Exhibit 10.6


 


CONFIDENTIAL TREATMENT REQUESTED:
INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND
NOTED WITH “**”.  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


 


GE Capital International Services


**

















 


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.


 


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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).


 


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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.


 


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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:


 


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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

  
						



 


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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.


 


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