Canada
2869
Not Applicable
(Province or other
jurisdiction
of incorporation or organization)
(Primary Standard Industrial
Classification Code Number)
(I.R.S. Employer
Identification Number, if applicable)
RICHARD J. BALFOUR
McCARTHY TÉTRAULT LLP Pacific Centre, P.O. Box 10424 Suite 1300, 777 Dunsmuir Street Vancouver, B.C., Canada V7Y 1K2 (604) 643-7100 |
KENNETH R. BLACKMAN
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP One New York Plaza New York, New York 10004 (212) 859-8000 |
CHRISTOPHER W. MORGAN
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 222 Bay Street Suite 1750 P.O. Box 258 Toronto, Canada M5K 1J5 (416) 777-4700 |
A. | o upon filing with the Commission, pursuant to Rule 467 (a) (if in connection with an offering being made contemporaneously in the United States and Canada). | |
B. | þ at some future date (check the appropriate box below): |
1. | o pursuant to Rule 467 (b) on ( ) at ( ) (designate a time not sooner than 7 calendar days after filing). | |
2. | o pursuant to Rule 467 (b) on ( ) at ( ) (designate a time 7 calendar days or sooner after filing) because the securities regulatory authority in the review jurisdiction has issued a receipt or notification of clearance on ( ). | |
3. | o pursuant to Rule 467 (b) as soon as practicable after notification of the Commission by the Registrant or the Canadian securities regulatory authority of the review jurisdiction that a receipt or notification of clearance has been issued with respect hereto. | |
4. | þ after the filing of the next amendment to this Form (if preliminary material is being filed). |
Proposed maximum | Proposed maximum | |||||||||||
Title of each class of securities | Amount to be | offering price per unit | aggregate offering | Amount of | ||||||||
to be registered | registered | (1) | price (1) | registration fee (1) | ||||||||
Senior Notes due 2015
|
$150,000,000 | 100% | $150,000,000 | $17,655 | ||||||||
(1) | Estimated solely for the purpose of calculating the registration fee. |
The information in
this preliminary prospectus is not complete and may be changed.
These securities may not be sold until the registration
statement filed with the Securities and Exchange Commission is
effective. This preliminary prospectus is not an offer to sell
nor does it seek an offer to buy these securities in any
jurisdiction where the offer or sale is not
permitted.
$150,000,000
METHANEX CORPORATION
% Senior Notes due
2015
Per Note
Total
%
$
%
$
%
$
ABN AMRO INCORPORATED
BNP PARIBAS
CIBC WORLD MARKETS
RBC CAPITAL MARKETS
i
cyclicality of the industry in which we operate and the
volatility of the price of methanol;
uncertainty of demand for methanol and its derivatives such as
methyl tertiary butyl ether, or MTBE, and formaldehyde;
availability and price of natural gas;
methanol production and marketing risks, including operational
disruption;
successful identification, development and completion of capital
expenditure projects;
risks inherent with investments and operations in foreign
jurisdictions;
foreign exchange risks;
actions of competitors; and
changes in laws or regulations.
1
2
3
4
Production
Commenced
Operating
H1
H1
Production
Capacity
2002
2003
2004
2004
2005
(thousands of
tonnes/year)
(thousands of tonnes)
1988
925
895
775
809
415
415
1996
1,010
997
983
931
460
485
1999
1,065
1,040
946
952
487
513
June 2005
840
16
3,840
2,932
2,704
2,692
1,362
1,429
2000
850
577
740
410
337
July 2004
1,073
421
487
1,923
577
1,161
410
824
1985
1,814
819
590
268
1983
530
467
149
498
250
223
530
2,281
968
1,088
518
223
1982
500
478
449
486
243
239
6,793
5,691
4,698
5,427
2,533
2,715
(1)
We recently completed construction of our Chile IV plant and it
is currently in the start up phase of production.
(2)
We acquired 100% of the Titan plant effective May 1, 2003
and the table indicates 2003 production from that date.
Titans total annual production in 2003 was 870,186 tonnes.
(3)
Our Motunui facility was shut down in 2004. Prior to shutdown,
this facility had an annual operating capacity of
1.9 million tonnes.
(4)
We are currently exploring alternatives for our Kitimat facility
which could result in its shutdown.
5
6
7
8
9
Issuer
Methanex Corporation.
Notes offered
$150,000,000 principal amount
of %
Senior Notes.
Maturity
,
2015.
Issue price
%
plus accrued interest, if any,
from ,
2005.
Interest
Annual
rate: %.
Interest payment dates
Semi-annually
on and of
each year, commencing
on ,
2006.
Ranking
The Notes will be general unsecured obligations of Methanex and
will rank equally in right of payment with all of our other
unsubordinated and unsecured indebtedness, including our 7.75%
Notes due August 15, 2005 and our 8.75% Notes due
August 15, 2012. The Notes, however, will be structurally
subordinated to any indebtedness and other liabilities of our
subsidiaries. As of June 30, 2005, we had no secured debt
outstanding and our subsidiaries had approximately
$331 million of liabilities (which amount includes
approximately $144 million of trade payables).
Optional redemption
We will have the option to redeem the Notes in whole or in part
at any time, at a redemption price equal to the greater of
(1) 100% of the principal amount of the Notes and
(2) the sum of the present values of the remaining
scheduled payments of principal and interest on the Notes
(exclusive of interest accrued to the date of redemption)
discounted to the redemption date, calculated on a semi-annual
basis (assuming a 360-day year of twelve 30-day months), at the
Treasury Rate (as defined in the indenture under which we will
issue the Notes, which we refer to in this prospectus as the
Indenture)
plus basis
points, together in each case with accrued interest to the date
of redemption. See Description of the Notes
Optional Redemption.
Additional amounts
All payments with respect to the Notes made by us will be made
without withholding or deduction for Canadian taxes unless
required by law or by the interpretation or administration
thereof, in which case, subject to certain exceptions, we will
pay such Additional Amounts (as defined in the Indenture) as may
be necessary, so that the net amount received by the holders
after such withholding or deduction will not be less than the
amount that would have been received in the absence of such
withholding or deduction. See Description of the
Notes Additional Amounts for Canadian Withholding
Taxes.
Redemption in the event
of changes in Canadian
withholding taxes
If we become obligated to pay Additional Amounts as a result of
certain changes affecting Canadian withholding taxes, we
may redeem all, but not less than all, of the Notes at 100% of
their principal amount plus accrued and unpaid interest to the
date of redemption. See Description of the
Notes Redemption for Changes in Canadian Withholding
Taxes.
Mandatory offer to purchase
Upon the occurrence of a Change of Control Triggering Event,
which occurs only if a Change of Control and a Rating Decline
(as such terms are defined in the Indenture) both occur, and
provided that the Notes have not had, at any time, an Investment
Grade Rating (as defined in the Indenture), we are required to
offer to purchase all outstanding Notes at 101% of their
principal amount plus accrued and unpaid interest to the date of
purchase. See Description of the Notes Certain
Covenants Change of Control.
Basic covenants of the indenture
The Indenture will, among other things, restrict our ability and
the ability of certain of our subsidiaries to:
incur liens;
enter into sale/leaseback transactions;
in the case of certain of our subsidiaries, incur
indebtedness without guaranteeing the Notes;
enter into or conduct transactions with unrestricted
subsidiaries; and
amalgamate or consolidate with, or merge with or
into, or transfer all or substantially all of our assets or
those of certain of our subsidiaries to any person.
These covenants are subject to important qualifications and
limitations. For more details, see the section Description
of the Notes Certain Covenants.
Use of proceeds
The net proceeds from the sale of the Notes offered hereby are
estimated to be approximately
$ million.
We intend to use the estimated net proceeds, together with cash
on hand, to repay in full our 7.75% Notes due August 15,
2005 upon the maturity of such notes. Pending such application,
such net proceeds will be invested in short-term money market
instruments.
Fiscal year ended
Six months
December 31,
ended June 30,
2002
2003
2004
2004
2005
(in millions, except volume and price data)
$
1,042
$
1,420
$
1,719
$
805
$
849
776
1,034
1,284
617
595
111
96
79
37
41
155
290
356
151
213
(29
)
(39
)
(31
)
(13
)
(20
)
10
14
7
4
2
(88
)
(179
)
48
86
332
142
195
(25
)
(85
)
(96
)
(43
)
(56
)
$
23
$
1
$
236
$
99
$
139
$
21
$
(32
)
$
230
N/A
N/A
$
421
$
288
$
210
$
202
$
266
1,820
2,082
2,125
2,005
2,157
547
778
609
609
605
908
786
949
885
1,010
$
1,912
$
2,159
$
2,170
N/A
N/A
971
839
975
N/A
N/A
$
190
$
361
$
336
$
158
$
209
266
386
434
188
254
$
18
$
36
$
23
$
7
$
31
142
207
134
87
32
$
160
$
243
$
157
$
94
$
63
$
286
$
392
$
429
N/A
N/A
Fiscal year ended
Six months
December 31,
ended June 30,
2002
2003
2004
2004
2005
(in millions, except volume and price data)
5,691
4,698
5,427
2,533
2,715
5,686
4,933
5,298
2,460
2,707
809
1,392
1,960
1,135
565
725
254
169
303
7,220
6,579
7,427
3,595
3,575
$
160
$
224
$
237
$
224
$
259
(1)
Interest expense breaks down as follows:
Six months
Fiscal year ended
ended
December 31,
June 30,
2002
2003
2004
2004
2005
(in millions)
$
38
$
59
$
55
$
27
$
27
(9
)
(20
)
(24
)
(14
)
(7
)
$
29
$
39
$
31
$
13
$
20
(2)
Other expense for 2002 consists of a $115 million asset
restructuring charge related to the write-off of the Fortier,
Louisiana methanol facility and a $27 million reduction in
the accrual for site restoration for the New Zealand facilities.
Other expense for 2003 consists of a $129 million non-cash
impairment charge related to the carrying value of property,
plant and equipment and related assets in New Zealand and
Medicine Hat, Alberta, $10 million in costs primarily for
employee termination benefits to reduce the workforce at the New
Zealand operations and for costs to re-mothball the Medicine Hat
facility, and $40 million for a write-off of plant and
equipment under development related to our decision not to
proceed with the development of a methanol plant located in
Western Australia.
(3)
EBITDA should be considered in addition to, and not as a
substitute for, operating income, net income, cash flows and
other measures of financial performance and liquidity reported
in accordance with generally accepted accounting principles.
EBITDA differs from the most comparable GAAP measure, cash flows
from operating activities, primarily because it does not include
changes in non-cash working capital and the utilization of
prepaid natural gas, cash flows related to interest expense,
interest and other income, income taxes, asset restructuring
charges and other unusual items. Our method of computing EBITDA
may not be comparable to similarly titled measures reported by
other companies. The following table shows a reconciliation of
EBITDA to cash flows from operating activities:
Six months
Fiscal year ended
ended
December 31,
June 30,
2002
2003
2004
2004
2005
(in millions)
$
190
$
361
$
336
$
158
$
209
55
(31
)
39
5
6
(14
)
(19
)
(13
)
(4
)
(9
)
10
29
39
31
13
19
(10
)
(14
)
(7
)
(4
)
(1
)
16
40
48
20
30
$
266
$
386
$
434
$
188
$
254
20
6
(5
)
N/A
N/A
$
286
$
392
$
429
N/A
N/A
(4)
Plant and equipment under construction or development represents
capital expenditures on the following projects:
Six months
Fiscal year ended
ended
December 31,
June 30,
2002
2003
2004
2004
2005
(in millions)
$
99
$
74
$
54
$
40
$
23
116
80
47
32
20
17
$
142
$
207
$
134
$
87
$
32
(5)
The Methanex average realized methanol price is calculated as
revenue, net of commissions earned, divided by total sales
volumes of produced and purchased methanol. Prior to 2005,
in-market distribution costs were deducted from revenue when
calculating average realized methanol price. The presentation of
average realized methanol price for prior periods has been
restated. See Financial Statement
Presentation.
10
11
12
Our business is subject to many operational risks for
which we may not be adequately insured.
13
We may not be able to successfully identify, develop and
complete new capital projects.
We are subject to risks inherent in foreign
operations.
14
We are exposed to fluctuations in foreign
currencies.
Competition from other methanol producers is intense and
could reduce our market share and harm our financial
performance.
Government regulations relating to the protection of the
environment could increase our costs of doing business.
15
Our structure as a holding company could adversely affect
our ability to meet our obligations under the Notes.
Our debt service requirements may affect our ability to
fund our business.
16
Restrictions in our debt agreements could limit our growth
and our ability to respond to changing conditions.
merge or enter into certain other business combination
transactions;
create certain liens on our assets to secure debt;
enter into sale and leaseback transactions; and
incur additional debt.
It may be difficult for you to enforce liabilities against
us based solely upon the federal securities laws of the United
States.
There is currently no active trading market for the Notes.
If an active trading market does not develop for the Notes, you
may not be able to resell them.
17
As at June 30, 2005
Actual
As Adjusted
(in millions)
$
266
$
166
$
250
$
11
11
261
11
200
200
144
144
150
344
494
605
505
522
522
488
488
1,010
1,010
$
1,615
$
1,515
(1)
Represents our proportionate share. The limited recourse debt
facilities of Atlas are described as limited recourse as they
are secured only by the assets of our joint venture with BP. See
Description of Certain Indebtedness Atlas
Limited Recourse Debt Facilities.
(2)
Total availability of $250 million, expiring 2010.
18
19
20
21
Change of Control
22
Limitation on Liens
23
Limitation on Sale/ Leaseback Transactions
Additional Guarantees
24
Limitations with Respect to Unrestricted
Subsidiaries
25
26
27
28
29
30
31
(1) the direct or indirect sale, transfer, conveyance or
other disposition (other than by way of amalgamation, merger or
consolidation), in one or a series of related transactions, of
all or substantially all of our properties or assets and those
of our Restricted Subsidiaries, taken as a whole, to any
person (as that term is used in
Section 13(d)(3) of the Exchange Act);
(2) the adoption of a plan relating to our liquidation or
dissolution;
(3) the consummation of any transaction (including, without
limitation, any amalgamation, merger or consolidation) the
result of which is that any person (as defined in
clause (1) of this definition), becomes the beneficial
owner, directly or indirectly, of more than 50% of our Voting
Stock, measured by voting power rather than number of shares;
(4) the first day on which a majority of the members of our
Board of Directors are not Continuing Directors; or
(5) we amalgamate or consolidate with, or merge with or
into, any person, or any person amalgamates or consolidates
with, or merges with or into, us, in any such event pursuant to
a transaction in which any of the outstanding Voting Stock of us
or such other person is converted into or exchanged for cash,
securities or other property, other than any such transaction
where our Voting Stock outstanding immediately prior to such
transaction is converted into or exchanged for Voting Stock
(other than Disqualified Stock) of the surviving or transferee
person constituting a majority of the Voting Stock of such
surviving or transferee
32
person, measured by voting power rather than number of shares,
immediately after giving effect to such issuance.
(1) was a member of such Board of Directors on the date of
the issuance of the Notes; or
(2) was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing
Directors who were members of such Board of Directors at the
time of such nomination or election.
33
34
35
36
37
an individual who is a citizen or resident of the United States;
a corporation (or entity treated as a corporation for such
purposes) created or organized in or under the laws of the
United States or of any political subdivision of the United
States;
an estate, the income of which is includible in gross income for
U.S. federal income tax purposes regardless of its source; or
a trust if (x) a U.S. court is able to exercise primary
supervision over the administration of the trust and one or more
U.S. persons, as described in section 7701(a)(30) of the Code,
have authority to control all substantial decisions of the
trust, or (y) the trust has a valid election in effect
under applicable Treasury Regulations to be treated as a U.S.
person.
38
39
40
Underwriters
Principal Amount of Notes
$
$
150,000,000
41
42
Our Annual Information Form dated March 21, 2005.
Our Information Circular dated March 4, 2005 relating to
the Annual General Meeting of shareholders held on May 5,
2005 (excluding the sections entitled Corporate
Governance, Report on Executive Compensation
and Total Shareholder Return Comparison).
Our audited annual consolidated financial statements as at and
for the years ended December 31, 2003 and 2004, together
with the notes thereto and the auditors report thereon.
43
Our unaudited interim consolidated financial statements as at
June 30, 2005 and for the six months ended June 30,
2004 and 2005 and the notes thereto.
Managements discussion and analysis for the year ended
December 31, 2004.
Managements discussion and analysis for the six months
ended June 30, 2005 contained in our interim report to
shareholders.
Material change report dated May 19, 2005, with respect to
our normal course issuer bid.
Material change report dated June 24, 2005, with respect to
recent gas curtailments to our Chile facilities.
44
Page
i
i
i
1
10
17
17
18
19
37
40
41
42
42
42
42
43
44
II-1
II-2
Exhibit
Number
Description
4
.1
Annual Information Form of the
Registrant dated March 21, 2005 (incorporated by reference
to the Registrants Form 40-F for the year ended
December 31, 2004, filed March 29, 2005 and amended
April 19, 2005, SEC file number 0-20115 (the 2004
Form 40-F))
4
.2
Information Circular dated as of
March 4, 2005 issued in connection with the
Registrants annual meeting of shareholders held on
May 5, 2005, excluding the sections entitled
Corporate Governance, Report on Executive
Compensation and Total Shareholder Return
Comparison, (incorporated by reference to the
Registrants Form 6-K filed March 30, 2005, SEC
file number 0-20115)
4
.3
Annual Consolidated Financial
Statements and Auditors Report for the years ended
December 31, 2003 and 2004, contained in the
Registrants 2004 Annual Report (incorporated by reference
to the 2004 Form 40-F)
4
.4
Interim consolidated financial
statements (unaudited) of the Registrant for the six months
ended June 30, 2004 and 2005 (incorporated by reference to
the Registrants Form 6-K filed July 21, 2005,
SEC file number 0-20115 (the Second Quarter 6-K))
4
.5
Managements Discussion and
Analysis for the year ended December 31, 2004 contained in
the Registrants 2004 Annual Report (incorporated by
reference to the 2004 Form 40-F)
4
.6
Managements Discussion and
Analysis for the six months ended June 30, 2005
(incorporated by reference to the Second Quarter 6-K)
4
.7
Material Change Report of the
Registrant dated May 19, 2005 (incorporated by reference to
the Registrants Form 6-K filed May 19, 2005, SEC
file number 0-20115)
4
.8
Material Change Report of the
Registrant dated June 24, 2005 (incorporated by reference
to the Registrants Form 6-K filed June 24, 2005,
SEC file number 0-20115)
4
.9*
Earnings coverage calculation as at
and for the twelve months ended June 30, 2005 and
December 31, 2004
5
.1
Consent of KPMG LLP
5
.2
Consent of McCarthy Tétrault
LLP
6
.1
Power of Attorney (included on
signature pages hereof)
7
.1
Trust Indenture dated as of
July 20, 1995 between Methanex Corporation and United
States Trust Company of New York, as Trustee (incorporated
by reference to Exhibit 7.1 to the Registrants
Form F-9 dated May 31, 2002, SEC file number 333-89526)
7
.2
Second Supplemental Indenture dated
as of June 19, 2002 between Methanex Corporation and The
Bank of New York (formerly United States Trust Company of New
York), as Trustee
7
.3*
Form of Officers Certificate
of Methanex Corporation
7
.4*
Form of Fourth Supplemental
Indenture
7
.5
Statement of Eligibility of the
Trustee on Form T-1
*
to be filed by amendment
III-1
METHANEX CORPORATION
By:
/s/
Ian P. Cameron
Name: Ian P. Cameron
Title:
Senior Vice President, Finance
and Chief Financial Officer
Signature
Title
Date
/s/
Bruce Aitken
President, Chief Executive Officer
and Director
(Principal Executive Officer)
July 21, 2005
/s/
Ian P. Cameron
Senior Vice President, Finance and
Chief Financial Officer
(Principal Financial Officer and Accounting Officer)
July 21, 2005
/s/
Howard Balloch
Director
July 21, 2005
/s/
Pierre Choquette
Director
July 21, 2005
III-2
Signature | Title | Date | ||||
/s/
Robert B. Findlay
|
Director | July 21, 2005 | ||||
/s/
Brian D. Gregson
|
Director | July 21, 2005 | ||||
/s/
A. Terence Poole
|
Director | July 21, 2005 | ||||
/s/
John Reid
|
Director | July 21, 2005 | ||||
/s/
Monica Sloan
|
Director | July 21, 2005 | ||||
|
Director | |||||
/s/
Anne L. Wexler
|
Director | July 21, 2005 |
III-3
III-4
METHANEX GULF COAST INC.
By:
/s/
John Floren
Name: John Floren
Title: Vice President
Exhibit
Number
Description
4
.1
Annual Information Form of the
Registrant dated March 21, 2005 (incorporated by reference
to the Registrants Form 40-F for the year ended
December 31, 2004, filed March 29, 2005 and amended
April 19, 2005, SEC file number 0-20115 (the 2004
Form 40-F))
4
.2
Information Circular dated as of
March 4, 2005 issued in connection with the
Registrants annual meeting of shareholders held on
May 5, 2005, excluding the sections entitled
Corporate Governance, Report on Executive
Compensation and Total Shareholder Return
Comparison, (incorporated by reference to the
Registrants Form 6-K filed March 30, 2005, SEC
file number 0-20115)
4
.3
Annual Consolidated Financial
Statements and Auditors Report for the years ended
December 31, 2003 and 2004, contained in the
Registrants 2004 Annual Report (incorporated by reference
to the 2004 Form 40-F)
4
.4
Interim consolidated financial
statements (unaudited) of the Registrant for the six months
ended June 30, 2004 and 2005 (incorporated by reference to
the Registrants Form 6-K filed July 21, 2005,
SEC file number 0-20115 (the Second Quarter 6-K))
4
.5
Managements Discussion and
Analysis for the year ended December 31, 2004 contained in
the Registrants 2004 Annual Report (incorporated by
reference to the 2004 Form 40-F)
4
.6
Managements Discussion and
Analysis for the six months ended June 30, 2005
(incorporated by reference to the Second Quarter 6-K)
4
.7
Material Change Report of the
Registrant dated May 19, 2005 (incorporated by reference to
the Registrants Form 6-K filed May 19, 2005, SEC
file number 0-20115)
4
.8
Material Change Report of the
Registrant dated June 24, 2005 (incorporated by reference
to the Registrants Form 6-K filed June 24, 2005,
SEC file number 0-20115)
4
.9*
Earnings coverage calculation as at
and for the twelve months ended June 30, 2005 and
December 31, 2004
5
.1
Consent of KPMG LLP
5
.2
Consent of McCarthy Tétrault
LLP
6
.1
Power of Attorney (included on
signature pages hereof)
7
.1
Trust Indenture dated as of
July 20, 1995 between Methanex Corporation and United
States Trust Company of New York, as Trustee (incorporated
by reference to Exhibit 7.1 to the Registrants
Form F-9 dated May 31, 2002, SEC file number 333-89526)
7
.2
Second Supplemental Indenture dated
as of June 19, 2002 between Methanex Corporation and The
Bank of New York (formerly United States Trust Company of New
York), as Trustee
7
.3*
Form of Officers Certificate
of Methanex Corporation
7
.4*
Form of Fourth Supplemental
Indenture
7
.5
Statement of Eligibility of the
Trustee on Form T-1
*
to be filed by amendment
EXHIBIT 5.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Board of Directors of Methanex Corporation
We consent to the use of:
(a) our report dated March 4, 2005 on the consolidated balance sheets of Methanex Corporation as at December 31, 2004 and 2003 and the consolidated statements of income, shareholders' equity and cash flows for the years then ended; and
(b) our report dated March 4, 2005 on the Supplemental Information entitled "Reconciliation with United States Generally Accepted Accounting Principles" of Methanex Corporation as at December 31, 2004 and 2003, and for the years then ended,
both incorporated by reference herein and to the reference to our firm under the heading "Experts" in the prospectus contained in the registration statement on Form F-9.
/s/ KPMG LLP Chartered Accountants Vancouver, Canada July 21, 2005 |
EXHIBIT 5.2
Barristers & Solicitors MCCARTHY TETRAULT LLP
Patent & Trade-mark Agents P.O. Box 10424, Pacific Centre
Suite 1300, 777 Dunsmuir Street
MCCARTHY TETRAULT Vancouver BC V7Y 1K2
Canada
Telephone: 604 643-7100
Facsimile: 604 643-7900
www.mccarthy.ca
July 21, 2005
Methanex Corporation
1800 Waterfront Centre
200 Burrard Street
Vancouver, British Columbia
V6C 3M1
Sirs and Mesdames:
RE: REGISTRATION STATEMENT ON FORM F-9 RELATING TO US$150,000,000 SENIOR NOTES
(THE "SENIOR NOTES")
We have acted as Canadian counsel to Methanex Corporation (the "Corporation") in connection with the above-referenced registration statement (the "Registration Statement"), as amended, filed with the Securities and Exchange Commission for the registration of the Corporation's Senior Notes.
In connection with that registration, we consent to the reference to our firm under the heading "Legal Matters" and the reference of our advice under the heading "Description of Notes - Enforceability of Judgements" in the Registration Statement and the related prospectus filed with the British Columbia Securities Commission.
Yours very truly,
/s/ McCarthy Tetrault LLP |
EXHIBIT 7.2
METHANEX CORPORATION
AS ISSUER
AND
THE BANK OF NEW YORK
AS TRUSTEE
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF JUNE 19, 2002
To
Indenture dated as of July 20, 1995, between Methanex Corporation, as Issuer, and The Bank of New York (formerly United States Trust Company of New York), as Trustee, providing for the issue of Debt Securities
SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE (this "Second Supplemental Indenture") is made as of the 19th day of June, 2002, between Methanex Corporation (the "Company") and The Bank of New York (formerly United States Trust Company of New York), as trustee (the "Trustee").
WHEREAS, by a trust indenture made as of July 20, 1995, between the Company and the Trustee provision was made for the issue of securities of the Company in one or more series (the "Original Indenture");
WHEREAS under and in accordance with the terms of the Original Indenture, there have heretofore been issued two series of securities;
WHEREAS the Original Indenture provides that the aggregate principal amount of securities which may be issued thereunder is unlimited but securities may be issued only upon and subject to the conditions and limitations set forth therein;
WHEREAS the Company desires and may from time to time desire to issue Debt Securities having the attributes and characteristics hereinafter set forth;
WHEREAS the Company is not in default under the Original Indenture;
WHEREAS all necessary acts and proceedings have been done and taken and all necessary resolutions passed to authorize the execution and delivery of this Second Supplemental Indenture and to make the same legal and valid and binding upon the Company; and
WHEREAS the foregoing recitals are made as representations and statements of fact by the Company and not by the Trustee;
WHEREAS the Company is permitted to enter into this Second Supplemental Indenture pursuant to Section 9.01(j) of the Original Indenture;
NOW, THEREFORE, in consideration of the foregoing and notwithstanding any provision of the Indenture which, absent this Second Supplemental Indenture, might operate to limit such action, the Company and the Trustee agree as follows for the equal and ratable benefit of the Holders of the Debt Securities:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS.
For all purposes of this Second Supplemental Indenture, except as otherwise expressly provided or unless the subject matter or context otherwise requires:
"Debt Securities" has the meaning set forth in the Original Indenture, except that it shall not include the 7.40% Notes Due 2002 or the 7.75% Notes Due 2005;
"Original Indenture" means the trust indenture made as of July 20, 1995 between the Company and the Trustee;
"Second Supplemental Indenture" means this second supplemental indenture made as of June 19, 2002 between the Company and the Trustee in supplement to the Original Indenture;
"Trust Indenture" means the Original Indenture as supplemented by this Second Supplemental Indenture and any other indenture, deed or instrument supplemental or ancillary thereto; and
other terms and expressions used herein shall have the same meanings as corresponding expressions defined in the Trust Indenture.
SECTION 1.02 SCHEDULES.
The following Schedule forms part of this Second Supplemental Indenture:
Schedule I - Form of Debt Security
SECTION 1.03 TO BE READ WITH ORIGINAL INDENTURE.
This Second Supplemental Indenture is a supplemental indenture within the meaning of the Original Indenture and the Original Indenture and this Second Supplemental Indenture shall be read together and shall have effect, so far as practicable, as though all the provisions of the Original Indenture and this Second Supplemental Indenture were contained in one instrument.
ARTICLE II
SERIES NOTES
SECTION 2.01 CESSATION OF APPLICABILITY OF SECTION 4.10 OF THE ORIGINAL INDENTURE TO THE DEBT SECURITIES.
Section 4.10 of the Original Indenture, as from time to time supplemented and amended, shall not apply to Debt Securities of any series.
SECTION 2.02 CHANGE OF CONTROL.
The following is added as an additional covenant of the Company with respect to any series of the Debt Securities, unless otherwise specified as to that series pursuant to Section 2.03 of the Original Indenture:
(A) Upon the occurrence of a Change of Control Triggering Event, the Company shall make an offer (a "Change of Control Offer") to each Holder of Debt Securities of any series to which this Section 2.02 is applicable to repurchase all or any part (equal to US$1,000 or an integral multiple thereof) of each Holder's Debt Securities of such series at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase (provided, however, that installments of interest whose interest payment date is on or prior to the Change of Control Payment Date, described below, shall be payable to the Holders of the Debt Securities of such series registered as such at the close of business on the regular record date for such interest according to their terms and the provisions of Section 2.12 of the Indenture) (the "Change of Control Payment"). A "Change of Control Triggering Event" shall be deemed to have occurred if a Change of Control and a Rating Decline both occur. Within 30 days following the occurrence of any Change of Control Triggering Event, the Company shall mail a notice to each Holder of Debt Securities of such series describing the transaction or transactions that constitute the Change of Control Triggering Event and stating: (1) that the Change of Control Offer is being made pursuant to this Section 2.02 and that all Debt Securities of such series tendered will be accepted for payment; (2) the purchase price and the purchase date, which shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed (the "Change of Control Payment Date"); (3) that any Debt Security of such series not tendered will continue to accrue interest; (4) that, unless the Company defaults in the payment of the Change of Control Payment, all Debt Securities of such series accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date; (5) that Holders electing to have any Debt Securities of such series purchased pursuant to a Change of Control Offer will be required to surrender the Debt Securities of such series to the paying agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date; (6) that Holders will be entitled to withdraw their election if the paying agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Debt Securities of such series
delivered for purchase, and a statement that such Holder is withdrawing its election to have the Debt Securities of such series purchased; and (7) that Holders whose Debt Securities are being purchased only in part will be issued new Debt Securities of such series equal in principal amount to the unpurchased portion of the Debt Securities of such series surrendered, which unpurchased portion must be equal to US$1,000 in principal amount or an integral multiple thereof. The Company shall notify the Trustee, at least 15 days (or such shorter period as is acceptable to the Trustee) prior to the mailing of the Change of Control Offer, of the Company's obligation to make the Change of Control Offer, and the Change of Control Offer shall be mailed by the Company, or at the Company's request, by the Trustee in the name and at the expense of the Company. The Company shall comply with the requirements of Section 14(e) of and Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Debt Securities as a result of a Change of Control Triggering Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations hereunder by virtue of such conflict.
(B) On the Change of Control Payment Date, the Company shall, to the extent lawful, (1) accept for payment all Debt Securities of such series or portions thereof properly tendered pursuant to the Change of Control Offer; (2) deposit with the paying agent an amount equal to the Change of Control Payment in respect of all Debt Securities of such series or portions thereof so tendered; and (3) deliver or cause to be delivered to the Trustee the Debt Securities of such series so accepted together with an Officers' Certificate stating the aggregate principal amount of Debt Securities of such series or portions thereof being purchased by the Company. The paying agent shall promptly mail to each such Holder of Debt Securities of such series so tendered the Change of Control Payment for such Debt Securities so tendered, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Debt Security of such series equal in principal amount to any unpurchased portion of the Debt Securities of such series surrendered by such Holder, if any; provided, that each such new Debt Security of such series shall be in a principal amount of US$1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
(C) Notwithstanding anything to the contrary in this Section 2.02, the Company shall not be required to make a Change of Control Offer upon a Change of Control Triggering Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 2.02 and all other provisions of the Indenture applicable to a Change of Control Offer made by the Company and purchases all Debt Securities of the applicable series properly tendered and not withdrawn under such Change of Control Offer.
(D) For purposes of this Section 2.02, the following terms shall have the respective meanings specified in this paragraph (D):
"BOARD OF DIRECTORS" means the Board of Directors of the Company;
"CHANGE OF CONTROL" means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of amalgamation, merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries, taken as a whole, to any "person" (as that term is used in Section 13(d)(3) of the Exchange Act);
(2) the adoption of a plan relating to the liquidation or dissolution of the Company;
(3) the consummation of any transaction (including, without limitation, any amalgamation, merger or consolidation) the result of which is that any "person" (as defined in clause (1) of this definition), becomes the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of the Company, measured by voting power rather than number of shares;
(4) the first day on which a majority of the members of the Board of Directors are not Continuing Directors; or
(5) the Company amalgamates or consolidates with, or merges with or into, any person, or any person amalgamates or consolidates with, or merges with or into, the Company, in any such event pursuant to a transaction in which any of the outstanding Voting Stock of the Company or such other person is converted into or exchanged for cash, securities or other property, other than any such transaction where the Voting Stock of the Company outstanding immediately prior to such transaction is converted into or exchanged for Voting Stock (other than Disqualified Stock) of the surviving or transferee person constituting a majority of the Voting Stock of such surviving or transferee person, measured by voting power rather than number of shares, immediately after giving effect to such issuance.
"CONTINUING DIRECTORS" means, with respect to a series of Debt Securities, as of any date of determination, any member of the Board of Directors who:
(1) was a member of the Board of Directors on May 31, 2002 for any series of Debt Securities issued on or prior to June 30, 2002, and on the date of original issuance of the series of Debt Securities for any series of Debt Securities issued after June 30, 2002; or
(2) was nominated for election or elected to the Board of Directors with the approval of a majority of the Continuing Directors who were members of the Board of Directors at the time of such nomination or election.
"DISQUALIFIED STOCK" means, with respect to a series of Debt Securities, any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the date on which the Debt Securities of such series mature.
"GRADATION" means a gradation within a Rating Category or a change to another Rating Category, which shall include "+" and "-," in the case of S&P's current Rating Categories (e.g., a decline from BB+ to BB would constitute a decrease of one graduation); "1, " "2" and "3, " in the case of Moody's current Rating Categories (e.g., a decline from B1 to B2 would constitute a decrease of one gradation); or the equivalent in respect of successor Rating Categories of S&P or Moody's or Rating Categories used by Rating Agencies other than S&P or Moody's.
"MOODY'S" means Moody's Investors Service, Inc. and its successors.
"RATING AGENCIES" means (1) S&P and Moody's or (2) if S&P and Moody's or both of them are not making ratings of the Debt Securities publicly available, a nationally recognized U.S. rating agency or agencies, as the case may be, selected by the Company, which will be substituted for S&P or Moody's or both, as the case may be.
"RATING CATEGORIES" means (1) with respect to S&P, any of the following
categories (any of which may include a "+" or "-"): AAA, AA, A, BBB, BB, B, CCC,
C and D (or equivalent successor categories); (2) with respect to Moody's, any
of the following categories (any of which may include a "1, " "2" or "3"): Aaa,
Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent successor categories); and
(3) the equivalent of any such categories of S&P or Moody's used by another
Rating Agency, if applicable.
"RATING DECLINE" means, with respect to a series of Debt Securities, the occurrence of a decrease in the rating of the Debt Securities of such series by any Rating Agency by one or more Gradations at any time within 90 days (which period shall be extended so long as the rating of the Debt Securities of such series is under publicly announced consideration for a possible downgrade by any Rating Agency) after the date of public notice of a Change of Control, or the intention of the Company or any person to effect a Change of Control.
"S&P" means Standard & Poor's Ratings Group, a division of The McGraw-Hill & Companies, Inc., and its successors.
"VOTING STOCK" of any person as of any date means the Capital Stock of such person that is at the time entitled to vote in the election of the board of directors of such person.
SECTION 2.03 ADDITIONAL EVENT OF DEFAULT.
In addition to the Events of Default set forth in Section 6.01 of the Original Indenture, an Event of Default with respect to the Debt Securities of a series occurs if the Company fails to comply with Section 2.02 of this Second Supplemental Indenture, to the extent applicable to that series.
SECTION 2.04 ADDITIONAL COVENANT DEFEASANCE.
In addition to the covenants set forth in Section 11.02(b)(ii) of the
Original Indenture, the Company at any time may terminate, with respect to Debt
Securities of a particular series, its obligations under Section 2.02 of this
Second Supplemental Indenture, upon the terms and subject to the conditions of
Article XI of the Original Indenture. If the Company exercises, with respect to
a particular series of Debt Securities, its "covenant defeasance option" under
Section 11.02(b)(ii) of the Original Indenture, as supplemented by this Second
Supplemental Indenture, then, in addition to the Events of Default specified in
the second sentence of the second paragraph of Section 11.02(b) of the Original
Indenture, payment of the Debt Securities of the defeased series may not be
accelerated because of the Event of Default specified in Section 2.03 of this
Second Supplemental Indenture.
SECTION 2.05 FORM OF NOTE.
Upon execution of this Second Supplemental Indenture, the form of Note set forth in Exhibit A to the Original Indenture shall be amended as follows: (i) the second paragraph of Section 4 of the reverse side thereof shall be changed to delete therefrom the words "the payment of dividends and other distributions and acquisitions or retirements of the Company's Capital Stock and Subordinated Obligations," and (ii) there shall be added to the Debt Security the "Option of Holder to Elect Purchase" set forth in Schedule I to this Second Supplemented Indenture. The Form of Debt Security, as amended, is attached hereto as Schedule I.
ARTICLE III
MISCELLANEOUS
SECTION 3.01 EFFECTIVENESS.
This Second Supplemental Indenture shall become effective upon its execution and delivery by the Company and the Trustee. Upon the execution and delivery of this Second Supplemental Indenture by the Company and the Trustee, the Indenture shall be supplemented in accordance herewith, and this Second Supplemental Indenture shall form a part of the Indenture, for all purposes, and the rights of every Holder of Debt Securities shall hereafter be determined, exercised and enforced subject in all respects to the terms of this Second Supplemental Indenture, and all the terms and conditions of the Original Indenture for any and all purposes.
SECTION 3.02 INDENTURE REMAINS IN FULL FORCE AND EFFECT.
Except as supplemented hereby, all provisions in the Original Indenture shall remain in full force and effect.
SECTION 3.03 INDENTURE AND SECOND SUPPLEMENTAL INDENTURE CONSTRUED TOGETHER.
This Second Supplemental Indenture is an indenture supplemental to the Original Indenture, and the Original Indenture and this Second Supplemental Indenture shall henceforth be read and construed together.
SECTION 3.04 CONFIRMATION AND PRESERVATION OF ORIGINAL INDENTURE.
The Indenture as supplemented by this Second Supplemental Indenture is in all respects confirmed and preserved.
SECTION 3.05 CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Second Supplemental Indenture limits, qualifies or conflicts with any provision of the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), that is required under the Trust Indenture Act to be part of and govern any provision of this Second Supplemental Indenture, the provision of the Trust Indenture Act shall control. If any provision of this Second Supplemental Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the provision of the Trust Indenture Act shall be deemed to apply to the Indenture as so modified or to be excluded by this Second Supplemental Indenture, as the case may be.
SECTION 3.06 SEVERABILITY.
In case any provision in this Second 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.
SECTION 3.07 HEADINGS.
The Article and Section headings of this Second Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Second Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
SECTION 3.08 BENEFITS OF SUPPLEMENTAL INDENTURE, ETC.
Nothing in this Second Supplemental Indenture or the Debt Securities, express or implied, shall give to any person, other than the parties hereto and thereto and their successors hereunder and thereunder and the Holders of the Debt Securities, any benefit of any legal or equitable right, remedy or claim under the Indenture, this Second Supplemental Indenture or the Debt Securities.
SECTION 3.09 SUCCESSORS.
All agreements of the Company in this Second Supplemental Indenture shall bind its successors. All agreements of the Trustee in this Second Supplemental Indenture shall bind its successors.
SECTION 3.10 TRUSTEE NOT RESPONSIBLE FOR RECITALS.
The recitals contained herein shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee shall not be liable or responsible for the validity or sufficiency of this Second Supplemental Indenture or the due authorization of this Second Supplemental Indenture by the Company.
SECTION 3.11 CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE.
In entering into this Second Supplemental Indenture, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct of, affecting the liability of or affording protection to, the Trustee, whether or not elsewhere herein so provided.
SECTION 3.12 GOVERNING LAW.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS SECOND SUPPLEMENTAL
INDENTURE WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
SECTION 3.13 ACCEPTANCE OF TRUSTS
The Trustee hereby accepts the trusts in this Second Supplemental Indenture declared and provided for and agrees to perform the same upon the terms and conditions and subject to the provisions set forth in the Original Indenture as supplemented by this Second Supplemental Indenture.
SECTION 3.14 COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Second Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed, all as of the date and year first above written.
METHANEX CORPORATION,
as Issuer
By: /s/ Randy Milner -------------------------------- Name: Randy Milner Title: Assistant General Counsel and Corporate Secretary |
THE BANK OF NEW YORK,
as Trustee
By: /s/ Thomas E. Tabor -------------------------------- Name: Thomas E. Tabor Title: Vice President |
SCHEDULE I
[FORM OF FACE DEBT SECURITY]
[GLOBAL DEBT SECURITIES LEGEND]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR 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 IN AS MUCH 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 DTC 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 THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
Number [-] U.S.$ [-]
-% Debt Security Due -
METHANEX CORPORATION, a Canadian corporation, promises to pay to [-] or registered assigns, the principal sum of [-] dollars on [-], [-].
CUSIP [-]
SEE REVERSE FOR
CERTAIN DEFINITIONS
Interest Payment Dates: [-] and [-]
Record Dates: [-] and [-]
Additional provisions of this Debt Security are set forth on the other side of this Debt Security.
Dated:
METHANEX CORPORATION
By
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THE BANK OF NEW YORK
as Trustee, certifies [Seal]
that this is one of the
Debt Securities referred
to in the Indenture.
By: _________________________________
Authorized Signatory
[FORM OF REVERSE SIDE OF DEBT SECURITY]
METHANEX CORPORATION
[-]% DEBT SECURITY DUE 20[-]
1. Interest.
Methanex Corporation, a Canadian corporation (such corporation, and its successors and assigns under the Indenture hereinafter referred to, being herein called the "Company"), promises to pay interest on the principal amount of this Debt Security at the rate per annum shown above. The Company will pay interest semiannually on [-] and [-] of each year. Interest on the Debt Securities will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from -, -. 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 at the rate borne by the Debt Securities plus 1% per annum, and it shall pay interest on overdue installments of interest at the same rate to the extent lawful.
2. Method of Payment.
The Company will pay interest on the Debt Securities (except defaulted interest) to the persons who are registered holders of Debt Securities at the close of business on the [-] or [-] next preceding the interest payment date even if Debt Securities are cancelled after the record date and on or before such interest payment date. Holders must surrender Debt Securities to a Paying Agent to collect principal payments. The Company will 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. Payments in respect of the Debt Securities represented by a Global Security (including principal, premium and interest) will be made by wire transfer of immediately available funds to the account of The Depository Trust Company as specified by The Depository Trust Company. The Company will make all payments of interest in respect of the definitive Debt Securities, by mailing a check to the registered address of each Holder thereof.
3. Paying Agent and Registrar.
Initially, The Bank of New York, a New York corporation authorized to do a banking business ("Trustee"), will act as Paying Agent and Registrar. The Company may appoint and change any Paying Agent, Registrar or co-registrar without notice. The Company or any of its domestically incorporated wholly owned Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture.
The Company issued the Debt Securities under an Indenture dated as of July 20, 1995 ("Original Indenture"), as supplemented by a Second Supplemental Indenture dated June -, 2002 ("Second Supplemental Indenture", together with the Original Indenture, the "Indenture"), between the Company and the Trustee. The terms of the Debt 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. Section. 77aaa-77bbbb) as in effect on the date of the Indenture (the "Act"). Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. The Debt Securities are subject to all such terms, and Debt Securityholders are referred to the Indenture and the Act for a statement of those terms.
The Debt Securities are general unsecured obligations of the Company unlimited in amount (subject to Section 2.07 of the Original Indenture). The Original Indenture imposes certain limitations on the creation of Liens by the Company and the Subsidiaries, sale and leaseback transactions, transactions with respect to Unrestricted Subsidiaries, and the ability of the Company or a Restricted Subsidiary that is Guarantor to merge with or into another entity. The limitations are subject to a number of important qualifications and exceptions.
5. Optional Redemption.
The Debt Securities may not be redeemed prior to maturity at the option of the Company.
6. Special Tax Redemption.
If, as a result of any change in, or amendment to, the laws (including any regulations promulgated thereunder) of Canada (or any political subdivision or taxing authority thereof or therein), or any change in, or amendment to, any official position regarding the application or interpretation of such laws or regulations, which change or amendment is announced or becomes effective on or after [-], [-] the Company has become or would become obligated to pay, on the next date on which any amount would be payable with respect to the Debt Securities, any Additional Amounts in accordance with Section 4.07 of the Original Indenture, then the Company may, at its option, redeem the Debt Securities, as a whole but not in part, at a redemption price equal to 100% of their principal amount, plus accrued and unpaid interest (if any) to the redemption date; provided that the Company shall have determined, in its business judgment, that the obligation to pay such Additional Amounts cannot be avoided by the use of reasonable measures available to the Company, not including substitution of the obligor under the Debt Securities.
7. Notice of Redemption.
Notice of redemption will be mailed not less than 30 days but not more than 60 days before the redemption date to each Holder of Debt Securities to be redeemed at his registered address. Debt Securities in denominations larger than U.S.$1,000 may be redeemed in part but only in whole multiples of U.S.$1,000. If money sufficient to pay the redemption price of and accrued and unpaid interest (if any) on all Debt Securities (or portions thereof) to be redeemed on the redemption date is deposited with the Paying Agent on or before the redemption date and certain other conditions are satisfied, on and after such date interest ceases to accrue on such Debt Securities (or such portions thereof) called for redemption.
8. Denominations; Transfer; Exchange.
The Debt Securities are in registered form without coupons in denominations of U.S.$1,000 and whole multiples of U.S.$1,000. A Holder may transfer or exchange Debt Securities in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar need not register the transfer of or exchange any Debt Securities selected for redemption (except, in the case of a Debt Security to be redeemed in part, the portion of the Debt Security not to be redeemed) or any Debt Securities for a period of 15 days before a selection of Debt Securities to be redeemed or 15 days before an interest payment date.
9. Persons Deemed Owners.
The registered holder of this Debt Security may be treated as the owner of it for all purposes.
10. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
11. Defeasance.
Subject to certain conditions, the Company at any time may terminate some or all of its and each Guarantor's obligations under the Debt Securities and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal and interest on the Debt Securities to redemption or maturity, as the case may be.
12. Amendment, Waiver.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture or the Debt Securities may be amended with respect to the Debt Securities of a series with the consent of the Holders of a least a majority in principal amount outstanding of the Debt Securities of such series and (ii) any default or noncompliance with any provision may be waived with the written consent of the Holders of a majority in principal amount outstanding of the Debt Securities of such series. Subject to certain exceptions set forth in the Indenture, without the consent of any Debt Securityholder, the Company and the Trustee may amend the Indenture or the Debt Securities of a series to cure any ambiguity, omission, defect or inconsistency, or to comply with Article X of the Original Indenture, or to add guarantees with respect to the Debt Securities of such series or to secure the Debt Securities of such series, or to add additional covenants or to surrender rights and powers conferred on the Company or the Subsidiaries, or to comply with any requirement of the United States Securities and Exchange Commission in connection with the qualification of the Indenture under the Trust Indenture Act, or to make any change that does not adversely affect the rights of any Debt Securityholder of such series in any material respect.
13. Defaults and Remedies.
Under the Indenture, Events of Default with respect to a series of Debt Securities include (i) default for 30 days in payment of interest on the Debt Securities of such series (including any Additional Amounts when due); (ii) default in payment of principal on the Debt Securities of such series at maturity, upon redemption, upon declaration or otherwise, or failure by the Company to redeem or purchase Debt Securities of such series when required pursuant to the Indenture or the Debt Securities of such series; (iii) failure by the Company or a Restricted Subsidiary to comply with other agreements in the Indenture or the Debt Securities of such series, in certain cases subject to notice and lapse of time; (iv) certain accelerations (including failure to pay within any grace period after final maturity) of other Debt of the Company or a Restricted Subsidiary if the amount accelerated (or so unpaid) exceeds U.S.$10,000,000; (v) certain events of bankruptcy or insolvency with respect to the Company or a Significant Subsidiary; and (vi) except as otherwise provided in the Indenture, any Guarantee ceasing to be in full force and effect, or being declared by a court of competent jurisdiction or governmental authority to be invalid or unenforceable. If an Event of Default with respect to a series of Debt Securities occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the Outstanding Debt Securities of such series may declare all the Debt Securities of such series to be due and payable immediately. Certain events of bankruptcy or insolvency are Events of Default that will result in the Debt Securities of a series being due and payable immediately upon the occurrence of such Events of Default.
Debt Securityholders may not enforce the Indenture or the Debt Securities except as provided in the Indenture. The Trustee may refuse to enforce the Indenture or the Debt Securities unless it receives reasonable indemnity or security. Subject to certain limitations, Holders of a majority in principal amount of the Outstanding Debt Securities may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Debt Securityholders notice of any continuing Default (except a Default in payment of principal or interest) if it determines that withholding notice is in their interest.
14. Trustee Dealings with the Company.
Subject to certain limitations imposed by the Act, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Debt Securities and may otherwise deal with and collect obligations owed to it by the Company or its affiliates and may otherwise deal with the Company or its affiliates with the same rights it would have if it were not Trustee.
15. Guarantees.
The Company has covenanted pursuant to the Indenture, subject to certain exceptions, to cause any Restricted Subsidiary that Incurs Indebtedness to execute and deliver to the Trustee a Guarantee Agreement pursuant to which such Restricted Subsidiary will guarantee this Debt Security on the same terms and conditions as those set forth in Exhibit B to the Indenture.
16. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company or the Trustee shall not have any liability for any obligations of the Company under the Debt Securities or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Debt Security, each Holder of a Debt Security waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Debt Securities.
17. Authentication.
This Debt Security shall not be valid until an authorized signatory of the Trustee (or an authenticating agent) manually signs the certificate of authentication on the other side of this Debt Security.
18. Abbreviations.
Customary abbreviations may be used in the name of a Holder of a Debt Security or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gifts to Minors Act).
19. 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 Debt Securities and has directed the Trustee to use CUSIP numbers in notices of redemption as a convenience to Noteholders. No representation is made as to the accuracy of such numbers either as printed on the Debt Securities or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
20. Governing Law.
EACH DEBT SECURITY AND EACH COUPON SHALL BE DEEMED TO BE NEW YORK CONTRACTS, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICT OF LAWS).
THE COMPANY WILL FURNISH TO ANY HOLDER OF A DEBT SECURITY UPON WRITTEN REQUEST AND WITHOUT CHARGE TO THE HOLDER OF A DEBT SECURITY A COPY OF THE INDENTURE WHICH HAS IN IT THE TEXT OF THIS DEBT SECURITY IN LARGE TYPE. REQUESTS MAY BE MADE TO:
METHANEX CORPORATION
1800 WATERFRONT CENTER
200 BURRARD STREET
VANCOUVER, B.C. V6C 3M1
ASSIGNMENT FORM
To assign this Debt Security, fill in the form below:
I or we assign and transfer this Debt Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Debt Security on the books of the Company. The agent may substitute another to act for him.
Date:________________________ Your Signature:___________________________ (Sign exactly as your name appears on the other side of this Debt Security) |
Signature Guarantee:_____________________________________________________ Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee)
SCHEDULE
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Debt Security purchased by the Company pursuant to Section 2.02 of the Second Supplemental Indenture, check this box: [ ]
If you want to elect to have only part of this Debt Security purchased by the Company pursuant to Section 2.02 of the Second Supplemental Indenture, state the amount you elect to have purchased:
Date:_______________________
Your Signature:__________________________________ (Sign exactly as your name appears on the face of this Debt Security)
Tax Identification No.:__________________________
Signature Guarantee*:___________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
[TO BE ATTACHED TO GLOBAL DEBT SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL DEBT SECURITY
The following increases or decreases in this Global Debt Security have been made:
Amount of decrease in Amount of increase in Principal Amount of Principal Amount of Principal Amount of this Global Debt Signature of this Global Debt this Global Debt Security following such authorized officer of Date of Exchange Security Security decrease or increase Trustee ---------------- --------------------- --------------------- ----------------------- --------------------- ---------------- --------------------- --------------------- ----------------------- --------------------- ---------------- --------------------- --------------------- ----------------------- --------------------- ---------------- --------------------- --------------------- ----------------------- --------------------- ---------------- --------------------- --------------------- ----------------------- --------------------- ---------------- --------------------- --------------------- ----------------------- --------------------- ---------------- --------------------- --------------------- ----------------------- --------------------- ---------------- --------------------- --------------------- ----------------------- --------------------- ---------------- --------------------- --------------------- ----------------------- --------------------- ---------------- --------------------- --------------------- ----------------------- --------------------- ---------------- --------------------- --------------------- ----------------------- --------------------- |
EXHIBIT 7.5
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382 (State of incorporation (I.R.S. employer if not a U.S. national bank) identification no.) One Wall Street, New York, NY 10286 (Address of principal executive offices) (Zip code) --------------------------- |
METHANEX CORPORATION
(Exact name of obligor as specified in its charter)
Canada Not Applicable (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 1800 Waterfront Centre 200 Burrard Street V6C 3M1 Vancouver, British Colombia, Canada (Zip code) (Address of principal executive offices) --------------------------- |
Debt Securities
(Title of the indenture securities)
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
Name Address ---- ------- Superintendent of Banks of the State of 2 Rector Street, New York, N.Y. New York 10006, and Albany, N.Y. 12203 Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045 Federal Deposit Insurance Corporation Washington, D.C. 20429 New York Clearing House Association New York, New York 10005 |
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York (formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, The Bank of New York, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York and State of New York, on the 19th day of July, 2005.
THE BANK OF NEW YORK
By: /s/ Stanislav Pertsev --------------------------- Name: Stanislav Pertsev Title: Assistant Treasurer |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 2005, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts In Thousands --------------- ASSETS Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin............ $ 2,292,000 Interest-bearing balances..................................... 7,233,000 Securities: Held-to-maturity securities................................... 1,831,000 Available-for-sale securities................................. 21,039,000 Federal funds sold and securities purchased under agreements to resell Federal funds sold in domestic offices........................ 1,965,000 Securities purchased under agreements to resell............................................. 379,000 Loans and lease financing receivables: Loans and leases held for sale................ 35,000 Loans and leases, net of unearned income..................................................... 31,461,000 LESS: Allowance for loan and lease losses............................................... 579,000 Loans and leases, net of unearned income and allowance....................................... 30,882,000 Trading Assets................................................... 4,656,000 Premises and fixed assets (including capitalized leases)......... 832,000 Other real estate owned.......................................... 0 Investments in unconsolidated subsidiaries and associated companies..................................................... 269,000 Customers' liability to this bank on acceptances outstanding..... 54,000 Intangible assets: Goodwill...................................................... 2,042,000 Other intangible assets....................................... 740,000 |
Other assets..................................................... 5,867,000 --------------- Total assets..................................................... $ 80,116,000 =============== LIABILITIES Deposits: In domestic offices........................................... $ 34,241,000 Noninterest-bearing........................................... 15,330,000 Interest-bearing.............................................. 18,911,000 In foreign offices, Edge and Agreement subsidiaries, and IBFs. 25,464,000 Noninterest-bearing........................................... 548,000 Interest-bearing.............................................. 24,916,000 Federal funds purchased and securities sold under agreements to repurchase Federal funds purchased in domestic offices..................................................... 735,000 Securities sold under agreements to repurchase.................................................. 121,000 Trading liabilities.............................................. 2,780,000 Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases)....... 1,560,000 Not applicable Bank's liability on acceptances executed and outstanding......... 55,000 Subordinated notes and debentures................................ 1,440,000 Other liabilities................................................ 5,803,000 --------------- Total liabilities................................................ $ 72,199,000 =============== Minority interest in consolidated subsidiaries................... 141,000 EQUITY CAPITAL Perpetual preferred stock and related surplus........................................... 0 Common stock..................................................... 1,135,000 Surplus (exclude all surplus related to preferred stock)......... 2,088,000 Retained earnings................................................ 4,643,000 Accumulated other comprehensive income......... -90,000 Other equity capital components..................... 0 Total equity capital............................................. 7,776,000 --------------- Total liabilities, minority interest, and equity capital......... $ 80,116,000 =============== |
I, Thomas J. Mastro, Senior Vice President and Comptroller of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.
Thomas J. Mastro, Senior Vice President and Comptroller
We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.
Thomas A. Renyi
Gerald L. Hassell Directors
Alan R. Griffith