Item 1.01 Entry into a Material Definitive Agreement.
On July 20, 2020, Genworth Financial, Inc. (“Genworth” or the “Company”) announced that it settled the previously disclosed action AXA SA v. Genworth Financial International Holdings, LLC et al. in the High Court of Justice, Business and Property Courts of England and Wales, in respect of which judgment is awaited following a quantum trial in June 2020. In this case, AXA SA (“AXA”) has sought payment from Genworth for payment protection insurance (“PPI”) mis-selling losses. Pursuant to a sale and purchase agreement dated September 17, 2015 (the “SPA”), AXA purchased, among other entities, Financial Insurance Company Limited (“FICL”) and Financial Assurance Company Limited (“FACL”) from Genworth. FICL and FACL underwrote PPI which has resulted in extensive consumer complaints on the basis that it was mis-sold by a third party distributor, leading to large losses (including consumer redress and associated fees/expenses). Under the SPA Genworth covenanted to pay AXA for certain of its PPI mis-selling losses. The settlement was agreed following the High Court’s liability judgment dated December 6, 2019 and prior to the High Court issuing its judgment on the quantum of damages.
In connection with the settlement, the Company has agreed to make a £100 million, or approximately $125 million, cash payment (the “Initial Cash Payment”) to AXA by July 23, 2020 (which amount is in addition to a £100 million interim cash payment Genworth made to AXA in January 2020 and expensed in the fourth quarter of 2019). In addition, the Company, along with Genworth Financial International Holdings, LLC, has issued a Secured Promissory Note, dated as of July 20, 2020 (the “Note”), pursuant to which: (i) the Company has agreed to make a deferred cash payment in two installments in an aggregate amount equal to approximately £317 million, the first on June 30, 2022 (the “First Installment Date”) and the second on September 30, 2022 (the “Final Installment Date”); (ii) the Company has agreed to pay a significant portion of all future amounts in respect of relevant third party distributor mis-selling losses incurred by AXA, to be invoiced quarterly in arrears by AXA, and which invoiced amounts (the “Future Loss Payment Amounts”) will accrue and, to the extent invoiced 30 days prior thereto, will be paid on the Final Installment Date; and (iii) the Company has agreed to secure the obligations under the Note by pledging (a) as of the date of the Note, 19.9% of the outstanding common shares in Genworth Mortgage Insurance Australia Limited held by the Company through its subsidiaries and (b) 19.9% of the outstanding common shares in Genworth Mortgage Holdings, Inc. held by the Company through its subsidiaries. The Company has agreed to a mechanism for payment of remaining Future Loss Payment Amounts once the Note has been paid in full and terminated in accordance with its terms. The Note will terminate upon the payment in full of all the obligations thereunder on, or prior to, the Final Installment Date, on which date the aggregate principal amount then outstanding shall be due. Pursuant to the settlement with AXA and provisions of the SPA, in the event that AXA recovers amounts from third parties related to the mis-selling losses, including from the distributor responsible for the sale of the policies, Genworth has certain rights to share in those recoveries to recoup payments for the underlying mis-selling losses.
The outstanding principal amount of the Note shall bear interest, payable quarterly, at the rate of 5.25% per annum, with a stepdown to 2.75% following certain prepayment trigger events, which stepdown is to be applied retroactively against amounts already paid in the form of a credit against future payment. Pursuant to the Note, the Company is required to make certain mandatory prepayments upon the occurrence of (1) the consummation of certain qualifying debt transactions in which total gross proceeds of at least $750 million are raised; (2) the consummation of certain qualifying equity issuances or dispositions with respect to Genworth Mortgage Holdings, Inc. (a subsidiary of the Company), or any of its subsidiaries, in which total net cash proceeds of at least $475 million are raised; (3) certain dispositions of the U.S. mortgage insurance business of the Company; (4) the consummation of the previously disclosed China Oceanwide merger and funding of the contemplated capital contribution in connection therewith, (5) certain change of control transactions by the Company; and (6) receipt of dividends and sale proceeds from certain Company subsidiaries above certain threshold amounts. The Company has also agreed pursuant to the Note to certain negative and affirmative covenants, representations and warranties and customary events of default. In addition, any dividends and sale proceeds received by the Company in respect of the collateral described in clause (iii) above will be paid to AXA to satisfy the outstanding balance of the Note.
In connection with the settlement, AXA and Genworth have agreed, pending satisfaction of certain conditions, not to enforce, appeal or set aside the liability judgment of December 6, 2019 and any judgment in respect of the quantum of AXA’s claim subject to a termination right of AXA if the Note and related security package is determined to be void and/or unenforceable. Upon satisfaction of those conditions (namely payment of the £100 million (or approximately $125 million) Initial Cash Payment and the execution by Genworth and AXA of documents contemplated by the Note Documentation to perfect the security described above), those agreements not to enforce the judgments will become permanent, subject to limited exceptions in respect of certain rights or claims under the SPA and in respect of enforcing the terms of the settlement