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EXHIBIT 4.1(a)
FIRST SUPPLEMENTAL INDENTURE (the "Supplement"), dated as of
January 6, 2000, between Valassis Communications, Inc., a Delaware corporation
(the "Company"), and The Bank of New York, a New York banking corporation, as
trustee (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company and the Trustee have executed and
delivered the Indenture, dated as of November 15, 1994 (the "Indenture"),
providing for the issuance thereunder by the Company, and the authentication and
delivery by the Trustee, of the Company's 9.55% Senior Notes due 2003 (the
"Notes");
WHEREAS, Section 1102 of the Indenture authorizes the Company
and the Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Notes, to amend, from time-to-time, the
Indenture by supplemental indenture for the purposes therein set forth;
WHEREAS, the holders of not less than a majority in aggregate
principal amount of the Notes have consented to the amendments to the Indenture
set forth herein and the Company, by appropriate corporate action, has
determined to supplement the Indenture in the manner described below, and all
acts or proceedings necessary to authorize and constitute this Supplement a
valid and binding agreement in accordance with the terms hereof, have been done
and taken.
NOW, THEREFORE, in consideration of the premises herein, the
Company covenants and agrees with the Trustee, for the equal and proportionate
benefit of the respective holders of the Notes from time-to-time, as follows:
Section 1. Indenture Supplement.
(a) Section 101 of the Indenture shall be amending by adding
the following defined terms:
"EBITDA" for any period means the sum of Consolidated Net
Income, plus Consolidated Interest Expense plus the following to the extent
deducted in calculating such Consolidated Net Income: (i) all income tax expense
of the Company and its consolidated Subsidiaries, (ii) depreciation expense of
the Company and its consolidated Subsidiaries, (iii) amortization expense of the
Company and its consolidated Subsidiaries (excluding amortization expense
attributable to a prepaid cash item that was paid in a prior period), and (iv)
all other non-cash charges of the Company and its consolidated Subsidiaries
(excluding any such non-cash charge to the extent that it represents an accrual
of or reserve for cash expenditures in any future period), in each case for such
period.
"Funded Debt" of any Person means, as at any date as of which
any determination thereof is being or is to be made, any Indebtedness of such
person that by its terms (i) will mature more than one year after the date it
was issued,
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incurred, assumed or guaranteed by such Person, or (ii) will mature one year or
less after the date it was issued, incurred, assumed or guaranteed by such
Person which at such date of determination may be renewed or extended at the
election or option of such Person so as to mature more than one year after such
date of determination.
"Funded Debt to EBITDA Ratio" as of any date of determination
means the ratio of (i) Funded Debt to (ii) the aggregate amount of EBITDA for
the period of the most recent four consecutive fiscal quarters prior to the date
of determination for which internal financial statements are available;
provided, however, that if the Company or any Subsidiary shall have made an
acquisition of assets which constitutes all or substantially all of the assets
of a business, EBITDA for such period shall be calculated after giving pro forma
effect thereto as if such acquisition occurred on the first day of such period.
(b) Section 1208(a) of the Indenture shall be amended and
restated in its entirety as follows:
"(a) The Company shall not, nor shall it permit any of its
Subsidiaries to, make any Restricted Payment if, after giving effect thereto,
(i) any Default shall have occurred and be continuing or (ii) the aggregate
amount of such payments made subsequent to January 12, 1999 would exceed the sum
of (1) 50% (or if Consolidated Net Income shall be a deficit, minus 100% of such
deficit) of the aggregate Consolidated Net Income from November 16, 1998 through
the date of determination, (2) the aggregate net proceeds (including cash and
the Fair Market Value of Property other than cash) received by the Company,
subsequent to January 12, 1999, from capital contributions from any of its
stockholders or from the issuance or sale (other than to a Subsidiary),
subsequent to January 12, 1999, of shares of its Capital Stock of any class (or
rights or warrants to subscribe for or purchase shares of Capital Stock of any
class), other than Redeemable Stock, or of any convertible securities or debt
obligations which have been converted into, exchanged for or satisfied by the
issuance of shares of Capital Stock of any class of the Company and (3)
$75,000,000. Notwithstanding anything to the contrary contained herein, the
Company and its Subsidiaries may make any Restricted Payment if, pro forma for
such Restricted Payment, the Funded Debt to EBITDA Ratio would have been equal
to or less than 1.0.
Section 2. Indenture to Remain in Effect. The
Indenture, as amended and supplemented by this Supplement, shall remain in full
force and effect.
Section 3. GOVERNING LAW. THIS SUPPLEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 4. Counterparts. This Supplement may be executed in
one or more counterparts, each of which shall be an original, but such
counterparts together shall construe one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the day and year first above
written.
VALASSIS COMMUNICATIONS, INC.
By:
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Name:
Title:
THE BANK OF NEW YORK
By:
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Name:
Title:
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