Exhibit 4.2
RESOLUTIONS
NELNET SPECIAL FINANCE COMMITTEE RESOLUTIONS APPROVING
OFFER AND SALE OF $275,000,000 5.125% SENIOR NOTES DUE 2010
WHEREAS, Nelnet, Inc. (the "Company") previously filed a Registration
Statement on Form S-3 (File No. 333-124043) with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Act"), relating to the "shelf registration" of the Company's Class A common
stock, preferred stock, debt securities, warrants to purchase Class A common
stock, preferred stock or debt securities, Class A common stock purchase
contracts and Class A common stock purchase units for a proposed public offering
or offerings in the aggregate amount up to $750,000,000 (the "Shelf Registration
Statement");
WHEREAS, the Shelf Registration Statement was declared effective by the
Commission on May 12, 2005;
WHEREAS, Michael Dunlap, Stephen Butterfield and Brian O'Connor have been
appointed to a Special Finance Committee (the "Committee") of the Board of
Directors of the Company (the "Board of Directors"), pursuant to resolutions
adopted by the Board of Directors on March 24, 2005, which resolutions are in
full force and effect on this date;
WHEREAS, pursuant to said resolutions, the Committee is authorized to
exercise the full powers of the Board of Directors in connection with the
issuance by the Company of $275,000,000 principal amount of a new series of
5.125% Senior Notes due 2010 of the Company (the "Securities"); and
WHEREAS, the Company from time to time may issue, without notice to or the
consent of the holders of the Securities, additional debt securities of the
Company having the same ranking and the same interest rate, maturity and other
terms as the Securities, except for the issue price and the issue date and, in
some cases, the first interest payment date, pursuant to the Shelf Registration
Statement and any subsequent registration statement; any additional debt
securities of the Company having such similar terms, together with the
Securities, will constitute a single series of debt securities under the Base
Indenture (as defined below).
NOW, THEREFORE, BE IT RESOLVED, that the Committee hereby approves,
ratifies and confirms in all respects the indenture (the "Base Indenture") among
the Company and Deutsche Bank Trust Company Americas, as trustee (the
"Trustee"), in the form included as Exhibit 4.1 to the Shelf Registration
Statement, as the same is supplemented by these resolutions; capitalized terms
not otherwise defined herein shall have the meanings given to them in the Base
Indenture.
FURTHER RESOLVED, that the Committee hereby approves the establishment and
issuance of the Securities pursuant to the Base Indenture.
FURTHER RESOLVED, that the Committee hereby approves the following terms
and provisions which shall supplement or amend, as the case may be, the terms
and provisions of the
Base Indenture (said supplemented or amended, as the case may be, terms and
provisions of the Base Indenture are hereinafter collectively referred to as the
"Indenture," and each reference herein to the "Indenture" is a reference to the
Base Indenture as the same is supplemented or amended, as the case may be, by
the terms and provisions of these resolutions):
Paragraph 1. The title of the Securities shall be 5.125% Senior Notes due
2010.
Paragraph 2. The Securities shall be unsecured and shall rank pari passu
with all other unsecured and unsubordinated indebtedness of the Company
Paragraph 3. The initial price to the public of the Securities shall be
99.802% of the principal amount of the Securities.
Paragraph 4. The aggregate principal amount at maturity of the Securities
which may be authenticated and delivered under the Indenture shall be
$275,000,000 (except for any Securities authenticated and delivered upon
registration of the transfer of, or in exchange for, or in lieu of other
Securities pursuant to the terms of the Indenture); provided, however, that the
Company from time to time may issue, without notice to or the consent of the
Holders of the Securities, additional senior debt securities having the same
ranking and the same interest rate, maturity and other terms as the Securities,
except for the issue price and the issue date and, in some cases, the first
interest payment date, pursuant to the Shelf Registration Statement and any
subsequent registration statement; any additional debt securities having such
similar terms, together with the Securities, will constitute a single series of
debt securities under the Indenture. The Securities and any such additional debt
securities will be issuable only in fully registered form without coupons in
denominations of $1,000 and any integral multiple of $1,000.
Paragraph 5. The principal amount of the Securities is due and payable in
full on June 1, 2010, subject to earlier redemption as provided in the
Indenture.
Paragraph 6. Interest on the Securities will accrue at the rate of 5.125%
per year. Interest on the Securities will be payable on June 1 and December 1,
commencing on December 1, 2005, to holders of record on the immediately
preceding May 15 and November 15, respectively. Interest on the Securities will
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from May 25, 2005. Interest on the Securities will be
computed on the basis of a 360-day year comprised of twelve 30-day months.
Paragraph 7. The Securities may be redeemed in whole at any time or in part
from time to time, at the Company's option, at a Redemption Price equal to the
greater of: (A) 100% of the principal amount of the Securities then outstanding
to be redeemed and (B) the sum of the present values of the remaining scheduled
payments of principal and interest on the Securities to be redeemed (not
including any portion of such payments of interest accrued to the Redemption
Date) discounted to the Redemption Date on a semiannual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate, plus 20
basis points, plus, in the case of each of (A) and (B), accrued and unpaid
interest on the principal amount being redeemed to the Redemption Date.
As used in this Paragraph 7, the following terms shall have the respective
meanings set forth below:
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"Treasury Rate" means, for any Redemption Date, (A) the yield, under the
heading which represents the average for the immediately preceding week,
appearing in the most recently published statistical release designated
"H.15(519)" or any successor publication which is published weekly by the Board
of Governors of the Federal Reserve System and which establishes yields on
actively traded U.S. Treasury securities adjusted to constant maturity under the
caption "Treasury Constant Maturities," for the maturity corresponding to the
Comparable Treasury Issue (if no maturity is within three months before or after
the Remaining Life, yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue will be determined and the
Treasury Rate will be interpolated or extrapolated from such yields on a
straight line basis, rounding to the nearest month) or (B) if such release (or
any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semiannual equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such Redemption Date. The Treasury Rate will be calculated on the third business
day preceding such Redemption Date.
"Comparable Treasury Issue" means the U.S. Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining
term ("Remaining Life") of the Securities to be redeemed that would be utilized,
at the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Securities.
"Comparable Treasury Price" means (A) the average of five Reference
Treasury Dealer Quotations for such Redemption Date, after excluding the highest
and lowest Reference Treasury Dealer Quotations, or (B) if the Independent
Investment Banker obtains fewer than five such Reference Treasury Dealer
Quotations, the average of all such quotations.
"Independent Investment Banker" means either Citigroup Global Markets Inc.
or J.P. Morgan Securities Inc., as specified by the Company, or, if these firms
are unwilling or unable to select the Comparable Treasury Issue, an independent
investment banking institution of national standing appointed by the Company.
"Reference Treasury Dealer" means (A) Citigroup Global Markets Inc. and
J.P. Morgan Securities Inc. and their respective successors, provided, however,
that if either of the foregoing shall cease to be a primary U.S. government
securities dealer in New York City (a "Primary Treasury Dealer"), the Company
will substitute therefor another Primary Treasury Dealer and (B) any three other
Primary Treasury Dealers selected by the Company after consultation with the
Independent Investment Banker.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Independent Investment Banker, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Independent Investment Banker at 5:00
p.m., New York City time, on the third business day preceding such Redemption
Date.
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Paragraph 8. Principal of and interest on the Securities shall be payable
in accordance with Section 307 of the Base Indenture.
Paragraph 9. The Securities shall be entitled to the benefit of each of the
covenants in Article VIII and Article X of the Base Indenture.
Paragraph 10. Section 404 of the Base Indenture shall apply to the
Securities offered hereby.
Paragraph 11. Except as otherwise indicated, each reference herein to a
"Paragraph" shall refer to a Paragraph hereof, and each reference herein to a
"Section" shall refer to a Section of the Base Indenture.
FURTHER RESOLVED, that a portion of the proceeds of the sale of the
Securities shall be applied to repay amounts outstanding under the Company's
line of credit and the remainder may be used for general corporate purposes,
including but not limited to the expansion of marketing efforts, capital
expenditures and technology developments, working capital, warehouse financing
for partially and fully disbursed Federal Family Education Loan Program loans,
private education and consumer education loans and possible acquisitions.
FURTHER RESOLVED, that the Securities shall be distributed pursuant to the
Underwriting Agreement, the form of which Underwriting Agreement has been
presented to this meeting and a copy of which shall be filed with these
resolutions in the records of the Company.
FURTHER RESOLVED, that the form of the Securities, attached hereto as
Exhibit A, and the Underwriting Agreement, in the form referred to above, be,
and each of them hereby is, approved, ratified and confirmed in all respects,
and that the Co-Chief Executive Officers, the Chief Financial Officer, the
Secretary and any Executive Director of the Company be, and each of them hereby
is, authorized and directed to execute and deliver the Securities and the
Underwriting Agreement in such forms and the Base Indenture in the form included
as Exhibit 4.1 to the Shelf Registration Statement, subject to such changes,
insertions and corrections therein as shall be approved by the officer executing
the same (which approval shall be conclusively evidenced by his or her execution
and delivery of the Securities, the Underwriting Agreement and the Base
Indenture), whereupon the same shall be the valid and binding obligations of the
Company in accordance with their terms.
FURTHER RESOLVED, that Deutsche Bank Trust Company Americas be, and it
hereby is, designated and appointed Trustee, Paying Agent and Registrar with
respect to the Securities.
FURTHER RESOLVED, that each of the officers of the Company referred to
above, and each other appropriate officer of the Company, be, and hereby is,
authorized and directed to execute and deliver such further documents,
agreements and certificates on behalf of the Company, and to take such further
actions on behalf of the Company, as any such officer shall deem appropriate or
advisable in order to implement the issuance and sale of the Securities as
contemplated by these resolutions, each of which shall be the valid and binding
act and obligation of the Company.
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Exhibit A
[Form of Note]
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL
SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE (I) BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR (II)
BY THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW
YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NELNET, INC.
5.125% SENIOR NOTES DUE 2010
No. 1
Principal Amount $275,000,000
CUSIP No. 64031NAA6
NELNET, INC., a Nebraska corporation, for value received, promises to pay
to Cede & Co., or registered assigns, the principal sum of TWO HUNDRED
SEVENTY-FIVE MILLION United States Dollars (US$275,000,000) on June 1, 2010.
Interest Payment Dates: June 1 and December 1.
Regular Record Dates: May 15 and November 15.
Additional provisions of this Note are set forth on the other side of this
Note.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
NELNET, INC.
By:
---------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated: May 25, 2005
DEUTSCHE BANK TRUST
COMPANY AMERICAS,
as Trustee
By:
------------------------
Authorized Officer
(Reverse of Note)
5.125% Senior Notes due 2010
1. Interest
This security is one of a series of securities designated as the 5.125%
Senior Notes due 2010 of the Company (this "Note"). Nelnet, Inc., a Nebraska
corporation (such corporation, and its successors and assigns under the
Indenture hereinafter referred to, being herein called the "Company"), for value
received, promises to pay interest on the principal amount of the Notes at the
rate of 5.125% per annum. The Company shall pay interest semiannually on June 1
and December 1 of each year, commencing on December 1, 2005. Interest on the
Notes shall accrue from the most recent date to which interest has been paid or
duly provided for or, if no interest has been paid or duly provided for, from
May 25, 2005 until the principal hereof is due. Interest shall be computed on
the basis of a 360-day year comprised of twelve 30-day months. The Company shall
pay interest on overdue principal at the rate borne by the Notes, and it shall
pay interest on overdue installments of interest at the same rate to the extent
lawful.
2. Method of Payment
The Company shall pay interest on the Notes (except defaulted interest,
which shall be paid pursuant to Section 307 of the Indenture) to the Persons who
are registered Holders at the close of business on the May 15 and November 15
next preceding the Interest Payment Date even if Notes are canceled after the
record date and on or before the Interest Payment Date. The Company shall pay
principal, premium, if any, and interest in money of the United States of
America that at the time of payment is legal tender for payment of public and
private debts. Payment of principal, premium, if any, and interest in respect of
Notes represented by a Global Security will be made by wire transfer of
immediately available funds to the accounts specified by the Depository.
Payments of principal, premium, if any, and interest in respect of a
certificated Note may be made, at the option of the Company, either by wire
transfer in immediately available funds to the accounts specified by registered
Holders as of the relevant record dates or (subject to collection) by check
mailed to the address of the registered Holders as of the relevant record dates
or at the specified offices of any Paying Agent. Payment of principal in respect
of a certificated Note will only be made against presentation and, provided that
payment is made in full, surrender of the appropriate certificate at the
specified offices of any Paying Agent.
3. Paying Agent and Registrar
Initially, DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York State banking
corporation (the "Trustee"), will act as Paying Agent and Registrar with respect
to the Notes. The Company may appoint and change any Paying Agent or Registrar
without notice. The Company may act as Paying Agent or Registrar.
4. Indenture
The Company issued the Notes under an Indenture dated as of May 25, 2005,
between the Company and the Trustee (the "Indenture"). The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended (15 U.S.C. ss.ss.
77aaa-77bbbb) as in effect on the date of the Indenture (the "Trust Indenture
Act"). The Notes include all terms and provisions of the Indenture, and Holders
are referred to the Indenture and the Trust Indenture Act for a statement of
such terms and provisions. Capitalized terms used herein have the same meanings
given in the Indenture unless otherwise indicated.
The aggregate principal amount at maturity of the Notes which may be
authenticated and delivered under the Indenture shall be unlimited. In addition,
the aggregate principal amount of Notes of any class or series which may be
authenticated and delivered under the Indenture shall be unlimited, provided
that such Notes shall rank equally with the Notes.
5. Certain Covenants
The Indenture imposes certain limitations on the ability of the Company to
create or guarantee any indebtedness that is secured by a lien on the Capital
Stock of National Education Loan Network, Inc. unless the Company also secures
the Notes on a pro rata or priority basis with such other secured indebtedness.
The Indenture also imposes limitations on the ability of the Company to
consolidate or merge with or into any other Person or convey, transfer, sell or
lease all or substantially all of its properties and assets as an entirety or
permit any Person to consolidate with or merge into the Company.
6. Optional Redemption
The Notes may be redeemed in whole at any time or in part from time to
time, at the Company's option, at a Redemption Price equal to the greater of:
(A) 100% of the principal amount of the Notes then outstanding to be redeemed
and (B) the sum of the present values of the remaining scheduled payments of
principal and interest on the Notes to be redeemed (not including any portion of
such payments of interest accrued to the Redemption Date) discounted to the
Redemption Date on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate, plus 20 basis points, plus, in the
case of each of (A) and (B), accrued and unpaid interest on the principal amount
being redeemed to the Redemption Date.
As used in this Section 6, the following terms shall have the respective
meanings set forth below:
"Treasury Rate" means, for any Redemption Date, (A) the yield, under the
heading which represents the average for the immediately preceding week,
appearing in the most recently published statistical release designated
"H.15(519)" or any successor publica-
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tion which is published weekly by the Board of Governors of the Federal Reserve
System and which establishes yields on actively traded U.S. Treasury securities
adjusted to constant maturity under the caption "Treasury Constant Maturities,"
for the maturity corresponding to the Comparable Treasury Issue (if no maturity
is within three months before or after the Remaining Life, yields for the two
published maturities most closely corresponding to the Comparable Treasury Issue
will be determined and the Treasury Rate will be interpolated or extrapolated
from such yields on a straight line basis, rounding to the nearest month) or (B)
if such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date. The Treasury Rate will be calculated on
the third business day preceding the Redemption Date.
"Comparable Treasury Issue" means the U.S. Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining
term ("Remaining Life") of the Notes to be redeemed that would be utilized, at
the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Notes.
"Comparable Treasury Price" means (A) the average of five Reference
Treasury Dealer Quotations for such Redemption Date, after excluding the highest
and lowest Reference Treasury Dealer Quotations, or (B) if the Independent
Investment Banker obtains fewer than five such Reference Treasury Dealer
Quotations, the average of all such quotations.
"Independent Investment Banker" means either Citigroup Global Markets Inc.
or J.P. Morgan Securities Inc., as specified by the Company, or, if these firms
are unwilling or unable to select the Comparable Treasury Issue, an independent
investment banking institution of national standing appointed by the Company.
"Reference Treasury Dealer" means (A) Citigroup Global Markets Inc. and
J.P. Morgan Securities Inc. and their respective successors, provided, however,
that if either of the foregoing shall cease to be a primary U.S. government
securities dealer in New York City (a "Primary Treasury Dealer"), the Company
will substitute therefor another Primary Treasury Dealer and (B) any three other
Primary Treasury Dealers selected by the Company after consultation with the
Independent Investment Banker.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Independent Investment Banker, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Independent Investment Banker at 5:00
p.m., New York City time, on the third business day preceding such Redemption
Date.
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The provisions of Article XI of the Indenture shall apply in the case of a
redemption pursuant to this Section 6.
7. Sinking Fund
The Notes will not be entitled to the benefit of any mandatory redemption
or sinking fund.
8. Notice of Redemption
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed at least 30 and not more than 60 days before the Redemption Date, to each
Holder of Notes to be redeemed, at his, her or its address appearing in the
Security Register. Notes in denominations larger than $1,000 may be redeemed in
part but only in integral multiples of $1,000. If money sufficient to pay the
Redemption Price of and accrued and unpaid interest on the principal amount of
all Notes (or portions thereof) being redeemed to the Redemption Date is
deposited with the Trustee or with a Paying Agent on or prior to any Redemption
Date and certain other conditions are satisfied, then on and after such
Redemption Date such Notes (or such portions thereof) shall cease to bear
interest.
9. Denominations; Transfer; Exchange
The Notes are in fully registered form without coupons in denominations of
$1,000 and any integral multiple of $1,000. A Holder may transfer or exchange
Notes in accordance with the Indenture. Upon any transfer or exchange, the
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents. No service charge shall be made
for any registration of transfer or exchange of Notes, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Notes permitted by the Indenture.
10. Persons Deemed Owners
The registered Holder of this Note may be treated as the owner of it for
all purposes.
11. Discharge and Defeasance
Subject to certain conditions and limitations set forth in the Indenture,
the Company may terminate some of or all its obligations under the Notes and the
Indenture if the Company deposits with the Trustee money or U.S. Government
Obligations for the payment of principal of, and premium, if any, and interest
on, the Notes to redemption or maturity, as the case may be.
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12. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the Indenture
and the terms of the Notes may be amended with the written consent of the
Holders of not less than a majority in aggregate principal amount of the Notes
and (ii) any default may be waived with the written consent of the Holders of at
least a majority in principal amount of the Notes. Subject to certain exceptions
set forth in the Indenture, without the consent of any Holder, the Company and
the Trustee may amend the Indenture or the Notes, so long as such changes do not
materially and adversely affect the interests of the Holder, (a) to cure any
ambiguity, omission, defect or inconsistency; (b) to make any modifications or
amendments that do not adversely affect the interests of the Holders in any
material respect; (c) to provide for successors to the Company; (d) to provide
any security for or guarantees of the Notes; (e) to add Events of Default with
respect to the Notes; (f) to add to the Company's covenants for the benefit of
the Holders or to surrender any right or power conferred upon the Company by the
Indenture; (g) to make any change necessary to comply with the Trust Indenture
Act, or any amendment thereto, or to comply with any requirement of the
Commission in connection with the qualification of the Indenture under the Trust
Indenture Act; (h) to provide for uncertificated Notes in addition to or in
place of certificated Notes; (i) to change or eliminate any of the provisions of
the Indenture, provided that such change or elimination shall become effective
only when there are no securities of a prior series outstanding that are
entitled to the benefit of such provision; (j) to evidence and provide for the
acceptance of appointment under the Indenture by a successor Trustee with
respect to the Notes and to add to or change any of the provisions of the
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts under the Indenture by more than one Trustee, pursuant to the
Indenture; or (k) to conform, as necessary, this Indenture and this Note to the
"Description of Notes" as set forth in the prospectus and prospectus supplement
relating to the Notes.
13. Defaults and Remedies
If an Event of Default, other than an Event of Default described in Section
501(5) or 501(6) of the Indenture, with respect to the Notes shall have occurred
and be continuing, the Trustee or the Holders of not less than 25% in principal
amount of the Notes then outstanding, will be entitled to declare all unpaid
principal of and accrued interest on the Notes then Outstanding to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by the Holders). In the case of an Event of Default described in
Section 501(5) or 501(6) of the Indenture, all unpaid principal of and accrued
interest on all Notes then outstanding shall be due and payable immediately
without any declaration or other act on the part of the Trustee or the Holders
of any Notes. Such declaration of acceleration may be annulled and past defaults
(except, unless theretofore cured, a default in payment of principal of, or
premium, if any, and interest on, the Notes) may be waived by the Holders of a
majority in aggregate principal amount of the Notes then outstanding upon the
conditions provided in the Indenture.
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14. Trustee and Paying Agent Dealings with the Company
Subject to certain limitations imposed by the Trust Indenture Act, the
Trustee, the Paying Agent and the Registrar under the Indenture, each in its
individual or any other capacity, may become the owner or pledgee of Notes and,
subject to the Indenture, may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with, and collect
obligations owed to it by, the Company with the same rights it would have if it
were not the Trustee, the Paying Agent or the Registrar.
15. No Recourse Against Others
No incorporator, shareholder, officer or director, as such, of the Company
shall have any liability for any obligations, covenants or agreements of the
Company under the Notes or the Indenture or for any claim based thereon or
otherwise in respect thereof. By accepting a Note, each Holder expressly waives
and releases all such liability. The waiver and release are a condition of, and
part of the consideration for, the execution of the Indenture and the issuance
of the Notes.
16. Authentication
This Note shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the other side of this Note.
17. Abbreviations
Customary abbreviations may be used in the name of a Holder or an assignee,
such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT
TEN (=joint tenants with rights of survivorship and not as tenants in common),
CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
18. GOVERNING LAW
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
19. CUSIP Number
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused the CUSIP number to
be printed on this Note and has directed the Trustee to use the CUSIP number in
notices of redemption as a convenience to Holders. No representation is made as
to the accuracy of such number either as printed on this Note or as contained in
any notice of redemption, and reliance may be placed only on the other
identification numbers placed thereon.
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The Company will furnish to any Holder of Notes upon written request and without
charge to the Holder a copy of the Indenture and a copy of this Note.
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
_______________________________________________________________________
(Print or type assignee's name, address and zip code)
_______________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint _________________________agent to transfer this Note on
the books of the Company. The agent may substitute another to act for such
agent.
____________________________________________________________
Date: ________________ Your Signature: _____________________
____________________________________________________________
Sign exactly as your name appears on the other side of this Note.
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $250,000,000. The
following increases or decreases in this Global Security have been made:
Principal
Amount Signature of
Amount of Amount of of This Global Authorized
Decrease in Increase in Security Signatory of
Principal Amount of Principal Amount of Following Such Trustee or
Date of This Global This Global Decrease or Securities
Exchange Security Security Increase Custodian
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