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Exhibit 4.1
EXECUTION
COPY
GENWORTH FINANCIAL,
INC.
AND
THE BANK OF NEW YORK TRUST
COMPANY, N.A.,
as Trustee
SUPPLEMENTAL INDENTURE NO.
4
Dated as of May 22,
2008
THIS SUPPLEMENTAL INDENTURE
No. 4 (this “ Supplemental Indenture No. 4
”), dated as of May 22, 2008, is between GENWORTH
FINANCIAL, INC., a Delaware corporation (the “ Company
”), and THE BANK OF NEW YORK TRUST COMPANY, N.A. (as
successor to JPMorgan Chase Bank, N.A.), a national banking
association, as Trustee (the “ Trustee
”).
R E C I T A L S
WHEREAS, the Company has
heretofore executed and delivered to the Trustee an Indenture dated
as of June 15, 2004 (the “ Base Indenture
”) and Supplemental Indenture No. 1 dated as of
June 15, 2004 (the “First Supplemental Indenture
”), Supplemental Indenture No. 2 dated as of
September 19, 2005 (the “ Second Supplemental
Indenture ”), and Supplemental Indenture No. 3 dated
as of June 12, 2007 (the “ Third Supplemental
Indenture ”), each between the Company and the Trustee
(the Base Indenture, together with the First Supplemental
Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture and this Supplemental Indenture No. 4,
the “ Indenture ”), providing for the issuance
from time to time of series of the Company’s
Securities;
WHEREAS,
Section 10.01(d) of the Base Indenture provides for the
Company and the Trustee to enter into an indenture supplemental to
the Base Indenture to establish the forms or terms of Securities of
any series as permitted by Section 2.01 or Section 2.02
of the Base Indenture;
WHEREAS, pursuant to
Section 2.02 of the Base Indenture, the Company wishes to
provide for the issuance of a new series of Securities to be known
as its 6.515% Senior Notes due 2018 (the “ Notes
”), the form and terms of such Notes and the terms,
provisions and conditions thereof to be set forth as provided in
this Supplemental Indenture No. 4; and
WHEREAS, the Company has
requested that the Trustee execute and deliver this Supplemental
Indenture No. 4 and all requirements necessary to make this
Supplemental Indenture No. 4 a valid, binding and enforceable
instrument in accordance with its terms, and to make the Notes,
when executed by the Company and authenticated and delivered by the
Trustee, the valid, binding and enforceable obligations of the
Company, have been done and performed, and the execution and
delivery of this Supplemental Indenture No. 4 has been duly
authorized in all respects;
NOW, THEREFORE, in
consideration of the covenants and agreements set forth herein and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
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ARTICLE 1
D
EFINITIONS
Section 1.01 .
Relation to Base Indenture. This Supplemental Indenture
No. 4 constitutes an integral part of the Base
Indenture.
Section 1.02 .
Definition Of Terms. For all purposes of this Supplemental
Indenture No. 4:
(a) Capitalized terms
used herein without definition shall have the meanings set forth in
the Base Indenture;
(b) a term defined
anywhere in this Supplemental Indenture No. 4 has the same
meaning throughout;
(c) the singular
includes the plural and vice versa;
(d) headings are for
convenience of reference only and do not affect
interpretation;
(e) the following
terms have the meanings given to them in this
Section 1.02(e):
“ Business Day
” shall mean, unless otherwise specified, any calendar day
that is not a Saturday, Sunday or legal holiday in New York, New
York and on which commercial banks are open for business in New
York, New York.
“ Comparable
Treasury Issue ” shall mean the United States Treasury
security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term (“ Remaining
Life ”) of the Notes to be redeemed that would be
utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt
securities of comparable maturity to the remaining term of such
Notes.
“ Comparable
Treasury Price ” shall mean, with respect to any
Redemption Date, (A) the average of the Reference Treasury
Dealer Quotations for such Redemption Date, after excluding the
highest and lowest such Reference Treasury Dealer Quotations, or
(B) if the Independent Investment Banker obtains fewer than
three such Reference Treasury Dealer Quotations, the average of all
such Quotations or, if only one such Quotation is obtained, such
Quotation.
“ Global Note
” shall have the meaning set forth in
Section 2.04.
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“ Independent
Investment Banker ” shall mean an independent investment
banking institution of national standing appointed by the Company,
which may be one of the Reference Treasury Dealers.
“ Interest Payment
Date ” shall have the meaning set forth in
Section 2.05(b).
“ Maturity Date
” shall have the meaning set forth in
Section 2.02.
“ Record Date
” shall mean, with respect to any Interest Payment Date for
the Notes, the first day, whether or not a Business Day, of the
calendar month in which such Interest Payment Date
falls.
“ Redemption
Date ” shall mean, with respect to any redemption of
Notes, the date fixed for such redemption pursuant to the Indenture
and such Notes.
“ Reference Treasury
Dealer ” shall mean (i) each of Deutsche Bank
Securities Inc., Morgan Stanley & Co. Incorporated and UBS
Securities LLC and their respective successors, provided,
however , that if any of the foregoing shall cease to be a
primary U.S. government securities dealer in the United States (a
“ Primary Treasury Dealer ”), the Company will
substitute therefor another Primary Treasury Dealer and
(ii) any other Primary Treasury Dealer selected by the
Company.
“ Reference Treasury
Dealer Quotations ” shall mean, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Independent Investment Banker, of the bid and
asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing to
the Independent Investment Banker by the Reference Treasury Dealer
at 5:00 p.m. on the third Business Day preceding such Redemption
Date.
“ Treasury Rate
” shall mean, with respect to any Redemption Date,
(i) the yield, under the heading which represents the average
for the immediately preceding week, appearing in the most recently
published statistical release designated “H.15 (519)”
or any successor publication which is published weekly by the Board
of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption “Treasury
Constant Maturities,” for the maturity corresponding to the
Comparable Treasury Issue (if no maturity is within three months
before or after the Remaining Life, yields for the two published
maturities most closely corresponding to the Comparable Treasury
Issue shall be determined and the Treasury Rate shall be
interpolated or extrapolated from such yields on a straight line
basis, rounding to the nearest month), (ii) if the period from
the
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Redemption Date to the Maturity Date of
the Notes to be redeemed is less than one year, the weekly average
yield on actually traded United States Treasury securities adjusted
to a constant maturity of one year will be used, or (iii) if
such release (or any successor release) is not published during the
week preceding the calculation date or does not contain such
yields, the rate per annum equal to the semiannual equivalent yield
to maturity of the Comparable Treasury Issue, calculated using a
price for the Comparable Treasury Issue (expressed as a percentage
of its principal amount) equal to the Comparable Treasury Price for
such Redemption Date. The Treasury Rate shall be calculated by the
Company on the third Business Day preceding such Redemption Date.
The Trustee shall not be responsible for any such
calculation.
The terms “
Company ,” “ Trustee ,” “
Indenture ,” “ Base Indenture ,”
and “ Notes ” shall have the respective meanings
set forth in the recitals to this Supplemental Indenture No. 4
and the paragraph preceding such recitals.
ARTICLE 2
G ENERAL T
ERMS AND C ONDITIONS
OF THE N
OTES
Section 2.01 .
Designation and Principal Amount . The Notes may be issued
from time to time upon written order of the Company for the
authentication and delivery of Notes pursuant to Section 2.03
of the Base Indenture. There is hereby authorized a series of
Securities designated as the 6.515% Senior Notes due 2018 limited
in aggregate principal amount to U.S. $600,000,000 (except for
Notes authenticated and delivered in accordance with the last
paragraph of Section 2.02 of the Base Indenture or upon
registration of transfer of, or in exchange for, or in lieu of,
other Notes pursuant to Sections 2.06, 2.07, 2.08, 3.03 or 10.04 of
the Base Indenture).
Section 2.02 .
Maturity. The date upon which the Notes shall become due and
payable at final maturity, together with any accrued and unpaid
interest, is May 22, 2018 (the “ Maturity Date
”).
Section 2.03 .
Form, Payment and Appointment. Except as provided in
Section 2.04, the Notes shall be issued in fully registered,
certificated form. Principal of and interest on the Notes will be
payable, the transfer of such Notes will be registrable, and such
Notes will be exchangeable for Notes of a like aggregate principal
amount, at the office or agency of the Company maintained for such
purpose in the Borough of Manhattan, The City of New York, which
shall initially be the Principal Office of the Trustee in the
Borough of Manhattan, the City of New York; provided,
however , that payment of interest may be made at the option of
the Company by check mailed to the Person entitled thereto at such
address as shall appear in the Security register or by wire
transfer to an
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account appropriately designated by the
Person entitled to payment; provided , that the paying agent
shall have received written notice of such account designation at
least five Business Days prior to the date of such payment (subject
to surrender of the relevant Note in the case of a payment of
interest on a Redemption Date or the Maturity Date).
No service charge shall be
made for any registration of transfer or exchange of the Notes, but
the Company may require payment from the holder of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in connection therewith.
The Security registrar and
paying agent for the Notes shall initially be the
Trustee.
The Notes shall be issuable
in denominations of U.S. $2,000 and integral multiples of U.S.
$1,000 in excess of $2,000.
The Specified Currency of the
Notes shall be U.S. Dollars.
Section 2.04 .
Global Notes. The Notes shall be issued initially in the form
of one or more permanent Global Securities in registered form
(each, a “ Global Note ”), deposited with The
Depository Trust Company or such other Depositary as any officer of
the Company may from time to time designate. Unless and until such
Global Note is exchanged for Notes in certificated form, such
Global Note may be transferred, in whole but not in part, and any
payments on the Notes shall be made, only to the Depositary or a
nominee of the Depositary, or to a successor Depositary selected or
approved by the Company or to a nominee of such successor
Depositary.
Section 2.05 .
Interest. (a) Interest payable on any Interest
Payment Date, the Maturity Date or, if applicable, the Redemption
Date, with respect to the Notes shall be the amount of interest
accrued from, and including, the immediately preceding Interest
Payment Date in respect of which interest has been paid or duly
provided for (or from and including the original issue date of
May 22, 2008, if no interest has been paid or duly provided
for with respect to the Notes) to, but excluding, such Interest
Payment Date, Maturity Date or, if applicable, Redemption Date, as
the case may be (each, an “ Interest Period
”).
(b) The Notes will
bear interest at the rate of 6.515% per year from the original
issue date thereof to the Maturity Date. Interest on the Notes
shall be payable semi-annually in arrears on May 22 and
November 22 of each year (each, an “ Interest Payment
Date ”), commencing November 22, 2008, to the
Persons in whose names the relevant Notes are registered at the
close of business on the
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Record Date for such Interest Payment
Date, except as provided in Section 2.05(d).
(c) The amount of
interest payable for any full semi-annual Interest Period will be
computed on the basis of a 360-day year consisting of twelve 30-day
months. The amount of interest payable for any period shorter than
a full semi-annual Interest Period for which interest is computed
will be computed on the basis of a 30-day month and, for any period
less than a month, on the basis of the actual number of days
elapsed per 30-day month. In the event that any scheduled Interest
Payment Date for the Notes falls on a day that is not a Business
Day, then payment of interest payable on such Interest Payment Date
will be postponed to the next succeeding day which is a Business
Day (and no interest on such payment will accrue for the period
from and after such scheduled Interest Payment Date).
(d) In the event that
the Maturity Date or a Redemption Date for any Note falls on a day
that is not a Business Day, then the related payments of principal,
premium, if any, and interest may be made on the next succeeding
day that is a Business Day (and no additional interest will
accumulate on the amount payable for the period from and after the
Maturity Date or a Redemption Date, as the case may be). Interest
due on the Maturity Date or a Redemption Date (in each case,
whether or not an Interest Payment Date) of any Notes will be paid
to the Person to whom principal of such Notes is
payable.
Section 2.06 .
No Sinking Fund. The Notes are not entitled to the benefit of
any sinking fund.
ARTICLE 3
R EDEMPTION
OF THE N
OTES
Section 3.01 .
Optional Redemption by Company. Except as otherwise may be
specified in this Supplemental Indenture No. 4, the Company
shall have the right to redeem the Notes, in whole or in part, at
any time or from time to time, at a redemption price (the “
Optional Redemption Price ”) equal to the greater
of:
(i) 100% of the
principal amount plus accrued and unpaid interest to, but
excluding, the Redemption Date; and
(ii) the sum of the
present values of the remaining scheduled payments of principal and
interest (exclusive of interest accrued to the Redemption Date)
discounted to the Redemption Date on a semi-annual basis (assuming
a 360-day year consisting of twelve 30-day months) at the Treasury
Rate plus 40.0 basis points, plus accrued and unpaid
interest
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on the principal amount being
redeemed to, but excluding, the Redemption Date.
The Company will mail notice
of such redemption to the registered holders of the Notes to be
redeemed not less than 30 nor more than 60 days prior to the
Redemption Date. If Notes are only partially redeemed pursuant to
this Section 3.01
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