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NATIONWIDE FINANCIAL SERVICES, INC.
TO
WILMINGTON TRUST COMPANY
Trustee
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FORM OF
FIRST SUPPLEMENTAL INDENTURE
Dated as of November __, 2001
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$300,000,000
6.25% Senior Notes
Due 2011
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TABLE OF CONTENTS/1/
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Page
Article I Series 6.25% Senior Notes...........................................1
SECTION 1.01 ESTABLISHMENT.............................................1
SECTION 1.02 DEFINITIONS...............................................2
SECTION 1.03 PAYMENT OF PRINCIPAL AND INTEREST.........................2
SECTION 1.04 DENOMINATIONS.............................................3
SECTION 1.05 GLOBAL SECURITIES.........................................3
SECTION 1.06 REDEMPTION................................................3
SECTION 1.07 PAYING AGENT..............................................3
Article II Miscellaneous Provisions...........................................4
SECTION 2.01 RECITALS BY CORPORATION...................................4
SECTION 2.02 RATIFICATION AND INCORPORATION OF ORIGINAL INDENTURE......4
SECTION 2.03 EXECUTED IN COUNTERPARTS..................................4
EXHIBIT A Form of 6.25% Senior Note Due 2011
EXHIBIT B Certificate of Authentication
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/1/This Table of Contents does not constitute part of the Indenture or have any
bearing upon the interpretation of any of its terms and provisions.
i
THIS FIRST SUPPLEMENTAL INDENTURE is made as of the ____ day of November,
2001, by and between NATIONWIDE FINANCIAL SERVICES, INC., a corporation duly
organized and existing under the laws of the State of Delaware (the "Company"),
and WILMINGTON TRUST COMPANY, a Delaware banking corporation, as Trustee (herein
called the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has heretofore entered into a Senior Indenture, dated
as of November 1, 2001 (the "Original Indenture") with Wilmington Trust Company,
as Trustee;
WHEREAS, the Original Indenture is incorporated herein by this reference
and the Original Indenture, as may be amended and supplemented to the date
hereof, including by this First Supplemental Indenture, is herein called the
"Indenture";
WHEREAS, under the Indenture, a new series of Securities may at any time be
established in accordance with the provisions of the Indenture and the terms of
such series may be described by a supplemental indenture executed by the Company
and the Trustee;
WHEREAS, the Company proposes to create under the Indenture a series of
Securities;
WHEREAS, additional Securities of other series hereafter established,
except as may be limited in the Indenture as at the time supplemented and
modified, may be issued from time to time pursuant to the Indenture as at the
time supplemented and modified; and
WHEREAS, all conditions necessary to authorize the execution and delivery
of this First Supplemental Indenture and to make it a valid and binding
obligation of the Company have been done or performed.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
Article I
6.25% Senior Notes
SECTION 1.01 ESTABLISHMENT. There is hereby established a new series of
Securities to be issued under the Indenture, to be designated as the Company's
6.25% Senior Notes due 2011 (the "6.25% Notes").
There are to be authenticated and delivered $300,000,000 principal amount
of 6.25% Notes, and no further 6.25% Notes shall be authenticated and delivered
except as provided by Sections 2.8, 2.9, 2.11, 8.5 or 12.3 of the Original
Indenture. The 6.25% Notes shall be issued in definitive fully registered form
without coupons.
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The 6.25% Notes shall be in substantially the form set out in Exhibit A
hereto, and the form of the Trustee's Certificate of Authentication for the
6.25% Notes shall be in substantially the form set forth in Exhibit B hereto.
Each 6.25% Note shall be dated the date of authentication thereof and shall
bear interest from the date of original issuance thereof or from the most recent
Interest Payment Date to which interest has been paid or duly provided for.
SECTION 1.02 DEFINITIONS. The following defined terms used herein shall,
unless the context otherwise requires, have the meanings specified below.
Capitalized terms used herein for which no definition is provided herein shall
have the meanings set forth in the Original Indenture.
"Interest Payment Dates" means May 15 and November 15, commencing May 15,
2002.
"Regular Record Date" means May 1 and November 1.
"Stated Maturity" means November 15, 2011.
SECTION 1.03 PAYMENT OF PRINCIPAL AND INTEREST. The unpaid principal amount
of the 6.25% Notes shall bear interest at the rate of 6.25% per annum until paid
or duly provided for, such interest to accrue from November 19, 2001 or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for. Interest shall be paid semiannually in arrears on each Interest
Payment Date to the Person in whose name in the 6.25% Notes are registered on
the Regular Record Date for such Interest Payment Date; provided that interest
payable at the Stated Maturity of principal or on a Redemption Date as provided
herein will be paid to the Person to whom principal is payable. Any such
interest that is not so punctually paid or duly provided for will forthwith
cease to be payable to the Holders on such Regular Record Date and will be paid
to the Person or Persons in whose name the 6.25% Notes are registered at the
close of business on a Special Record Date for the payment of such defaulted
interest to be fixed by the Company ("Special Record Date"), notice whereof
shall be given to Holders of the 6.25% Notes not less than fifteen (15) days
prior to such Special Record Date, as more fully provided in the Original
Indenture.
Payments of interest on the 6.25% Notes will include interest accrued to
but excluding the respective Interest Payment Dates. Interest payments for the
6.25% Notes shall be computed and paid on the basis of a 360-day year of twelve
30-day months. In the event that any date on which interest is payable on the
6.25% Notes is not a Business Day, then payment of the interest payable on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or payment in respect of any such delay) with the same force and
effect as if made on the date the payment was originally payable.
Payment of the principal, premium, if any, and interest on the 6.25% Notes
shall be made at the office of the Paying Agent in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts, with any such payment that is due at the Stated
Maturity or at earlier redemption of any 6.25% Notes being made upon surrender
of such 6.25% Notes to the Paying Agent. Payments of interest
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(including interest on any Interest Payment Date) will be made, subject to such
surrender where applicable, at the option of the Company, (i) by check mailed to
the address of the Person entitled thereto as such address shall appear in the
Security Register or (ii) by wire transfer at such place and to such account at
a banking institution in the United States as may be designated in writing to
the Trustee at least sixteen (16) days prior to the date for payment by the
Person entitled thereto.
SECTION 1.04 DENOMINATIONS. The 6.25% Notes may be issued in denominations
of $1,000 or any integral multiple thereof.
SECTION 1.05 GLOBAL SECURITIES. The 6.25% Notes will initially be issued in
the form of one or more Global Securities registered in the name of the
Depositary (which initially shall be The Depository Trust Company) or its
nominee. Except under the limited circumstances described below, 6.25% Notes
represented by such Global Security or Global Securities will not be
exchangeable for, and will not otherwise be issuable as, 6.25% Notes in
definitive form. The Global Securities described above may not be transferred
except 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 or to a
successor Depositary or its nominee.
A Global Security shall be exchangeable for 6.25% Notes registered in the
names of the persons other than the Depositary or its nominee only if (i) the
Depositary notifies the Company that it is unwilling or unable to continue as a
Depositary for such Global Security and no successor Depositary shall have been
appointed by the Company within 90 days of receipt by the Company of such
notification, or if at any time the Depositary ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, at a time when
the Depositary is required to be so registered to act as such Depositary and no
successor Depositary shall have been appointed by the Company within 90 days
after it becomes aware of such cessation, (ii) the Company in its sole
discretion determines that such Global Security shall be so exchangeable. Any
Global Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for 6.25% Notes registered in such names as the Depositary shall
direct, or (iii) an Event of Default shall have occurred.
SECTION 1.06 REDEMPTION. The 6.25% Notes shall not be subject to redemption
prior to their Stated Maturity. The 6.25% Notes shall not have a sinking fund.
SECTION 1.07 PAYING AGENT. The Trustee shall initially serve as Paying
Agent with respect to the 6.25% Notes , with the Place of Payment initially
being the Corporate Trust Office.
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Article II
Miscellaneous Provisions
SECTION 2.01 RECITALS BY CORPORATION. The recitals in this Supplemental
Indenture are made by the Company only and not by the Trustee, and all of the
provisions contained in the Original Indenture in respect of the rights,
privileges, immunities, powers and duties of the Trustee shall be applicable in
respect of the 6.25% Notes and of this First Supplemental Indenture as fully and
with like effect as if set forth herein in full.
SECTION 2.02 RATIFICATION AND INCORPORATION OF ORIGINAL INDENTURE. As
supplemented hereby, the Original Indenture is in all respects ratified and
confirmed, and the Original Indenture and this First Supplemental Indenture
shall be read, taken and construed as one and the same instrument.
SECTION 2.03 EXECUTED IN COUNTERPARTS. This First Supplemental Indenture
may be executed in several counterparts, each of which shall be deemed to be an
original, and such counterparts shall together constitute but one and the same
instrument.
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IN WITNESS WHEREOF, each party hereto has caused this instrument to be
signed in its name and behalf by its duly authorized officers, all as of the day
and year first above written.
NATIONWIDE FINANCIAL SERVICES, INC.
[CORPORATE SEAL]
Attest: By:
---------------------------------
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Name:
Title:
WILMINGTON TRUST COMPANY,
as Trustee
[CORPORATE SEAL]
Attest:
By:
---------------------------------
---------------------------------
Name:
Title:
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EXHIBIT A
FORM OF
6.25% SENIOR NOTE
DUE 2011
No. [__________] CUSIP NO. 638612 AE 1
Unless this certificate is presented by an authorized representative of the
Depository Trust Company, a New York Corporation ("DTC"), to the Company, as
defined below, or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and such
payment is made to Cede & Co. or to 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, Cede & Co., has an interest herein.
Unless and until this certificate is exchanged in whole or in part for Senior
Notes in certificated form, this certificate may not be transferred except as a
whole by DTC to a nominee thereof or by a nominee thereof to DTC or another
nominee of DTC or by DTC or any such nominee to a successor of DTC or a nominee
of such successor.
NATIONWIDE FINANCIAL SERVICES, INC.
6.25% SENIOR NOTE
DUE 2011
Principal Amount: $300,000,000
Regular Record Date: May 1 and November 1
Original Issue Date: November 19, 2001
Stated Maturity: November 15, 2011
Interest Payment Dates: May 15 and November 15, commencing May 15, 2002
Interest Rate: 6.25% per annum
Authorized Denomination: $1,000 or any integral multiples thereof
NATIONWIDE FINANCIAL SERVICES, INC., a corporation duly organized and
existing under the laws of the State of Delaware (the "Company"), which term
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to DTC, or
registered assigns, the principal sum of THREE HUNDRED MILLION DOLLARS
($300,000,000) on the Stated Maturity shown above and to pay interest thereon
from the Original Issue Date shown above, or from the most recent Interest
Payment
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Date to which interest has been paid or duly provided for, semiannually in
arrears on each Interest Payment Date as specified above, commencing on May 15,
2002 and on the Stated Maturity at the rate per annum shown above (the "Interest
Rate") until the principal hereof is paid or made available for payment and on
any overdue principal and on, to the extent permitted by law, any overdue
installment of interest. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date (other than an Interest Payment Date
that is the Stated Maturity) will, as provided in such Indenture, be paid to the
Person in whose name this 6.25% Senior Note (this "Security") is registered at
the close of business on the Regular Record Date as specified above next
preceding such Interest Payment Date; provided that any interest payable at
Stated Maturity will be paid to the Person to whom principal is payable. Except
as otherwise provided in the Indenture, any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and will be paid to the Person in whose name this Security
is registered at the close of business on a Special Record Date for the payment
of such Defaulted Interest to be fixed by or on behalf of the Company, notice
whereof shall be given to Holders of Securities of this series not less than 15
days prior to such Special Record Date, as more fully provided in said
Indenture.
Payments of interest on this Security will include interest accrued to but
excluding the respective Interest Payment Dates. Interest payments for this
Security shall be computed and paid on the basis of a 360-day year of twelve
30-day months. In the event that any date on which interest is payable on this
Security is not a Business Day, then payment of the interest payable on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or payment in respect of any such delay) with the same force and
effect as if made on the date the payment was originally payable. "Business Day"
means a day other than a day on which banks in New York, New York are authorized
or required by law, executive order or regulation to remain closed.
Payment of the principal of, premium, if any, on and interest due at the
Stated Maturity of this Security shall be made upon surrender of this Security,
at the Corporate Trust Office, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts. Payment of interest (including interest on an Interest Payment
Date) will be made, subject to such surrender where applicable, at the option of
the Company, (i) by check mailed to the address of the Person entitled thereto
as such address shall appear in the Security register or (ii) by wire transfer
at such place and to such account at a banking institution in the United States
as may be designated in writing to the Trustee at least sixteen (16) days prior
to the date for payment by the Person entitled thereto.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the
Trustee, this Security shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: November __, 2001
NATIONWIDE FINANCIAL SERVICES, INC.
[CORPORATE SEAL]
Attest: By:
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Name:
Title:
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series referred to in the
within-mentioned Senior Indenture.
WILMINGTON TRUST COMPANY,
as Trustee
By:
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(Reverse Side of Security)
This Security is one of a duly authorized issue of Securities of the
Company (the "Securities"), issued and issuable in one or more series under a
Senior Indenture, dated as of November 1, 2001, as supplemented (the
"Indenture"), between the Company and Wilmington Trust Company, as Trustee (the
"Trustee"), which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitation of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities issued thereunder and of the terms upon which said Securities are,
and are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof as 6.25% Senior Notes due 2011 (the "6.25% Notes")
in the aggregate principal amount of up to $300,000,000. Capitalized terms used
herein for which no definition is provided herein shall have the meanings set
forth in the Indenture.
The 6.25% Notes shall not be subject to redemption prior to their Stated
Maturity. The 6.25% Notes shall not have a sinking fund.
If an Event of Default with respect to the Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of all series affected
under the Indenture at any time by the Company and the Trustee (i) in certain
circumstances without the consent of the Holders and (ii) in other circumstances
with the consent of the Holders of not less than a majority in principal amount
of the Outstanding Securities of each series affected thereby. The Indenture
contains provisions permitting the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series with respect to
which a default under the Indenture shall have occurred and be continuing, on
behalf of the Holders of all Outstanding Securities of such series, to waive,
with certain exceptions, such default under the Indenture and its consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security 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 Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, premium, if any, on and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the security register of
the Company, upon surrender of this Security for registration of transfer at the
office or agency of the Company for such purpose, duly endorsed by, or
accompanied by a written instrument of transfer in form reasonably satisfactory
to the Company and the Trustee and duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this
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series, of authorized denominations and of like tenor and for the same aggregate
principal amount, will be issued to the designated transferee or transferees. No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in aggregate
principal amount of the Securities of this series at the time Outstanding shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and shall have offered the Trustee such
indemnity as it may require, and the Trustee shall not have received from the
Holders of a majority in aggregate principal amount of Securities of this series
at the time Outstanding a direction inconsistent with such request and shall
have failed to institute any such proceeding for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof, premium, if any, on or any interest hereon on or
after the respective due dates expressed herein.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of the Securities of the 6.25% Notes and for covenant defeasance at
any time of certain covenants in the Indenture upon compliance with certain
conditions set forth in the Indenture.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to the limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same upon surrender of the Security or
Securities to be exchanged at the office or agency of the Company.
This Security shall be governed by, and construed in accordance with, the
internal laws of the State of New York.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not
as tenants in common
CUST - Custodian
UNIF GIFT MIN ACT - Uniform Gifts to Minors Act
Additional abbreviations may also be used though not on the above list.
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FOR VALUE RECEIVED, the undersigned hereby sell(s) and transfer(s) unto
_______________ (please insert Social Security or other identifying number of
assignee) the within Security and all rights thereunder, hereby irrevocably
constituting and appointing agent to transfer said Security on the books of the
Company, with full power of substitution in the premises.
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS,
INCLUDING POSTAL ZIP CODE OF ASSIGNEE
Dated:
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NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within instrument in every particular
without alteration or enlargement,
or any change whatever.
EXHIBIT B
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series referred to in the
within-mentioned Senior Indenture.
WILMINGTON TRUST COMPANY,
as Trustee
By:
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