Master Outsourcing Agreement

Exhibit 10.34


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


AMENDED AND RESTATED


MASTER OUTSOURCING AGREEMENT


by and between


General Electric Capital Assurance Company


and


GE Capital International Services


[Date]


TABLE OF CONTENTS


1.0

Services


1.1

Structure of the Agreement


1.2

Business Continuity and Disaster Recovery Services


1.3

PROVIDER Responsibilities


1.4

Service Locations; Security


1.5

Support of CUSTOMER Divestitures


1.6

PROVIDER Divestitures


1.7

New Services


1.8

Services Not to be Withheld; PROVIDER Relief


2.0

Charges


2.1

Generally


2.2

Discount Factor


2.3

Adjustment of Charges


2.4

Renewal Pricing


2.5

Reduction in Work


2.6

Currency


2.7

Taxes


2.8

Foreign Currency Hedging


2.9

Continuous Improvement; Planning


3.0

Billing and Payment


3.1

Invoices


3.2

Payments


3.3

Reimbursements


3.4

Method of Payment


3.5

Notice of Default


3.6

PROVIDER Termination for Non-Payment


3.7

Past Due Amounts


4.0

Performance Standards


4.1

Generally


4.2

Measurement and Reporting


4.3

Compliance


4.4

Additional Remedies


5.0

Record Keeping and Audits


5.1

Generally


5.2

Reports and Certifications


6.0

CUSTOMER Commitments


6.1

System Access


6.2

Data Integrity


6.3

Training


7.0

Term.


7.1

Initial Term


7.2

Limitation on Termination of MOAs; Renewal


8.0

Termination.


8.1

Termination for Cause by CUSTOMER


8.2

Termination by PROVIDER


8.3

Termination for Convenience


8.4

Termination Right Related to Damages Cap.


8.5

Termination Right Relating to Change of Control of CUSTOMER


8.6

Continued Performance


9.0

Obligations on Expiration and Termination.


9.1

Services Transfer Assistance


9.2

Carve-Out Option


10.0

Assignment and Subcontracting


10.1

PROVIDER Assignment


10.2

Subcontracting


10.3

CUSTOMER Assignment


11.0

Confidentiality


11.1

Obligations of PROVIDER


11.2

Obligations of CUSTOMER


11.3

Required Disclosures


11.4

HIPAA Addendum


11.5

Data Ownership


12.0

Indemnities


12.1

Indemnity by PROVIDER


12.2

Indemnity by CUSTOMER


12.3

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


ii


12.4

Procedures for Indemnification of Third Party Claims


12.5

Additional Matters


12.6

Remedies Cumulative; Limitations


13.0

Limitation of Liability


13.1

No System Liability


13.2

Liability for Simple Breach


13.3

Liability for Excluded Matters


13.4

No Liability for Acts in Accordance with Instructions


14.0

PROVIDER Employees


14.1

Responsibility for PROVIDER Employees


15.0

Representations, Warranties and Covenants


15.1

PROVIDER Representations


15.2

CUSTOMER Representations


15.3

Approvals and Consents


15.4

Cooperation


16.0

Notices


17.0

Intellectual Property


18.0

Non-Compete


18.1

Limitations on Provision of Services


18.2

Volume Reduction Date


18.3

Equitable Relief


19.0

Change Control Procedure


20.0

Governance


20.1

PROVIDER Account Executive


20.2

CUSTOMER Account Executive


20.3

Key Employees of PROVIDER


20.4

Meetings


20.5

Operational Dispute Resolution


21.0

Miscellaneous


21.1

Force Majeure


21.2

Independent Contractors


21.3

Failure to Object Not a Waiver


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21.4

Governing Law


21.5

No Third-Party Beneficiaries


21.6

Public Announcements


21.7

Entire Agreement


21.8

Amendment


21.9

Rules of Construction


21.10

Severability


21.11

Remedies Not Exclusive


21.12

Dispute Resolution


21.13

Language


21.14

Survival


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


iv


AMENDED AND RESTATED MASTER OUTSOURCING AGREEMENT


AMENDED AND RESTATED MASTER OUTSOURCING AGREEMENT (" Agreement" ) entered into as of the Execution Date, by and between General Electric Capital Assurance Company, a Delaware insurance company, with offices at 6604 West Broad Street, Richmond, Virginia 23230 (" 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


1.0 Services .

1.1 Structure of the Agreement .

(a) 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. (b) PROVIDER agrees to provide the Services under the terms and conditions of this Agreement and as more specifically described in the PSAs. 1.2 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 8.1(f). 1.3 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. 1.4 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. 2 1.5 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. 1.6 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

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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 9.2 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 10.0 hereof.

1.7 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 19.0 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. 1.8 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 21.12 , 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. 2.0 Charges . 2.1 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 2.0 (the " Charges" ). The Charges

4


in effect immediately prior to the Execution Date shall be referred to as the " Baseline Charges" . For existing PSAs, the Baseline Charges 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


2.2 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 2.3 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 .


2.3 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 2.8 ). 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.

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2.4 Renewal Pricing . As described in Section 7.2 , 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 2.0 . 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 9.2 . 2.5 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 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 2.3 , as adjusted pursuant to any notices previously given pursuant to this Section 2.5 . 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. 2.6 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. 2.7 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.

6


2.8 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 20.4 . 2.9 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. 3.0 Billing and Payment . 3.1 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 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. 3.2 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 ...