1
EXHIBIT 4.8
SECOND SUPPLEMENTAL INDENTURE, dated as of May 14, 1999 (the "Second
Supplemental Indenture"), among THE J.H. HEAFNER COMPANY, INC., a North
Carolina corporation (the "Company"), the Subsidiary Guarantors party
hereto (the "Subsidiary Guarantors"), and FIRST UNION NATIONAL BANK, as
Trustee (the "Trustee") under the Indenture referred to below.
-----------------------------------------------------------------------
The Company, the Subsidiary Guarantors and the Trustee are
parties to an Indenture, dated as of May 15, 1998, as supplemented by the
Supplemental Indenture dated February 22, 1999 (as so supplemented, the
"Indenture"), providing, among other things, for the authentication, delivery
and administration of the Company's 10% Senior Notes Due 2008, Series B (the
"Securities").
Pursuant to a Consent Solicitation dated April 30, 1999 (the
"Consent Solicitation"), the Company has proposed certain amendments (the
"Proposed Amendments") to the Indenture.
Pursuant to Section 9.02 of the Indenture, the Holders (as
defined in the Indenture) of at least a majority of the outstanding principal
amount of the Securities currently outstanding have approved such Proposed
Amendments as described in this Second Supplemental Indenture.
The Company has directed the Trustee to execute and deliver
this Second Supplemental Indenture in accordance with the terms of the
Indenture.
In consideration of the foregoing premises, the parties
mutually agree as follows for the benefit of each other and for the equal and
ratable benefit of the Holders of the Securities:
ARTICLE 1
Definitions
SECTION 1.1 Defined Terms. As used in this Second Supplemental
Indenture, terms defined in the Indenture or in the preamble or recital hereto
are used herein as therein defined, except that the term "Holders" in this
Second Supplemental Indenture shall refer to the term "Holders" as defined in
the Indenture and the Trustee acting on behalf or for the benefit of such
Holders. The words "herein," "hereof" and "hereby" and other words of similar
import used in this Second Supplemental Indenture refer to this Second
Supplemental Indenture as a whole and not to any particular section hereof.
ARTICLE II
Amendments to Indenture
SECTION 2.1 Amendments to Indenture. The Indenture is hereby amended as
follows:
2
(a) Section 1.01 of the Indenture is amended to add the
following definitions in proper alphabetical order:
(1) "`Stockholder Expenses' means the expenses
incurred by or on behalf of Charlesbank Equity Fund IV, Limited
Partnership and certain stockholders of the Company in the pursuit of
the transactions contemplated by the Stock Purchase Agreement that the
Company has agreed to be responsible for pursuant to the Stock Purchase
Agreement."; and
(2) "`Stock Purchase Agreement' means the Stock
Purchase Agreement, dated as of April 21, 1999, as amended from time to
time, among Charlesbank Equity Fund IV, Limited Partnership, the
Company and the stockholders of the Company party thereto."
(b) The definition of "Change of Control" in Section 1.01 of
the Indenture is amended by adding the following clause at the end of clause (i)
thereof: "provided, however, that a person shall not be deemed to be the
`beneficial owner' (as defined in this clause (i)) of more than 50% of the total
voting power of the Voting Stock of the Company solely by reason of such person
having entered into a stockholders or similar agreement with a Permitted
Holder;".
(c) The definition of "Permitted Holders" in Section 1.01 of
the Indenture is amended in its entirety and replaced with the following:
"Permitted Holders" means Charlesbank Equity Fund IV, Limited
Partnership, Charlesbank Equity Fund IV GP, Limited
Partnership, Charlesbank Capital Partners, LLC, any other
funds managed by Charlesbank Capital Partners, LLC, any person
that, as of the date of closing of the transactions
contemplated by the Stock Purchase Agreement, is a limited
partner of Charlesbank Equity Fund IV, Limited Partnership,
members of senior management of the Company that were
employees of the Company on the date of closing of the
transactions contemplated by the Stock Purchase Agreement, and
any corporation, partnership or other entity a majority of the
Voting Stock of which is owned by any of the foregoing.
(d) The definition of "Permitted Investment" in Section 1.01
of the Indenture is amended by replacing the current clause (viii) of such
definition to read in its entirety as follows: "(viii) promissory notes issued
by members of management of the Company and its Subsidiaries as payment for
restricted shares of Capital Stock of the Company not to exceed $2.5 million in
aggregate principal amount outstanding at any time;".
(e) Section 4.07 (Limitation on Affiliate Transactions) of the
Indenture is amended by adding a new clause (ix) to subsection (b) of Section
4.07 which clause reads in its entirety as follows:
or (ix) the payment of, or reimbursement for, up to $1.35
million in the aggregate of Stockholder Expenses,
2
3
and by replacing with a comma the word "or" in subsection (b) appearing after
the word "Company" and before the roman numeral "(viii)."
SECTION 2.2 Notification to Holders. The Company shall notify
the Holders in accordance with Section 9.02 of the Indenture of the execution of
this Second Supplemental Indenture. Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of this Second Supplemental Indenture.
SECTION 2.3 Receipt by Trustee. In accordance with Section
11.04 of the Indenture, the parties acknowledge that the Trustee has received an
Officers' Certificate and Opinion of Counsel as conclusive evidence that this
Second Supplemental Indenture complies with the applicable requirements of the
Indenture.
ARTICLE III
Miscellaneous
SECTION 3.1 Parties. Nothing expressed or mentioned herein is
intended or shall be construed to give any Person, firm or corporation, other
than the Holders and the Trustee, any legal or equitable right, remedy or claim
under or in respect of this Supplemental Indenture or the Indenture or any
provision herein or therein contained.
SECTION 3.2 Governing Law. This Supplemental Indenture shall
be governed by the laws of the State of New York, but without giving effect to
applicable principles of conflicts of law to the extent that the application of
the laws of another jurisdiction would be required thereby.
SECTION 3.3 Severability Clause. In case any provision in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby and such provision shall be ineffective only to the
extent of such invalidity, illegality or unenforceability.
SECTION 3.4 Ratification of Indenture; Second Supplemental
Indenture Part of Indenture. Except as expressly supplemented hereby, the
Indenture is in all respects ratified and confirmed and all the terms,
conditions and provisions thereof shall remain in full force and effect. This
Second Supplemental Indenture shall form a part of the Indenture for all
purposes, and every Holder of Securities heretofore or hereafter authenticated
and delivered shall be bound hereby. The Trustee makes no representation or
warranty as to the validity or sufficiency of this Second Supplemental
Indenture.
SECTION 3.5 Condition to Operative Effect. For purposes of
Sections 9.02 and 9.04 of the Indenture only, this Second Supplemental Indenture
shall have operative effect upon execution hereof by the Trustee, the Company
and the Subsidiary Guarantors. For all other purposes, including Section 2.1
hereof, the operative effect of this Second Supplemental Indenture is
conditioned upon the occurrence of the consummation of the transactions
contemplated by the Stock Purchase Agreement dated as of April 21, 1999, as
amended from time to time, among the Company, Charlesbank Equity Fund IV,
Limited Partnership and the stockholders of the Company party thereto.
3
4
SECTION 3.6 Counterparts. The parties hereto may sign one or
more copies of this Second Supplemental Indenture in counterparts, all of which
together shall constitute one and the same agreement.
SECTION 3.7 Headings. The headings of the Articles and the
sections in this Second Supplemental Indenture are for convenience of reference
only and shall not be deemed to alter or affect the meaning or interpretation of
any provisions hereof.
4
5
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed as of the date first above written.
THE J.H. HEAFNER COMPANY, INC.
By: /s/ William H. Gaither
----------------------------------------------
Name: William H. Gaither
Title: President and Chief Executive Officer
OLIVER & WINSTON, INC.,
as a Subsidiary Guarantor
By: /s/ William H. Gaither
----------------------------------------------
Name: William H. Gaither
Title: President and Chief Executive Officer
By: /s/ Donald C. Roof
----------------------------------------------
Name: Donald C. Roof
Title: Sr. Vice President, Chief Financial
Officer & Treasurer
THE SPEED MERCHANT, INC.,
as a Subsidiary Guarantor
By: /s/ William H. Gaither
----------------------------------------------
Name: William H. Gaither
Title: President and Chief Executive Officer
By: /s/ Donald C. Roof
----------------------------------------------
Name: Donald C. Roof
Title: Sr. Vice President, Chief Financial
Officer & Treasurer
5
6
PHOENIX RACING, INC.,
as a Subsidiary Guarantor
By: /s/ William H. Gaither
----------------------------------------------
Name: William H. Gaither
Title: President and Chief Executive Officer
By: /s/ Donald C. Roof
----------------------------------------------
Name: Donald C. Roof
Title: Sr. Vice President, Chief Financial
Officer & Treasurer
CALIFORNIA TIRE COMPANY,
as a Subsidiary Guarantor
By: /s/ William H. Gaither
----------------------------------------------
Name: William H. Gaither
Title: President and Chief Executive Officer
By: /s/ Donald C. Roof
----------------------------------------------
Name: Donald C. Roof
Title: Sr. Vice President, Chief Financial
Officer & Treasurer
FIRST UNION NATIONAL BANK,
as Trustee
By: /s/ Shannon Schwartz
----------------------------------------------
Name: SHANNON SCHWARTZ
Title: Assistant Vice President
6