Exhibit 10.1
NOTE PURCHASE
AGREEMENT
This NOTE PURCHASE AGREEMENT (this
“Agreement”) is dated as of August 18, 2009,
by and between Grande Communications Holdings, Inc., a Delaware
corporation (the “Company”), the persons listed on
Schedule I attached hereto (each a “Holder,” and
collectively the “Holders”), and, for purposes of
Section 6(c) and Section 13(m) hereof, ABRY Partners VI, LP, a
Delaware limited partnership (“ABRY”).
WITNESSETH:
WHEREAS, the Company has outstanding an
aggregate of $193 million principal amount of its 14.0% Senior
Secured Notes due 2011 (the “Notes”), covered by that
certain Indenture (the “Original Indenture”), dated as
of March 23, 2004, among the Company, the Guarantors named
therein, and U.S. Bank National Association, as Trustee (the
“Trustee”), as supplemented by that certain
Supplemental Indenture No. 1 dated as of July 18, 2007
(the “Supplemental Indenture” and, together with the
Original Indenture, the “Indenture”) by and among the
Company, Grande Communications Networks, Inc., a Delaware
corporation and wholly-owned subsidiary of the Company
(“Guarantor”), and the Trustee;
WHEREAS, as of the date hereof, each Holder is a
beneficial owner (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended, which meaning will
apply for all purposes of this Agreement) of the aggregate
principal amount of the Notes set forth on Schedule I opposite
such Holder’s name;
WHEREAS, as soon as practicable following the
execution of this Agreement, the Company intends to execute and
deliver one or more definitive agreements relating to a
recapitalization of the Guarantor (the “Transaction”)
pursuant to that certain letter agreement dated June 9, 2009
by and between ABRY Partners, LLC and the Company (as amended from
time to time, the “LOI”);
WHEREAS, pursuant to the terms of the LOI, the
Company intends to execute and deliver this Agreement prior to the
execution and delivery of the definitive agreement(s) relating to
the Transaction and to consummate the purchase of the Notes
beneficially owned by the Holders immediately after the
consummation of the Transaction.
NOW, THEREFORE, in consideration of the premises
and the representations, warranties and agreements contained
herein, the parties agree as follows:
Section 1. Certain
Definitions . Capitalized terms used but not
otherwise defined herein have the meanings ascribed to such terms
in the Original Indenture.
Section 2. Purchase of the
Notes .
(a) Each
Holder hereby agrees to sell, assign, transfer and deliver the
aggregate principal amount of the Notes set forth on
Schedule I opposite such Holder’s name (for any Holder,
as such amount may be decreased in accordance with Section 13(i) of
this Agreement or increased in accordance with Section 5(c) of this
Agreement, such Holder’s “Purchased Notes”) (or
cause the record owner of such Holder’s Purchased Notes to
validly sell, assign, transfer and deliver such Notes) to the
Company and the Company agrees to purchase the Purchased Notes from
their respective Holders on the Closing Date (as defined below) for
cash in the amount equal to the sum of 101.5% of the aggregate
principal amount of such Holder’s Purchased Notes plus
accrued and unpaid interest thereon to the Closing Date (such
amount, for each Holder, the “Purchase Price”),
pursuant to and in accordance with the terms of this Agreement
immediately following, and subject to, the consummation of the
Transaction. At the Closing (as defined below), each
Holder shall cause the nominee (if any) through which such Holder
holds such Holder’s Purchased Notes to effect the transfer of
such Holder’s Purchased Notes in accordance with the
procedures of the Depository Trust Company, into a book-entry
account established by or on behalf of the Company and, upon the
request of the Company, shall authorize the Trustee, in a form
reasonably acceptable to such Holder, to cancel such Purchased
Notes upon such Holder’s receipt of the Purchase Price
therefor.
(b) Provided
this Agreement has not been terminated in accordance with
Section 12 of this Agreement, the consummation of the
transactions contemplated by this Agreement (the
“Closing”) shall take place at the offices of Jackson
Walker L.L.P., 100 Congress Avenue, Suite 1100, Austin, Texas
78701, on the date of the consummation of the Transaction (the
“Closing Date”).
(c) The
obligation of the Company to consummate the transactions
contemplated by this Agreement is subject to the satisfaction of
the following conditions:
(i) All
of the representations and warranties of each Holder set forth in
this Agreement shall be true and correct on the Closing Date in all
material respects with the same effect as though made on such date
(provided that any such representations and warranties made as of a
specified date shall be required only to be true and correct in all
material respects as of such specified date) and each Holder shall
have executed and delivered a certificate dated as of the Closing
Date to such effect;
(ii) Each
Holder shall have caused all of the covenants, agreements and
conditions required by this Agreement to be performed or complied
with by it prior to or at the Closing to be so performed or
complied with in all material respects and each Holder shall have
executed and delivered a certificate dated as of the Closing Date
to such effect;
(iii) No
action or proceeding shall have been instituted before a court or
government body to restrain or prohibit any of the transactions
contemplated by this Agreement;
(iv)
All governmental and other approvals, if any, necessary to
consummate the transactions contemplated by this Agreement shall
have been received;
(v) Each
Holder shall have delivered all of such Holder’s Purchased
Notes (in accordance with Section 2(a)) to the Company or to
the Trustee against payment of such Holder’s Purchase Price
pursuant to this Agreement free and clear of all Liens (as defined
below); and
(vi) The
Transaction shall have been consummated.
(d) The
obligation of each Holder to consummate the transactions
contemplated by this Agreement is subject to the satisfaction of
the following conditions:
(i) All
of the representations and warranties of the Company set forth in
this Agreement shall be true and correct on the Closing Date in all
material respects with the same effect as though made on such date
and the Company shall have executed and delivered a certificate
dated as of the Closing Date to such effect;
(ii) The
Company shall have caused all of the covenants, agreements and
conditions required by this Agreement to be performed or complied
with by it prior to or at the Closing to be so performed or
complied with in all material respects and the Company shall have
executed and delivered a certificate dated as of the Closing Date
to such effect;
(iii) No
action or proceeding shall have been instituted before a court or
government body to restrain or prohibit any of the transactions
contemplated by this Agreement;
(iv) All
governmental and other approvals, if any, necessary to consummate
the transactions contemplated by this Agreement shall have been
received;
(v)
The Company shall have received executed copies of this
Agreement from Holders representing that, collectively, they
beneficially own an aggregate principal amount of Notes equal to
not less than $189 million;
(vi) The
Company shall not have paid or caused to be paid to any Holder in
respect of its Notes any consideration in excess of the Purchase
Price (“Excess Consideration”) unless such Excess
Consideration shall also have been paid to each other Holder party
hereto, ratably in accordance with the aggregate principal amount
of Notes owned by each such Holder;
(vii) The
Transaction shall have been consummated; and
(viii) Contemporaneously
with the Closing, the Company shall have caused the Purchase Price
to be delivered to each Holder from a deposit account maintained in
the name of Guarantor that has been established as an escrow
account for the sole purpose of paying the Purchase Price, and
which escrow account shall have held only loan proceeds from the
refinancing lender of Guarantor and capital (or loan) contributions
from certain equity holders of Guarantor and/or its affiliates, and
the payment of the Purchase Price shall be made at Closing by wire
transfer of immediately available funds to an account designated in
writing by such Holder.
Section
3.
Representations and Warranties of the Holder
. Each Holder represents and warrants to the Company as
follows (with respect to such Holder only and not with respect to
any other Holder):
(a) Such
Holder has the requisite power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated
hereby and perform its obligations hereunder and has taken all
necessary action to authorize the execution, delivery and
performance of this Agreement.
(b) Such
Holder is a beneficial owner of, and has good title to such
Holder’s Purchased Notes, free and clear of any mortgage,
pledge, hypothecation, rights of others, claim, security interest,
charge, encumbrance, title defect, title retention agreement,
voting trust agreement, interest, option, lien, charge or similar
restriction or limitation, including any restriction on the right
to vote, sell or otherwise dispose of such Holder’s Purchased
Notes (each, a “Lien”) other than any Liens to be
released or terminated at or prior to the Closing.
(c) As
of the date hereof, (i) such Holder beneficially owns the
aggregate principal amount of the Notes set forth on
Schedule I opposite such Holder’s name and
(ii) except for the Notes set forth in Schedule I opposite
such Holder’s name, such Holder does not own any of the
Notes.
(d) This
Agreement has been duly executed and delivered by such Holder and,
assuming due authorization, execution and delivery of this
Agreement by the Company, is a valid and binding obligation of such
Holder enforceable against such Holder in accordance with its
terms, except as such enforceability against such Holder may be
limited by bankruptcy, insolvency or other similar laws of general
applicability affecting the enforcement of creditors’ rights
generally and by the court’s discretion in relation to
equitable remedies.
(e) Neither
the execution and delivery of this Agreement nor the performance by
such Holder of its obligations hereunder will conflict with, result
in a violation or breach of, or constitute a default (or an event
that, with notice or lapse of time or both, would result in a
default) or give rise to any right of termination, amendment,
cancellation, or acceleration or result in the creation of any Lien
on such Holder’s Purchased Notes under, (i) its
certificate or articles of incorporation or bylaws (or similar
organizational documents), (ii) any contract, commitment,
note, agreement, understanding, arrangement or restriction of any
kind to which such Holder is a party or by which such Holder is
bound or (iii) any injunction, judgment, writ, decree, order
or ruling applicable to such Holder; except in the case of
clauses (ii) and (iii) for conflicts, violations, breaches,
defaults, terminations, amendments, cancellations, accelerations or
Liens that would not individually or in the aggregate be reasonably
expected to prevent or materially impair or delay the consummation
by such Holder of the transactions contemplated hereby.
(f)
Neither the execution and delivery of this
Agreement nor the performance by such Holder of such Holder’s
obligations hereunder will violate any law, decree, statute, rule
or regulation applicable to such Holder or require any order,
consent, authorization or approval of, filing or registration with,
or declaration or notice to, any court, administrative agency or
other governmental body or authority.
(g) No
broker, finder or investment banker is entitled to any brokerage,
finder’s or other fee or commission payable by the Company in
connection with the transactions contemplated by this Agreement as
a result of any actions taken by such Holder.
(h) Such
Holder has been advised by the Company that upon consummation of
the Transaction, the Company will redeem all of the Notes (other
than the Notes to be purchased from the Holders pursuant to this
Agreement) that remain outstanding (the “Remaining
Notes”) at a price of 103.500% of the principal amount plus
accrued and unpaid interest thereon in accordance with the terms of
Section 3.07 of the Original Indenture.
Section
4.
Representations and Warranties of the Company
. The Company represents and warrants to each Holder as
follows:
(a) The
Company is a corporation duly organized, validly existing and in
good standing under the laws of Delaware, has the requisite
corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby and to
perform its obligations hereunder and has taken all necessary
corporate action to authorize the execution, delivery and
performance of this Agreement.
(b) This
Agreement has been duly executed and delivered by the Company and,
assuming the due authorization, execution and delivery of this
Agreement by the Holders, is a valid and binding obligation of the
Company, enforceable against the Company in accordance with its
terms, except as such enforceability against the Company may be
limited by bankruptcy, insolvency or other similar laws of general
applicability affecting the enforcement of creditors’ rights
generally and by the court’s discretion in relation to
equitable remedies.
(c)
Neither the execution and delivery of this Agreement
nor the performance by the Company of the Company’s
obligations hereunder will conflict with, result in a violation or
breach of, or constitute a default (or an event that, with notice
or lapse of time or both, would result in a default) or give rise
to any right of termination, amendment, cancellation, or
acceleration under, (i) its articles of incorporation or
bylaws, (ii) any contract, commitment, note, agreement,
understanding, arrangement or restriction of any kind to which the
Company is a party or by which the Company is bound or
(iii) any injunction, judgment, writ, decree, order or ruling
applicable to the Company; except in the case of clauses (ii)
and (iii) for conflicts, violations, breaches or defaults that
would not individually or in the aggregate be reasonably expected
to prevent or materially impair or delay the consummation by the
Company of the transactions contemplated hereby.
(d) Neither
the execution and delivery of this Agreement nor the performance by
the Company of its obligations hereunder will violate any law,
decree, statute, rule or regulation applicable to the Company or
require any order, consent, authorization or approval of, filing or
registration with, or declaration or notice to, any court,
administrative agency or other governmental body or
authority.
(e) Assuming
the accuracy of the representation and warranty of each Holder set
forth in Section 3(c) of this Agreement, the Company has
received executed copies of this Agreement from the Holders that
beneficially own an aggregate principal amount of Notes equal to
not less than $189 million and the Company has not paid or caused
to be paid, or entered into any agreement with any Holder (other
than this Agreement and the Indenture) pursuant to which the
Company has agreed to pay, to any Holder any Excess Consideration
relating to its Notes unless s
