AGREEMENT
AGREEMENT (the "Agreement"), dated as of October 5, 1998, between
Heartland Wireless Communications, Inc., a Delaware corporation (the
"Company"), and each other signatory party hereto (individually, a "Holder"
and collectively the "Holders" or the "Ad Hoc Committee").
WHEREAS, each of the Holders is a beneficial owner (and/or agent,
advisor, affiliate, manager or other authorized representative of the
beneficial owner(s)) of 13% Senior Notes due April 15, 2003 or 14% Senior
Notes due October 15, 2004 issued by the Company (collectively, the "Senior
Notes;" and the claims evidenced by the Senior Notes and any Senior Notes
acquired by the Holder after the date of this Agreement, the "Senior Note
Claims");
WHEREAS, the Company and the Holders have engaged in negotiations
towards a consensual restructuring/reorganization of the Company's financial
affairs, including the Senior Notes (a "Restructuring");
WHEREAS, on or about September 29, 1998, the Company and the Holders
each approved the terms and conditions of a Restructuring, an agreement
embodying the terms of which is annexed hereto as Exhibit "A" (the
"Restructuring Agreement");
WHEREAS, to implement the Restructuring, the Company intends to commence
a voluntary case (the "Chapter 11 Case") under Chapter 11 of title 11, the
United States Code (the "Bankruptcy Code") and contemporaneously therewith
propose a plan of reorganization ("Plan of Reorganization"), and a disclosure
statement relating thereto ("Disclosure Statement"), which shall incorporate
the terms of, and in all respects be consistent with, the Restructuring
Agreement;
WHEREAS, each Holder intends to support and vote its Senior Note Claims
to accept a Plan of Reorganization consistent with the Restructuring
Agreement;
NOW, THEREFORE, in consideration of the foregoing, the parties hereto
agree as follows:
SECTION 1. VOTE IN FAVOR OF THE PLAN.
(a) So long as no Termination Event (as such term is defined
herein) shall have occurred, each Holder severally (but not jointly or
jointly and severally) agrees (i) unless such Holder shall have transferred
its Senior Note Claims in accordance with Section 2 hereof, to vote its
Senior Note Claims to accept a Plan of Reorganization consistent with the
Restructuring Agreement; and (ii) to the inclusion of a statement in the
Disclosure Statement that such Plan of Reorganization was negotiated with the
Holders and that they intend to vote to accept such Plan of Reorganization.
(b) So long as no Termination Event shall have occurred, each
Holder shall not object to or otherwise commence any proceeding to oppose or
object to confirmation of a Plan of Reorganization consistent with the
Restructuring Agreement.
SECTION 2. TRANSFER OF SENIOR NOTE CLAIMS.
Each Holder shall not, directly or indirectly, sell, assign,
hypothecate, grant an option on, or otherwise dispose of (collectively,
"Transfer") any of the Senior Note Claims held by such Holder to any other
person (a "Transferee"); provided, however, that each Holder shall be
permitted to Transfer any or all of its Senior Note Claims (i) if such
Transferee agrees in writing to be bound by the terms of this Agreement and
the Holder notifies the Company of the transfer within three (3) business
days of the Transfer or as soon as practicable thereafter; (ii) after the
occurrence of a Termination Event; or (iii) after approval of the Disclosure
Statement and commencement of solicitation pursuant to Section 1125 of the
Bankruptcy Code.
SECTION 3. TERMINATION OF OBLIGATIONS.
The obligations of each Holder hereunder shall terminate and be of no
further force and effect if one of the following termination events (each a
"Termination Event") occurs:
(a) the Company and the Holders shall have failed to reach
agreement in good faith prior to November 10, 1998, or such later date as the
Company and the Holders shall mutually agree, regarding definitive
documentation in respect of the Restructuring Agreement, including the Plan
of Reorganization;
(b) the Company shall not have commenced the Chapter 11 Case and
filed a Plan of Reorganization consistent with the Restructuring Agreement
and Disclosure Statement relating thereto with the United States Bankruptcy
Court (the "Bankruptcy Court") on or before November 13, 1998 (the "Petition
Date"), or such later date as the Company and the Holders shall mutually
agree;
(c) the Bankruptcy Court shall not have approved the Disclosure
Statement on or before 45 days after the Petition Date, or such later date
(on or before 60 days after the Petition Date) as the Company and the Holders
may mutually agree;
(d) the Company shall file with the Bankruptcy Court a Plan of
Reorganization, or an amendment to the Plan of Reorganization, that is
inconsistent with the Restructuring Agreement;
(e) the Bankruptcy Court shall not have confirmed a Plan of
Reorganization consistent with the Restructuring Agreement on or before 100
days after the Petition Date, or
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such later date (on or before 115 days after the Petition Date) as the
Company and the Holders may mutually agree;
(f) a Plan of Reorganization consistent with the Restructuring
Agreement shall not have become effective on or before 115 days after the
Petition Date or such later date (on or before 130 days after the Petition
Date) as the Company and the Holders may mutually agree,
(g) the Company shall have filed any motion or other pleading, or
otherwise shall have brought any action or proceeding, challenging or
objecting to the Senior Note Claims of a Holder or otherwise seeking any
recovery from, or injunctive relief against, a Holder (other than with
respect to any alleged or actual breach by a Holder of the terms of this
Agreement);
(h) the Chapter 11 Case shall have been dismissed or converted to
a case under Chapter 7 of the Bankruptcy Code; or
(i) an examiner with enlarged powers relating to the operation of
the Company's business (powers beyond those set forth in Section 1106(a)(3)
and (4) of the Bankruptcy Code) under Section 1106(b) of the Bankruptcy Code,
or a trustee under Section 1104 of the Bankruptcy Code, shall have been
appointed in the Chapter 11 Case.
(j) an occurrence of whatever nature that results in the material
impairment of the ability of (x) the Company to perform its material
obligations under the Restructuring Agreement or (y) the Holders to realize
the material benefits intended to be provided to the Holders under the
Restructuring Agreement.
SECTION 4. HOLDINGS OF SENIOR NOTES.
Each person that executes this Agreement represents that it is the
beneficial owner (and/or agent, advisor, affiliate, manager or other
authorized representative of the beneficial owner(s)) of the principal
amounts of the Senior Notes listed adjacent to its signature to this
Agreement.
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SECTION 5. DUE AUTHORIZATION.
Each person who executes this Agreement by or on behalf of each
respective party represents that it has been duly authorized or empowered to
execute and deliver this Agreement on behalf of such party.
SECTION 6. AMENDMENTS.
No modification or amendment of the terms of this Agreement shall be
valid unless such modification or amendment, in writing, has been signed by
each of the signatories party hereto.
SECTION 7. GOVERNING LAW.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York, without regard to its conflict of laws
provisions.
SECTION 8. SEVERABILITY OF PROVISIONS.
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction or under applicable law shall, as to such jurisdiction or
under such applicable law, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 9. COUNTERPARTS.
This Agreement may be executed by facsimile signature transmission in
one or more counterparts, any one of which need not contain the signature of
more than one party and all of which taken together shall constitute one and
the same agreement.
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SECTION 10. HEADINGS.
The Section headings of this Agreement are for convenience of reference
only and shall not, for any purpose, be deemed a part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their respective duly authorized representatives as
of the date first set forth above.
HEARTLAND WIRELESS COMMUNICATIONS, INC.
By:
------------------------------------
Name:
Title:
Name of Holder:
------------------------------------ Principal Amount of 13% Senior Notes due
April 15, 2003 -- $
---------------------
Principal Amount of 14% Senior Notes due
October 15, 2004 -- $
-------------------
By:
------------------------------------
Name:
Title:
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