relief, including injunctive relief, as it may
deem just and equitable.  If the tribunal
shall not have been appointed, either party may seek interim relief from a
court having jurisdiction if the award to which the applicant may be entitled may
be rendered ineffectual without such interim relief.  Upon appointment of the tribunal following
any grant of interim relief by a court, the tribunal may affirm or disaffirm
such relief, and the parties will seek modification or rescission of the court
action as necessary to accord with the tribunal’s decision.


 


Each party will bear its own attorneys’ fees and costs
incurred in connection with the resolution of any Dispute in accordance with
this Exhibit B.


 


2