Exhibit 7.4
METHANEX CORPORATION
AS ISSUER
AND
THE BANK OF NEW YORK
AS TRUSTEE
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF JUNE o, 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 day of , 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:
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"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 [o], 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:
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(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
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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
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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 Xxxxx'x 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-Hil & 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"
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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.
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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.
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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.
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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:
--------------------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:
--------------------------------------------------
Name:
Title:
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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 [o] U.S.$ [o]
[o]% Debt Security Due [o]
METHANEX CORPORATION, a Canadian corporation, promises to pay to [o] or
registered assigns, the principal sum of [o] dollars on [o], [o].
CUSIP [o]
SEE REVERSE FOR
CERTAIN DEFINITIONS
Interest Payment Dates: [o] and [o]
Record Dates: [o] and [o]
Additional provisions of this Debt Security are set forth on the other
side of this Debt Security.
Dated:
METHANEX CORPORATION
By
--------------------------------------
Corporate Secretary
--------------------------------------
Senior Vice President Finance
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
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[FORM OF REVERSE SIDE OF DEBT SECURITY]
METHANEX CORPORATION
[o]% DEBT SECURITY DUE 20[O]
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 [o] and [o] 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 [o], [o]. 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 [o] or [o] 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 in respect of the Definitive Securities
(including principal, premium and interest), 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 [o], 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. ss. 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.
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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 [o], [o] 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.
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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 10 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.
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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
0000 XXXXXXXXXX XXXXXX
000 XXXXXXX XXXXXX
XXXXXXXXX, X.X. X0X 0X0
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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)
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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).
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[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:
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Amount of increase Principal Amount of
Amount of decrease in Principal this Global Debt
in Principal Amount Amount of this Security following Signature of
of this Global Debt Global Debt such decrease or authorized officer
Date of Exchange Security Security increase of Trustee
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