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SUREWEST COMMUNICATIONS
SUPPLEMENT TO NOTE PURCHASE AGREEMENT
Dated as of March 13, 2003
Re: $60,000,0000 4.74% Series B Senior Notes
DUE MARCH 13, 2013
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SUPPLEMENT TO NOTE PURCHASE AGREEMENT
Dated as of March 13, 2003
To each of the Purchasers named in
Schedule A hereto which is
a signatory of this Agreement
Ladies and Gentlemen:
This First Supplement to Note Purchase Agreement (the "Supplement") is
between SureWest Communications (formerly known as Roseville Communications
Company) (the "Company") whose address is 0000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000 and the institutional investors named on Schedule A attached
hereto (the "Additional Purchasers").
Reference is hereby made to that certain Note Purchase Agreement dated as
of December 9, 1998 (the "Note Agreement") between the Company and the
purchasers listed on Schedule A thereto. All capitalized terms not otherwise
defined herein shall have the same meaning as specified in the Note Agreement.
Reference is further made to Section 4.12 thereof which requires that, prior to
the delivery of any Additional Notes, the Company and each Additional Purchaser
shall execute and deliver a Supplement.
The Company hereby agrees with you as follows:
1. The Company has authorized the issue and sale of $60,000,000 aggregate
principal amount of its 4.74% Series B Senior Notes due March 13, 2013 (the
"Series B Notes"). The Series B Notes, together with the Series A Notes
initially issued pursuant to the Note Agreement and each Series of Additional
Notes which may from time to time be issued pursuant to the provisions of
Section 2.2 of the Note Agreement, are collectively referred to as the "Notes"
(such term shall also include any such notes issued in substitution therefor
pursuant to Section 13 of the Note Agreement). The Series B Notes shall be
substantially in the form set out in Exhibit I hereto with such changes
therefrom, if any, as may be approved by you and the Company.
2. Subject to the terms and conditions hereof and as set forth in the Note
Agreement and on the basis of the representations and warranties hereinafter set
forth, the Company agrees to issue and sell to you, and you agree to purchase
from the Company, Series B Notes in the principal amount set forth opposite your
name on Schedule A hereto at a price of 100% of the principal amount thereof on
the closing date hereafter mentioned.
3. Delivery of the $60,000,000 in aggregate principal amount of the Series
B Notes will be made at the offices of O'Melveny & Xxxxx LLP, 000 Xxxxx Xxxx
Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, against payment therefor in Federal
Reserve or other funds current and immediately available at the principal office
of Bank of America, N.A. at 000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000,
Attention: Xxx Xxxxxxx, telephone (000) 000-0000, Account No. 12337-22696, ABA
No. 000000000 in the amount of the purchase price at 8:00 a.m., Pacific Standard
time, on March 13, 2003 (the "Closing").
4. On March 13, 2009 and on each March 13 thereafter to and including March
13, 2012, the Company will prepay $12,000,000 principal amount (or such lesser
principal amount as shall then be outstanding) of the Series B Notes at par and
without payment of the Make-Whole Amount or any premium, provided that upon any
partial prepayment of the Series B Notes pursuant to Section 8.2 of the Note
Agreement or purchase of the Series B Notes permitted by Section 8.5 of the Note
Agreement the principal amount of each required prepayment of the Series B Notes
becoming due under this Section 4 on and after the date of such prepayment or
purchase shall be reduced in the same proportion as the aggregate unpaid
principal amount of the Series B Notes is reduced as a result of such prepayment
or purchase.
5. Your obligation to purchase and pay for the Series B Notes to be sold to
you at the Closing is subject to the fulfillment to your satisfaction, prior to
or at the Closing, of the following conditions:
(a) All conditions precedent set forth in Sections 4.1 through 4.3 and
4.5 through 4.11 of the Note Agreement shall have been satisfied with
respect to the Series B Notes (with the "Series B" Notes being deemed
substituted for "Series A" Notes in such Sections).
(b) The Company shall have delivered to you a certificate certifying
as to the resolutions attached thereto and other proceedings relating to
the authorization, execution and delivery of the Series B Notes and this
Supplement.
(c) A duly authorized Senior Financial Officer of the Company shall
execute and deliver to each Additional Purchaser an Officer's Certificate
dated the date of issue of the Series B Notes stating that such officer has
reviewed the provisions of the Note Agreement (including any Supplements
thereto) and setting forth the information and computations (in sufficient
detail) required in order to establish whether the Company is in compliance
with the requirements of Sections 10.3, 10.4 and 10.5 of the Note Agreement
on such date.
(d) You shall have received opinions in form and substance
satisfactory to you, dated the date of the Closing (i) from Xxxxxx, White &
Xxxxxx LLP, counsel for the Company, covering the matters set forth in
Exhibit II-A and covering such other matters incident to the transactions
contemplated hereby as you or your counsel may reasonably request (and the
Company hereby instructs its counsel to deliver such opinion to you) and
(ii) from O'Melveny & Xxxxx LLP, your special counsel in connection with
such transactions, substantially in the form set forth in Exhibit II-B and
covering such other matters incident to such transactions as you may
reasonably request.
6. The Company represents and warrants that the representations and
warranties set forth in Section 5 of the Note Agreement are true, correct and
complete in all material respects on and as of the date of this Supplement to
the same extent as though made on and as of that date, except:
(a) to the extent such representations and warranties specifically
relate to an earlier date, in which case they were true, correct and
complete in all material respects on and as of such earlier date;
(b) that all references in such representations and warranties to
Schedule 5.3, 5.4, 5.5, and 5.15 shall be deemed to be to Schedules 5.3,
5.4, 5.5, and 5.15 attached hereto;
(c) that Section 5.3 shall be amended by deleting it in its entirety
and substituting the following therefor:
"5.3 Disclosure. The Company, through its agent, Banc of America
Securities LLC, has delivered to you and each Other Purchaser a copy
of a Private Placement Memorandum, dated January 2003 (the
"Memorandum"), relating to the transactions contemplated hereby.
Except as disclosed in Schedule 5.3, this Agreement, the Memorandum,
the documents, certificates or other writings identified in Schedule
5.3 and the financial statements listed in Schedule 5.5, taken as a
whole, do not contain any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein
not misleading in light of the circumstances under which they were
made. Except as disclosed in the Memorandum or as expressly described
in Schedule 5.3, or in one of the documents, certificates or other
writings identified therein, or in the financial statements listed in
Schedule 5.5, since December 31, 2001, there has been no change in the
financial condition, operations, business or properties of the Company
or any of its Subsidiaries except changes that individually or in the
aggregate would not reasonably be expected to have a Material Adverse
Effect.";
(d) that Section 5.13 shall be amended by deleting it in its entirety
and substituting the following therefor:
"5.13 Private Offering by the Company. Neither the Company nor
anyone acting on its behalf has offered the Series A Notes or any
similar securities for sale to, or solicited any offer to buy any of
the same from, or otherwise approached or negotiated in respect
thereof with, any person other than you, the Other Purchasers and not
more than 51 other Institutional Investors, each of which has been
offered the Series A Notes at a private sale for investment. Neither
the Company nor anyone acting on its behalf has offered the Series B
Notes or any similar securities for sale to, or solicited any offer to
buy any of the same from, or otherwise approached or negotiated in
respect thereof with, any person other than you, the Other Purchasers
and not more than 49 other Institutional Investors, each of which has
been offered the Series B Notes at a private sale for investment.
Neither the Company nor anyone acting on its behalf has taken, or will
take, any action that would subject the issuance or sale of the Notes
to the registration requirements of Section 5 of the Securities Act.";
(e) that Section 5.15 shall be amended by deleting the reference to
"September 30, 1998" and substituting "December 31, 2002" therefor; and
(f) that Section 5.18 shall be amended by deleting it in its entirety
and substituting the following therefor:
"5.18 Anti-Terrorism Legislation. Neither the Company nor any of
its Subsidiaries or its Affiliates (a) is or will become a Person
whose property or interests in property are blocked pursuant to
Section 1 of Executive Order 13224 of September 23, 2001 Blocking
Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001))
or (b) engages or will engage in any dealings or transactions, or be
otherwise associated, with any such Person. The Company and its
Subsidiaries and its Affiliates are in compliance, in all Material
respects, with the Uniting And Strengthening America By Providing
Appropriate Tools Required To Intercept And Obstruct Terrorism (USA
Patriot Act of 2001). No part of the proceeds from the sale of the
Notes hereunder will be used, directly or indirectly, for any payments
to any governmental official or employee, political party, official of
a political party, candidate for political office, or anyone else
acting in an official capacity, in order to obtain, retain or direct
business or obtain any improper advantage, in violation of the United
States Foreign Corrupt Practices Act of 1977, as amended.".
7. You represent and warrant that the representations and warranties set
forth in Section 6 of the Note Agreement are true and correct on the date hereof
with respect to the Series B Notes.
8. Schedule B of the Note Agreement is hereby amended by inserting the
following definition in correct alphabetical order:
"`Fair Market Value' means, at any time and with respect to any
property, the sale value of such property that would be realized in an
arm's-length sale at such time between an informed and willing buyer
and an informed and willing seller (neither being under a compulsion
to buy or sell).".
9. The definition of "Priority Debt" in Schedule B of the Note Agreement is
hereby amended by deleting the reference to 10(i) and inserting in its place
10(j).
10. The definition of "Adjusted Consolidated Net Worth" in Schedule B of
the Note Agreement is hereby amended by deleting it in its entirety and
substituting the following therefor:
"`Adjusted Consolidated Net Worth' means, as of any date of
determination, Consolidated Net Worth, as of such date of
determination, less the sum of Restricted Investments incurred after
Closing in excess of 10% of Consolidated Net Worth, as of such date of
determination.".
11. The Company and you agree to be bound by and comply with the terms and
provisions of the Note Agreement, as supplemented by this Supplement, as if you
were an original signatory to the Note Agreement.
[Remainder of page intentionally left blank.]
The execution hereof shall constitute a contract between us for the uses
and purposes hereinabove set forth, and this Agreement may be executed in any
number of counterparts, each executed counterpart constituting an original but
all together only one agreement.
SUREWEST COMMUNICATIONS
By __________________________
Name:
Title:
Accepted as of the date first above written.
Accepted as of the date first above written.
HARTFORD LIFE INSURANCE COMPANY
By Hartford Investment Services, Inc.
Its Agent and Attorney-in-Fact
By ________________________________
Name:
Title:
Accepted as of the date first above written.
AMERICAN HERITGAGE LIFE INSURANCE COMPANY
By ________________________________
Name:
By ________________________________
Name:
Authorized Signatories
ALLSTATE LIFE INSURANCE COMPANY
By ________________________________
Name:
By ________________________________
Name:
Authorized Signatories
Accepted as of the date first above written.
AIG ANNUITY INSURANCE COMPANY
By: AIG Global Investment Corp., investment adviser
By __________________________________
Name:
Title:
Accepted as of the date first above written.
METROPOLITAN LIFE INSURANCE COMPANY
By __________________________
Name:
Title:
Schedule A to Supplement to Note Agreement
INFORMATION RELATING TO PURCHASERS
Principal Amount
of Series B Notes
Name and Address of Purchaser to be Purchased
1. AIG ANNUITY INSURANCE COMPANY $25,000,000
0000 Xxxxx Xxxxxxx, X00-00
Xxxxxxx, XX 00000
All payments to be by wire transfer of immediately available funds, with
sufficient information (including PPN 868733 A* 7, interest rate, maturity date,
interest amount, principal amount and premium amount, if applicable) to identify
the source and application of such funds, to:
ABA # 000000000
State Street Bank and Trust Company
Xxxxxx, XX 00000
Re: AIG Annuity Insurance Company
A/C: 0000-000-0
OBI = PPN # and description of payment
Fund Number WE1B
Payment notices to:
AIG Annuity Insurance Company and WE1B
c/o State Street Bank Corporation
Insurance Services
000 Xxxxxxxxxxxx
Xxxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Duplicate payment notices and all other correspondences to:
AIG Annuity Insurance Company and WE1B
c/o AIG Global Investment Corporation
Attn: Xxxxxxx Xxxxxxxxxx Xxxxxxxxxx, X00-00
X.X. Xxx 0000 Xxxxxxx, Xxxxx 00000-0000
Overnight Mail Address: 0000 Xxxxx Xxxxxxx, X00-00
Xxxxxxx, Xxxxx 00000-0000
Fax: (000) 000-0000
with copy to: AIG Global Investment Corporation
Legal Department - Investment Management
0000 Xxxxx Xxxxxxx, Xxxxx X00-00
Xxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Tax I.D. Number: 00-0000000
Par amount: $25,000,000
Physical Delivery Instructions:
DTC / New York Window
00 Xxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxx Xxxxxx
Account: State Street
Fund Name: AIG ANNUITY INSURANCE COMPANY
Fund Number: WE 1B
Depository Trust Company (DTC) Instructions:
DTC Participant # 0997
Agent Bank ID # 20997
Institution ID # 39456
Fund Name: AIG ANNUITY INSURANCE COMPANY
Fund Number: WE 1B
Principal Amount
of Series B Notes
Name and Address of Purchaser to be Purchased
2. ALLSTATE LIFE INSURANCE COMPANY $7,000,000
0000 Xxxxxxx Xxxx, Xxxxx X0X
Xxxxxxxxxx, XX 00000-0000
(1) All payments by Fedwire transfer of immediately available funds, identifying
the name of the Issuer, the Private Placement Number preceded by "DPP" and the
payment as principal, interest or premium, in the format as follows:
BBK = Xxxxxx Trust and Savings Bank
ABA #000000000
BNF = Allstate Life Insurance Company
Collection Account #000-000-0
ORG = (Enter Issuer Name)
OBI = DPP - (Enter Private Placement No., if available)
Payment Due Date (MM/DD/YY) - P_____ (Enter "P" and
amount of principal being remitted, for example,
P5000000.00) - I______ (Enter "I" and amount of
interest being remitted, for example, I225000.00)
(2) All notices of scheduled payments and written confirmations of such wire
transfer to be sent to:
Allstate Insurance Company
Investment Operations - Private Placements
0000 Xxxxxxx Xxxx, XXX X0X
Xxxxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000 Private Placements
Telecopy: (000) 000-0000
(3) Securities to be delivered to:
Xxxxxx Trust and Savings Bank
000 X. Xxxxxx Xxxxxx 0X
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
For Allstate Life Insurance Company/Safekeeping
Account No. 846627
(4) All financial reports, compliance certificates and all other written
communications, including notice of prepayments, to be sent to:
Allstate Life Insurance Company
Private Placements Department
0000 Xxxxxxx Xxxx, XXX X0X
Xxxxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The tax identification number for Allstate Life Insurance Company is Tax Id.
No.: 00-0000000
Principal Amount
of Series B Notes
Name and Address of Purchaser to be Purchased
3. AMERICAN HERITAGE LIFE INSURANCE COMPANY $3,000,000
0000 Xxxxxxx Xxxx, Xxxxx X0X
Xxxxxxxxxx, XX 00000-0000
(1) All payments by Fedwire transfer of immediately available funds, identifying
the name of the Issuer, the Private Placement Number preceded by "DPP" and the
payment as principal, interest or premium, in the format as follows:
BBK = Xxxxxx Trust and Savings Bank
ABA #000000000
BNF = American Heritage Life Insurance Company
Collection Account #000-000-0
ORG = (Enter Issuer Name)
OBI = DPP - (Enter Private Placement No., if available)
Payment Due Date (MM/DD/YY) - P_____ (Enter "P" and
amount of principal being remitted, for example,
P5000000.00)
- I______ (Enter "I" and amount of interest being
remitted, for example, I225000.00)
(2) All notices of scheduled payments and written confirmations of such wire
transfer to be sent to:
Allstate Insurance Company
Investment Operations - Private Placements
0000 Xxxxxxx Xxxx, XXX X0X
Xxxxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000 Private Placements
Telecopy: (000) 000-0000
(3) Securities to be delivered to:
Citibank, N.A.
000 Xxxx 00xx Xxxxxx
0xx Xxxxx Securities Vault
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
For American Heritage Life Insurance Company/Safekeeping
Account No. 846928
(4) All financial reports, compliance certificates and all other written
communications, including notice of prepayments, to be sent to:
Allstate Life Insurance Company
Private Placements Department
0000 Xxxxxxx Xxxx, XXX X0X
Xxxxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The tax identification number for American Heritage Life Insurance Company is
Tax Id. No.: 00-0000000.
Principal Amount
of Series B Notes
Name and Address of Purchaser to be Purchased
4. HARTFORD LIFE INSURANCE COMPANY $5,000,000 (Note I)
c/o The Hartford Investment Management Company
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Taxpayer I.D. Number: 00-0000000
(1) All payments by wire transfer of immediately available funds to:
XX Xxxxxx Chase
0 Xxx Xxxx Xxxxx
Xxx Xxxx Xxx Xxxx 00000
Bank ABA No. 000000000
Chase NYC/Cust
A/C # 000-0-000000 for F/C/T G06616-LSO
Attn: Bond Interest /Principal - SureWest Communications, 4.74%
Series B Senior Notes
PPN # PPN 868733 A* 7 Prin $___________Int $ _______
with sufficient information to identify the source and application of such funds
(2) All notices of payments and written confirmations of such wire transfers:
Hartford Investment Management Company
c/o Portfolio Support
X.X. Xxx 0000 Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Telefacsimile:(000)000-0000/8876
(3) All other communications:
Hartford Investment Management Company
c/o Investment Department-Private Placements
X.X. Xxx 0000 Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Telefacsimile: (000)000-0000
(4) Physical Delivery of Notes:
XX Xxxxxx Xxxxx
North America Insurance
3 Chase MetroTech Center - 0xx Xxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxx
Custody Account Number: G06616-LSO must
appear on outside of envelope
Principal Amount
of Series B Notes
Name and Address of Purchaser to be Purchased
5. HARTFORD LIFE INSURANCE COMPANY $5,000,000 (Note II)
c/o The Hartford Investment Management Company
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Taxpayer I.D. Number: 00-0000000
(1) All payments by wire transfer of immediately available funds to:
XX Xxxxxx Chase
0 Xxx Xxxx Xxxxx
Xxx Xxxx Xxx Xxxx 00000
Bank ABA No. 000000000
Chase NYC/Cust
A/C # 000-0-000000 for F/C/T G06612-HVA
Attn: Bond Interest /Principal - SureWest Communications, 4.74%
Series B Senior Notes
PPN # PPN 868733 A* 7 Prin $___________Int $ ___________
with sufficient information to identify the source and application of
such funds.
(2) All notices of payments and written confirmations of such wire transfers:
Hartford Investment Management Company
c/o Portfolio Support
X.X. Xxx 0000 Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Telefacsimile:(000)000-0000/8876
(3) All other communications:
Hartford Investment Management Company
c/o Investment Department-Private Placements
X.X. Xxx 0000 Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Telefacsimile: (000)000-0000
(4) Physical Delivery of Notes:
XX Xxxxxx Xxxxx
North America Insurance
3 Chase MetroTech Center - 0xx Xxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxx
Custody Account Number: G06612-HVA must
appear on outside of envelope
Principal Amount
of Series B Notes
Name and Address of Purchaser to be Purchased
6. METROPOLITAN LIFE INSURANCE COMPANY $15,000,000
Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
(Securities to be registered in the name of Metropolitan Life Insurance Company)
(1) All scheduled payments of principal and interest by wire transfer of
immediately available funds to:
Bank Name: JPMorgan Chase Bank
ABA Routing #: 000-000-000
Account No.: 002-2-410591
Account Name: Metropolitan Life Insurance Company
with sufficient information to identify the source and application of such
funds, including issuer, PPN#, interest rate, maturity and whether payment
is of principal, make-whole amount, or interest.
For all payments other than scheduled payments of principal and interest,
the Company shall seek instructions from the holder, and in the absence of
instructions to the contrary, will make such payments to the account and in
the manner set forth above.
(2) Original notes delivered to:
Metropolitan Life Insurance Company
Securities Investments, Law Department
00 Xxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
(3) All notices and communications:
Metropolitan Life Insurance Company
Investments Department, Private Placements
00 Xxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Director
Facsimile (000) 000-0000
With a copy OTHER than with respect to scheduled deliveries of financial
statements to:
Metropolitan Life Insurance Company
00 Xxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Chief Counsel-Securities Investments
Facsimile (000) 000-0000
(4) Taxpayer I.D. Number: 00-0000000
EXHIBIT I
[FORM OF NOTE]
SUREWEST COMMUNICATIONS
4.74% SERIES B SENIOR NOTE DUE MARCH 13, 2013
No. ____ [DATE]
$______ PPN 868733 A* 7
FOR VALUE RECEIVED, the undersigned, SUREWEST COMMUNICATIONS (herein called
the "Company"), a California corporation, hereby promises to pay to
______________, or registered assigns, the principal sum of ____________ DOLLARS
on March 13, 2013, with interest (computed on the basis of a 360-day year of
twelve 30-day months) (a) on the unpaid balance thereof at the rate of 4.74% per
annum from the date hereof, payable semiannually, on the thirteenth day of March
and September in each year, commencing with the March or September next
succeeding the date hereof, until the principal hereof shall have become due and
payable, and (b) to the extent permitted by law on any overdue payment
(including any overdue prepayment) of principal, any overdue payment of interest
and any overdue payment of any Make-Whole Amount (as defined in the Note
Purchase Agreement referred to below), payable semiannually as aforesaid (or, at
the option of the registered holder hereof, on demand), at a rate per annum from
time to time equal to the greater of (i) 6.74% or (ii) 2% over the rate of
interest publicly announced from time to time by Bank of America, N.A. in San
Francisco, California as its "base" or "prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of the Company in the State of California or at
such other place as the Company shall have designated by written notice to the
holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Series B Senior Notes (herein called the
"Notes") issued pursuant to a Supplement dated as of March 13, 2003 (the
"Supplement") to the Note Purchase Agreement, dated as of December 9, 1998 (as
so supplemented and as from time to time amended, the "Note Purchase
Agreement"), between the Company and the respective Additional Purchasers named
therein and is entitled to the benefits thereof. Each holder of this Note will
be deemed, by its acceptance hereof, (i) to have agreed to the confidentiality
provisions set forth in Section 20 of the Note Purchase Agreement and (ii) to
have made the representations set forth in Sections 6.1 and 6.2 of the Note
Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
This Note is subject to mandatory and optional prepayment, in whole or from
time to time in part, at the times and on the terms specified in the Supplement
and the Note Purchase Agreement, but not otherwise.
If an Event of Default, as defined in the Note Purchase Agreement, occurs
and is continuing, the principal of this Note may be declared or otherwise
become due and payable in the manner, at the price (including any applicable
Make-Whole Amount) and with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of California
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
SUREWEST COMMUNICATIONS
By:________________________
Name:
Title:
EXHIBIT II-A
[MATTERS TO COVERED IN OPINION OF COUNSEL FOR THE COMPANY]
1. The Company has been duly incorporated and is validly existing in good
standing under the laws of the State of California and is duly licensed or
qualified and is in good standing as a foreign corporation in each jurisdiction
in which the character of the properties owned or leased by it or the nature of
the business transacted by it makes such licensing or qualification necessary.
2. Each Restricted Subsidiary has been duly incorporated and is validly
existing in good standing under the laws of its jurisdiction of incorporation
and is duly licensed or qualified and is in good standing in each jurisdiction
in which the character of the properties owned or leased by it or the nature of
the business transacted by it makes such licensing or qualification necessary.
All of the outstanding shares of capital stock of each such Restricted
Subsidiary have been duly issued, are fully paid and non-assessable and are
owned of record by the Company, by one or more Restricted Subsidiary, or by the
Company and one or more Restricted Subsidiaries.
3. The Company has the corporate power to execute and deliver the
Supplement to Note Purchase Agreement, to issue and sell the Series B Notes and
to perform its obligations set forth in the Supplement and the Series B Notes.
4. The execution, delivery and performance of the Supplement and the Series
B Notes have been duly authorized by all necessary corporate action on the part
of the Company, and each of the Supplement and the Series B Notes has been duly
executed and delivered by the Company.
5. The Supplement and the Series B Notes constitute the legally valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally (including, without limitation, fraudulent
conveyance laws) and by general principles of equity including, without
limitation, concepts of materiality, reasonableness, good faith and fair dealing
and the possible unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or at law.
6. The Company's execution and delivery of, and performance of its
obligations under the Supplement and the Series B Notes do not and will not (i)
violate the Company's Certificate of Incorporation or Bylaws, (ii) violate,
breach or result in a default under, or result in the imposition of any Lien
upon any property of the Company pursuant to, any existing obligation of or
restriction on the Company under any other agreement, instrument or indenture of
which we are aware after reasonable investigation, (iii) breach or otherwise
violate any existing obligation of or restriction on the Company under any
order, judgment or decree of any California or federal court or governmental
authority binding on the Company, or (iv) violate any California or federal law
or regulation.
7. No order, consent, permit or approval of any California or federal
governmental authority is required on the part of the Company to issue and sell
the Series B Notes or for the execution and delivery of, and performance of the
Company's obligations under, the Supplement and the Series B Notes.
8. To our knowledge, there is no action, suit or proceeding pending against
or threatened against or affecting the Company or any Restricted Subsidiary
before any court, governmental or regulatory authority or arbitrator, which
seeks to affect the enforceability of the Supplement and the Series B Notes or
which could reasonably be expected to have a material adverse effect on the
ability of the Company to perform its obligations under the Supplement and the
Series B Notes.
9. It is not necessary in connection with the execution and delivery of the
Series B Notes under the circumstances contemplated by the Supplement to
register the Series B Notes under the Securities Act of 1933, as amended, or to
qualify an indenture in respect thereof under the Trust Indenture Act of 1939,
as amended.
10. Neither the extension of credit nor the use of proceeds provided in the
Supplement will violate Regulations T, U or X of the Board of Governors of the
Federal Reserve System.
11. The Company is not an "investment company" or a company "controlled" by
an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
EXHIBIT II-B
[MATTERS TO COVERED IN OPINION OF SPECIAL COUNSEL FOR THE ADDITIONAL PURCHASERS]
Please see attached.
Schedule 5.3
Disclosure
1. Disclosure contained in the (i) Annual Report on Form 10-K of the Company for
the fiscal year ended December 31, 2001, and (ii) Quarterly Report on Form 10-Q
of the Company for the fiscal quarter ended September 30, 2002.
Schedule 5.4
Subsidiaries*
Jurisdiction of Percentage
Subsidiary Organization Equity Owner Ownership
Roseville Telephone Company California SureWest Communications 100%
SureWest Broadband California SureWest Communications 100%
SureWest Directories California SureWest Communications 100%
Roseville Long Distance Company California SureWest Communications 100%
SureWest Wireless California SureWest Communications 100%
RTC Communications Corp. California Roseville Telephone Company 100%
Roseville Alternative Company California Roseville Telephone Company 100%
West Coast PCS LLC California SureWest Wireless 100%
SureWest Internet California SureWest Communications 100%
SureWest Custom Data Services California SureWest Communications 100%
SureWest TeleVideo California SureWest Communications 100%
* All of the Subsidiaries are Restricted Subsidiaries
Schedule 5.5
Financial Statements
The Company has delivered to each Purchaser:
(1) Annual Reports on Form 10-K of SureWest Communications for each of the
fiscal years ended December 31, 2001, 2000, 1999, 1998 and 1997, including the
audited financial statements included therein.
(2) Quarterly Report on Form 10-Q of SureWest Communications for the fiscal
quarter ended September 30, 2002.
Schedule 5.15
Existing Indebtedness
The outstanding indebtedness of the Company and its Restricted Subsidiaries as
of December 31, 2002, is as follows:
Principal Amount
Outstanding at
Indebtedness December 31, 2002
Credit Agreement dated as of January 4, 1994 between Roseville Telephone Company, as
Borrower and Bank of America National
Trust and Savings Association $ 2,143,000
Note Purchase Agreement dated as of December 9, 1998 for Series A Senior Notes $40,000,000
Business Loan Agreement dated as of March 15, 2000, as amended, between SureWest
Communications and Bank of America, N.A. $15,000,000
TOTAL: $57,143,000
