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Exhibit 10.3
COMMERCIAL PAPER
ISSUING AND PAYING AGENT AGREEMENT
(BOOK-ENTRY AND OBLIGATIONS
USING DTC FACILITIES
AND PHYSICAL NOTES)
THIS AGREEMENT ("Agreement") dated as of December 29, 2006
("Effective Date") is
entered into by and between Nelnet, Inc (the "Issuer") with
offices at 121 South
13th Street, Suite 201 Lincoln, NE 68508 and Deutsche Bank Trust
Company
Americas (the "Bank") with offices at 60 Wall St, 27th Floor,
New York, NY
10005.
SECTION 1. APPOINTMENT
The Issuer requests and authorizes the Bank to act as agent for
the
Issuer in connection with the issuance and payment of unsecured
(a)
book-entry obligations (each an "Obligation" and collectively
the
"Obligations") as evidenced by Master Note Certificate(s) (the
"Note
Certificate(s)") and (b) bearer short term promissory notes of
the
Issuer (each a "Note" and collectively the "Notes"), both (a)
and (b) in
the forms appended hereto in Exhibit A. The Bank agrees to act
as such
agent for the Issuer subject to the provisions of this
Agreement
commencing on the Effective Date shown above.
Insofar as the context requires, all references herein to an
Issuer's
"Obligation" shall be deemed to include the Issuer's Note, and
all
references herein to an Issuer's "Obligations" or
"Book-entry
Obligations" shall be deemed to include the Issuer's Notes.
SECTION 2. CERTIFICATE AGREEMENT
The Issuer acknowledges that the Bank has previously entered
into a
commercial paper certificate agreement (the "Certificate
Agreement")
which copy is appended hereto as Exhibit E, with the Depository
Trust
Company (DTC) and the Issuer also acknowledges that the
continuation in
effect of the Certificate Agreement is a necessary prerequisite
to the
Bank's providing services related to issuance of the
Obligations. The
Issuer understands and agrees that the Certificate Agreement
shall
supplement the provisions of this Agreement and that the Issuer
is bound
by the provisions of the Certificate Agreement.
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SECTION 3. LETTER OF REPRESENTATIONS; RESOLUTIONS;AUTHORIZED
OFFICERS
The Issuer will, prior to the Effective Date, deliver to the
Bank an
executed Letter of Representations (the "Representations"), a
copy of
which is appended hereto as Exhibit F. Further, the Issuer
understands
and agrees that such Representations when executed by the
Issuer, the
Bank and DTC shall supplement the provisions of this Agreement
and that
the Issuer, the Bank, and DTC shall be bound by the provisions
of the
Representations. The Bank and the Issuer agree to comply with
the
relevant portions of DTC's Commercial Paper Issuing and Paying
Agent
Manual, and the DTC Same Day Settlement System Rules
(collectively the
"DTC Rules").
The Issuer has delivered to the Bank (a) a certified copy of
the
resolutions adopted by the Board of Directors of the Issuer
concerning
the issuance of Obligations by the Issuer (the "Resolutions"),
which
copy is appended hereto as Exhibit B, and (b) a certified
original of
the Issuer's certificate of incumbency (the "Certificate of
Incumbency"), containing the name, title, and true signature of
those
officers of the Issuer authorized by the Resolutions to take
action with
respect to the Obligations (the "Authorized Officers"),
which
certificate is appended hereto as Exhibit C. The Issuer agrees
to
provide the Bank with revised certified Resolutions and/or
Certificates
of Incumbency when and as required by changes in authorization
of
personnel.
SECTION 4. AUTHORIZED PERSONS
The Issuer authorizes the Bank to accept and to execute
Instructions, as
defined in and given pursuant to Section 6 hereof by any one of
the
employees and/or Agents (defined as sales agents or dealers
authorized
by a separate agreement between the Issuer and its sales agents
or
dealers) of the Issuer who are designated in a writing that is
signed by
the requisite number of Authorized Officers. Such designated
employees
or Agents shall be hereinafter collectively referred to as
"Authorized
Persons". The initial written designation of Authorized
Person(s) is
appended hereto as Exhibit D. The Issuer agrees to provide the
Bank with
revised written designations in the form of Exhibit D when and
as
required by changes in authorization or personnel.
SECTION 5. NOTE CERTIFICATES
(X) Book entry Obligations:
The Issuer will, prior to the Effective Date, deliver to the
Bank
a Note Certificate evidencing Obligations issued, such Note
Certificate bearing the manual or facsimile signatures of
the
requisite number of Authorized Officers and specifying the
date
of issuance, the full legal name of the Issuer, the name of
the
state in which the Issuer is incorporated, and the name of
the
Bank, acting as paying agent for the Issuer, in each case
the
Note Certificate being registered in the name of Cede & Co.,
a
nominee of DTC.
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(Y) Physical Notes and Signature Stamps:
For use as described in Section 7 hereof, the Issuer will,
prior
to the Effective Date, (a) deliver to the Bank a supply of
the
Issuer's sequentially numbered, blank Notes bearing the manual
or
facsimile signatures of the requisite number of Authorized
Officers and having spaces to show the face or principal
amount,
payee, date of issue, maturity date and amount of interest (if
an
interest bearing Note), and/or (b) authorize the Bank to use
the
Bank's commercial paper universal note stock, which has spaces
to
show the face or principal amount, payee, date of issue,
maturity
date, amount of interest (if an interest bearing Note) and
signature(s) of the Authorized Officers. If the Issuer
elects
(b), or if the Notes described in (a) do not bear such
signature(s) when delivered to the Bank, then the Issuer
will
deliver to the Bank for each signature required to be placed
on
the Notes two (2) stamps bearing the facsimile signature of
an
Authorized Officer.
(Z) Book Entry Obligations, Physical Notes and Signature
Stamps:
Any Obligation (as evidenced by the Note Certificate or Note
bearing the manual or facsimile signature of an Authorized
Officer) shall, upon the Bank's issuance of such Obligation
on
behalf of the Issuer, bind the Issuer notwithstanding that
such
Authorized Officer shall have died or shall have otherwise
ceased
to hold office on the date such Obligation is issued by the
Bank.
Furthermore, the Issuer agrees that the Bank shall have no
duty
or responsibility to determine the genuineness of the
facsimile
and/or manual signatures appearing on the Note
Certificate(s),
Notes or stamps.
SECTION 6. INSTRUCTIONS
The term "Instructions" shall mean a communication, purporting
to be
from an Authorized Officer or Authorized Person, in the form of
either
(a) a written notice including those transmitted through
facsimile
transmittal equipment; (b) a telephone call; and/or (c) a
transmission
through an instruction and reporting communication service
("Noteline
Direct") offered by the Bank pursuant to Section 10 hereof, in
each case
received by the Bank at the address specified in Section 15
prior to
1:00 p.m. New York time on the day on which the Instructions are
to be
operative, which shall be a day the Bank is open for
business.
If the Bank, at its option, acts upon Instructions transmitted
after
1:00 p.m. New York time on the day on which the Instructions are
to be
operative, the Issuer understands and agrees that (a) such
Instructions
shall be acted upon, on a best efforts basis, by the Bank
pursuant to
the custom and practice of the commercial paper market, and (b)
the Bank
makes no representations or warranties that the issuance and
delivery of
any Note or Obligation pursuant to Section 7 hereof shall be
completed
prior to the close of business on the issue date specified in
the
Instructions.
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Any Instructions given by telephone shall be confirmed to the
Bank in a
writing purporting to be from an Authorized Officer or
Authorized Person
prior to 1:00 p.m. New York time on the day on which such
Instructions
are to be operative. In the absence of the Bank's timely receipt
of such
written confirmation or in the event the Bank acts upon
Instructions
received after 1:00 p.m. New York time on the day on which
the
Instructions are to be operative, the Issuer understands and
agrees that
the Instructions given by telephone or received after the
aforementioned
1:00 p.m. New York time, as understood by the Bank, shall be the
true
and controlling Instructions for all purposes of this
Agreement.
Notwithstanding anything to the contrary in this Section 6, the
Issuer
acknowledges that the Bank may act upon the Instructions without
any
duty to make any inquiry regarding the genuineness of such
Instructions.
SECTION 7. ISSUANCE
(X) Book Entry Obligations:
The Bank's sole duties in connection with the issuance of
the
Obligations when the Issuer delivers the Note Certificate(s)
to
the Bank in the form described in Section 5(X) herein, shall
be
as follows:
(a) to hold Note Certificates in safekeeping;
(b) to assign to each Instruction received from the Issuer a
CUSIP number as specified in and in accordance with the
CUSIP number assignment received by the Bank from the
Issuer;
(c) to cause to deliver an Obligation on behalf of the
Issuer
upon receipt of Instructions from the Issuer, or its
designated agent(s), as to the face or principal amount,
net dollar amount, date of issue, maturity date, interest
rate (if any), and amount of interest due at maturity (if
an interest bearing Obligation), by way of data entry or
data transfer to the DTC Same Day Funds Settlement System
("SDFS"), and to receive from SDFS a confirmation receipt
that such delivery was effected; and
(d) to credit the net proceeds of all deliveries of the
Obligations to the Issuer's account with the Bank (Account
No. 53895) under advice to the Issuer at the address
specified in Section 15 hereof.
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Y. Physical Notes:
The Bank's sole duties in connection with the issuance of
the
Notes when the Issuer delivers a supply of the Issuer's
blank
Notes to the Bank or uses the Bank's commercial paper
universal
note stock pursuant to Section 5(Y) hereof shall be as
follows:
(a) to hold the blank Notes in safekeeping, pending receipt
of
the Issuer's Instructions;
(b) to complete each Note pursuant to the Instructions as to
the face or principal amount, net dollar amount, payee
(which shall be "BEARER" unless otherwise specified in the
Instructions), date of issue, maturity date, interest rate
(if any) and amount of interest due at maturity (if an
interest bearing Note);
(c) to cause a duly authorized officer or duly authorized
employee of the Bank to countersign each Note for purposes
of authentication of the Note only;
(d) to deliver the Notes in accordance with the Instructions
(i) by hand, against receipt for payment, (ii) by United
States Post Office registered mail, addressed as provided
in the Instructions or (iii) as otherwise provided in the
Instructions; and
(e) to credit the net proceeds of all deliveries of Notes to
the Issuer's account with the Bank (Account No. 53895)
under advice to the Issuer at the address specified in
Section 15 hereof.
The Bank's additional duties in connection with the issuance
of
the Notes when the Issuer delivers facsimile signature stamps
to
the Bank pursuant to Section 5(Y)
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