-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, FIRwD8u6X5SFII5vgJb4JqXQ/gGjzSvrmj3VbhiRedUagzX/XGLDLhppJYYjpH5K 0ScS3UVBQNmomrOMXRVvHg== 0001104659-08-029082.txt : 20080501 0001104659-08-029082.hdr.sgml : 20080501 20080501162313 ACCESSION NUMBER: 0001104659-08-029082 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 11 CONFORMED PERIOD OF REPORT: 20080501 ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20080501 DATE AS OF CHANGE: 20080501 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GENWORTH LIFE & ANNUITY INSURANCE CO CENTRAL INDEX KEY: 0001156124 STANDARD INDUSTRIAL CLASSIFICATION: LIFE INSURANCE [6311] IRS NUMBER: 540283385 STATE OF INCORPORATION: VA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-32709 FILM NUMBER: 08795051 BUSINESS ADDRESS: STREET 1: 6610 WEST BROAD STREET CITY: RICHMOND STATE: VA ZIP: 23230 BUSINESS PHONE: 804-281-6000 MAIL ADDRESS: STREET 1: 6610 WEST BROAD STREET CITY: RICHMOND STATE: VA ZIP: 23230 FORMER COMPANY: FORMER CONFORMED NAME: GE LIFE & ANNUITY ASSURANCE CO DATE OF NAME CHANGE: 20010731 8-K 1 a08-12984_28k.htm 8-K

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549


FORM 8-K


CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

 

Date of Report (Date of earliest event reported): May 1, 2008

 


GRAPHIC

 

GENWORTH LIFE AND ANNUITY INSURANCE COMPANY

(Exact name of registrant as specified in charter)


 

Virginia

 

001-32709

 

54-0283385

(State or other jurisdiction

of incorporation)

 

(Commission File Number)

 

(IRS Employer

Identification No.)

 

6610 West Broad Street, Richmond, VA

 

23230

(Address of principal executive offices)

 

(Zip Code)

 

(804) 281-6000

(Registrant’s telephone number, including area code)

 

N/A

(Former name or former address, if changed since last report)


 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

o

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

 

 

o

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

 

 

o

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-29(b))

 

 

 

o

 

Pre-commencement communication pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

 


 


 

Item 9.01

 

Financial Statements and Exhibits.

 

 

 

The following documents are filed with reference to and are hereby incorporated into the Registration Statement on Form S-3 (File No. 333-128718), as amended, of Genworth Life and Annuity Insurance Company, filed with the Securities and Exchange Commission on September 30, 2005 and amended on December 8, 2005.

 

(d) Exhibits

 

Exhibit
Number

 

Description

Exhibit 4.1

 

Pricing Instrument, dated as of April 28, 2008, relating to Genworth Global Funding Trust 2008-19

 

 

 

Exhibit 4.2

 

Retail Global Note, dated as of May 1, 2008

 

 

 

Exhibit 4.3

 

Funding Agreement issued by Genworth Life and Annuity Insurance Company to Genworth Global Funding Trust 2008-19, effective as of May 1, 2008

 

 

 

Exhibit 5.1

 

Opinion of Heather C. Harker, counsel for Genworth Life and Annuity Insurance Company

 

 

 

Exhibit 5.2

 

Opinion of Sidley Austin LLP, counsel to Genworth Life and Annuity Insurance Company

 

 

 

Exhibit 8

 

Opinion of Sidley Austin LLP, counsel to Genworth Life and Annuity Insurance Company (re: tax matters)

 

 

 

Exhibit 23.1

 

Consent of Heather C. Harker, counsel for Genworth Life and Annuity Insurance Company (included in Exhibit 5.1)

 

 

 

Exhibit 23.2

 

Consent of Sidley Austin LLP (included in Exhibit 5.2)

 

 

 

Exhibit 23.4

 

Consent of Sidley Austin LLP (included in Exhibit 8)

 



 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

 

 

 

 

 

 

 

 

GENWORTH LIFE AND ANNUITY INSURANCE COMPANY

 

 

 

 

 

 

 

 

 

By:

/s/ Jac J. Amerell

Date: May 1, 2008

 

 

Jac J. Amerell

 

 

 

 

 

 

Vice President and Controller

 

 

 

 



 

EXHIBIT INDEX

 

 

 

Exhibit

Number

 

 

Description

Exhibit 4.1

 

Pricing Instrument, dated as of April 28, 2008, relating to Genworth Global Funding Trust 2008-19

 

 

 

Exhibit 4.2

 

Retail Global Note, dated as of May 1, 2008

 

 

 

Exhibit 4.3

 

Funding Agreement issued by Genworth Life and Annuity Insurance Company to Genworth Global Funding Trust 2008-19, effective as of May 1, 2008

 

 

 

Exhibit 5.1

 

Opinion of Heather C. Harker, counsel for Genworth Life and Annuity Insurance Company

 

 

 

Exhibit 5.2

 

Opinion of Sidley Austin LLP, counsel to Genworth Life and Annuity Insurance Company

 

 

 

Exhibit 8

 

Opinion of Sidley Austin LLP, counsel to Genworth Life and Annuity Insurance Company (re: tax matters)

 

 

 

Exhibit 23.1

 

Consent of Heather C. Harker, counsel for Genworth Life and Annuity Insurance Company (included in Exhibit 5.1)

 

 

 

Exhibit 23.2

 

Consent of Sidley Austin LLP (included in Exhibit 5.2)

 

 

 

Exhibit 23.4

 

Consent of Sidley Austin LLP (included in Exhibit 8)

 


EX-4.1 2 a08-12984_2ex4d1.htm EX-4.1

Exhibit 4.1

 

PRICING INSTRUMENT

 

WHEREAS, the parties named herein desire to enter into certain Program Documents (as defined herein) contained herein, each such document (unless otherwise specified in such document) dated as of April 28, 2008, relating to the issuance by Genworth Global Funding Trust 2008-19 (the “Trust”) of Notes to investors under the secured notes program sponsored by Genworth Life and Annuity Insurance Company (“GLAIC”), the terms of such Notes as specified in the pricing supplement attached to this Pricing Instrument as Exhibit C (the “Pricing Supplement”);

 

WHEREAS, the Trust is a trust and will be organized under and its activities will be governed by the provisions of the Trust Agreement (set forth in Section A of this Pricing Instrument), dated as of April 28, 2008, by and between the parties thereto indicated in Section E herein;

 

WHEREAS, certain expense and indemnification arrangements between GLAIC and the Trustee, on behalf of itself and on behalf of the Trust, are governed pursuant to the provisions of the Expense and Indemnity Agreement dated as of October 1, 2006 by and between GLAIC and the Trustee;

 

WHEREAS, certain licensing arrangements between the Trust and Genworth Financial, Inc. will be governed pursuant to the provisions of the License Agreement dated as of October 28, 2005, by and between the Trust and Genworth Financial, Inc.;

 

WHEREAS, certain custodial arrangements for the Funding Agreement will be governed pursuant to the provisions of the Custodial Agreement (the “Custodial Agreement”) dated as of December 7, 2005 by and among SunTrust Bank, acting as custodian (the “Custodian”), the Indenture Trustee and the Trust;

 

WHEREAS, the Notes will be issued pursuant to the Indenture (set forth in Section B of this Pricing Instrument), dated as of the Original Issue Date, by and between the parties thereto indicated in Section E herein;

 

WHEREAS, the sale of the Notes will be governed by the Terms Agreement (set forth in Section C of this Pricing Instrument), dated as of April 28, 2008, by and among the parties thereto indicated in Section E herein; and

 

WHEREAS, certain agreements relating to the Notes and the Funding Agreement are set forth in the Coordination Agreement (set forth in Section D of this Pricing Instrument), dated as of April 28, 2008, by and among the parties thereto indicated in Section E herein.

 

All capitalized terms used herein and not otherwise defined will have the meanings set forth in the Indenture.

 

1



 

SECTION A

 

TRUST AGREEMENT

 

This TRUST AGREEMENT (this “Trust Agreement”), dated as of April 28, 2008, is entered into by and between GSS Holdings II, Inc., a Delaware corporation, as trust beneficial owner (the “Trust Beneficial Owner”), and U.S. Bank National Association, a national banking association, as Trustee (the “Trustee”).

 

References in the Standard Trust Terms to JPMorgan Chase Bank, N.A. shall refer to The Bank of New York Trust Company, N.A. and its permitted successors and assigns.

 

W I T N E S S E T H:

 

WHEREAS, the Trust Beneficial Owner and the Trustee desire to authorize the issuance of a Trust Beneficial Interest and a series of Notes in connection with the entry into this Trust Agreement;

 

WHEREAS, all things necessary to make this Trust Agreement a valid and legally binding agreement of the Trustee and the Trust Beneficial Owner, enforceable in accordance with its terms, have been done;

 

WHEREAS, the parties intend to provide for, among other things, (i) the issuance and sale of the Notes (pursuant to the Indenture, the Distribution Agreement and the related Terms Agreement) and the Trust Beneficial Interest, (ii) the use of the proceeds of the sale of the Notes and Trust Beneficial Interest to acquire the Funding Agreement, and (iii) all other actions deemed necessary or desirable in connection with the transactions contemplated by this Trust Agreement; and

 

WHEREAS, the parties hereto desire to incorporate by reference those certain Standard Trust Terms, dated as of December 8, 2005, and attached to the Pricing Instrument as Exhibit A (the “Standard Trust Terms”).

 

NOW, THEREFORE, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the sufficiency of which are hereby acknowledged, each party hereby agrees as follows:

 

ARTICLE 1

 

Section 1.01           Incorporation by Reference.  All terms, provisions and agreements set forth in the Standard Trust Terms (except to the extent expressly modified herein) are hereby incorporated herein by reference with the same force and effect as though fully set forth herein.  All capitalized terms not otherwise defined herein (including the recitals hereof) shall have the meanings set forth in the Standard Trust Terms (the Standard Trust Terms and this Trust Agreement, collectively, the “Trust Agreement”).  To the extent that the terms set forth in Article 2 of this Trust Agreement are inconsistent with the terms of the Standard Trust Terms, the terms set forth in Article 2 herein shall apply.

 

A-1



 

ARTICLE 2

 

Section 2.01           Name.  The Trust created and governed by this Trust Agreement shall be the trust specified in the Pricing Instrument.  The name of the Trust shall be the name specified in the first paragraph of the Pricing Instrument, as such name may be modified from time to time by the Trustee following written notice to the Trust Beneficial Owner.

 

Section 2.02           Jurisdiction.  The Trust is hereby organized in, and formed under and pursuant to, the laws of the jurisdiction specified in the Pricing Supplement.

 

Section 2.03           Initial Capital Contribution and Ownership.  The Trust Beneficial Owner has paid or has caused to be paid to, or to an account at the direction of, the Trustee, on the date hereof, the sum of $15 (or, in the case of Notes issued with original issue discount, such amount multiplied by the issue price of the Notes as specified in the Pricing Supplement).  The Trustee hereby acknowledges receipt in trust from the Trust Beneficial Owner, as of the date hereof, of the foregoing contribution, which shall be used along with the proceeds from the sale of the series of Notes to purchase the Funding Agreement.  Upon the creation of the Trust and the registration of the Trust Beneficial Interest in the Securities Register (as defined in the Trust Agreement) by the Trust Registrar in the name of the Trust Beneficial Owner, the Trust Beneficial Owner shall be the sole beneficial owner of the Trust.

 

Section 2.04           Acknowledgment.   The Trustee, on behalf of the Trust, expressly acknowledges its duties and obligations set forth in the Standard Trust Terms incorporated herein by reference.

 

Section 2.05           Additional Terms.   Section 5.01(a) of the Standard Trust Terms is hereby replaced with the following: “it is a national banking association duly organized, validly existing and in good standing under the laws of the United States of America and it is a “bank” within the meaning of Section 581 of the Code;”.

 

Section 2.06           Pricing Instrument; Execution and Incorporation of Terms.

 

The parties hereto will enter into the Trust Agreement by executing the Pricing Instrument.

 

By executing the Pricing Instrument, the Trustee and the Trust Beneficial Owner hereby agree that the Trust Agreement will constitute a legal, valid and binding agreement between the Trustee and the Trust Beneficial Owner.

 

All terms relating to the Trust or the series of Notes not otherwise included herein will be as specified in the Pricing Instrument or Pricing Supplement, as indicated herein.

 

Section 2.07           Governing Law.  This Trust Agreement will be governed by, and construed in accordance with, the laws of the jurisdiction specified in the Pricing Supplement.

 

A-2



 

Section 2.08           Counterparts.  The Trust Agreement, through the Pricing Instrument, may be executed in any number of counterparts, each of which counterparts shall be deemed to be an original, and all of which counterparts shall constitute but one and the same instrument.

 

A-3



 

SECTION B

 

INDENTURE

 

This INDENTURE (this “Indenture”) is entered into as of the Original Issue Date by and between the Genworth Global Funding Trust specified in the Pricing Instrument (the “Trust”) and The Bank of New York Trust Company, N.A., as the indenture trustee (the “Indenture Trustee”).

 

The Bank of New York Trust Company, N.A., in its capacity as Indenture Trustee, hereby accepts its role as Registrar, Paying Agent, Transfer Agent and Calculation Agent hereunder.

 

References herein to “Indenture Trustee,” “Registrar,” “Transfer Agent,” “Paying Agent” or “Calculation Agent” shall include the permitted successors and assigns of any such entity from time to time and references in the Standard Indenture Terms to The Bank of New York shall refer to U.S. Bank National Association and its permitted successors and assigns.

 

W I T N E S S E T H:

 

WHEREAS, the Trust has duly authorized the execution and delivery of this Indenture to provide for the issuance of Notes;

 

WHEREAS, all things necessary to make this Indenture a valid and legally binding agreement of the Trust and the other parties to this Indenture, enforceable in accordance with its terms, have been done, and the Trust proposes to do all things necessary to make the Notes, when executed by the Trust and authenticated and delivered pursuant hereto, valid and legally binding obligations of the Trust as hereinafter provided; and

 

WHEREAS, the parties hereto desire to incorporate by reference those certain Standard Indenture Terms, dated as of December 8, 2005, and attached to the Pricing Instrument as Exhibit B (the “Standard Indenture Terms”).

 

NOW, THEREFORE, for and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed by each of the parties hereto as follows:

 

ARTICLE 1

 

Section 1.01           Incorporation by Reference.  All terms, provisions and agreements set forth in the Standard Indenture Terms (except to the extent expressly modified herein) are hereby incorporated herein by reference with the same force and effect as though fully set forth herein.  All capitalized terms not otherwise defined herein (including the recitals hereof) shall have the meanings set forth in the Standard Indenture Terms (the Standard Indenture Terms and this Indenture, collectively, the “Indenture”).  To the extent that the terms set forth in Article 2 of this Indenture are inconsistent with the terms of the Standard Indenture Terms, the terms set forth in Article 2 herein shall apply.

 

B-1



 

ARTICLE 2

 

Section 2.01           Agreement to be Bound.  Each of the Trust, the Indenture Trustee, the Registrar, the Transfer Agent, the Paying Agent and the Calculation Agent hereby agrees to be bound by all of the terms, provisions and agreements set forth in the Indenture, with respect to all matters contemplated in the Indenture, including, without limitation, those relating to the issuance of the below-referenced Notes.

 

Section 2.02           Designation of the Trust, the Notes and the Funding Agreement.  The Trust created by the Trust Agreement specified in the Pricing Instrument and referred to herein is the Genworth Global Funding Trust specified in the Pricing Instrument.  The Notes issued by the Trust and governed by the Indenture shall be the Notes specified in the Pricing Supplement.  The Funding Agreement designated hereby is the Funding Agreement designated in the Pricing Supplement, effective as of the Original Issue Date, between the Trust and Genworth Life and Annuity Insurance Company.

 

Section 2.03           Additional Terms. Notwithstanding anything to the contrary in Section 2.04(c) of the Standard Indenture Terms, the Indenture Trustee will give written notice of redemption to the Holders in accordance with Section 1.06 of the Standard Indenture Terms not more than seventy-five (75) calendar days and not less than thirty (30) calendar days prior to the date set for such redemption. Notwithstanding anything to the contrary in Section 2.04(f) of the Standard Indenture Terms, the Indenture Trustee shall treat as satisfactory to it thirty-five (35) calendar days’ notice from the Trust (or from GLAIC on behalf of the Trust) of a redemption date for the Notes; provided that there are at least three Business Days between the receipt by it of such notice and the deadline for giving notice of such redemption under Section 2.04(c); provided further that the Notes are in the form of Global Notes and the redemption is in whole.  The initial principal amount of the Notes shall be $7,588,000.00.

 

Section 2.04           Pricing Instrument; Execution and Incorporation of Terms.

 

The parties hereto will enter into this Indenture by executing the Pricing Instrument.

 

By executing the Pricing Instrument, the Indenture Trustee, the Registrar, the Transfer Agent, the Paying Agent, the Calculation Agent and the Trust hereby agree that the Indenture will constitute a legal, valid and binding agreement between the Indenture Trustee, the Registrar, the Transfer Agent, the Paying Agent, the Calculation Agent and the Trust.

 

All terms relating to the Trust or the Notes not otherwise included herein will be as specified in the Pricing Instrument or Pricing Supplement, as indicated herein.

 

Section 2.05           Counterparts.  This Indenture, through the Pricing Instrument, may be executed in any number of counterparts, each of which counterparts shall be deemed to be an original, and all of which counterparts shall constitute one and the same instrument.

 

 [Remainder of Page Left Intentionally Blank]

 

B-2



 

SECTION C

 

TERMS AGREEMENT

 

This TERMS AGREEMENT (this “Terms Agreement”) is entered into as of April 28, 2008 by and among Genworth Life and Annuity Insurance Company (“GLAIC”), the Genworth Global Funding Trust specified in the Pricing Instrument (the “Trust”) and the Agent specified in the Pricing Supplement (the “Agent”).

 

W I T N E S S E T H:

 

WHEREAS, GLAIC and the Agent have entered into that certain Distribution Agreement dated December 9, 2005 (the “Distribution Agreement”).

 

NOW, THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, each of the parties hereby agrees as follows:

 

ARTICLE 1

 

Section 1.01           Incorporation by Reference.  The provisions of the Distribution Agreement and the related definitions (unless otherwise specified herein) are incorporated by reference herein and shall be deemed to have the same force and effect as if set forth in full herein.

 

ARTICLE 2

 

Section 2.01           Addition of Trust as Party to Distribution Agreement.

 

Pursuant to Section 1 of the Distribution Agreement, each of the undersigned parties hereby acknowledges and agrees that the Trust, upon execution hereof by the Trust and the other parties to this Terms Agreement, shall become a Trust for purposes of the Distribution Agreement in accordance with the terms thereof, in respect of the Notes, with all the authority, rights, powers, duties and obligations of a Trust under the Distribution Agreement.  The Trust confirms that any agreement, covenant, acknowledgment, representation or warranty under the Distribution Agreement applicable to the Trust is made by the Trust at the date hereof, unless another time or times are specified in the Distribution Agreement, in which case such agreement, covenant, acknowledgment, representation or warranty shall be deemed to be confirmed by the Trust at such specified time or times.

 

All references to Section 9 (Indemnification) of the Distribution Agreement to “solely with respect to the applicable Agent(s) or Co-Agent(s)” will include all of such Agent’s or Co-Agent’s directors and officers and each person, if any, who controls such Agent or Co-Agent within the meaning of Section 15 of the Securities Act of 1933, as amended or Section 20 of the Securities Exchange Act of 1934, as amended.  All references in the Distribution Agreement to the “Registration Statement”, the “Institutional Base Prospectus”, the “Retail Base Prospectus”, any “preliminary prospectus”, the “Time of Sale Prospectus” and the “Prospectus” shall also be deemed to include all documents incorporated by reference therein.

 

C-1



 

Section 2.02           Purchase of Notes as Principal.

 

(a)           Subject in all respects to the terms and conditions of the Distribution Agreement, the Trust hereby agrees to sell to the Agent and the Agent hereby agrees to purchase the Notes having the terms specified in the Pricing Supplement relating to such Notes. The initial principal amount of the Notes is $7,588,000.00.

 

(b)           In connection with any purchase of Notes from the Trust by the Agent as principal, the parties agree that the items specified on Schedule I of the Pricing Instrument will be delivered as of the Settlement Date.

 

Section 2.03           Termination.  Upon the termination of this Terms Agreement pursuant to Section 13(b) of the Distribution Agreement the undersigned parties hereby agree to allocate the expenses reasonably incurred prior to or in connection with such termination as follows:

 

The expenses will be borne by GLAIC.

 

Section 2.04           Applicable Time.  For purposes of the Distribution Agreement, the Applicable Time shall be 5:51 pm EST, April 28, 2008.

 

Section 2.05           Governing Law.  This Terms Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the principles of conflicts of laws thereof.

 

Section 2.06           Notices. For purposes of Section 14 of the Distribution Agreement, the Trust’s communications details are as set forth in Section D of the Pricing Instrument.

 

Section 2.07           Additional Terms.  The Agent represents, warrants and covenants with or to (as the case may be) the Trust and the Company that it has not offered, sold or delivered and it will not offer, sell or deliver, any of the Notes, in or from any jurisdiction except under circumstances that are reasonably designed to result in compliance with the applicable securities laws and regulations thereof.

 

Section   2.08         Pricing Instrument; Execution and Incorporation of Terms.

 

The parties hereto will enter into this Terms Agreement by executing the Pricing Instrument.

 

By executing the Pricing Instrument, each party hereto agrees that this Terms Agreement will constitute a legal, valid and binding agreement by and among such parties.

 

All terms relating to the Trust or the Notes not otherwise included in this Terms Agreement will be as specified in the Pricing Instrument or Pricing Supplement, as indicated herein.

 

Section 2.09           Counterparts.  This Terms Agreement, through the Pricing Instrument, may be executed in any number of counterparts, each of which counterparts shall be deemed to be an original, and all of which counterparts shall constitute but one and the same instrument.

 

C-2



 

SECTION D

 

COORDINATION AGREEMENT

 

This COORDINATION AGREEMENT (this “Coordination Agreement”), dated as of April 28, 2008, is entered into by and among Genworth Life and Annuity Insurance Company (“GLAIC”), the Genworth Global Funding Trust specified in the Pricing Instrument (the “Trust”), SunTrust Bank, in its capacity as custodian of the Funding Agreement (“Custodian”) and The Bank of New York Trust Company, N.A., as the indenture trustee (the “Indenture Trustee”).

 

W I T N E S S E T H

 

WHEREAS, the Trust will enter into the Funding Agreement with GLAIC, effective as of the Original Issue Date specified in the Pricing Supplement;

 

WHEREAS, the Agents (as defined in the Distribution Agreement) will sell the Notes in accordance with the Registration Statement;

 

WHEREAS, the Trust intends to issue the Notes in accordance with the Indenture, to collaterally assign to, and grant a security interest in, the Funding Agreement to and in favor of the Indenture Trustee in accordance with the Indenture to secure payment of the Notes; and

 

WHEREAS, the Custodian will hold the Funding Agreement on behalf of the Indenture Trustee pursuant to the terms of the Custodial Agreement.

 

NOW, THEREFORE, to give effect to the agreements and arrangements established under the Terms Agreement included in the Pricing Instrument, as applicable, the Trust Agreement, the Indenture and the Notes, and in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the sufficiency of which are hereby acknowledged, each party hereby agrees as follows:

 

ARTICLE 1

 

Section 1.01           Delivery of the Funding Agreement.  The Trust hereby authorizes the Custodian, on behalf of the Indenture Trustee, to receive the Funding Agreement from GLAIC pursuant to the assignment of the Funding Agreement (the “Assignment”), to be entered into on the Original Issue Date, included in the closing instrument dated as of the Original Issue Date (the “Closing Instrument”).

 

Section 1.02           Issuance and Purchase of the Notes.

 

(a)           Delivery of the Funding Agreement to the Custodian, on behalf of the Indenture Trustee, pursuant to the Assignment or execution of the cross-receipt contained in the Closing Instrument shall be confirmation of payment by the Trust for the Funding Agreement.

 

(b)           The Trust hereby directs the Indenture Trustee, upon receipt of the Funding Agreement by the Custodian, on behalf of the Indenture Trustee and pursuant to the Assignment,

 

D-1



 

(i) to authenticate the certificates representing the Notes (the “Certificates”) in accordance with the Indenture and (ii) to (A) deliver each relevant Certificate to the clearing system or systems identified in each such Certificate, or to the nominee of such clearing system, or the custodian thereof, for credit to such accounts as the Agent may direct, or (B) deliver each relevant Certificate to the purchasers thereof as identified by the Agent.

 

ARTICLE 2

 

Section 2.01           Directions Regarding Periodic Payments.  As registered owner of the Funding Agreement as collateral securing payments on the Notes, the Indenture Trustee will receive payments on the Funding Agreement on behalf of the Trust.  The Trust hereby directs the Indenture Trustee to use such funds to make payments on behalf of the Trust pursuant to the Trust Agreement and the Indenture.

 

Section 2.02           Maturity of the Funding Agreement.  Upon the maturity of the Funding Agreement and the return of funds thereunder, the Trust hereby directs the Indenture Trustee to set aside from such funds an amount sufficient for the repayment of the outstanding principal on the Notes and Trust Beneficial Interest when due.

 

ARTICLE 3

 

Section 3.01           Officer’s Certificates.  GLAIC hereby agrees to deliver an Officer’s Certificate, a copy of which is attached hereto as Exhibit D, on a quarterly basis to any rating agency currently rating the Program.  The Trust hereby agrees to deliver an Officer’s Certificate, a copy of which is attached to the Pricing Instrument as Exhibit E, on a quarterly basis to any rating agency currently rating the Program.

 

Section 3.02           Filings.  GLAIC hereby covenants to file, or cause to be filed, in a timely manner on behalf of the Trust all reports, certifications or similar filings required under the Securities Exchange Act of 1934, as amended.

 

ARTICLE 4

 

Section 4.01           No Additional Liability.  Nothing in this Coordination Agreement shall impose any liability or obligation on the part of any party to this Coordination Agreement to make any payment or disbursement in addition to any liability or obligation such party has under the Program Documents, except to the extent that a party has actually received funds which it is obligated to disburse pursuant to this Coordination Agreement.

 

Section 4.02           No Conflict.  This Coordination Agreement is intended to be in furtherance of the agreements reflected in the documents related to the Program Documents, and not in conflict.  To the extent that a provision of this Coordination Agreement conflicts with the provisions of one or more Program Documents, the provisions of such Program Documents shall govern.

 

Section 4.03           Governing Law.  This Coordination Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the principles of conflicts of laws thereof.

 

D-2



 

Section 4.04           Severability.  If any provision in this Coordination Agreement shall be invalid, illegal or unenforceable, such provision shall be deemed severable from the remaining provisions of this Coordination Agreement and shall in no way affect the validity or enforceability of such other provisions of this Coordination Agreement.

 

Section 4.05           Notices.  All demands, notices and communications under this Coordination Agreement shall be in writing and shall be deemed to have been duly given upon receipt at the addresses set forth below:

 

To the Trust:

 

Genworth Global Funding Trust 2008-19
c/o U.S. Bank National Association
Corporate Trust Services
209 S. LaSalle Street, Suite 300
Chicago, Illinois 60604
Attention:  Patricia Child, VP
Facsimile: (312) 325-8905

 

To the Indenture Trustee:

 

The Bank of New York Trust Company, N.A.
2 North LaSalle Street, Suite 1020
Chicago, Illinois 60602
Attention: Corporate Finance
Facsimile: (312) 827-8542

 

To GLAIC:

 

Genworth Life and Annuity Insurance Company
6610 West Broad Street
Richmond, Virginia 23230
Attention: Treasurer
Facsimile: (804) 662-7777

 

with a copy to:

 

Genworth Life and Annuity Insurance Company
6610 West Broad Street
Richmond, Virginia 23230
Attention: Heather Harker, Esq.
Facsimile: (804) 281-6005

 

To the Custodian:

 

SunTrust Bank
919 East Main Street

D-3



 

Richmond, Virginia 23219
Attention: Retirement Services

Facsimile: (804) 782-7439

 

or at such other address as shall be designated by any such party in a written notice to the other parties.

 

ARTICLE 5

 

Section 5.01           Pricing Instrument; Execution and Incorporation of Terms.

 

The parties to this Coordination Agreement will enter into this Coordination Agreement by executing the Pricing Instrument.

 

By executing the Pricing Instrument, each party hereto agrees that this Coordination Agreement will constitute a legal, valid and binding agreement by and among the Trust, GLAIC, the Custodian and the Indenture Trustee.

 

All terms relating to the Trust or the Notes not otherwise included in this Coordination Agreement will be as specified in the Pricing Instrument or Pricing Supplement, as indicated herein.

 

Section 5.02           Counterparts.  This Coordination Agreement, through the Pricing Instrument, may be executed in any number of counterparts, each of which counterparts shall be deemed to be an original, and all of which counterparts shall constitute but one and the same instrument.

 

Section 5.03           Capitalized Terms.  All capitalized terms used herein and not otherwise defined in this Coordination Agreement will have the meanings set forth in the Indenture.

 

[Remainder of Page Left Intentionally Blank]

 

D-4



 

SECTION E

 

MISCELLANEOUS AND EXECUTION PAGES

 

This Pricing Instrument may be executed by each of the parties hereto in any number of counterparts, and by each of the parties hereto on separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.

 

Each signatory, by its execution hereof, does hereby become a party to each of the agreements or indenture identified for such party as of the date specified in such agreements or indenture.

 

IN WITNESS WHEREOF, the undersigned have executed this Pricing Instrument with respect to the Notes as of the date first written above.

 

 

GENWORTH LIFE AND ANNUITY INSURANCE COMPANY (in executing below agrees and becomes a party to (i) the Terms Agreement set forth in Section C herein and (ii) the Coordination Agreement set forth in Section D herein)

 

 

 

By:

/s/ Pamela C. Asbury

 

 

Name: Pamela C. Asbury

 

 

Title: Vice President

 

E-1



 

 

THE GENWORTH GLOBAL FUNDING TRUST DESIGNATED IN THIS PRICING INSTRUMENT (in executing below agrees and becomes a party to (i) the Indenture set forth in Section B herein, (ii) the Terms Agreement set forth in Section C herein and (iii) the Coordination Agreement set forth in Section D herein)

 

 

 

 

By: U.S. BANK NATIONAL ASSOCIATION, not in its individual capacity but solely in its capacity as Trustee of the Trust

 

 

 

 

By:

/s/ Patricia M. Child

 

 

Name: Patricia M. Child

 

 

Title: Vice President

 

 

 

 

U.S. BANK NATIONAL ASSOCIATION (in executing below agrees and becomes a party to the Trust Agreement set forth in Section A herein), as Trustee

 

 

 

 

By:

/s/ Patricia M. Child

 

 

Name: Patricia M. Child

 

 

Title: Vice President

 

 

 

 

U.S. BANK NATIONAL ASSOCIATION (in executing below acknowledges and agrees to Section 5.01 of the Trust Agreement as set forth in and amended by Section A herein), in its individual capacity

 

 

 

 

By:

/s/ Patricia M. Child

 

 

Name: Patricia M. Child

 

 

Title: Vice President

 

 

 

 

GSS HOLDINGS II, INC. (in executing below agrees and becomes a party to the Trust Agreement set forth in Section A herein), as Trust Beneficial Owner

 

 

 

 

By:

/s/ Bernard J. Angelo

 

 

Name: Bernard J. Angelo

 

 

Title: Vice President

 

E-2



 

 

THE BANK OF NEW YORK TRUST COMPANY, N.A. (in executing below agrees and becomes a party to (i) the Indenture set forth in Section B herein, as Indenture Trustee, Registrar, Transfer Agent, Paying Agent and Calculation Agent and (ii) the Coordination Agreement set forth in Section D herein), as Indenture Trustee, Registrar, Transfer Agent, Paying Agent and Calculation Agent

 

 

 

 

By:

/s/ R. Tarnas

 

 

Name: R. Tarnas

 

 

Title: Vice President

 

 

 

 

SUNTRUST BANK (in executing below agrees and becomes a party to the Coordination Agreement set forth in Section D herein), as Custodian

 

 

 

 

By:

/s/ Richard J. Owens, III

 

 

Name: Richard J. Owens, III

 

 

Title: VP/Trust Officer

 

 

 

 

INCAPITAL, LLC (in executing below agrees and becomes a party to the Terms Agreement set forth in Section C herein)

 

 

 

 

By:

/s/ Brian Walker

 

 

Name: Brian Walker

 

 

Title: Managing Director

 

E-3



 

EXHIBIT A

 

Standard Trust Terms

 

As filed as Exhibit 4.5 to the Registration Statement on Form S-3 (File No. 333-128718), filed by Genworth Life and Annuity Insurance Company with the Securities and Exchange Commission (the “Commission”) on September 30, 2005, as amended by Amendment No. 1, filed with the Commission on December 8, 2005.

 

A-1



 

EXHIBIT B

 

Standard Indenture Terms

 

As filed as Exhibit 4.1 to the Registration Statement on Form S-3 (File No. 333-128718), filed by Genworth Life and Annuity Insurance Company with the Securities and Exchange Commission (the “Commission”) on September 30, 2005, as amended by Amendment No. 1, filed with the Commission on December 8, 2005.

 

B-1



 

EXHIBIT C

 

Pricing Supplement

 

As filed with the Securities and Exchange Commission pursuant to Rule 424(b) under the Securities Act, dated as of April 21, 2008, with respect to the Notes to be issued by the Trust.

 

C-1



 

EXHIBIT D

 

Genworth Life and Annuity Insurance Company

 

Officer’s Certificate

 

The undersigned, an officer of Genworth Life and Annuity Insurance Company, a stock life insurance company operating under a charter granted by the Commonwealth of Virginia (“GLAIC”), does hereby certify to Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., in such capacity and on behalf of GLAIC, to the knowledge of the undersigned and after reasonable inquiry, that:

 

1.                                       each of the representations and warranties of GLAIC contained in each Expense and Indemnity Agreement entered into in connection with the Registration Statement (defined below), and each Funding Agreement issued in connection with the Program (the “Specified Agreements”) (other than any representation or warranty expressly made as of a date prior to the date hereof) are true and correct on and as of the date hereof, with the same effect as though such representation or warranty had been made on and as of the date hereof;

 

2.                                       no default under any of the Specified Agreements and no event or any condition which, with notice or lapse of time or both, would become a default, has occurred and is continuing as of the date hereof;

 

3.                                       GLAIC has performed and complied with, in all material respects, all of the agreements, covenants, obligations and conditions applicable to GLAIC required by the Specified Agreements to be performed or complied with by GLAIC on or before the date hereof;

 

4.                                       the Registration Statement filed on Form S-3 (File No. 333-128718) (the “Registration Statement”) by GLAIC has been declared effective by the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”) and no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been commenced by or are pending before or contemplated by the Commission;

 

5.                                       all filings, if any, required by Rule 424 and Rule 430A under the Act have been made in a timely manner;

 

6.                                       since [l](1), the Trusts organized in connection with the program contemplated by the Registration Statement have issued the following series of Notes:

 

[List each series of Notes]  [(collectively, the “Designated Notes”)]; and

 

7.                                       the Funding Agreements issued in connection with the Designated Notes have been executed and delivered by GLAIC in accordance with the terms and conditions of the Program Documents.

 


(1) This certificate to be signed quarterly.

 

D-1



 

Capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the Standard Indenture Terms attached as Exhibit 4.1 to the Registration Statement.

 

IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the [l] day of [l] 200[l].

 

 

[Name], in [his/her] capacity as an authorized officer of
Genworth Life and Annuity Insurance Company

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

D-2



 

EXHIBIT E

 

Genworth Global Funding Trusts

 

Trustee Officer’s Certificate

 

U.S. Bank National Association, not in its individual capacity but solely in its capacity as trustee acting on behalf of each common law trust organized under the laws of the State of Illinois (in such capacity, the “Trustee,” and each such common law trust being referred to herein as a “Trust”) in connection with the program contemplated by the Registration Statement filed on Form S-3 (File No. 333-128718) by Genworth Life and Annuity Insurance Company with the Securities and Exchange Commission (the “Commission”) on September 30, 2005, as amended by Amendment No. 1, filed with the Commission on December 8, 2005 (the “Registration Statement”), does hereby certify to Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., in such capacity and on behalf of each Trust, to the knowledge of the Trustee without any independent investigation, that; as of October 1, 2006:

 

1.                                       each of the representations and warranties of each Trust contained in the Notes issued in connection with the Program, each Indenture entered into in connection with the Registration Statement and the Expense and Indemnity Agreement concerning the Trusts (the “Specified Agreements”) (other than any representation or warranty expressly made as of a date prior to the date hereof) are true and correct on and as of the date hereof, with the same effect as though such representation or warranty had been made on and as of the date hereof;

 

2.                                       no default under any of the Specified Agreements and no event or any condition which, with notice or lapse of time or both, would become a default, has occurred and is continuing as of the date hereof;

 

3.                                       each Trust has performed and complied with, in all material respects, all of the agreements, covenants, obligations and conditions applicable to such Trust required by the Specified Agreements to be performed or complied with by such Trust on or before the date hereof;

 

4.                                       the Notes issued in connection with the Program have been issued, in all material respects, in accordance with the terms and conditions of the Program Documents; and

 

5.                                       each Funding Agreement has been executed and delivered by the related Trust in accordance with the terms and conditions of the Program Documents.

 

Capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the Standard Indenture Terms attached as Exhibit 4.1 to the Registration Statement. In no event shall U.S. Bank National Association in its personal corporate capacity (or any officer of the Trustee in his or her personal capacity) have any liability for any of the certifications or statements contained in this Trustee Officer’s Certificate, such liability being solely that of each Trust.

 

E-1



 

IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the [l] day of [l], 200[l].

 

 

U.S. Bank National Association, not in its individual capacity but solely in its capacity as Trustee acting on behalf of each Trust

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

E-2



 

SCHEDULE I

 

Terms Agreement Specifications

 

In connection with Section 3(a)(iv) of the Distribution Agreement, the Program under which the Notes are issued is rated Aa3 by Moody’s Investors Service, Inc. (“Moody’s”) and AA- by Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc. (“S&P”).  Genworth Life and Annuity Insurance Company (“GLAIC”) expects that the Notes will be rated Aa3 by Moody’s and AA- by S&P.  GLAIC’s financial strength rating is Aa3 by Moody’s and AA- by S&P.

 

In accordance with Section 2.02(b) of the Terms Agreement and in connection with the purchase of Notes from the Trust by the Agent, the following items will be delivered on or prior to the Settlement Date to the Agent:  None.

 

All capitalized terms used herein and not otherwise defined herein will have the meanings set forth in the Distribution Agreement.

 

I-1


EX-4.2 3 a08-12984_2ex4d2.htm EX-4.2

Exhibit 4.2

 

THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE (HEREINAFTER DEFINED) AND IS REGISTERED IN THE NAME OF A DEPOSITARY (AS DEFINED IN THE INDENTURE) OR A NOMINEE OF A DEPOSITARY.  THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

 

UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST (HEREINAFTER DEFINED) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND UNLESS ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

CUSIP No.:           37248JAZ5                                                                                          Principal Amount: U.S. $7,588,000.00
ISIN No.:               US37248JAZ5

 

GENWORTH GLOBAL FUNDING TRUST 2008-19
GENWORTH DIRECTNOTESSM

 

Original Issue Date:  May 1, 2008

Issue Price:  100.00%

Stated Maturity Date:  May 15, 2015

Settlement Date:  May 1, 2008

Securities Exchange Listing:  o Yes  x No.  If yes, indicate name(s) of Securities Exchange(s):                                                                     

Depositary:  The Depository Trust Company

Authorized Denominations:  $1,000 and any integral multiple of $1,000 in excess thereof

Collateral held in the Trust:  Genworth Life and Annuity Insurance Company Funding Agreement No. GS-R6035, all proceeds of the Funding Agreement and all amounts and instruments on deposit from time to time in the related collection account and all books and records pertaining to the foregoing.

Interest Rate or Formula:

 

Floating Rate Note: o Yes x No.  If yes,

Floating Rate Notes o

Floating Rate/Fixed Rate Notes o

Fixed Rate/Floating Rate Notes o

Inverse Floating Rate Notes o

Interest Rate Basis(es):

LIBOR o

o LIBOR Reuters:

LIBOR Currency:

CMT Rate o

CD Rate o

Commercial Paper Rate o

Prime Rate o

Treasury Rate o

Index Maturity:

Spread and/or Spread Multiplier:

 



 

Fixed Rate Notes: x Yes o No.  If yes,

Interest Rate:  5.30%

Interest Payment Frequency:  Semi-annual

Interest Payment Dates:  The 15th day of each May and November of each year, provided, however, that the first Interest Payment Date shall be November 15, 2008; provided, further, that the final Interest Payment Date shall be the Stated Maturity Date.

Day Count Convention:  As indicated on the reverse hereof.

Additional/Other Terms: Not applicable

Discount Notes: o Yes x No.  If yes,

Total Amount of Discount:

Initial Accrual Period of Discount:

Interest Payment Dates:

Additional/Other Terms:

Redemption Provisions: x Yes  o No.  If yes,

Initial Redemption Date: May 15, 2010

Initial Redemption Percentage:  100.00%

Annual Redemption Percentage Reduction, if any:

Not applicable

Additional/Other Terms: Notwithstanding anything to the contrary in Section 4 of the reverse hereof, notice of any such redemption will be given not more than seventy-five (75) and not less than thirty (30) calendar days prior to the date of such redemption.

Repayment Provisions: o Yes  x No.  If yes,

Repayment Date(s):

Repayment Price:

Additional/Other Terms:

 

Initial Interest Rate, if any:

Initial Interest Reset Date:

Interest Reset Dates:

Interest Determination Date(s):

Interest Payment Dates:

Maximum Interest Rate, if any:

Minimum Interest Rate, if any:

Fixed Rate Commencement Date, if any:

Floating Rate Commencement Date, if any:

Fixed Interest Rate, if any:

Day Count Convention:

Additional/Other Terms:

Regular Record Date(s):  15 calendar days prior to the Interest Payment Date

Sinking Fund:  Not applicable

Calculation Agent, if any:  Not applicable

Additional/Other Terms:  Not applicable

Survivor’s Option: x Yes o No.

If yes, the attached Survivor’s Option Rider is incorporated into this Note.

Trust Put Limitation: x 1%; or $

 

The Genworth Global Funding Trust designated above (the “Trust”), for value received, hereby promises to pay to Cede & Co., or its registered assigns, the Principal Amount specified above on the Stated Maturity Date specified above and, if so specified above, to pay interest thereon from the Original Issue Date specified above or from the most recent Interest Payment Date specified above to which interest has been paid or duly provided for at the rate per annum determined in accordance with the provisions on the reverse hereof and as specified above, until the principal hereof is paid or made available for payment.  Payments of principal, premium, if any, and interest hereon will be made in the lawful currency of the United States of America (“U.S. Dollars” or “United States Dollars”).  The “Principal Amount” of this Note at any time means (1) if this Note is a Discount Note (as hereinafter defined), the Amortized Face Amount (as hereinafter defined) at such time and (2) in all other cases, the Principal Amount hereof.  Capitalized terms not otherwise defined herein shall have their meanings set forth in the Indenture, dated as of the Original Issue Date (the “Indenture”), between The Bank of New York

 

2



 

Trust Company, N.A., as the indenture trustee (the “Indenture Trustee”), and the Trust, or on the face hereof.

 

This Note will mature on the Stated Maturity Date, unless its principal (or any installment of its principal) becomes due and payable prior to the Stated Maturity Date, whether, as applicable, by the declaration of acceleration of maturity, notice of redemption by the Trust or otherwise (the Stated Maturity Date or any date prior to the Stated Maturity Date on which this Note becomes due and payable, as the case may be, is referred to as the “Maturity Date”).

 

A “Discount Note” is any Note that has an Issue Price that is less than 100% of the Principal Amount thereof by more than a percentage equal to the product of 0.25% and the number of full years to the Stated Maturity Date.

 

Unless otherwise specified above, the interest payable on each Interest Payment Date or the Maturity Date will be the amount of interest accrued from and including the Original Issue Date or from and including the last Interest Payment Date to which interest has been paid or duly provided for, as the case may be, to, but excluding, such Interest Payment Date or the Maturity Date, as the case may be.

 

Unless otherwise specified above, the interest payable on any Interest Payment Date will be paid to the Person that was the Holder on the Regular Record Date for such Interest Payment Date, which Regular Record Date shall be the fifteenth (15th) calendar day, whether or not a Business Day, immediately preceding the related Interest Payment Date; provided that, notwithstanding any provision of the Indenture to the contrary, interest payable on any Maturity Date shall be payable to the Person to whom principal shall be payable; and provided, further, that unless otherwise specified above, in the case of a Note initially issued between a Regular Record Date and the Interest Payment Date relating to such Regular Record Date, interest for the period beginning on the Original Issue Date and ending on such Interest Payment Date shall be paid on the Interest Payment Date following the next succeeding Regular Record Date to the Holder on such next succeeding Regular Record Date.

 

Payments of principal and premium, if any, and interest and other amounts due and owing, if any, will be made through the Indenture Trustee to the account of DTC or its nominee and will be made in accordance with depositary arrangements with DTC.

 

Unless otherwise specified on the face hereof, the Holder hereof will not be obligated to pay any administrative costs imposed by banks in making payments in immediately available funds by the Trust.  Any tax assessment or governmental charge imposed upon payments hereunder, including, without limitation, any withholding tax, will be borne by the Holder hereof.

 

REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH ON THE REVERSE HEREOF.  SUCH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.

 

Unless the certificate of authentication hereon shall have been executed by the Indenture Trustee pursuant to the Indenture, this Note shall not be entitled to any benefit under such Indenture or be valid or obligatory for any purpose.

 

3



 

IN WITNESS WHEREOF, the Trust has caused this instrument to be duly executed, by manual or facsimile signature.

 

 

 

THE GENWORTH GLOBAL FUNDING TRUST

 

SPECIFIED ON THE FACE OF THIS NOTE

 

 

Dated:  May 1, 2008

By: U.S. Bank National Association, not in its individual capacity but solely as Trustee

 

 

 

 

 

By:

  /s/ Patricia M. Child

 

  Authorized Officer

 

 

CERTIFICATE OF AUTHENTICATION

 

This is one of the Notes of the Genworth Global Funding Trust specified on the face of this Note referred to in the within-mentioned Indenture.

 

 

 

THE BANK OF NEW YORK TRUST COMPANY, N.A.,

 

as Indenture Trustee

 

 

 

 

Dated:  May 1, 2008

 

 

 

 

By:

  /s/ R. Tarnas

 

  Authorized Signatory

 

4



 

[REVERSE FORM OF NOTE]

 

Section 1.  General.  This Note is one of a duly authorized issue of Notes of the Trust.  The Notes are issued pursuant to the Indenture.

 

Section 2.  Currency.  This Note is denominated in, and payments of principal, premium, if any, and/or interest, if any, will be made in U.S. Dollars.

 

Section 3.  Determination of Interest Rate and Certain Other Terms.

 

(a)                Fixed Rate Notes. If this Note is specified on the face hereof as a “Fixed Rate Note”:

 

(i)          This Note will bear interest at the rate per annum specified on the face hereof.  Interest on this Note will be computed on the basis of a 360-day year of twelve 30-day months.

 

(ii)         Unless otherwise specified on the face hereof, the Interest Payment Dates for this Note will be as follows:

 

Interest Payment Frequency

 

Interest Payment Dates

Monthly

 

Fifteenth day of each calendar month, beginning in the first calendar month following the month this Note was issued.

 

 

 

Quarterly

 

Fifteenth day of each March, June, September and December, beginning on the first such date following the date this Note was issued.

 

 

 

Semi-annual

 

Fifteenth day of the two months of each year specified on the face hereof, beginning on the first such date following the date this Note was issued.

 

 

 

Annual

 

Fifteenth day of the month of each year specified on the face hereof, beginning on the first such date following the date this Note was issued.

 

(iii)        Unless otherwise specified on the face hereof, if any Interest Payment Date or the Maturity Date of this Note falls on a day that is not a Business Day, the Trust will make the required payment of principal, premium, if any, and/or interest or other amounts on the next succeeding Business Day, and no additional interest will accrue in respect of the payment made on that next succeeding Business Day.

 

(b)               Floating Rate Notes. If this Note is specified on the face hereof as a “Floating Rate Note”:

 

5



 

(i)          Interest Rate Basis. As specified on the face hereof, interest on this Note will be determined by reference to the applicable Interest Rate Basis or Interest Rate Bases, which may, as described below, include the CD Rate, the CMT Rate, the Commercial Paper Rate, LIBOR, the Prime Rate or the Treasury Rate (each as defined below).

 

(ii)         Effective Rate. The rate derived from the applicable Interest Rate Basis or Interest Rate Bases will be determined in accordance with the related provisions below. The interest rate in effect on each day will be based on: (1) if that day is an Interest Reset Date, the rate determined as of the Interest Determination Date immediately preceding that Interest Reset Date; or (2) if that day is not an Interest Reset Date, the rate determined as of the Interest Determination Date immediately preceding the most recent Interest Reset Date.

 

(iii)        Spread; Spread Multiplier; Index Maturity. The “Spread” is the number of basis points (one one-hundredth of a percentage point) specified on the face hereof to be added to or subtracted from the related Interest Rate Basis or Interest Rate Bases applicable to this Note. The “Spread Multiplier” is the percentage specified on the face hereof of the related Interest Rate Basis or Interest Rate Bases applicable to this Note by which the Interest Rate Basis or Interest Rate Bases will be multiplied to determine the applicable interest rate. The “Index Maturity” is the period to maturity of the instrument or obligation with respect to which the related Interest Rate Basis or Interest Rate Bases will be calculated.

 

(iv)        Floating Rate Note. Unless this Note is specified on the face hereof as a Floating Rate/Fixed Rate Note or a Fixed Rate/Floating Rate Note, this Note (a “Floating Rate Note”) will bear interest at the rate determined by reference to the applicable Interest Rate Basis or Interest Rate Bases: (1) plus or minus the applicable Spread, if any; and/or (2) multiplied by the applicable Spread Multiplier, if any; provided, however, that interest on this Note will not be less than zero.  Commencing on the first Interest Reset Date, the rate at which interest on this Floating Rate Note is payable will be reset as of each Interest Reset Date; provided, however, that the interest rate in effect for the period, if any, from the Original Issue Date to the first Interest Reset Date will be the Initial Interest Rate.

 

(v)         Floating Rate/Fixed Rate Notes.  If this Note is specified on the face hereof as a “Floating Rate/Fixed Rate Note”, this Note will bear interest at the rate determined by reference to the applicable Interest Rate Basis or Interest Rate Bases: (1) plus or minus the applicable Spread, if any; and/or (2) multiplied by the applicable Spread Multiplier, if any; provided, however, that interest on this Note will not be less than zero.  Commencing on the first Interest Reset Date, the rate at which this Floating Rate/Fixed Rate Note is payable will be reset as of each Interest Reset Date; provided, however, that: (A) the interest rate in effect for the period, if any, from the Original Issue Date to the first Interest Reset Date will be the Initial Interest Rate specified on the face hereof; and (B) the interest rate in effect commencing on the Fixed Rate Commencement Date will be the Fixed Interest Rate, if specified on the

 

6



 

face hereof, or, if not so specified, the interest rate in effect on the day immediately preceding the Fixed Rate Commencement Date.

 

(vi)        Fixed Rate/Floating Rate Notes.  If this Note is specified on the face hereof as a “Fixed Rate/Floating Rate Note”, this Note will bear interest at the rate per annum specified on the face hereof as the Fixed Interest Rate; provided, however, that commencing on the Floating Rate Commencement Date, this Note will bear interest at the rate determined by reference to the applicable Interest Rate Basis or Interest Rate Bases: (1) plus or minus the applicable Spread, if any; and/or (2) multiplied by the applicable Spread Multiplier, if any; provided, however, that interest on this Note will not be less than zero.  Commencing on the first Interest Reset Date, the rate at which this Fixed Rate/Floating Rate Note is payable will be reset as of each Interest Reset Date.

 

(vii)       Interest Reset Dates. The period between Interest Reset Dates will be the “Interest Period.” Unless otherwise specified on the face hereof, the Interest Reset Dates will be, in the case of this Floating Rate Note  if by its terms it resets: (1) daily—each business day; (2) weekly—the Wednesday of each week, with the exception of any weekly reset Floating Rate Note as to which the Treasury Rate is an applicable Interest Rate Basis, which will reset the Tuesday of each week; (3) monthly—the fifteenth day of each calendar month; (4) quarterly—the fifteenth day of March, June, September and December of each year; (5) semi-annually—the fifteenth day of the two months of each year specified on the face hereof; and (6) annually—the fifteenth day of the month of each year specified on the face hereof; provided, however, that, with respect to a Floating Rate/Fixed Rate Note, the rate of interest thereon will not reset after the particular Fixed Rate Commencement Date.  If any Interest Reset Date for this Floating Rate Note would otherwise be a day that is not a Business Day, the particular Interest Reset Date will be postponed to the next succeeding Business Day, except that in the case of a Floating Rate Note as to which LIBOR is an applicable Interest Rate Basis and that Business Day falls in the next succeeding calendar month, the particular Interest Reset Date will be the immediately preceding Business Day.

 

(viii)      Interest Determination Dates. Unless otherwise specified on the face hereof, the interest rate applicable to a Floating Rate Note for an Interest Period commencing on the related Interest Reset Date will be determined by reference to the applicable Interest Rate Basis as of the particular “Interest Determination Date”, which will be: (1) with respect to the Commercial Paper Rate and the Prime Rate—the Business Day immediately preceding the related Interest Reset Date; (2) with respect to the CD Rate and the CMT Rate—the second Business Day preceding the related Interest Reset Date; (3) with respect to LIBOR—the second London Banking Day (as defined below) preceding the related Interest Reset Date; and (4) with respect to the Treasury Rate—the day of the week in which the related Interest Reset Date falls on which day Treasury Bills (as defined below) are normally auctioned (i.e., Treasury Bills are normally sold at auction on Monday of each week, unless that day is a legal holiday, in which case the auction is normally held on the following Tuesday, except that the auction may be held on the preceding Friday);

 

7



 

provided, however, that if an auction is held on the Friday of the week preceding the related Interest Reset Date, the Interest Determination Date will be the preceding Friday.  Unless otherwise specified on the face hereof, the Interest Determination Date pertaining to a Floating Rate Note, the interest rate of which is determined with reference to two or more Interest Rate Bases, will be the latest Business Day which is at least two Business Days before the related Interest Reset Date for the applicable Floating Rate Note on which each Interest Reset Basis is determinable. “London Banking Day” means a day on which commercial banks are open for business (including dealings in the LIBOR Currency as hereinafter defined) in London.

 

(ix)         Calculation DatesThe interest rate applicable to each Interest Period will be determined by the Calculation Agent on or prior to the Calculation Date (as defined below), except with respect to LIBOR, which will be determined on the particular Interest Determination Date. Upon request of the Holder of a Floating Rate Note, the Calculation Agent will disclose the interest rate then in effect and, if determined, the interest rate that will become effective as a result of a determination made for the next succeeding Interest Reset Date with respect to such Floating Rate Note. The “Calculation Date”, if applicable, pertaining to any Interest Determination Date will be the earlier of: (1) the tenth calendar day after the particular Interest Determination Date or, if such day is not a Business Day, the next succeeding Business Day; or (2) the Business Day immediately preceding the applicable Interest Payment Date or the Maturity Date, as the case may be.

 

(x)          Maximum or Minimum Interest Rate. If specified on the face hereof, this Note may have either or both of a Maximum Interest Rate or a Minimum Interest Rate.  If a Maximum Interest Rate is so designated, the interest rate for a Floating Rate Note cannot ever exceed such Maximum Interest Rate and in the event that the interest rate on any Interest Reset Date would exceed such Maximum Interest Rate (as if no Maximum Interest Rate were in effect) then the interest rate on such Interest Reset Date shall be the Maximum Interest Rate.  If a Minimum Interest Rate is so designated, the interest rate for a Floating Rate Note cannot ever be less than such Minimum Interest Rate and in the event that the interest rate on any Interest Reset Date would be less than such Minimum Interest Rate (as if no Minimum Interest Rate were in effect) then the interest rate on such Interest Reset Date shall be the Minimum Interest Rate.  Notwithstanding anything to the contrary contained herein, the interest rate on a Floating Rate Note shall not exceed the maximum interest rate permitted by applicable law.

 

(xi)         Interest Payments.  Unless otherwise specified on the face hereof, the Interest Payment Dates will be, in the case of a Floating Rate Note which resets: (1) daily, weekly or monthly—the fifteenth day of each calendar month; (2) quarterly—the fifteenth day of March, June, September and December of each year; (3) semi-annually—the fifteenth day of the two months of each year specified on the face hereof; and (4) annually—the fifteenth day of the month of each year as specified on the face hereof.  In addition, the Maturity Date will also be an Interest Payment Date.  If any Interest Payment Date other than the Maturity Date for this Floating Rate Note would otherwise be a day that is not a Business Day, such Interest Payment Date will

 

8



 

be postponed to the next succeeding Business Day, except that in the case of a Floating Rate Note as to which LIBOR is an applicable Interest Rate Basis and that Business Day falls in the next succeeding calendar month, the particular Interest Payment Date will be the immediately preceding Business Day. If the Maturity Date of a Floating Rate Note falls on a day that is not a Business Day, the Trust will make the required payment of principal, premium, if any, and interest, if any, or other amounts on the next succeeding Business Day, and no additional interest will accrue in respect of the payment made on that next succeeding Business Day.

 

(xii)        Rounding. Unless otherwise specified on the face hereof, all percentages resulting from any calculation on this Floating Rate Note will be rounded to the nearest one hundred-thousandth of a percentage point, with five one-millionths of a percentage point rounded upwards. All dollar amounts used in or resulting from any calculation on this Floating Rate Note will be rounded to the nearest cent.

 

(xiii)       Interest Factor. With respect to this Floating Rate Note, accrued interest is calculated by multiplying the principal amount of such Note by an accrued interest factor. The accrued interest factor is computed by adding the interest factor calculated for each day in the particular Interest Period. Unless otherwise specified on the face hereof, the interest factor for each day will be computed by dividing the interest rate applicable to such day by 360, in the case of a Floating Rate Note as to which the CD Rate, the Commercial Paper Rate, LIBOR or the Prime Rate is an applicable Interest Rate Basis, or by the actual number of days in the year, in the case of a Floating Rate Note as to which the CMT Rate or the Treasury Rate is an applicable Interest Rate Basis. The interest factor for a Floating Rate Note as to which the interest rate is calculated with reference to two or more Interest Rate Bases will be calculated in each period in the same manner as if only the applicable Interest Rate Basis specified above applied.

 

(xiv)      Determination of Interest Rate Basis. The Calculation Agent shall determine the rate derived from each Interest Rate Basis in accordance with the following provisions:

 

(A)  CD Rate Notes.  If the Interest Rate Basis is the CD Rate, this Note shall be deemed a “CD Rate Note.”  Unless otherwise specified on the face hereof, “CD Rate” means: (1) the rate on the particular Interest Determination Date for negotiable United States Dollar certificates of deposit having the Index Maturity specified on the face hereof as published in H.15(519) (as defined below) under the caption “CDs (secondary market)”; or (2) if the rate referred to in clause (1) is not so published by 3:00 P.M., New York City time, on the related Calculation Date, the rate on the particular Interest Determination Date for negotiable United States Dollar certificates of deposit of the particular Index Maturity as published in H.15 Daily Update (as defined below), or other recognized electronic source used for the purpose of displaying the applicable rate, under the caption “CDs (secondary market)”; or (3) if the rate referred to in clause (2) is not so published by 3:00 P.M., New York City time, on the related Calculation Date, the rate on the particular Interest Determination Date calculated by the Calculation Agent as

 

9



 

the arithmetic mean of the secondary market offered rates as of 10:00 A.M., New York City time, on that Interest Determination Date, of three leading non-bank dealers in negotiable United States Dollar certificates of deposit in New York City (which may include the purchasing agent or its affiliates) selected by the Calculation Agent for negotiable United States Dollar certificates of deposit of major United States money market banks for negotiable United States certificates of deposit with a remaining maturity closest to the particular Index Maturity in an amount that is representative for a single transaction in that market at that time; or (4) if the dealers so selected by the Calculation Agent are not quoting as mentioned in clause (3), the CD Rate in effect on the particular Interest Determination Date. “H.15(519)” means the weekly statistical release designated as H.15(519), or any successor publication, published by the Board of Governors of the Federal Reserve System. “H.15 Daily Update” means the daily update of H.15(519), available through the world-wide-web site of the Board of Governors of the Federal Reserve System at http://www.federalreserve.gov/releases/H15/ update, or any successor site or publication.

 

(B)  CMT Rate Notes.  If the Interest Rate Basis is the CMT Rate, this Note shall be deemed a “CMT Rate Note.”  Unless otherwise specified on the face hereof, “CMT Rate” means:

 

(1) if CMT Moneyline Telerate Page 7051 is specified on the face hereof:

 

i.                       the percentage equal to the yield for United States Treasury securities at “constant maturity” having the Index Maturity specified on the face hereof as published in H.15(519) under the caption “Treasury Constant Maturities”, as the yield is displayed on Moneyline Telerate (or any successor service) on page 7051 (or any other page as may replace the specified page on that service) (“Moneyline Telerate Page 7051”), for the particular Interest Determination Date; or

 

ii.                    if the rate referred to in clause (i) does not so appear on Moneyline Telerate Page 7051, the percentage equal to the yield for United States Treasury securities at “constant maturity” having the particular Index Maturity and for the particular Interest Determination Date as published in H.15(519) under the caption “Treasury Constant Maturities”; or

 

iii.                 if the rate referred to in clause (ii) does not so appear in H.15(519), the rate on the particular Interest Determination Date for the period of the particular Index Maturity as may then be published by either the Federal Reserve System Board of Governors or the United States Department of the Treasury that the Calculation Agent determines to be comparable to the rate which would otherwise have been published in H.15(519); or

 

10



 

iv.                if the rate referred to in clause (iii) is not so published, the rate on the particular Interest Determination Date calculated by the Calculation Agent as a yield to maturity based on the arithmetic mean of the secondary market bid prices at approximately 3:30 P.M., New York City time, on that Interest Determination Date of three leading primary United States government securities dealers in New York City (which may include the purchasing agent or its affiliates) (each, a “Reference Dealer”) selected by the Calculation Agent from five Reference Dealers selected by the Calculation Agent and eliminating the highest quotation, or, in the event of equality, one of the highest, and the lowest quotation or, in the event of equality, one of the lowest, for United States Treasury securities with an original maturity equal to the particular Index Maturity, a remaining term to maturity no more than one year shorter than that Index Maturity and in a principal amount that is representative for a single transaction in the securities in that market at that time; or

 

v.                   if fewer than five but more than two of the prices referred to in clause (iv) are provided as requested, the rate on the particular Interest Determination Date calculated by the Calculation Agent based on the arithmetic mean of the bid prices obtained and neither the highest nor the lowest of the quotations shall be eliminated; or

 

vi.                if fewer than three prices referred to in clause (iv) are provided as requested, the rate on the particular Interest Determination Date calculated by the Calculation Agent as a yield to maturity based on the arithmetic mean of the secondary market bid prices as of approximately 3:30 P.M., New York City time, on that Interest Determination Date of three Reference Dealers selected by the Calculation Agent from five Reference Dealers selected by the Calculation Agent and eliminating the highest quotation or, in the event of equality, one of the highest and the lowest quotation or, in the event of equality, one of the lowest, for United States Treasury securities with an original maturity greater than the particular Index Maturity, a remaining term to maturity closest to that Index Maturity and in a principal amount that is representative for a single transaction in the securities in that market at that time; or

 

vii.             if fewer than five but more than two prices referred to in clause (vi) are provided as requested, the rate on the particular Interest Determination Date calculated by the Calculation Agent based on the arithmetic mean of the bid prices obtained and neither the highest nor the lowest of the quotations will be eliminated; or

 

11



 

viii.          if fewer than three prices referred to in clause (vi) are provided as requested, the CMT Rate in effect on the particular Interest Determination Date; or

 

(2) if CMT Moneyline Telerate Page 7052 is specified on the face hereof:

 

i.                       the percentage equal to the one-week or one-month, as specified on the face hereof, average yield for United States Treasury securities at “constant maturity” having the Index Maturity specified on the face hereof as published in H.15(519) opposite the caption “Treasury Constant Maturities”, as the yield is displayed on Moneyline Telerate (or any successor service) (on page 7052 or any other page as may replace the specified page on that service) (“Moneyline Telerate Page 7052”), for the week or month, as applicable, ended immediately preceding the week or month, as applicable, in which the particular Interest Determination Date falls; or

 

ii.                    if the rate referred to in clause (i) does not so appear on Moneyline Telerate Page 7052, the percentage equal to the one-week or one-month, as specified on the face hereof, average yield for United States Treasury securities at “constant maturity” having the particular Index Maturity and for the week or month, as applicable, preceding the particular Interest Determination Date as published in H.15(519) opposite the caption “Treasury Constant Maturities”; or

 

iii.                 if the rate referred to in clause (ii) does not so appear in H.15(519), the one-week or one-month, as specified on the face hereof, average yield for United States Treasury securities at “constant maturity” having the particular Index Maturity as otherwise announced by the Federal Reserve Bank of New York for the week or month, as applicable, ended immediately preceding the week or month, as applicable, in which the particular Interest Determination Date falls; or

 

iv.                if the rate referred to in clause (iii) is not so published, the rate on the particular Interest Determination Date calculated by the Calculation Agent as a yield to maturity based on the arithmetic mean of the secondary market bid prices at approximately 3:30 P.M., New York City time, on that Interest Determination Date of three Reference Dealers selected by the Calculation Agent from five Reference Dealers selected by the Calculation Agent and eliminating the highest quotation, or, in the event of equality, one of the highest, and the lowest quotation or, in the event of equality, one of the lowest, for United States Treasury securities with an original maturity equal to the particular Index Maturity, a

 

12



 

remaining term to maturity no more than one year shorter than that Index Maturity and in a principal amount that is representative for a single transaction in the securities in that market at that time; or

 

v.                   if fewer than five but more than two of the prices referred to in clause (iv) are provided as requested, the rate on the particular Interest Determination Date calculated by the Calculation Agent based on the arithmetic mean of the bid prices obtained and neither the highest nor the lowest of the quotations shall be eliminated; or

 

vi.                if fewer than three prices referred to in clause (iv) are provided as requested, the rate on the particular Interest Determination Date calculated by the Calculation Agent as a yield to maturity based on the arithmetic mean of the secondary market bid prices as of approximately 3:30 P.M., New York City time, on that Interest Determination Date of three Reference Dealers selected by the Calculation Agent from five Reference Dealers selected by the Calculation Agent and eliminating the highest quotation or, in the event of equality, one of the highest and the lowest quotation or, in the event of equality, one of the lowest, for United States Treasury securities with an original maturity greater than the particular Index Maturity, a remaining term to maturity closest to that Index Maturity and in a principal amount that is representative for a single transaction in the securities in that market at the time; or

 

vii.             if fewer than five but more than two prices referred to in clause (vi) are provided as requested, the rate on the particular Interest Determination Date calculated by the Calculation Agent based on the arithmetic mean of the bid prices obtained and neither the highest nor the lowest of the quotations will be eliminated; or

 

viii.          if fewer than three prices referred to in clause (vi) are provided as requested, the CMT Rate in effect on that Interest Determination Date.

 

If two United States Treasury securities with an original maturity greater than the Index Maturity specified on the face hereof have remaining terms to maturity equally close to the particular Index Maturity, the quotes for the United States Treasury security with the shorter original remaining term to maturity will be used.

 

(C)  Commercial Paper Rate Notes.  If the Interest Rate Basis is the Commercial Paper Rate, this Note shall be deemed a “Commercial Paper Rate Note.”  Unless otherwise specified on the face hereof, “Commercial Paper Rate” means:  (1) the

 

13



 

Money Market Yield (as defined below) on the particular Interest Determination Date of the rate for commercial paper having the Index Maturity specified on the face hereof as published in H.15(519) under the caption “Commercial Paper—Nonfinancial”; or (2) if the rate referred to in clause (1) is not so published by 3:00 P.M., New York City time, on the related Calculation Date, the Money Market Yield of the rate on the particular Interest Determination Date for commercial paper having the particular Index Maturity as published in H.15 Daily Update, or such other recognized electronic source used for the purpose of displaying the applicable rate, under the caption “Commercial Paper—Nonfinancial”; or (3) if the rate referred to in clause (2) is not so published by 3:00 P.M., New York City time, on the related Calculation Date, the rate on the particular Interest Determination Date calculated by the Calculation Agent as the Money Market Yield of the arithmetic mean of the offered rates at approximately 11:00 A.M., New York City time, on that Interest Determination Date of three leading dealers of United States Dollar commercial paper in New York City (which may include the purchasing agent or its affiliates) selected by the Calculation Agent for commercial paper having the particular Index Maturity placed for industrial issuers whose bond rating is “Aa”, or the equivalent, from a nationally recognized statistical rating organization; or (4) if the dealers so selected by the Calculation Agent are not quoting as mentioned in clause (3), the Commercial Paper Rate in effect on the particular Interest Determination Date. “Money Market Yield” means a yield (expressed as a percentage) calculated in accordance with the following formula:

 

Money Market Yield =

D x 360

x 100

 

360 – (D x M)

 

 

where “D” refers to the applicable per annum rate for commercial paper quoted on a bank discount basis and expressed as a decimal, and “M” refers to the actual number of days in the applicable Interest Period.

 

(D)  LIBOR Notes.  If the Interest Rate Basis is LIBOR, this Note shall be deemed a “LIBOR Note.”  Unless otherwise specified on the face hereof, “LIBOR” means: (1) if “LIBOR Moneyline Telerate” is specified on the face hereof or if neither “LIBOR Reuters” nor “LIBOR Moneyline Telerate” is specified on the face hereof as the method for calculating LIBOR, the rate for deposits in the LIBOR Currency having the Index Maturity specified on the face hereof, commencing on the related Interest Reset Date, that appears on the LIBOR Page (as defined below) as of 11:00 A.M., London time, on the particular Interest Determination Date; or (2) if “LIBOR Reuters” is specified on the face hereof, the arithmetic mean of the offered rates, calculated by the Calculation Agent, or the offered rate, if the LIBOR Page by its terms provides only for a single rate, for deposits in the LIBOR Currency having the particular Index Maturity, commencing on the related Interest Reset Date, that appear or appears, as the case may be, on the LIBOR Page as of 11:00 A.M., London time, on the particular Interest Determination Date; or (3) if fewer than two offered rates appear, or no rate appears, as the case may be, on the particular Interest

 

14



 

Determination Date on the LIBOR Page as specified in clause (1) or (2), as applicable, the rate calculated by the Calculation Agent of at least two offered quotations obtained by the Calculation Agent after requesting the principal London offices of each of four major reference banks (which may include affiliates of the purchasing agent) in the London interbank market to provide the Calculation Agent with its offered quotation for deposits in the LIBOR Currency for the period of the particular Index Maturity, commencing on the related Interest Reset Date, to prime banks in the London interbank market at approximately 11:00 A.M., London time, on that Interest Determination Date and in a principal amount that is representative for a single transaction in the LIBOR Currency in that market at that time; or (4) if fewer than two offered quotations referred to in clause (3) are provided as requested, the rate calculated by the Calculation Agent as the arithmetic mean of the rates quoted at approximately 11:00 A.M., in the applicable Principal Financial Center, on the particular Interest Determination Date by three major banks (which may include affiliates of the purchasing agent) in that Principal Financial Center selected by the Calculation Agent for loans in the LIBOR Currency to leading European banks, having the particular Index Maturity and in a principal amount that is representative for a single transaction in the LIBOR Currency in that market at that time; or (5) if the banks so selected by the Calculation Agent are not quoting as mentioned in clause (4), LIBOR in effect on the particular Interest Determination Date. “LIBOR Currency” means the currency specified on the face hereof as to which LIBOR shall be calculated or, if no currency is specified on the face hereof, United States Dollars. “LIBOR Page” means either: (1) if “LIBOR Reuters” is specified on the face hereof, the display on the Reuter Monitor Money Rates Service (or any successor service) on the page specified on the face hereof (or any other page as may replace that page on that service) for the purpose of displaying the London interbank rates of major banks for the LIBOR Currency; or (2) if “LIBOR Moneyline Telerate” is specified on the face hereof or neither “LIBOR Reuters” nor “LIBOR Moneyline Telerate” is specified on the face hereof as the method for calculating LIBOR, the display on Moneyline Telerate (or any successor service) on the page specified on the face hereof (or any other page as may replace such page on such service) for the purpose of displaying the London interbank rates of major banks for the LIBOR Currency.

 

(E)  Prime Rate Notes.  If the Interest Rate Basis is the Prime Rate, this Note shall be deemed a “Prime Rate Note.”  Unless otherwise specified on the face hereof, “Prime Rate” means:  (1) the rate on the particular Interest Determination Date as published in H.15(519) under the caption “Bank Prime Loan”; or (2) if the rate referred to in clause (1) is not so published by 3:00 P.M., New York City time, on the related Calculation Date, the rate on the particular Interest Determination Date as published in H.15 Daily Update, or such other recognized electronic source used for the purpose of displaying the applicable rate, under the caption “Bank Prime Loan”; or (3) if the rate referred to in clause (2) is not so published by 3:00 P.M., New York City time, on the related Calculation Date, the rate on the particular Interest Determination Date calculated by the Calculation Agent as the arithmetic mean of the rates of interest publicly announced by each bank that

 

15



 

appears on the Reuters Screen US PRIME 1 Page (as defined below) as the applicable bank’s prime rate or base lending rate as of 11:00 A.M., New York City time, on that Interest Determination Date; or (4) if fewer than four rates referred to in clause (3) are so published by 3:00 p.m., New York City time, on the related Calculation Date, the rate on the particular Interest Determination Date calculated by the Calculation Agent as the arithmetic mean of the prime rates or base lending rates quoted on the basis of the actual number of days in the year divided by a 360-day year as of the close of business on that Interest Determination Date by three major banks (which may include affiliates of the purchasing agent) in New York City selected by the Calculation Agent; or (5) if the banks so selected by the Calculation Agent are not quoting as mentioned in clause (4), the Prime Rate in effect on the particular Interest Determination Date. “Reuters Screen US PRIME 1 Page” means the display on the Reuter Monitor Money Rates Service (or any successor service) on the “US PRIME 1” page (or any other page as may replace that page on that service) for the purpose of displaying prime rates or base lending rates of major United States banks.

 

(F)  Treasury Rate Notes.  If the Interest Rate Basis is the Treasury Rate, this Note shall be deemed a “Treasury Rate Note.”  Unless otherwise specified on the face hereof, “Treasury Rate” means: (1) the rate from the auction held on the Interest Determination Date (the “Auction”) of direct obligations of the United States (“Treasury Bills”) having the Index Maturity specified on the face hereof under the caption “INVESTMENT RATE” on the display on Moneyline Telerate (or any successor service) on page 56 (or any other page as may replace that page on that service) (“Moneyline Telerate Page 56”) or page 57 (or any other page as may replace that page on that service) (“Moneyline Telerate Page 57”); or (2) if the rate referred to in clause (1) is not so published by 3:00 P.M., New York City time, on the related Calculation Date, the Bond Equivalent Yield (as defined below) of the rate for the applicable Treasury Bills as published in H.15 Daily Update, or another recognized electronic source used for the purpose of displaying the applicable rate, under the caption “U.S. Government Securities/Treasury Bills/Auction High”; or (3) if the rate referred to in clause (2) is not so published by 3:00 P.M., New York City time, on the related Calculation Date, the Bond Equivalent Yield of the auction rate of the applicable Treasury Bills as announced by the United States Department of the Treasury; or (4) if the rate referred to in clause (3) is not so announced by the United States Department of the Treasury, or if the Auction is not held, the Bond Equivalent Yield of the rate on the particular Interest Determination Date of the applicable Treasury Bills as published in H.15(519) under the caption “U.S. Government Securities/Treasury Bills/Secondary Market”; or (5) if the rate referred to in clause (4) is not so published by 3:00 P.M., New York City time, on the related Calculation Date, the rate on the particular Interest Determination Date of the applicable Treasury Bills as published in H.15 Daily Update, or another recognized electronic source used for the purpose of displaying the applicable rate, under the caption “U.S. Government Securities/Treasury Bills/Secondary Market”; or (6) if the rate referred to in clause (5) is not so published by 3:00 P.M., New York City time, on the related Calculation Date, the rate on the

 

16



 

particular Interest Determination Date calculated by the Calculation Agent as the Bond Equivalent Yield of the arithmetic mean of the secondary market bid rates, as of approximately 3:30 P.M., New York City time, on that Interest Determination Date, of three primary United States government securities dealers (which may include the purchasing agent or its affiliates) selected by the Calculation Agent, for the issue of Treasury Bills with a remaining maturity closest to the Index Maturity specified on the face hereof; or (7) if the dealers so selected by the Calculation Agent are not quoting as mentioned in clause (6), the Treasury Rate in effect on the particular Interest Determination Date. “Bond Equivalent Yield” means a yield (expressed as a percentage) calculated in accordance with the following formula:

 

Bond Equivalent Yield =

D x N

x 100

 

360 – (D x M)

 

 

where “D” refers to the applicable per annum rate for Treasury Bills quoted on a bank discount basis and expressed as a decimal, “N” refers to 365 or 366, as the case may be, and “M” refers to the actual number of days in the applicable Interest Period.

 

(c)                Discount Notes.  If this Note is specified on the face hereof as a “Discount Note”:

 

(i)          Principal and Interest. This Note will bear interest in the same manner as set forth in Section 3(a) above, and payments of principal and interest shall be made as set forth on the face hereof.  Discount Notes may not bear any interest currently or may bear interest at a rate that is below market rates at the time of issuance. The difference between the Issue Price of a Discount Note and par is referred to as the “Discount”.

 

(ii)         Redemption; Repayment; Acceleration. In the event a Discount Note is redeemed, repaid or accelerated, the amount payable to the Holder of such Discount Note will be equal to the sum of: (A) the Issue Price (increased by any accruals of Discount); and (B) any unpaid interest accrued on such Discount Note to the Maturity Date (“Amortized Face Amount”).  Unless otherwise specified on the face hereof, for purposes of determining the amount of Discount that has accrued as of any date on which a redemption, repayment or acceleration of maturity occurs for a Discount Note, a Discount will be accrued using a constant yield method. The constant yield will be calculated using a 30-day month, 360-day year convention, a compounding period that, except for the Initial Period (as defined below), corresponds to the shortest period between Interest Payment Dates for the applicable Discount Note (with ratable accruals within a compounding period), a coupon rate equal to the initial coupon rate applicable to the applicable  Discount Note and an assumption that the maturity of such  Discount Note will not be accelerated. If the period from the date of issue to the first Interest Payment Date for a Discount Note (the “Initial Period”) is shorter than the compounding period for such Discount Note, a proportionate amount of the yield for an entire compounding period will be accrued. If the Initial Period is longer than the compounding period, then the period

 

17



 

will be divided into a regular compounding period and a short period with the short period being treated as provided above.

 

Section 4.  Redemption.  If no redemption right is set forth on the face hereof, this Note may not be redeemed prior to the Stated Maturity Date, except as set forth in the Indenture or in Section 10 hereof.  In the case of a Note that is not a Discount Note, if a redemption right is set forth on the face of this Note, the Trust shall elect to redeem this Note on the Interest Payment Date after the Initial Redemption Date set forth on the face hereof on which the Funding Agreement is to be redeemed in whole or in part by Genworth Life and Annuity Insurance Company (“GLAIC”) (each, a “Redemption Date”), in which case this Note must be redeemed on such Redemption Date in whole or in part, as applicable, prior to the Stated Maturity Date, in increments of $1,000 at the applicable Redemption Price (as defined below), together with unpaid interest, if any,  accrued thereon to, but excluding,  the applicable Redemption Date.  “Redemption Price” shall mean the unpaid Principal Amount of this Note to be redeemed.  The unpaid Principal Amount of this Note to be redeemed shall be determined by multiplying (1) the Outstanding principal amount of this Note by (2) the quotient derived by dividing (A) the outstanding principal amount of the Funding Agreement to be redeemed by GLAIC by (B) the outstanding principal amount of the Funding Agreement.  Notice must be given not more than seventy-five (75) nor less than forty-five (45) calendar days prior to the proposed Redemption Date.  In the event of redemption of this Note in part only, a new Note for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the surrender hereof.

 

Section 5.  Sinking Funds.  Unless specified on the face hereof, this Note will not be subject to, or entitled to the benefit of, any sinking fund.

 

Section 6.  Repayment.  If no repayment right is set forth on the face hereof, this Note may not be repaid at the option of the Holder hereof prior to the Stated Maturity Date.  If a repayment right is granted on the face of this Note, this Note may be subject to repayment at the option of the Holder on any Interest Payment Date on and after the date, if any, indicated on the face hereof (each, a “Repayment Date”).  On any Repayment Date, unless otherwise specified on the face hereof, this Note shall be repayable in whole or in part in increments of $1,000 at the option of the Holder hereof at a repayment price equal to 100% of the Principal Amount to be repaid, together with interest thereon, if any, payable to the Repayment Date.  For this Note to be repaid in whole or in part at the option of the Holder hereof, this Note must be received by the Indenture Trustee, with the form entitled “Option to Elect Repayment”, below, duly completed not more than sixty (60) nor less than thirty (30) days prior to a Repayment Date.  Exercise of such repayment option by the Holder hereof shall be irrevocable.  In the event of a repayment of this Note in part only, a new Note for the portion hereof not repaid shall be issued in the name of the Holder hereof upon the surrender hereof.

 

Section 7.  Modifications and Waivers.  The Indenture contains provisions permitting the Trust and the Indenture Trustee (1) at any time and from time to time without notice to, or the consent of, the Holders of any Notes issued under the Indenture to enter into one or more supplemental indentures for certain enumerated purposes and (2) with the consent of the Holders of a majority in aggregate principal amount of the Outstanding Notes affected thereby, to enter into one or more supplemental indentures for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, the Indenture or of modifying in any manner the

 

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rights of Holders of Notes under the Indenture; provided, that, with respect to certain enumerated provisions, no such supplemental indenture shall be entered into without the consent of the Holder of each Note affected thereby.  Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note or such other Notes.

 

Section 8.  Obligations Unconditional.  No reference herein to the Indenture and no provisions of this Note or of the Indenture shall impair the right of each Holder of any Note, which is absolute and unconditional, to receive payment of the principal, and any interest on, and premium, if any, on, such Note on the respective Stated Maturity Date or redemption date thereof and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.

 

Section 9.  Events of Default.  If an Event of Default with respect to this Note shall occur and be continuing, the principal of, and all other amounts payable on, the Notes may be declared due and payable, or may be automatically accelerated, as the case may be, in the manner and with the effect provided in the Indenture.  In the event that this Note is a Discount Note, the amount of principal of this Note that becomes due and payable upon such acceleration shall be equal to the amount calculated as set forth in Section 3(c) hereof.

 

Section 10.  Withholding; No Additional Amounts; Tax Event and Redemption.  All amounts due on this Note will be made without any applicable withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or other governmental charges of whatever nature imposed or levied by or on behalf of any governmental authority, unless such withholding or deduction is required by law. The Trust will not pay any additional amounts to the Holder of this Note in respect of such withholding or deduction, any such withholding or deduction will not give rise to an event of default or any independent right or obligation to redeem this Note and the Holder will be deemed for all purposes to have received cash in an amount equal to the portion of such withholding or deduction that is attributable to such Holder’s interest in this Note as equitably determined by the Trust.

 

If (1) a Tax Event (defined below) as to the Funding Agreement occurs and (2) GLAIC redeems the Funding Agreement in whole, the Trust will redeem the Notes, subject to the terms and conditions of Section 2.04 of the Indenture, at a Redemption Price equal to the Outstanding principal amount of the Notes together with unpaid interest accrued thereon to the applicable redemption date.  “Tax Event” means that GLAIC shall have received an opinion of independent legal counsel stating in effect that as a result of (a) any amendment to, or change (including any announced prospective change) in, the laws (or any regulations thereunder) of the United States or any political subdivision or taxing authority thereof or therein or (b) any amendment to, or change in, an interpretation or application of any such laws or regulations by any governmental authority in the United States, which amendment or change is enacted, promulgated, issued or announced on or after the effective date of the Funding Agreement, there is more than an insubstantial risk that (i) the Trust is, or will be within ninety (90) days of the date thereof, subject to U.S. federal income tax with respect to interest accrued or received on the Funding Agreement or (ii) the Trust is, or will be within ninety (90) days of the date thereof, subject to more than a de minimis amount of taxes, duties or other governmental charges.

 

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Section 11.  Listing.  Unless otherwise specified on the face hereof, this Note will not be listed on any securities exchange.

 

Section 12.  Collateral. The Collateral for this Note includes the Funding Agreement specified on the face hereof.

 

Section 13.  No Recourse Against Certain Persons.  No recourse shall be had for the payment of any principal, interest or any other sums at any time owing under the terms of this Note, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against the Nonrecourse Parties, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such personal liability being, by the acceptance hereof and as part of the consideration for issue hereof, expressly waived and released.

 

Section 14.  Miscellaneous.

 

(a)  This Note is issuable only as a registered Note without coupons in denominations of $1,000 and any integral multiple in excess thereof unless otherwise specified on the face of this Note.

 

(b)  Prior to due presentment for registration of transfer of this Note, the Trust, the Indenture Trustee, the Registrar, the Paying Agent, any Agent and any other agent of the Trust or the Indenture Trustee may treat the Person in whose name this Note is registered as the owner hereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not this Note shall be overdue, and none of the Trust, the Indenture Trustee, the Registrar, the Paying Agent, any Agent or any other agent of the Trust or the Indenture Trustee shall be affected by notice to the contrary.

 

(c)  The Notes are being issued by means of a book-entry-only system with no physical distribution of certificates to be made except as provided in the Indenture.  The book-entry system maintained by DTC will evidence ownership of the Notes, with transfers of ownership effected on the records of DTC and its Participants pursuant to rules and procedures established by DTC and its Participants.  The Trust and the Indenture Trustee will recognize Cede & Co., as nominee of DTC, as the registered owner of the Notes and as the Holder of the Notes for all purposes, including payment of principal, premium (if any) and interest, notices and voting.  Transfer of principal, premium (if any) and interest to participants of DTC will be the responsibility of DTC, and transfer of principal, premium (if any) and interest to beneficial holders of the Notes by Participants of DTC will be the responsibility of such Participants and other nominees of such beneficial holders.  So long as the book-entry system is in effect, the selection of any Notes to be redeemed or repaid will be determined by DTC pursuant to rules and procedures established by DTC and its Participants.  Neither the Trust nor the Indenture Trustee will not be responsible or liable for such transfers or payments or for maintaining, supervising or reviewing the records maintained by DTC, its Participants or persons acting through such Participants.

 

(d)  This Note or portion hereof may not be exchanged for Definitive Notes, except in the limited circumstances provided for in the Indenture.  The transfer or exchange of Definitive

 

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Notes shall be subject to the terms of the Indenture.  No service charge will be made for any registration of transfer or exchange, but the Trust may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

 

Section 15.  GOVERNING LAW.  THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF LAW.

 

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OPTION TO ELECT REPAYMENT

 

The undersigned hereby irrevocably request(s) and instruct(s) the Trust to repay this Note (or portion hereof specified below) pursuant to its terms at a price equal to the Principal Amount hereof together with interest to the repayment date, to the undersigned, at:

 

 

(Please print or typewrite name and address of the undersigned).

 

For this Note to be repaid, the Indenture Trustee (or the Paying Agent on behalf of the Indenture Trustee) must receive at its Corporate Trust Office, or at such other place or places of which the Trust shall from time to time notify the Holder of this Note, not more than sixty (60) nor less than thirty (30) days prior to a Repayment Date, if any, shown on the face of this Note, this Note with this “Option to Elect Repayment” form duly completed.

 

If less than the entire Principal Amount of this Note is to be repaid, specify the portion hereof (which shall be in increments of $1,000) which the Holder elects to have repaid and specify the denomination or denominations (which shall be $             or an integral multiple of $1,000 in excess of $            ) of the Notes to be issued to the Holder for the portion of this Note not being repaid (in the absence of any such specification, one such Note will be issued for the portion not being repaid).

 

$

 

 

 

 

 

 

 

DATE:

 

 

NOTICE: The signature on this Option to Elect Repayment

 

 

 

must correspond with the name as written upon the face of this Note in every particular, without alteration or enlargement or any change whatever.

 

 

 

Principal Amount to be repaid, if amount to be repaid is less than the Principal Amount of this Note (Principal Amount remaining must be an authorized denomination)

 

Fill in for registration of Notes if to be issued otherwise than to the registered Holder:

 

 

 

 

 

Name:

 

 

$

 

 

Address:

 

 

 

 

 

 

 

 

 

 

(Please print name and

 

 

address including zip code)

 

 

 

SOCIAL SECURITY OR OTHER TAXPAYER ID NUMBER:

 

 

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SURVIVOR’S OPTION RIDER

 

(a)  Unless this Note, on its face, has been declared due and payable prior to the Maturity Date by reason of any Event of Default under the Indenture, or has been previously redeemed or otherwise repaid, the authorized Representative (as defined below) of a deceased Beneficial Owner (as defined below) of this Note shall have the option to elect repayment by the Trust in whole or in part prior to the Maturity Date following the death of the Beneficial Owner (a “Survivor’s Option”).  The Survivor’s Option may not be exercised unless this Note was held by the Beneficial Owner or the estate of that Beneficial Owner for a period beginning at least 6 months immediately prior to the death of such Beneficial Owner. “Beneficial Owner” as used in this Survivor’s Option Rider means, with respect to this Note, the person who has the right, immediately prior to such person’s death, to receive the proceeds from the disposition of this Note, as well as the right to receive payments on this Note.

 

(b)  Upon (1) the valid exercise of the Survivor’s Option and the proper tender of this Note by or on behalf of a person that has authority to act on behalf of the deceased Beneficial Owner of this Note under the laws of the appropriate jurisdiction (including, without limitation, the personal representative or executor of the deceased Beneficial Owner or the surviving joint owner of the deceased Beneficial Owner) (the “Representative”) and (2) the tender and acceptance of that portion of the Funding Agreement equal to the amount of the portion of this Note to be repaid, the Trust shall repay this Note (or portion thereof) at a price equal to 100% of the unpaid Principal Amount of the deceased Beneficial Owner’s beneficial interest in this Note plus accrued and unpaid interest to, but excluding, the date of such repayment.  However, the Trust shall not be obligated to repay:

 

(i)  beneficial ownership interests in Notes exceeding the greater of $1,000,000 or 1% (or such other amounts, as specified in the Pricing Supplement) in aggregate principal amount for all notes then outstanding under the Genworth DirectNotesSM program as of the end of the most recent calendar year (the “Annual Put Limitation”);

 

(ii)  on behalf of an individual deceased Beneficial Owner, any beneficial ownership interest in all notes issued under the Genworth DirectNotesSM program that exceeds $250,000 (or such other amounts, as specified in the Pricing Supplement) in any calendar year (the “Individual Put Limitation”); or

 

(iii)  beneficial ownership interests in Notes exceeding the amount specified on the face hereof and in the Pricing Supplement (the “Trust Put Limitation”).

 

(c)  The Trust shall not make principal repayments pursuant to exercise of the Survivor’s Option in amounts that are less than $1,000, and, in the event that the limitations described in the preceding sentence would result in the partial repayment of this Note, the Principal Amount remaining Outstanding after repayment must be at least $1,000 (the minimum authorized denomination of the Notes).

 

(d)  An otherwise valid election to exercise the Survivor’s Option may not be withdrawn.

 

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(e)  Election to exercise the Survivor’s Option will be accepted in the order that elections are received by the Indenture Trustee, except for any Notes (or portion thereof) the acceptance of which would contravene (1) the Annual Put Limitation, (2) the Individual Put Limitation or (3) the Trust Put Limitation.  Any Note (or portion thereof) accepted for repayment pursuant to exercise of the Survivor’s Option shall be repaid on the first Interest Payment Date that occurs 20 or more calendar days after the date of such acceptance.  If, as of the end of any calendar year, the aggregate principal amount of all notes (or portions thereof) issued under the Genworth DirectNotesSM program that have been tendered pursuant to the valid exercise of the Survivor’s Option during such year has exceeded the Annual Put Limitation, the Individual Put Limitation or the Trust Put Limitation, for such year, any exercise(s) of the Survivor’s Option with respect to Notes (or portions thereof) not accepted during such calendar year, because such acceptance would have contravened any such limitation, shall be deemed to be tendered on the first day of the following calendar year in the order all such notes (or portions thereof) were originally tendered.  In the event that this Note (or any portion hereof) tendered for repayment pursuant to valid exercise of the Survivor’s Option is not accepted or is to be delayed, the Indenture Trustee shall deliver a notice by first-class mail to the presenting direct Participant that states the reason such Note (or portion thereof) has not been accepted for payment or is to be delayed.

 

(f)  In order to obtain repayment through exercise of the Survivor’s Option with respect to this Note (or portion hereof), the Representative must provide the following items to the broker or other entity through which the beneficial interest in this Note is held by the deceased Beneficial Owner: (1) a written instruction to such broker or other entity to notify the Depositary of the Representative’s desire to obtain repayment through the exercise of the Survivor’s Option; (2) appropriate evidence satisfactory to the Indenture Trustee that (i) the deceased was the Beneficial Owner of this Note at the time of death and the interest in this Note was owned by the deceased Beneficial Owner or his or her estate for a period beginning at least six months immediately prior to the death of such Beneficial Owner, which evidence may be in the form of a letter from the Representative, (ii) the death of such Beneficial Owner has occurred, and the date of such death, and (iii) the Representative has authority to act on behalf of the deceased Beneficial Owner; (3) if the interest in this Note is held by a nominee of the deceased Beneficial Owner, a certificate or letter satisfactory to the Indenture Trustee from such nominee attesting to the deceased’s beneficial ownership of this Note; (4) a written request for repayment signed by the Representative, with the signature guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States; (5) if applicable, a properly executed assignment or endorsement; (6) tax waivers and such other instruments or documents that the Indenture Trustee reasonably requires in order to establish the validity of the beneficial ownership of this Note and the claimant’s entitlement to payment; and (7) any additional information the Indenture Trustee reasonably requires to evidence satisfaction of any conditions to the exercise of such Survivor’s Option or to document beneficial ownership or authority to make the election and to cause the repayment of this Note.  Such broker or other entity shall then deliver each of these items to the direct Participant of the Depositary, such direct Participant being the entity that holds the beneficial interest in this Note on behalf of the deceased Beneficial Owner, together with evidence satisfactory to the Indenture Trustee from the broker or other entity stating that it represents the deceased Beneficial Owner.  Such direct Participant shall then execute an election form in the form attached hereto as Annex A and deliver such items to the Indenture Trustee.  If the Indenture Trustee determines that it has

 

24



 

received the requisite documentation and information and all other conditions described herein are satisfied, the Indenture Trustee shall make payment of the applicable amount to the direct Participant through DTC. Such direct Participant shall be responsible for disbursing any payments it receives from the Depositary pursuant to exercise of the Survivor’s Option to the appropriate Representative.  All questions, other than with respect to the right to limit the aggregate Principal Amount of Notes as to which exercises of the Survivor’s Option shall be accepted in any one calendar year, regarding the eligibility or validity of any exercise of the Survivor’s Option will be determined by the Indenture Trustee, in its sole discretion, which determination shall be final and binding on all parties; provided, however, that any such determination is subject to the right of GLAIC to require reasonable evidence that the exercise of the Survivor’s Option satisfied all of the terms and conditions described in this Note and any restrictions contained in the relevant Funding Agreement.  The Indenture Trustee shall have no liability to any Person, including, without limitation, the Trust, GLAIC, any Holder of this Note, any Beneficial Owner or the deceased Beneficial Owner’s Representative, arising out of any determination made by it relating to the eligibility or validity of any exercise of the Survivor’s Option, unless occasioned by the Indenture Trustee’s gross negligence or willful misconduct.

 

(g)  The death of a person holding a beneficial interest in this Note as a joint tenant or tenant by the entirety with another person, or as a tenant in common with the deceased owner’s spouse, will be deemed the death of the Beneficial Owner of this Note, and the entire Principal Amount of this Note so held shall be subject to repayment by the Trust upon request in accordance with the terms and provisions hereof.  However, the death of a person holding a beneficial interest in this Note as tenant in common with a person other than such deceased owner’s spouse will be deemed the death of a Beneficial Owner only with respect to such deceased person’s ownership interest in this Note.

 

(h)  The death of a person who was a lifetime beneficiary of a trust holding a beneficial interest in this Note will be treated as the death of the Beneficial Owner of this Note to the extent of that person’s interest in the trust.  The death of a person who was a tenant by the entirety or joint tenant in a tenancy which is the beneficiary of a trust holding a beneficial interest in this Note will be treated as the death of the Beneficial Owner of this Note.  The death of an individual who was a tenant in common in a tenancy which is the beneficiary of a trust holding a beneficial interest in this Note will be treated as the death of the Beneficial Owner of this Note only with respect to the deceased person’s beneficial interest in this Note, unless a husband and wife are the tenants in common, in which case the death of either will be treated as the death of the owner of this Note.

 

(i)  The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial ownership interests in this Note will be deemed the death of the Beneficial Owner of this Note for purposes of the Survivor’s Option, regardless of whether that Beneficial Owner was the registered holder of this Note, if such beneficial ownership interest can be established to the satisfaction of the Indenture Trustee.  A beneficial ownership interest will be deemed to exist in typical cases of nominee ownership, such as ownership under the Uniform Transfers of Gifts to Minors Act, community property or other joint ownership arrangements between a husband and wife and lifetime custodial and trust arrangements.

 

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ANNEX A

 

REPAYMENT ELECTION FORM

 

Genworth Life and Annuity Insurance Company

 

Genworth DirectNotesSM

 

CUSIP Number        

 

To:  [Name of Trust] (the “TRUST”)

 

The undersigned financial institution (the “FINANCIAL INSTITUTION”) represents the following:

 

·                                          The Financial Institution has received a request for repayment from the executor or other authorized representative (the “AUTHORIZED REPRESENTATIVE”) of the deceased beneficial owner listed below (the “DECEASED BENEFICIAL OWNER”) of Genworth DirectNotesSM (CUSIP No.                         ) (the “NOTES”).

 

·                                          At the time of his or her death, the Deceased Beneficial Owner owned Notes in the principal amount listed below.

 

·                                          The Deceased Beneficial Owner or the estate of the Deceased Beneficial Owner owned the Notes for a period beginning at least six (6) months immediately prior to the request.

 

·                                          The Financial Institution currently holds such notes as a direct or indirect participant in The Depository Trust Company (the “DEPOSITARY”).

 

The Financial Institution agrees to the following terms:

 

·                                          The Financial Institution shall follow the instructions (the “INSTRUCTIONS”) accompanying this Repayment Election Form (this “FORM”).

 

·                                          The Financial Institution shall deliver to The Bank of New York Trust Company, N.A. (the “INDENTURE TRUSTEE”) the originals of all records specified in the Instructions supporting the above representations and all other related documents received from any relevant broker or other entity, and shall retain photocopies thereof, and shall make such photocopies available to U.S. Bank National Association (the “TRUSTEE”) or the Trust for inspection and review within five business days of the Trustee’s or the Trust’s request.

 

·                                          If the Financial Institution, the Indenture Trustee, the Trustee or the Trust, in any such party’s reasonable discretion, deems any of the records specified in the Instructions supporting the above representations or any such other related documents unsatisfactory to substantiate a claim for repayment, the Financial

 

26



 

Institution shall not be obligated to submit this Form, and the Indenture Trustee, the Trustee or Trust may deny repayment.  If the Financial Institution cannot substantiate a claim for repayment, it shall notify the Indenture Trustee immediately.

 

·                                          Repayment elections may not be withdrawn.

 

·                                          The Financial Institution agrees to indemnify and hold harmless the Trustee, the Trust and the Indenture Trustee against and from any and all claims, liabilities, costs, losses, expenses, suits and damages resulting from the Financial Institution’s above representations and request for repayment on behalf of the Authorized Representative.

 

·                                          The Notes will be repaid on the first interest payment date to occur at least 20 calendar days after the date of acceptance of the notes for repayment, unless such date is not a business day, in which case the date of repayment shall be the next succeeding business day.

 

·                                          Subject to the Trust’s rights to limit the aggregate principal amount of Notes as to which exercises of the survivor’s option shall be accepted in any one calendar year, all questions as to the eligibility or validity of any exercise of the survivor’s option will be determined by the Indenture Trustee, in its sole discretion, which determination shall be final and binding on all parties.

 

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REPAYMENT ELECTION FORM

 

(1)

Name of Deceased Beneficial Owner

(2)

Date of Death

(3)

Date of Purchase

(4)

Name of Authorized Representative Requesting Repayment

(5)

Name of Financial Institution Requesting Repayment

(6)

Signature of Authorized Representative of Financial Institution Requesting Repayment

(7)

Principal Amount of Requested Repayment

(8)

Date of Election

(9)

Financial Institution:

 

 

 

Representative Name:

 

 

 

Phone Number:

 

 

 

Fax Number:

 

 

 

Mailing Address (no P.O. Boxes):

 

 

 

 

 

 

(10)

Wire instructions for payment:

 

 

 

Bank Name:

 

 

 

ABA Number:

 

 

 

Account Name:

 

 

 

Account Number:

 

 

 

Reference (optional):

 

 

 

TO BE COMPLETED BY THE INDENTURE TRUSTEE  

 

(A) Delivery and Payment Date:   

 

 

(B)Principal Amount:   

 

 

(C)Accrued Interest:   

 

 

(D) Date of Receipt of Form by the Indenture Trustee:   

 

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INSTRUCTIONS FOR COMPLETING REPAYMENT ELECTION FORM AND
EXERCISING
REPAYMENT OPTION

 

Capitalized terms used and not defined herein have the meanings defined in the accompanying Repayment Election Form.

 

1.               Collect and retain for a period of at least three years (1) satisfactory evidence of the authority of the Authorized Representative, (2) satisfactory evidence of death of the Deceased Beneficial Owner, (3) satisfactory evidence that the Deceased Beneficial Owner beneficially owned, at the time of his or her death, the notes being submitted for repayment, which evidence may be in the form of a letter from the Authorized Representative, (4) satisfactory evidence that the notes being submitted for repayment were acquired by the Deceased Beneficial Owner or the estate of the Deceased Beneficial Owner for a period beginning at least six months immediately prior to the request, which evidence may be in the form of a letter from the Authorized Representative and (5) any necessary tax waivers.  For purposes of determining whether the notes will be deemed beneficially owned by an individual at any given time, the following rules shall apply:

 

·                  If a note (or a portion thereof) is beneficially owned by tenants by the entirety or joint tenants, the note (or relevant portion thereof) will be regarded as beneficially owned by a single owner.  Accordingly, the death of a tenant by the entirety or joint tenant will be deemed the death of the beneficial owner and the entire principal amount so owned will become eligible for repayment.

 

·                  The death of a person beneficially owning a note (or a portion thereof) by tenancy in common will be deemed the death of the beneficial owner only with respect to the deceased owner’s interest in the note (or relevant portion thereof) so owned, unless a husband and wife are the tenants in common, in which case the death of either will be deemed the death of the beneficial owner and the entire principal amount so owned will be eligible for repayment.

 

·                  A note (or a portion thereof) beneficially owned by a trust will be regarded as beneficially owned by each beneficiary of the trust to the extent of that beneficiary’s interest in the trust (however, a trust’s beneficiaries collectively cannot be beneficial owners of more notes than are owned by the trust).  The death of a beneficiary of a trust will be deemed the death of the beneficial owner of the notes (or relevant portion thereof) beneficially owned by the trust to the extent of that beneficiary’s interest in the trust.  The death of an individual who was a tenant by the entirety or joint tenant in a tenancy which is the beneficiary of a trust will be deemed the death of the beneficiary of the trust.  The death of an individual who was a tenant in common in a tenancy which is the beneficiary of a trust will be deemed the death of the beneficiary of the trust only with respect to the deceased holder’s beneficial interest in the note, unless a husband and wife are the tenants in common, in which case the death of either will be deemed the death of the beneficiary of the trust.

 

·                  The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial interest in a note (or a portion thereof) will be deemed the death of the beneficial owner of that note (or relevant portion thereof), regardless of the

 

29



 

registration of ownership, if such beneficial interest can be established to the satisfaction of the trustee.  Such beneficial interest will exist in many cases of street name or nominee ownership, custodial arrangements, ownership by a trustee, ownership under the Uniform Transfers of Gifts to Minors Act and community property or other joint ownership arrangements between spouses.  Beneficial interest will be evidenced by such factors as the power to sell or otherwise dispose of a note, the right to receive the proceeds of sale or disposition and the right to receive interest and principal payments on a note.

 

2.

 

Indicate the name of the Deceased Beneficial Owner on line (1).

 

 

 

3.

 

Indicate the date of death of the Deceased Beneficial Owner on line (2).

 

 

 

4.

 

Indicate the date of purchase on line (3).

 

 

 

5.

 

Indicate the name of the Authorized Representative requesting repayment on line (4).

 

 

 

6.

 

Indicate the name of the Financial Institution requesting repayment on line (5).

 

 

 

7.

 

Affix the authorized signature of the Financial Institution’s representative on line (6). THE SIGNATURE MUST BE MEDALLION SIGNATURE GUARANTEED.

 

 

 

8.

 

Indicate the principal amount of notes to be repaid on line (7).

 

 

 

9.

 

Indicate the date this Form was completed on line (8).

 

 

 

10.

 

Indicate the name, mailing address (no P.O. boxes, please), telephone number and facsimile-transmission number of the Financial Institution.

 

 

 

11.

 

Indicate the wire instruction for payment on line (10).

 

 

 

12.

 

Leave lines (A), (B), (C), (D) and (E) blank.

 

 

 

13.

 

Mail or otherwise deliver an original copy of the completed Form to:

 

By Registered Mail:

The Bank of New York Trust Company, N.A.

Survivor Option Processing

P.O. Box 2320

Dallas, Texas 75221-2320

 

By Courier or Overnight Delivery

The Bank of New York Trust Company, N.A.

Survivor Option Processing

2001 Bryan Street – 10th Floor

Dallas, Texas 75201

 

14.         FACSIMILE TRANSMISSIONS OF THE REPAYMENT ELECTION FORM WILL NOT BE ACCEPTED.

 

15.         For assistance with this Form or any questions relating thereto, please contact the indenture trustee at: The Bank of New York Trust Company, N.A., 2001 Bryan Street – 10th Floor, Dallas, Texas 75201, attention: Survivor Option Processing, telephone number: 1-800-275-2048.

 

30


EX-4.3 4 a08-12984_2ex4d3.htm EX-4.3

Exhibit 4.3

 

Genworth Life and Annuity Insurance Company

 

Funding Agreement

 

POLICYHOLDER:  Genworth Global Funding Trust 2008-19, its successors and permitted assignees

 

POLICY NUMBER: GS-R6035

 

EFFECTIVE DATE: May 1, 2008

 

ISSUE STATE:  Virginia

 

Genworth Life and Annuity Insurance Company (“GLAIC”) (which term includes its successors and permitted assignees) and the Policyholder hereby agree to the terms of this funding agreement (this “Policy”).  This Policy, including the attached Accumulation Fund Schedule, and any amendments thereto, constitutes the entire contract between GLAIC and the Policyholder.   This Policy is delivered in the Issue State and governed by the laws of that state.

 

In witness whereof, GLAIC and the Policyholder have agreed to this Policy as of the Effective Date and caused the same to be in full force and effect.

 

 

/s/ Thomas E. Duffy

 

/s/Pamela S. Schutz

Secretary

 

President

 

 

Genworth Life and Annuity Insurance Company

6610 West Broad Street

Richmond, VA  23230

1-800-635-8056

 



 

Table of Contents

 

Section 1 – Accumulation Fund – Establishment and Operation

 

Section 2 – Payments From the Accumulation Fund

 

Section 3 – Termination of Agreement

 

Section 4 – General Provisions

 

Section 5 – Definitions

 



 
SECTION 1 – ACCUMULATION FUND – ESTABLISHMENT AND OPERATION
 

1.1                         POLICY PAYMENTS.  The Policyholder agrees to pay to GLAIC in the currency specified in the Accumulation Fund Schedule (the “Specified Currency”), and by wire transfer, the Net Deposit Amount on the Deposit Date.  Regardless of the Effective Date of the Policy or the Deposit Date specified in the Accumulation Fund Schedule, this Policy shall become effective only upon the receipt by GLAIC, or its designee, of the Net Deposit Amount.

 

1.2                         ESTABLISHMENT OF THE ACCUMULATION FUND.  Upon the receipt by GLAIC of the Net Deposit Amount, GLAIC will establish an Accumulation Fund.  The Accumulation Fund is a general account record that reflects the Fund Balance under this Policy.  GLAIC is neither a trustee nor a fiduciary with respect to the Accumulation Fund.  The Net Deposit Amount is allocated to GLAIC’s general account for investment but all funds received under this Policy will become the exclusive property of GLAIC without any duty or requirement for segregation or separate investment.  The Fund Balance is not affected by the investment results of the assets held in the general account.

 

1.3                         INTEREST ON THE ACCUMULATION FUND.  The Guaranteed Rate for the Accumulation Fund is effective until the Fund Balance is paid in full to the Policyholder.  Interest is credited based upon the methodology specified in the Accumulation Fund Schedule.

 

1.4                         VALUE OF THE ACCUMULATION FUND.  The Fund Balance on any given day equals the Deposit Amount plus interest, if any, credited thereon at the Guaranteed Rate, less any payments made under Section 2 of the Policy.

 

SECTION 2 – PAYMENTS FROM THE ACCUMULATION FUND
 

2.1                         PERIODIC PAYMENTS.  GLAIC will pay the Policyholder the amounts specified in the Accumulation Fund Schedule as Periodic Payouts, including the Maturity Payout, on the dates Specified (subject to Section 4.7).  Such payment amounts are adjusted to reflect any other payment payable under this Section of the Policy.  The interest factor used in making such adjustments is the Guaranteed Rate.

 

2.2                         OPTIONAL REPAYMENT.  If so indicated in the Accumulation Fund Schedule, GLAIC shall pay to the Policyholder the amount the Policyholder needs to redeem or repay any notes or other instruments issued by the Policyholder and backed by this Policy, pursuant to any limited right of redemption or repayment contained in such note or instrument.  GLAIC may require reasonable evidence that the redemption or repayment request satisfies all the terms and conditions described in the prospectus, prospectus supplement and/or pricing supplement applicable to such note or other instrument.  Additional restrictions, if any, on the Policyholder’s reimbursement rights under this Section may be included in the Accumulation Fund Schedule.

 

1



 

2.3                         OPTIONAL REDEMPTION.  If so indicated in the Accumulation Fund Schedule, GLAIC may elect to pay the Policyholder all or any part of the Fund Balance on the Call Dates specified in the Accumulation Fund Schedule.  Unless otherwise provided in the Accumulation Fund Schedule, GLAIC will give the Policyholder at least thirty-five (35) calendar days and no more than seventy-five (75) calendar days notice of its intent to make such pre-payment.  No adjustment will be made to the amount of such payment, unless such adjustment is specifically provided for in the Accumulation Fund Schedule.

 

2.4                         MATURITY PAYMENTS.  GLAIC shall pay the Policyholder the Fund Balance on the Maturity Date.

 

2.5                         FORM OF PAYMENT.  All payments GLAIC makes to the Policyholder will be made in the Specified Currency, by wire transfer, unless otherwise agreed in writing by the parties hereto. Unless otherwise stated in the Accumulation Fund Schedule, all payments GLAIC makes will be net of any applicable withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or other governmental charges of whatever nature imposed or levied by or            on behalf of any governmental authority having the power to tax.  Unless otherwise specified in the Accumulation Fund Schedule, such net payments fully satisfy GLAIC’s obligation to the Policyholder with respect to the full amount due.

 

SECTION 3 – TERMINATION OF AGREEMENT

 

3.1                       AUTOMATIC TERMINATION/ACCELERATION.  This Policy terminates with respect to the Accumulation Fund when the Fund Balance is zero and GLAIC’s obligations hereunder shall automatically accelerate upon the occurrence of an Event of Default described in Section 3.3(a).

 

3.2                       EARLY TERMINATION/ACCELERATION.  The Policyholder may accelerate this Policy by giving GLAIC not less than two (2) Business Days’ written notice upon the occurrence of an Event of Default specified in Section 3.3 b., c. or d. below.  GLAIC may accelerate this Policy, in whole but not in part, by giving the Policyholder not less than forty-five (45) days’, but no more than seventy-five (75) days’, prior written notice of the occurrence of a Tax Event as described in Section 3.4, provided, however that this Policy shall not be terminated until the Fund Balance has been paid to the Policyholder in full.

 

3.3                       EVENTS OF DEFAULT.  An Event of Default occurs if:

 

a.               GLAIC is dissolved or a resolution is passed or proceeding is instituted for the winding-up, liquidation or similar arrangement of GLAIC (other than pursuant to a consolidation, amalgamation or merger);

 

b.              GLAIC breaches any material obligation, representation or certification contained herein, provided that there is no bona fide dispute as to whether such breach has occurred and that such breach continues for fifteen (15) Business Days following the Policyholder’s written notice to GLAIC of such breach;

 

2



 

c.               GLAIC fails to make any required Periodic Payout (other than the Maturity Payout) described in the Accumulation Fund Schedule or any other payment described in Sections 2.2 or 2.3 of this Policy or any other funding agreement GLAIC issues in connection with the Program, and such failure continues for seven (7) Business Days after the due date thereof;

 

d.              GLAIC fails to make the Maturity Payout described in the Accumulation Fund Schedule or in any other funding agreement GLAIC issues in connection with the Program and such failure is continuing as of the end of the Business Day following the due date thereof.

 

3.4                       TAX EVENT.  A “Tax Event” occurs if GLAIC has received an opinion of independent legal counsel stating in effect that there is more than an insubstantial risk that as a result of  any amendment to, or change (including any announced prospective change) in, the laws (or regulations thereunder) of the United States or any political subdivision or taxing authority thereof or therein or any amendment to, or change in, an interpretation or application of any such laws or regulations by any governmental authority in the United States, which amendment or change is enacted, promulgated, issued or announced on or after the Deposit Date, the Policyholder is or will be within ninety (90) days of the date thereof, (1) subject to an entity level U.S. federal income tax with respect to interest accrued or received on this Policy or (2) subject to more than a de minimis amount of taxes, duties or other governmental charges.

 

Notwithstanding anything to the contrary in this Section 3, if GLAIC shall comply in all respects with the requirements of this Section 3, but an event of default has occurred with respect to the notes backed by the Policy and as a result payments with respect to the notes have been accelerated, otherwise than by reason of any default under this Policy by GLAIC, no Event of Default (as defined above) under this Policy shall be deemed to have occurred, no payments with respect to this Policy shall be accelerated and GLAIC will remain obligated to make payments under this Policy as if no Event of Default had occurred with respect to the notes.

 

SECTION 4 – GENERAL PROVISIONS

 

4.1                         PAYMENT UPON TERMINATION.  Unless otherwise specified in the Accumulation Fund Schedule, GLAIC shall pay the Policyholder the Fund Balance on the Maturity Date.  Such payment fully discharges GLAIC’s obligation to the Policyholder under this Policy.

 

4.2                         DISCLAIMER OF RESPONSIBILITY.  GLAIC’s only liability is as set out in this Policy, including the Accumulation Fund Schedule attached hereto.  In performing its obligations under this Policy, GLAIC is not acting as a fiduciary or agent for the Policyholder or anyone else regardless of whether or not they are directly or indirectly associated with the Policyholder.

 

4.3                         NOTICES.  All agreements, notices, directions, consents, elections or other communication (“Notices”) required by this Policy must be in writing, directed to the applicable address designated on the face page.  Any such Notices may be given by facsimile transmission or other acceptable electronic means.  All Notices are effective when received.

 

3



 

4.4                         AMENDMENTS.  This Policy may be amended only by mutual written agreement between the  parties hereto.

 

4.5                         CONFLICT.  To the extent that there is a conflict in terms between the Policy and the Accumulation Fund Schedule, the Accumulation Fund Schedule will control the conduct of the parties.

 

4.6                         TRANSFERABILITY/ASSIGNMENT.  This Policy and the Accumulation Fund established pursuant to it may solely be sold, assigned, transferred or pledged in accordance with, and for the purposes contemplated by, the documents and agreements governing the establishment and operation of the Program.  GLAIC will maintain a record of ownership of this Policy on its books and records.

 

4.7                       PAYMENTS BY GLAIC.  When this Policy provides that GLAIC will make a payment to the  Policyholder, such payment shall be made to the Policyholder or to the agent the Policyholder  designates.  Unless otherwise specified in the Accumulation Fund Schedule, if a payment date is not  a Business Day, GLAIC will pay such amount on the next Business Day.

 

4.8                       WAIVER BY GLAIC.  At the Policyholder’s request, GLAIC may waive any terms, conditions or adjustments provided for in this Policy.  Any such waiver is subject to any limitations  GLAIC specifies in making the waiver and does not require GLAIC to grant similar future  waivers to the Policyholder or anyone else.  A failure or delay in exercising a right under this Policy  does not waive GLAIC’s right or ability to assert such right in the future.

 

4.9        MUTUAL REPRESENTATIONS.  The parties mutually represent and warrant, each to the other, that:

 

a.               This Policy is its legal, valid and binding obligation, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditor’s rights, and subject, as to enforceability, to general principals of equity, regardless of whether enforcement is sought in proceeding in equity or law;

 

b.              It has the power to enter into this Policy and to consummate the transactions contemplated hereby;

 

c.               All information provided in connection with this Policy is, to the best of its knowledge and belief, true, correct and complete;

 

d.              The execution and the delivery of this Policy and the performance of obligations hereunder do not and will not constitute or result in a default, breach or violation, of the terms or provisions of its certificate, articles or charter of incorporation, declaration of trust, by-laws or any agreement, instrument, mortgage, judgment, injunction or order applicable to it or any of its property.

 

4



 

4.10                TAX PROVISIONS.  The Policyholder and each transferee and assignee of this Policy, to the extent required by law, agree to provide GLAIC with any properly completed tax forms that are  needed for GLAIC to satisfy its tax reporting obligations with respect to amounts held under this  Policy.  This Policy is intended to be ignored for U.S. federal, state and local income and franchise  tax purposes. To the extent it cannot be ignored, GLAIC and the Policyholder and each transferee  and assignee of this Policy agree to treat this Policy as GLAIC’s debt obligation for U.S. federal,  state and local income and franchise tax purposes.

 

SECTION 5 – DEFINITIONS

 

5.1                       POLICY DEFINITIONS.  The following terms have the meanings indicated:

 

“Accumulation Fund” is the accounting record GLAIC will establish under this Policy as described in Section 1.2.

 

“Accumulation Fund Schedule” is attached to this Policy and establishes the terms of the Accumulation Fund.

 

“Business Day” is any day, other than Saturday or Sunday, that is neither a legal holiday nor a day on which commercial banks are authorized or required by law, regulation or executive order to close, or are otherwise closed, in each Business Day City specified in the Accumulation Fund Schedule.

 

“Call Date” is the day or days prior to the Stated Maturity Date, if any, specified in the Accumulation Fund Schedule attached to this Policy, on which GLAIC may elect to pay the Policyholder all or any part of the Fund Balance.  If no Call Date is indicated in an Accumulation Fund Schedule, GLAIC will pay to the Policyholder the Fund Balance prior to the Stated Maturity Date only to the extent provided in Section 3.2.

 

“Deposit Amount” is the amount GLAIC credits to the Accumulation Fund on the Deposit Date as set forth in the Accumulation Fund Schedule.

 

“Deposit Date” is the date, specified in the Accumulation Fund Schedule, on which GLAIC receives the Net Deposit Amount.

 

“Event of Default” has the meaning described in Section 3.3.

 

“Fund Balance” is the value of the Accumulation Fund, determined pursuant to Section 1.4.

 

“Guaranteed Rate” is the interest rate, if any, applied to the Accumulation Fund, as stated in the Accumulation Fund Schedule.

 

“Indenture” is that certain indenture agreement, made between the Policyholder and the Indenture Trustee related to the notes to be supported by this Policy as such agreement may be amended, supplemented or replaced from time to time.

 

5



 

“Indenture Trustee” is the party specified as trustee under the Indenture, or its successor.

 

“Maturity Date” is the earlier of (i) the Stated Maturity Date and (ii) each date on which the Fund Balance is payable in full to the Policyholder pursuant to an Event of Default, Optional Repayment, Optional Redemption or otherwise.  Unless otherwise indicated in the Accumulation Fund Schedule, if any of the foregoing dates is not a Business Day, the Maturity Date is the next following Business Day.  Interest accrues during such delay only if specified in the Accumulation Fund Schedule.

 

“Net Deposit Amount” is the amount GLAIC receives from the Policyholder on the Deposit Date as set forth in the Accumulation Fund Schedule.

 

“Program” is the Genworth Global Funding program, as described in the prospectus relating thereto, including the applicable prospectus supplement or pricing supplement or in any amendment thereto.

 

“Stated Maturity Date” is the date, as set forth on the Accumulation Fund Schedule, when the Fund Balance is originally due and payable to the Policyholder.

 

“Tax Event” has the meaning described in Section 3.4.

 

5.2                   OTHER DEFINITIONS.  Other capitalized terms appearing in this Policy have the meanings indicated on the Policy’s face page or in the Accumulation Fund Schedule.

 

6



 

GLAIC

 

Accumulation Fund Schedule – Fixed Rate

 

Policy Number: GS-R6035

 

Deposit Date:

 

May 1, 2008 or the date the deposit is actually received by GLAIC

 

 

 

Specified Currency:

 

United States Dollars

 

 

 

Deposit Amount:

 

$7,588,000.00

 

 

 

Net Deposit Amount:

 

$7,491,253.00

 

 

 

Stated Maturity Date:

 

May 15, 2015

 

 

 

Guaranteed Rate:

 

5.30%

 

 

 

Crediting Period:

 

The first Crediting Period shall be a long period commencing on the Deposit Date to but excluding November 15, 2008. Each subsequent Crediting Period shall be the semi-annual period occurring between the 15th of each May and November thereafter. The final Crediting Period will be the period from and including November 15, 2014, to but excluding May 15, 2015.

 

 

 

Interest Crediting:

 

Interest is credited based upon a 30/360 basis, applied to the Fund Balance each day.

 

 

 

Periodic Payouts:

 

On the 15th of each May and November, GLAIC will pay the Policyholder all accrued and unpaid interest (if such date is not a Business Day, the Periodic Payout will be made on the next following Business Day, and in such cases the amount of interest shall not be adjusted for non-Business Days) (each, an “Interest Payment Date”); provided, however, that the final Periodic Payout shall be on the Maturity Date, on which date all accrued and unpaid interest will be paid.

 

 

 

Optional Repayment:

 

Optional Repayments under Section 2.2 of the Policy may be made solely with respect to the “Survivor’s Option” described in Pricing Supplement No. 024 dated April 21, 2008 to the Prospectus Supplement dated December 9, 2005 related to the Program.

 

 

 

Call Terms:

 

Under Section 2.3 of the Policy, GLAIC may elect to pay the Policyholder all of the Fund Balance on May 15, 2010, or as of any date thereafter when a Periodic Payout is due (the “Call Dates”).

 

 

 

Maturity Payout:

 

On the Maturity Date, GLAIC will pay to the Policyholder the Fund Balance. If such date is not a Business Day, the Maturity Payout will be made on the next following Business Day; provided, however, that interest shall not accrue beyond the Maturity Date.

 



 

 

 

Business Day City(s):

 

New York, New York

 

 

 

Other Terms:

 

None

 

 

*********************

 

The calculation of the Guaranteed Rate and all other payment terms of this Policy will be determined in the manner described in the “Description of the Notes” section in the Prospectus Supplement.

 

 

*********************

 

 

GENWORTH LIFE AND ANNUITY

 

GENWORTH GLOBAL FUNDING TRUST 2008-19

INSURANCE COMPANY

 

 

 

 

 

 

 

By:

/s/ Pamela C. Asbury

 

By*:

/s/ Patricia M. Child

 

Pamela C. Asbury

 

 

Patricia M. Child

 

 

 

Official Title:

Vice President

 

Official Title:

Vice President

 

 

 

Date:

April 29, 2008

 

Date:

April 29, 2008

 


* It is expressly understood and agreed that (a) this Policy is executed and delivered by U.S. Bank National Association (“USB”) not individually or personally, but solely as Trustee of the Genworth Global Funding Trust 2008-19 in the exercise of powers and authority conferred and vested in it (b) each of the representations, undertakings and agreements herein made on the part of the Trust is made and intended not as personal representations, undertakings and agreements by USB but is made and intended for the purpose of binding only the Trust, (c) nothing herein contained shall be construed as creating any liability on USB individually or personally, to perform any covenant either express or implied contained herein, all such liability, if any being expressly waived by the parties hereto and by any person claiming by, through or under the parties hereto and (d) under no circumstances shall USB be personally liable for the payment of any indebtedness or expenses of the Trust or be liable for the breach or failure of any obligation, representation, warrant or covenant made or undertaken by the Trust under this Policy or any other related documents.

 

*********************

 


EX-5.1 5 a08-12984_2ex5d1.htm EX-5.1

Exhibit 5.1

 

GRAPHIC

 

 

 

Genworth Life & Annuity

 

6610 West Broad Street

Richmond, VA 23230

 

May 1, 2008

 

The Board of Directors

Genworth Life and Annuity Insurance Company

6610 West Broad Street

Richmond, Virginia 23223

 

Re:

Genworth Global Funding Trusts 2008-19, 2008-20 and 2008-21

 

Genworth DirectNotesSM

 

Ladies and Gentlemen:

 

The undersigned, as Associate General Counsel of Genworth Life and Annuity Insurance Company, a stock life insurance company operating under a charter granted by the Commonwealth of Virginia (“GLAIC” or the “Company”), delivers this opinion in connection with the issuance by Genworth Global Funding Trusts 2008-19, 2008-20 and 2008-21 (collectively referred to herein as the “Trusts”) of the Trusts’ DirectNotesSM  (the “Notes”) and the delivery of the Funding Agreement Nos. GS-R6035, GS-R6036 and GS-R6037, respectively, by GLAIC (collectively referred to herein as the “Funding Agreements”).  I or other attorneys under my supervision have reviewed the documents relating to the establishment of a program (the “Program”) pursuant to which one or more newly formed common law trusts each will issue secured medium-term notes, with each trust’s notes to be secured by a funding agreement (in the form filed as an exhibit to the Registration Statement (as defined below)), to be entered into between GLAIC and the relevant trust.

 

Each trust will be formed for the sole purpose of facilitating the issuance of notes. GLAIC has filed a Registration Statement on Form S-3 (File No. 333-128718), on September 30, 2005, as amended by Amendment No. 1, filed on December 8, 2005 (including all documents incorporated by reference therein, the “Registration Statement”), with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”). The Registration Statement includes a prospectus (including the documents incorporated by reference therein, the “Prospectus”) relating to notes, a prospectus supplement to the Prospectus relating to notes to be sold primarily to institutional investors (the “Institutional Prospectus Supplement” and together with the Prospectus, the “Institutional Prospectus”) and a prospectus supplement to the Prospectus relating to notes to be sold primarily to retail investors (the “Retail Prospectus Supplement” and together with the Prospectus, the “Retail Prospectus”). In addition, the Registration Statement includes certain other exhibits relevant to the issuance of notes and funding agreements.

 

This opinion letter is delivered to you in connection with:

 

1.  The issuance by Genworth Global Funding Trust 2008-19, a common law trust formed under the laws of the State of Illinois (the “2008-19 Trust”), of $7,588,000.00 aggregate principal amount of the 2008-19 Trust’s 5.30% DirectNotes due 2015 (the “2008-19 Notes”) pursuant to the Registration Statement, the Retail Prospectus and the applicable Pricing Supplement; and

 



 

2.  The issuance by Genworth Global Funding Trust 2008-20, a common law trust formed under the laws of the State of Illinois (the “2008-20 Trust”), of $9,510,000.00 aggregate principal amount of the 2008-20 Trust’s 6.05% DirectNotes due 2023 (the “2008-20 Notes”) pursuant to the Registration Statement, the Retail Prospectus and the applicable Pricing Supplement; and

 

3.  The issuance by Genworth Global Funding Trust 2008-21, a common law trust formed under the laws of the State of Illinois (the “2008-21 Trust”), of $8,392,000.00 aggregate principal amount of the 2008-21 Trust’s 6.30% DirectNotes due 2033 (the “2008-21 Notes”) pursuant to the Registration Statement, the Retail Prospectus and the applicable Pricing Supplement; and

 

The 2008-19 Notes, the 2008-20 Notes and the 2008-21 Notes are collectively referred to herein as the “Notes.”  The Trusts were formed on April 28, 2008 and the Notes were issued on May 1, 2008.

 

As counsel for GLAIC, I am familiar with and have examined, either personally or through attorneys under my direction, supervision or control, the articles of incorporation and bylaws of GLAIC, other corporate records, instruments and other documents as deemed necessary or appropriate in order to render the opinions set forth herein. I, either personally or through attorneys under my direction, supervision or control, have also reviewed, supervised and participated in the preparation of the Registration Statement. In rendering the opinion expressed below, I have assumed the due authorization, execution and delivery of the Funding Agreements by the parties thereto, other than as to the authorization, execution and delivery by the Company.

 

Based upon the foregoing, and relying upon the correctness of all statements of fact contained in the certificates, records and other documents which I have examined either personally or through attorneys under my direction, supervision or control, and subject to limitations, qualifications, caveats and exceptions set forth below, I am of the opinion that, the Funding Agreements constitute the legal and binding obligations of GLAIC in accordance with their terms, except to the extent limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the enforcement of creditors’ rights generally, and to general principles of equity, including applicable insurance company insolvency laws.

 

I express no opinion herein other than as to the law of the Commonwealth of Virginia. This opinion is rendered as of the date hereof and I assume no obligation to update or supplement this letter to reflect any circumstances which may hereafter come to my attention with respect to the opinion and statements set forth above, including any changes in law or fact (or the effect thereof on the opinions expressed herein) that hereafter may come to my attention.

 

I hereby consent to the filing of this letter as an exhibit to the Current Report on Form 8-K filed by the Company in connection with the issuance and sale of the Notes, filed as an exhibit to the Current Report on Form 8-K and to the use of my name in the pricing supplements dated April 21, 2008 (each, a “Pricing Supplement”) filed by the Company in connection with the issuance and sale of the Notes. In giving such consent, I do not thereby concede that I am within the category of persons whose consent is required under Section 7 of the 1933 Act or the rules and regulations of the Commission thereunder.

 

 

Very truly yours,

 

 

 

 

 

/s/ Heather C. Harker

 

Heather C. Harker

 

Associate General Counsel

 

Genworth Life and Annuity Insurance Company

 

 

2


EX-5.2 6 a08-12984_2ex5d2.htm EX-5.2

Exhibit 5.2

 

 

SIDLEY AUSTIN LLP

ONE SOUTH DEARBORN

CHICAGO, IL 60603

(312) 853 7000

(312) 853 7036 FAX

 

BEIJING

BRUSSELS

CHICAGO

DALLAS

FRANKFURT

GENEVA

HONG KONG

LONDON

 

LOS ANGELES

NEW YORK

SAN FRANCISCO

SHANGHAI

SINGAPORE

SYDNEY

TOKYO

WASHINGTON, D.C.

 

 

 

 

 

 

 

 

 

 

 

FOUNDED 1866

 

 

 

May 1, 2008

 

Genworth Life and Annuity Insurance Company

6610 West Broad Street

Richmond, Virginia  23230

 

Re:             Genworth Global Funding Trusts 2008-19, 2008-20 and 2008-21 Genworth DirectNotessm

 

Ladies and Gentlemen:

 

We have acted as special counsel to Genworth Life and Annuity Insurance Company, a stock life insurance company operating under a charter granted by the Commonwealth of Virginia (“GLAIC”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), by GLAIC of a Registration Statement on Form S-3 (File No. 333-128718) on September 30, 2005, as amended by Amendment No. 1 filed with the Commission on December 8, 2005 (including the documents incorporated by reference therein, the “Registration Statement”), including (i) a prospectus (including the documents incorporated by reference therein, the “Prospectus”) relating to secured medium-term notes to be issued from time to time by newly established separate and distinct special purpose common law trusts, each of which will be formed in a jurisdiction located in the United States specified in the applicable pricing supplement to the Prospectus, (ii) a prospectus supplement to the Prospectus, relating to secured medium-term notes to be issued from time to time by the trusts primarily to institutional investors (the “Institutional Prospectus Supplement”) and (iii) a prospectus supplement to the Prospectus, relating to Genworth DirectNotesSM to be issued from time to time by the trusts primarily to retail investors (the “Retail Prospectus Supplement”).  The Registration Statement was declared effective by the Commission on December 9, 2005.

 

The Registration Statement provides for: (i) the registration of up to $5,000,000,000, or the equivalent amount in one or more foreign currencies, aggregate principal amount of notes to be issued by the trusts, with each trust to issue its notes pursuant to an indenture to be entered into between such trust and an indenture trustee specified in the applicable indenture, substantially in the form filed as an exhibit to the Registration Statement and (ii) the registration of up to $5,000,000,000, or the equivalent amount in one or more foreign currencies, of GLAIC’s funding agreements (each in substantially the form filed as an exhibit to the

 

Sidley Austin LLP is a limited liability partnership practicing in affiliation with other Sidley Austin partnerships

 



 

Registration Statement) to be sold by GLAIC to the trusts in connection with the issuance and sale of the notes.

 

This opinion letter is delivered to you in connection with:

 

1.               the issuance by Genworth Global Funding Trust 2008-19, a common law trust formed under the laws of the State of Illinois (the “2008-19 Trust”), of $7,588,000.00 aggregate principal amount of the 2008-19 Trust’s 5.30% DirectNotessm due May 15, 2015 (the “2008-19 Notes”) pursuant to the Registration Statement, the Retail Prospectus and the applicable Pricing Supplement (as defined below);

 

2.               the issuance by Genworth Global Funding Trust 2008-20, a common law trust formed under the laws of the State of Illinois (the “2008-20 Trust”), of $9,510,000.00 aggregate principal amount of the 2008-20 Trust’s 6.05% DirectNotessm due May 15, 2023 (the “2008-20 Notes”) pursuant to the Registration Statement, the Retail Prospectus and the applicable Pricing Supplement; and

 

3.               the issuance by Genworth Global Funding Trust 2008-21, a common law trust formed under the laws of the State of Illinois (the “2008-21 Trust”), of $8,392,000.00 aggregate principal amount of the 2008-21 Trust’s 6.30% DirectNotessm due May 15, 2033 (the “2008-21 Notes”) pursuant to the Registration Statement, the Retail Prospectus and the applicable Pricing Supplement.

 

The 2008-19 Trust, the 2008-20 Trust and the 2008-21 Trust are referred to collectively herein as the “Trusts”; and the 2008-19 Notes, the 2008-20 Notes and the 2008-21 Notes are referred to collectively herein as the “Notes.”  The Trusts were formed on April 28, 2008 (the “Formation Date”) and the Notes are expected to be issued on the date hereof (the “Issuance Date”).

 

In furnishing this opinion letter, we have reviewed: (i) the Registration Statement, the Prospectus, the Institutional Prospectus Supplement, the Retail Prospectus Supplement and each of the pricing supplements related to the Notes, each such pricing supplement dated April 21, 2008 (each, a “Pricing Supplement” and together the “Pricing Supplements”), (ii) each of the trust agreements, dated as of the Formation Date (the “Trust Agreements”), which adopt and incorporate the standard trust terms, dated December 8, 2005, between U.S. Bank National Association, as successor trustee (the “Trustee”), and GSS Holdings II, Inc., as trust beneficial owner, (iii) each of the indentures, dated as of the Issuance Date (the “Indentures”), which adopt and incorporate the standard indenture terms, dated December 8, 2005, between The Bank of New York Trust Company, National Association, as successor indenture trustee, and the relevant Trust, (iv) the Distribution Agreement, dated December 9, 2005, entered into by and among

 

2



 

GLAIC and the agents and co-agents named therein, acknowledged and agreed to by the relevant Trust pursuant to the applicable terms agreement, dated as of the Formation Date, executed by the Trust through the execution of the applicable Pricing Instrument (defined below), (v) each of the pricing instruments, dated as of the Formation Date (the “Pricing Instruments”), that include the relevant Trust Agreement and Indenture executed in connection with the creation of the applicable Trust and the issuance by such Trust of the relevant Notes, (vi) each of the Closing Instruments, dated as of the Issuance Date, related to the relevant Trust, (vii) the Notes and (viii) Funding Agreement No. GS-R6035, Funding Agreement No. GS-R6036 and Funding Agreement No. GS-R6037 executed by GLAIC. We have also examined originals, or copies of originals certified or otherwise identified to our satisfaction, of such other agreements, documents, certificates and other statements of governmental officials and other instruments, have examined such questions of law and have satisfied ourselves as to such matters of fact as we have considered relevant or necessary as a basis for this opinion letter.  We have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures, the legal capacity of all natural persons and the conformity with the authentic original documents of all documents submitted to us as copies.

 

Based upon the foregoing, and subject to the qualifications and limitations stated herein, we are of the opinion that, upon the due execution and authentication of the relevant Notes as provided in the applicable Indenture and the delivery of such relevant Notes to the purchasers thereof against payment of the agreed consideration therefor, the relevant Notes will be the valid and binding obligations of the applicable Trust, enforceable against such Trust in accordance with their terms, except as enforceability is limited by the effects of bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors’ rights generally and general principles of equity (regardless of whether such principles are considered in a proceeding in equity or at law).  We express no opinion as to the laws of any jurisdiction other than the laws of the State of New York and the laws of the State of Illinois.  This opinion letter is rendered as of the date hereof based upon the facts and law in existence on the date hereof.  We assume no obligation to update or supplement this opinion letter to reflect any circumstances which may hereafter come to our attention with respect to the opinion and statements set forth above, including any changes in applicable law which may hereafter occur.

 

We hereby consent to the filing of this opinion letter as an exhibit to the Current Report on Form 8-K filed by GLAIC in connection with the issuance and sale of the Notes, incorporated by reference in the Registration Statement.  In giving such consent, we do not thereby concede that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

 

 

Very truly yours,

 

 

 

 

 

/s/ Sidley Austin LLP

 

3


EX-8 7 a08-12984_2ex8.htm EX-8

Exhibit 8

 

 

SIDLEY AUSTIN LLP

ONE SOUTH DEARBORN

CHICAGO, IL 60603

(312) 853 7000

(312) 853 7036 FAX

 

BEIJING

BRUSSELS

CHICAGO

DALLAS

FRANKFURT

GENEVA

HONG KONG

LONDON

 

LOS ANGELES

NEW YORK

SAN FRANCISCO

SHANGHAI

SINGAPORE

SYDNEY

TOKYO

WASHINGTON, D.C.

 

 

 

 

 

 

 

 

 

 

 

FOUNDED 1866

 

 

 

May 1, 2008

 

Genworth Life and Annuity Insurance Company

6610 West Broad Street

Richmond, Virginia  23230

 

Re:          Genworth Global Funding Trusts 2008-19, 2008-20 and 2008-21 Genworth DirectNotesSM

 

Ladies and Gentlemen:

 

This opinion letter is delivered to you in connection with:

 

1.     the issuance by Genworth Global Funding Trust 2008-19 (the “2008-19 Trust”) of $7,588,000.00 aggregate principal amount of the 2008-19 Trust’s 5.30% DirectNotesSM due May 15, 2015 (the “2008-19 Notes”) related to funding agreement No. GS-R6035 (the “2008-19 Funding Agreement”) executed by Genworth Life and Annuity Insurance Company, a stock life insurance company operating under a charter granted by the Commonwealth of Virginia (“GLAIC”);

 

2.     the issuance by Genworth Global Funding Trust 2008-20 (the “2008-20 Trust”) of $9,510,000.00 aggregate principal amount of the 2008-20 Trust’s 6.05% DirectNotesSM due May 15, 2023 (the “2008-20 Notes”) related to funding agreement No. GS-R6036 (the “2008-20 Funding Agreement”) executed by GLAIC; and

 

3.     the issuance by Genworth Global Funding Trust 2008-21 (the “2008-21 Trust”) of $8,392,000.00 aggregate principal amount of the 2008-21 Trust’s 6.30% DirectNotesSM due May 15, 2033 (the “2008-21 Notes”) related to funding agreement No. GS-R6037 (the “2008-21 Funding Agreement”) executed by GLAIC.

 

The 2008-19 Trust, the 2008-20 Trust and the 2008-21 Trust are referred to collectively herein as the “Trusts”; the 2008-19 Notes, the 2008-20 Notes and the 2008-21 Notes are referred to collectively herein as the “Notes”; and the 2008-19 Funding Agreement, the 2008-20 Funding Agreement and the 2008-21 Funding Agreement are referred to collectively herein as the

 

Sidley Austin LLP is a limited liability partnership practicing in affiliation with other Sidley Austin partnerships

 



 

“Funding Agreements.”  The Trusts were formed on April 28, 2008 (the “Formation Date”) and the Notes will be issued on May 1, 2008 (the “Issuance Date”).

 

We have acted as counsel to GLAIC and each other agent under the Genworth Global Funding Trusts Program (each, an “Agent”) in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), by GLAIC, of (i) a Registration Statement on Form S-3 (File No. 333-128718) on September 30, 2005, as amended by Amendment No. 1 filed with the Commission on December 8, 2005 (including the documents incorporated by reference therein, the “Registration Statement”), (ii) a prospectus dated December 9, 2005 (the “Prospectus”), relating to secured medium-term notes to be issued from time to time by newly established separate and distinct special purpose common law trusts, each of which will be formed in a jurisdiction located in the United States specified in the applicable pricing supplement, (iii) a prospectus supplement to the Prospectus dated December 9, 2005, relating to the Notes under the Genworth DirectNotesSM program to be issued from time to time by the trusts (the “Retail Prospectus Supplement” and, together with the Prospectus, the “Retail Prospectus”).  The Registration Statement provides for: (i) the registration of up to $5,000,000,000, or the equivalent amount in one or more foreign currencies, aggregate principal amount of secured medium-term notes to be issued by the trusts and (ii) the registration of up to $5,000,000,000, or the equivalent amount in one or more foreign currencies, of GLAIC’s funding agreements to be sold to the trusts in connection with the sale of notes.

 

In furnishing this opinion letter, we have reviewed: (i) the Registration Statement, the Prospectus, the Retail Prospectus Supplement and each of the pricing supplements related to the Notes, each such pricing supplement dated April 21, 2008 (each, a “Pricing Supplement” and together the “Pricing Supplements”), (ii) each of the trust agreements, dated as of the Formation Date (the “Trust Agreements”), between U.S. Bank National Association, as successor trustee, and GSS Holdings II, Inc., as trust beneficial owner, which adopt and incorporate the standard trust terms dated December 8, 2005, (iii) each of the indentures, dated as of the Issuance Date (each, an “Indenture”), between The Bank of New York Trust Company, National Association, as successor indenture trustee, and the relevant Trust, which adopt and incorporate the standard indenture terms dated December 8, 2005, (iv) each of the pricing instruments, dated as of the Formation Date (the “Pricing Instruments”), that include the relevant Trust Agreement and Indenture executed in connection with the creation of the applicable Trust and the issuance by such Trust of the relevant Notes, (v) the Funding Agreements, (vi) the Distribution Agreement, dated December 9, 2005, entered into by and among GLAIC and the agents and co-agents named therein, acknowledged and agreed to by the relevant Trust pursuant to the applicable terms agreement, dated as of the Formation Date, executed by the Trust through the execution of the applicable Pricing Instrument, (vii) each of the Closing Instruments, dated as of the Issuance Date, related to each relevant Trust, (viii) the Notes and (ix) such other records, documents, certificates or other instruments as in our judgment were necessary or appropriate to enable us to

 

2



 

render the opinion expressed below.  We have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures, the legal capacity of all natural persons and the conformity with the original documents of any copies submitted to us for our examination.  We have also assumed that the transactions described in the Registration Statement are performed in the manner described therein.

 

Based on the foregoing, and subject to the limitations, qualifications and assumptions set forth herein, the discussion set forth in the Retail Prospectus Supplement under the heading “Material United States Federal Income Tax Considerations,” to the extent describing matters of United States federal income tax law or legal conclusions with respect thereto, is our opinion.

 

In rendering the opinion set forth above, we have considered the applicable provisions of the Internal Revenue Code of 1986, as amended (the “Code”), regulations promulgated thereunder by the United States Treasury Department (the “Regulations”), pertinent judicial authorities, rulings and other administrative interpretations of the Internal Revenue Service and such other authorities as we have considered relevant.  It should be noted that the Code, the Regulations and such judicial authorities, rulings, and administrative interpretations and other authorities are subject to change at any time and, in some circumstances, with retroactive effect; and any such change could affect the opinion stated herein.

 

This opinion is rendered as of the date hereof based upon the facts and law in existence on the date hereof.  We assume no obligation to update or supplement this letter to reflect any facts or circumstances which may hereafter come to our attention with respect to the opinion and statements set forth above, including any changes in applicable law which may hereafter occur.

 

We hereby consent to the filing of this letter as an exhibit to the Current Report on Form 8-K filed by GLAIC in connection with the issuance and sale of the Notes, incorporated by reference in the Registration Statement.  In giving such consent, we do not thereby concede that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.

 

 

Very truly yours,

 

 

 

/s/ Sidley Austin LLP

 

3


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-----END PRIVACY-ENHANCED MESSAGE-----