EXHIBIT 4.6
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUERS OR
THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.16 OF THE INDENTURE.
Unrestricted Global Security
MTS, INCORPORATED
Exchange Security
9 3/8% Senior Subordinated Note due 2005
CUSIP No. 00000XXX0
No. 1 $110,000,000
MTS, INCORPORATED, a California corporation (the "Company", which term
includes any successor corporation), for value received, promises to pay to CEDE
& CO. or registered assigns the principal sum of One Hundred Ten Million
Dollars, on May 1, 2005.
Interest Payment Dates: May 1 and November 1, commencing on November 1,
1998.
Interest Record Dates: April 15 and October 15.
Reference is made to the further provisions of this Security contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
MTS, INCORPORATED
By: _________________________________
Name: XxXxxxxx X. Xxxxxxx
Title: Chief Financial Officer
By: _________________________________
Name: Xxxxxx X. Xxxxxx
Title: Assistant Secretary
Dated: _____________________, 1998
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This Exchange Security is one of the 9 3/8% Senior Subordinated Notes due
2005 described in the within-mentioned Indenture and issued in exchange for the
Initial Securities pursuant to the Registration Rights Agreement.
Dated: _____________________, 0000
XXXXX XXXXXX BANK AND TRUST
COMPANY OF CALIFORNIA, N.A.,
as Trustee
By: _________________________________
Authorized Signatory
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(REVERSE OF SECURITY)
MTS, INCORPORATED
EXCHANGE SECURITY
9(3)/(8)% SENIOR SUBORDINATED NOTE DUE 2005
1. INTEREST.
MTS, INCORPORATED, a California corporation (the "COMPANY") promises to pay
interest on the principal amount of this Security at 9(3)/(8)% per annum from
the most recent date to which interest has been paid or duly provided for on the
Initial Securities surrendered in exchange for this Security or, if no such
interest has been paid or duly provided for on such Initial Securities, from
April 23, 1998. The Company will pay interest semi-annually in arrears on each
Interest Payment Date, commencing on November 1, 1998. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal from time to time on
demand and on overdue installments of interest (without regard to any applicable
grace periods) to the extent lawful from time to time on demand, in each case at
the rate borne by the Securities.
2. METHOD OF PAYMENT.
The Company shall pay interest on the Securities (except defaulted interest)
to the persons who are the registered Holders at the close of business on the
Interest Record Date immediately preceding the Interest Payment Date even if the
Securities are canceled on registration of transfer or registration of exchange
after such Interest Record Date. Holders must surrender Securities to a Paying
Agent to collect principal payments. The Company shall pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts ("U.S. LEGAL TENDER"). However,
the Company may pay principal and interest by wire transfer of Federal funds
(provided that the Paying Agent shall have received wire instructions on or
prior to the relevant Interest Record Date), or interest by check payable in
such U.S. Legal Tender. The Company may deliver any such interest payment to the
Paying Agent or to a Holder at the Holder's registered address.
3. PAYING AGENT AND REGISTRAR.
Initially, STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A. (the
"TRUSTEE") will act as Paying Agent and Registrar. The Company may change any
Paying Agent or Registrar without notice to the Holders. The Company may,
subject to certain exceptions, act as Registrar.
4. INDENTURE.
The Company issued the Securities under an Indenture, dated as of April 23,
1998 (the "INDENTURE"), between the Company and the Trustee. Capitalized terms
herein are used as defined in the Indenture unless otherwise defined herein.
This Security is one of a duly authorized issue of Securities of the Company
designated as its 9(3)/(8)% Senior Subordinated Notes due 2005 limited in
aggregate principal amount to $110,000,000, which may be issued under the
Indenture. The Securities include the Initial Securities (as defined in the
Indenture), the Private Exchange Securities (as defined in the Indenture) and
the Unrestricted Securities (as defined in the Indenture). This Security is an
Exchange Security issued in exchange for the Initial Securities pursuant to the
Registration Rights Agreement. All Securities issued under the Indenture are
treated as a single class of securities under the Indenture. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
SectionSection 77aaa-77bbbb) (the "TIA"), as in effect on the date of the
Indenture (except as otherwise indicated in the Indenture) until such time as
the Indenture is qualified
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under the TIA, and thereafter as in effect on the date on which the Indenture is
qualified under the TIA. Notwithstanding anything to the contrary herein, the
Securities are subject to all such terms, and holders of Securities are referred
to the Indenture and the TIA for a statement of them. The Securities are general
unsecured obligations of the Company. The Securities are subordinated in right
of payment to all Senior Indebtedness of the Company to the extent and in the
manner provided in the Indenture. Each Holder of a Security, by accepting a
Security, agrees to such subordination, authorizes the Trustee to give effect to
such subordination and appoints the Trustee as attorney-in-fact for such
purpose.
5. OPTIONAL REDEMPTION.
(a) The Securities will be redeemable at the option of the Company, in whole
or in part, at any time on or after May 1, 2002, at the redemption prices
(expressed as a percentage of principal amount) set forth below, plus accrued
and unpaid interest thereon, if any, to the Redemption Date (subject to the
right of Holders of record on the relevant Interest Record Date to receive
interest due on the relevant Interest Payment Date) if redeemed during the
12-month period commencing on May 1 of the years indicated below:
YEAR PERCENTAGE
------------------------------ ------------
2002 104.688%
2003 102.344%
2004 100.000%
(b) Prior to May 1, 2001, the Company may, at its option, use the net cash
proceeds of one or more Equity Offerings to redeem in the aggregate up to 35% of
the originally issued aggregate principal amount of the Securities at a
redemption price equal to 109.375% of the principal amount thereof plus accrued
and unpaid interest to the redemption date; PROVIDED, HOWEVER, that after any
such redemption, at least 65% of the aggregate principal amount of the
Securities originally issued would remain outstanding immediately after giving
effect to such redemption (excluding any Securities held by the Company or any
of its Affiliates). Any such redemption will be required to occur on or prior to
the date that is one year after the receipt by the Company of the proceeds of an
Equity Offering. The Company shall effect such redemption on a pro rata basis.
6. NOTICE OF REDEMPTION.
Notice of redemption will be mailed by first-class mail at least 30 days but
not more than 60 days before the Redemption Date to each Holder of Securities to
be redeemed at its registered address. The Trustee may select for redemption
portions of the principal amount of Securities that have denominations equal to
or larger than $1,000 principal amount. Securities and portions of them the
Trustee so selects shall be in amounts of $1,000 principal amount or integral
multiples thereof.
If any Security is to be redeemed in part only, the notice of redemption
that relates to such Security shall state the portion of the principal amount
thereof to be redeemed. A new Security in a principal amount equal to the
unredeemed portion thereof will be issued in the name of the Holder thereof upon
cancellation of the original Security. On and after the Redemption Date,
interest will cease to accrue on Securities or portions thereof called for
redemption so long as the Company has deposited with the Paying Agent for the
Securities funds in satisfaction of the redemption price pursuant to the
Indenture and the Paying Agent is not prohibited from paying such funds to the
Holders pursuant to the terms of the Indenture.
7. CHANGE OF CONTROL OFFER.
Following the occurrence of a Change of Control (the date of such occurrence
being the "CHANGE OF CONTROL DATE"), the Company shall, within 60 days after the
Change of Control Date, be required to offer
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to purchase all Securities then outstanding at a purchase price in cash equal to
101% of the aggregate principal amount thereof, plus accrued and unpaid interest
thereon, if any, to the date of such purchase (subject to the right of Holders
of record on the relevant Interest Record Date to receive interest due on the
relevant Interest Payment Date).
8. LIMITATION ON DISPOSITION OF ASSETS.
The Company is, subject to certain conditions and certain exceptions,
obligated to offer to purchase the Securities at a purchase price equal to 100%
of the principal amount thereof, plus accrued and unpaid interest thereon, if
any, to the date of such purchase (subject to the right of Holders of record on
the relevant Interest Record Date to receive interest due on the relevant
Interest Payment Date) with the proceeds of certain asset dispositions.
9. DENOMINATIONS; TRANSFER; EXCHANGE.
The Securities are in registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000. A Holder shall register the transfer of
or exchange Securities in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay certain transfer taxes or similar governmental
charges payable in connection therewith as permitted by the Indenture. The
Registrar need not register the transfer of or exchange any Securities or
portions thereof selected for redemption, except the unredeemed portion of any
security being redeemed in part.
10. PERSONS DEEMED OWNERS.
The registered Holder of a Security shall be treated as the owner of it for
all purposes.
11. UNCLAIMED FUNDS.
If funds for the payment of principal or interest remain unclaimed for two
years, the Trustee and the Paying Agent will repay the funds to the Company at
their written request. After that, all liability of the Trustee and such Paying
Agent with respect to such funds shall cease.
12. LEGAL DEFEASANCE AND COVENANT DEFEASANCE.
The Company may be discharged from its obligations under the Indenture and
the Securities, except for certain provisions thereof, and may be discharged
from obligations to comply with certain covenants contained in the Indenture and
the Securities, in each case upon satisfaction of certain conditions specified
in the Indenture.
13. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions, the Indenture and the Securities may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities then outstanding, and
any existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture and the
Securities to, among other things, cure any ambiguity, defect or inconsistency,
provide for uncertificated Securities in addition to or in place of certificated
Securities or comply with any requirements of the SEC in connection with the
qualification of the Indenture under the TIA, or make any other change that does
not materially adversely affect the rights of any Holder of a Security.
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14. RESTRICTIVE COVENANTS.
The Indenture contains certain covenants that, among other things, limit the
ability of the Company and the Restricted Subsidiaries to make restricted
payments, to incur indebtedness, to sell assets, to permit restrictions on
dividends and other payments by Subsidiaries to the Company, to consolidate,
merge or sell all or substantially all of its assets and to engage in
transactions with affiliates. The limitations are subject to a number of
important qualifications and exceptions. The Company must report annually to the
Trustee on compliance with such limitations.
15. DEFAULTS AND REMEDIES.
If an Event of Default occurs and is continuing, the Trustee or the Holders
of at least 25% in aggregate principal amount of Securities then outstanding may
declare all the Securities to be due and payable immediately in the manner and
with the effect provided in the Indenture. Holders of Securities may not enforce
the Indenture or the Securities except as provided in the Indenture. The Trustee
is not obligated to enforce the Indenture or the Securities unless it has
received indemnity satisfactory to it. The Indenture permits, subject to certain
limitations therein provided, Holders of a majority in aggregate principal
amount of the Securities then outstanding to direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders of Securities
notice of certain continuing Defaults or Events of Default if it determines that
withholding notice is in their interest.
16. TRUSTEE DEALINGS WITH COMPANY.
The Trustee under the Indenture, in its individual or any other capacity,
may become the owner or pledgee of Securities and may otherwise deal with the
Company, its Subsidiaries or its Affiliates as if it were not the Trustee.
17. NO RECOURSE AGAINST OTHERS.
No director, officer, employee, incorporator or stockholder of the Company
shall have any liability for any obligations of the Company under the Securities
or the Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Security waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Securities.
18. AUTHENTICATION.
This Security shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on this Security.
19. ABBREVIATIONS AND DEFINED TERMS.
Customary abbreviations may be used in the name of a Holder of a Security or
an assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=Custodian), and U/G/M/A (=Uniform Gifts to Minors
Act).
20. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
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21. GOVERNING LAW.
The laws of the State of New York shall govern the Indenture and this
Security without regard to principles of conflicts of laws to the extent that
the application of the laws of another jurisdiction would be required thereby.
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ASSIGNMENT FORM
I or we assign and transfer this Security to
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee or transferee)
________________________________________________________________________________
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint _______________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Dated: ________________________________ Signed:
______________________________________
(Signed exactly as name
appears on the
other side of this Security)
Signature Guarantee: __________________________________________________________
Participant in a recognized Signature Guarantee Medallion
Program (or
other signature guarantor program reasonably acceptable to
the Trustee)
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company pursuant
to Section 4.06 or Section 4.13 of the Indenture, check the appropriate box:
Section 4.06 [ ] Section 4.13 [ ]
If you want to elect to have only part of this Security purchased by the
Company pursuant to Section 4.06 or Section 4.13 of the Indenture, state the
amount: $_______________________________________________________________________
Dated: _____________________________ Signed:
______________________________________
(Signed exactly as name appears
on the
other side of this Security)
Signature Guarantee: __________________________________________________________
Participant in a recognized Signature Guarantee Medallion
Program (or
other signature guarantor program reasonably acceptable to
the Trustee)
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