Exhibit 5.2
[Letterhead of Cahill Gordon & Reindel LLP]
April 13, 2005
Nelnet, Inc.
121 South 13th Street
Suite 201
Lincoln, Nebraska 68508
Ladies and Gentlemen:
We have acted as counsel to Nelnet, Inc., a Nebraska corporation (the
"Company"), in connection with:
1. the Registration Statement on Form S-3 (the "Registration
Statement") filed with the Securities and Exchange Commission (the
"Commission"), pursuant to which the Company proposes to issue and/or sell
from time to time (i) shares of Class A Common Stock, par value $.01 per
share (the "Class A Common Stock"), (ii) shares of Preferred Stock, par
value $.01 per share (the "Preferred Stock"), (iii) debt securities
consisting of debentures, notes or other evidences of indebtedness
representing unsecured, unsubordinated obligations of the Company (the
"Senior Debt Securities"), (iv) debt securities consisting of debentures,
notes or other evidences of indebtedness representing unsecured,
subordinated obligations of the Company (the "Subordinated Debt
Securities"), (v) warrants to purchase shares of Class A Common Stock (the
"Class A Common Stock Warrants"), (vi) warrants to purchase shares of
Preferred Stock (the "Preferred Stock Warrants"), (vii) warrants to
purchase Debt Securities (the "Debt Securities Warrants"), (viii) Class A
Common Stock purchase contracts obligating holders to purchase, and the
Company to sell to the holders thereof, or the Company to purchase, and the
holders thereof to sell to the Company, at a future date (the "Class A
Common Stock Purchase Contracts") a specified number of shares of Class A
Common Stock, (ix) Class A Common Stock purchase units (the "Class A Common
Stock Purchase Units") consisting of one or more Class A Common Stock
Purchase Contracts and any one or more of (a) debt or equity obligations of
third parties, including, but not limited to, U.S. Treasury securities, (b)
Preferred Stock, (c) Senior Debt Securities and (d) Subordinated Debt
Securities;
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2. the form of indenture, to be dated on or about the date of first
issuance of Senior Debt Securities thereunder (the "Senior Debt
Indenture"), between the Company and a trustee to be named (the "Senior
Debt Trustee"); and
3. the form of indenture, to be dated on or about the date of first
issuance of Subordinated Debt Securities thereunder (the "Subordinated Debt
Indenture"), between the Company and a trustee to be named (the
"Subordinated Debt Trustee").
The Class A Common Stock, the Preferred Stock, the Senior Debt Securities,
the Subordinated Debt Securities, the Class A Common Stock Warrants, the
Preferred Stock Warrants, the Debt Securities Warrants, the Class A Common Stock
Purchase Contracts and the Class A Common Stock Purchase Units are referred to
herein collectively as the "Offered Securities." The Offered Securities being
registered under the Registration Statement may be offered on a continued or
delayed basis pursuant to the provisions of Rule 415 of the Securities Act of
1933, as amended (the "Securities Act").
In rendering the opinions set forth herein, we have examined originals,
photocopies or conformed copies certified to our satisfaction of corporate
records, agreements, instruments and documents of the Company, certificates of
public officials and other certificates and opinions and have made such other
investigations as we have deemed necessary in connection with the opinions set
forth herein. In our examination, we have assumed (a) the due organization and
valid existence of the Company, (b) the due authorization, execution,
authentication and delivery by all persons of the Registration Statement and
each of the documents related thereto, (c) that each of such parties has the
legal power to act in the respective capacity or capacities in which he, she or
it is to act thereunder, (d) the authenticity of all documents submitted to us
as originals, (e) the conformity to the original documents of all documents
submitted to us as copies and (f) the genuineness of all signatures on the
Registration Statement and all documents submitted to us.
Based upon and subject to the foregoing and assuming that (a) the
Registration Statement and any amendments thereto (including any post-effective
amendments) will have become effective and comply with all applicable laws at
the time the Offered Securities are offered or issued as contemplated by the
Registration Statement, (b) a prospectus supplement will have been prepared and
filed with the Commission describing the Offered Securities offered thereby and
will at all relevant times comply with all applicable laws, (c) all Offered
Securities will be issued and sold in compliance with applicable federal and
state securities laws and in the manner stated in the Registration Statement and
the appropriate prospectus supplement, (d) a definitive purchase, underwriting
or similar agreement and any other necessary agreement with respect to any
Offered Securities will have been duly authorized and validly executed and
delivered by the Company and the other party or parties thereto, (e) the
applicable Indenture(s) will have been duly qualified under the Trust Indenture
Act of 1939, as amended, and (f) any Offered Securities issuable upon
conversion, exercise or exchange of any Offered Securities being offered or
issued will be duly authorized, created and, if appropriate, reserved for
issuance upon such conversion, exercise or exchange, we advise you that in our
opinion:
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1. With respect to the Senior Debt Securities, when (A) the execution
of the Senior Debt Indenture has been duly authorized by the Company by
appropriate action, (B) the Senior Debt Indenture, in the form filed as an
exhibit to the Registration Statement, has been duly executed and delivered
by the Company and the Senior Debt Trustee, (C) the board of directors,
including any appropriate committee appointed thereby, and appropriate
officers of the Company have taken all necessary action to approve the
issuance and terms of the Senior Debt Securities and related matters, (D)
the terms of the Senior Debt Securities and their issuance and sale have
been duly established in conformity with the Senior Debt Indenture so as
not to violate any applicable law, the Second Amended and Restated Articles
of Incorporation or the Second Amended and Restated By-Laws of the Company
or result in default under or breach of any agreement or instrument binding
upon the Company and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the
Company, (E) either a supplemental indenture has been duly authorized,
executed and delivered by the Company and the Senior Debt Trustee or a
securities resolution has been duly executed setting forth the terms of the
Senior Debt Securities, in each case, in accordance with the Senior Debt
Indenture and (F) the Senior Debt Securities, in the form established in
accordance with the Senior Debt Indenture filed as an exhibit to the
Registration Statement, have been duly executed and delivered by the
Company and authenticated by the Senior Debt Trustee in accordance with the
provisions of the Senior Debt Indenture and delivered and paid for as
contemplated by any applicable purchase or underwriting agreement and the
Registration Statement, the Senior Debt Securities will constitute valid
and legally binding obligations of the Company entitled to the benefits of
the Senior Debt Indenture and enforceable against the Company in accordance
with their terms, except that (a) the enforceability thereof may be subject
to (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws now or hereafter in effect relating to or
affecting creditors' rights or remedies generally and (ii) general
principles of equity and to the discretion of the court before which any
proceedings therefor may be brought (regardless of whether enforcement is
sought in a proceeding at law or in equity) and (b) the enforceability of
provisions imposing liquidated damages, penalties or an increase in
interest rate upon the occurrence of certain events may be limited in
certain circumstances ((a) and (b) collectively, the "Enforceability
Exceptions").
2. With respect to the Subordinated Debt Securities, when (A) the
execution of the Subordinated Debt Indenture has been duly authorized by
the Company by appropriate action, (B) the Subordinated Debt Indenture, in
the form filed as an exhibit to the Registration Statement, has been duly
executed and delivered by the Company and the Subordinated Debt Trustee,
(C) the board of directors, including any appropriate committee appointed
thereby, and appropriate officers of the Company have taken all necessary
action to approve the issuance and terms of the Subordinated Debt
Securities and related matters, (D) the terms of the Subordinated Debt
Securities and their issuance and sale have been duly established in
conformity with the Subordinated Debt Indenture so as not to violate any
applicable law, the Second Amended and Restated Articles of Incorpora-
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tion or the Second Amended and Restated By-Laws of the Company or result in
default under or breach of any agreement or instrument binding upon the
Company and so as to comply with any requirement or restriction imposed by
any court or governmental body having jurisdiction over the Company, (E)
either a supplemental indenture has been duly authorized, executed and
delivered by the Company and the Subordinated Debt Trustee or a securities
resolution has been duly executed setting forth the terms of the
Subordinated Debt Securities, in each case, in accordance with the
Subordinated Debt Indenture and (F) the Subordinated Debt Securities, in
the form established in accordance with the Subordinated Debt Indenture
filed as an exhibit to the Registration Statement, have been duly executed
and delivered by the Company and authenticated by the Subordinated Debt
Trustee in accordance with the provisions of the Subordinated Debt
Indenture and delivered and paid for as contemplated by any applicable
purchase or underwriting agreement and the Registration Statement, the
Subordinated Debt Securities will constitute valid and legally binding
obligations of the Company, entitled to the benefits of the Subordinated
Debt Indenture and enforceable against the Company in accordance with their
terms, subject to the Enforceability Exceptions.
3. With respect to the Class A Common Stock Warrants, when (A) the
execution of the warrant agreement pursuant to which the Class A Common
Stock Warrants will be issued (the "Class A Common Stock Warrant
Agreement") has been duly authorized by the Company by appropriate action,
(B) the Class A Common Stock Warrant Agreement has been duly executed and
delivered by the Company and the warrant agent thereunder, (C) the board of
directors, including any appropriate committee appointed thereby, and
appropriate officers of the Company have taken all necessary action to
approve the issuance and terms of the Class A Common Stock Warrants and
related matters, including, without limitation, any necessary reservation
of Class A Common Stocks issuable upon exercise of the Class A Common Stock
Warrants and (D) the Class A Common Stock Warrants, in the form included in
the Class A Common Stock Warrant Agreement, have been duly executed and
delivered by the Company and countersigned by the warrant agent thereunder
pursuant to the Class A Common Stock Warrant Agreement and delivered and
paid for as contemplated by any applicable purchase or underwriting
agreement and the Registration Statement, the Class A Common Stock Warrants
will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with its terms, subject to
the Enforceability Exceptions.
4. With respect to the Preferred Stock Warrants, when (A) the
execution of the warrant agreement pursuant to which the Preferred Stock
Warrants will be issued (the "Preferred Stock Warrant Agreement") has been
duly authorized by the Company by appropriate action, (B) the Preferred
Stock Warrant Agreement has been duly executed and delivered by the Company
and the warrant agent thereunder, (C) the board of directors, including any
appropriate committee appointed thereby, and appropriate officers of the
Company have taken all necessary action to approve the issuance and terms
of the Preferred Stock Warrants and related matters, including, without
limitation, any necessary
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reservation of Preferred Stock issuable upon exercise of the Preferred
Stock Warrants and (D) the Preferred Stock Warrants, in the form included
in the Preferred Stock Warrant Agreement, have been duly executed and
delivered by the Company and countersigned by the warrant agent thereunder
pursuant to the Preferred Stock Warrant Agreement and delivered and paid
for as contemplated by any applicable purchase or underwriting agreement
and the Registration Statement, the Preferred Stock Warrants will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with its terms, subject to
the Enforceability Exceptions.
5. With respect to the Debt Securities Warrants, when (A) the
execution of the warrant agreement pursuant to which the Debt Securities
Warrants will be issued (the "Debt Securities Warrant Agreement") has been
duly authorized by the Company by appropriate action, (B) the Debt
Securities Warrant Agreement has been duly executed and delivered by the
Company and the warrant agent thereunder, (C) the board of directors,
including any appropriate committee appointed thereby, and appropriate
officers of the Company have taken all necessary action to approve the
issuance and terms of the Debt Securities Warrants and related matters,
including, without limitation, any necessary reservation of Debt Securities
issuable upon exercise of the Debt Securities Warrants and (D) the Debt
Securities Warrants, in the form included in the Debt Securities Warrant
Agreement, have been duly executed and delivered by the Company and
countersigned by the warrant agent thereunder pursuant to the Debt
Securities Warrant Agreement and delivered and paid for as contemplated by
any applicable purchase or underwriting agreement and the Registration
Statement, the Debt Securities Warrants will constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with its terms, subject to the Enforceability Exceptions.
6. With respect to the Class A Common Stock Purchase Contracts, when
(A) the execution of the Class A Common Stock Purchase Contracts has been
duly authorized by the Company and each counter-party thereunder by
appropriate action, (B) the Class A Common Stock Purchase Contracts have
been duly executed and delivered by the Company and the counter-party
thereunder, (C) the board of directors, including any appropriate committee
appointed thereby, and appropriate officers of the Company have taken all
necessary action to approve the issuance and terms of the Class A Common
Stock Purchase Contracts and related matters and (D) the Class A Common
Stock Purchase Contracts, in an appropriate form, have been duly executed
and delivered by the Company and countersigned by the counter-party
thereunder and delivered and paid for as contemplated by any applicable
purchase or underwriting agreement and the Registration Statement, the
Class A Common Stock Purchase Contracts will constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with its terms, subject to the Enforceability Exceptions.
In giving our opinion, we are relying, without independent verification, as
to all matters of fact upon certificates and written statements of officers of
the Company.
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In rendering the opinion set forth above, we express no opinion as to the
laws of any jurisdiction other than the laws of the State of New York and the
federal laws of the United States of America. We note that Perry, Guthery, Haase
& Gessford, P.C., L.L.O., Nebraska Counsel of the Company, has rendered an
opinion to the Company, dated the date hereof, as to the validity of the Class A
Common Stock and the Preferred Stock. The Securities may be issued from time to
time on a delayed or continuous basis, and our opinion is limited to the laws as
in effect on the date hereof.
We hereby consent to the reference to our firm in the Registration
Statement under the caption "Legal Matters" and to the inclusion of this opinion
as an exhibit to the Registration Statement. Our consent to such reference does
not constitute a consent under Section 7 of the Securities Act, as in consenting
to such reference we have not certified any part of the Registration Statement
and do not otherwise come within the categories of persons whose consent is
required under Section 7 of the Securities Act or under the rules and
regulations of the Commission thereunder.
Very truly yours,
/s/ CAHILL GORDON & REINDEL LLP