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EXHIBIT 4.12
DATED 15 APRIL 1999
CENTEX DEVELOPMENT COMPANY UK LIMITED
INSTRUMENT
constituting
Negotiable Loan Notes 2001
LINKLATERS & PAINES
One Silk Street
London EC2Y 8HQ
TEL: (+44) 171 456 2000
Ref: SGG/JLF
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"TRANSFER OFFICE" means Goldvale House, Church Street West,
Woking, GU21 1DJ or such other place within the United Kingdom
as the Directors may determine and notify each of the
Noteholders in writing where the Company is situate for the
time being.
1.2 References herein to "THIS INSTRUMENT" or "THIS DEED" shall
include any Schedules hereto and references herein to Clauses,
Conditions, paragraphs, sub-paragraphs or Schedules are to
clauses, conditions, paragraphs, sub-paragraphs hereof or to
the schedules hereto.
1.3 Subject as expressly defined any words and expressions defined
in the Companies Act 1985 and used herein shall have the same
meanings when used in this Instrument.
1.4 References herein to any provision of any statute shall be
deemed also to refer to any statutory modification or
re-enactment thereof from time to time in force.
1.5 Words used herein denoting persons shall include corporations,
the masculine gender shall include the feminine and the neuter
and the singular shall include the plural and vice versa.
1.6 The headings herein are for convenience of reference only, do
not constitute a part of this instrument and shall not be
deemed to limit, extend or otherwise affect the meaning of any
of the provisions hereof.
2 AMOUNT OF THE NOTES
The principal amount of the Notes constituted by this
Instrument is an amount equal to the sum of the Initial
Consideration and the Additional Consideration. The Notes
shall be issued fully-paid in denominations of (pound)1 in
nominal amount or integral multiples thereof and shall be
transferable in such amounts as provided in the Second
Schedule.
3 STATUS OF THE NOTES
The Notes when issued shall rank pari passu equally and
rateably without discrimination or preference and as unsecured
obligations of the Company except for those obligations as may
be preferred by law. The Notes shall be known as "NEGOTIABLE
LOAN NOTES 2001".
4 CONDITIONS OF ISSUE
The Conditions and provisions contained in the Schedules shall
have effect in the same manner as if such Conditions and
provisions were set out herein. The Notes shall be held
subject to and with the benefit of the Conditions and of the
provisions in the Schedules, all of which shall be binding on
the Company and the Noteholders and all persons claiming
through them respectively.
5 COVENANTS BY THE COMPANY
The Company hereby covenants with the Noteholders and each of
them duly to perform and observe the obligations on its part
contained in this Instrument to the intent that this
Instrument shall enure for the benefit of all Noteholders each
of whom may sue for the performance or observance of the
provisions hereof so far as his holding of Notes is concerned.
6 CERTIFICATES FOR NOTES
6.1 Each Noteholder will, subject to the terms of this Instrument,
be entitled without charge to one Certificate for the
aggregate number of Notes registered in his name or, if so
requested by a Noteholder, 2 certificates each representing a
tranche of the Notes registered in his name and together
representing the aggregate number of Notes registered in his
name. Each Certificate shall bear a denoting number and shall
be executed by the Company. Every Certificate shall be
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in the form or substantially in the form set out in the First
Schedule and shall have the Conditions endorsed thereon.
6.2 The Company shall not be bound to register more than four
persons as the joint holders of any Notes and in the case of
Notes held jointly by several persons the Company shall not be
bound to issue more than one Certificate therefor. Delivery of
a Certificate to one of such persons shall be sufficient
delivery to all. When a Noteholder transfers or has redeemed
part only of his Notes, the old Certificate shall be cancelled
and a new Certificate for the balance of such Notes issued
without charge.
7 REGISTER OF NOTES
7.1 The Company shall at all times keep at the Transfer Office or
at its registered office a Register showing:
(a) the names and addresses of the holders for the time being
of the Notes and, in the case of joint holders, the names of
the joint holders and the address of the first named holder;
(b) the amount of the Notes held by each registered holder
and, in the case of joint holders, the amount of Notes held by
the joint holders taken together;
(c) the date on which the name of each individual registered
holder (including, in the case of joint holders, each joint
holder) is entered in respect of the Notes standing in his or
their name; and
(d) the number of each Certificate for the Notes issued and
the date of issue thereof.
Any change of name or address on the part of any Noteholder
shall forthwith be notified to the Company and as soon as
reasonably practicable (and in any event within 5 Business
Days) the Register shall be altered accordingly. The
Noteholders or any of them and any person (not being a person
to whom the Company may reasonably object) authorised in
writing by any Noteholder shall be at liberty, at all
reasonable times during office hours on any Business Day, to
inspect the Register.
7.2 Except as required by law, the Company will recognise the
registered holder of any Notes as the absolute owner thereof
for all purposes and shall not (except as ordered by a court
of competent jurisdiction) be bound to take notice or see to
the execution of any trust, whether express, implied or
constructive, to which any Notes may be subject and the
receipt of the registered holder for the time being of any
Notes, or in the case of joint registered holders the receipt
of any of them, for the principal moneys payable in respect
thereof or for the interest from time to time accruing due in
respect thereof or for any other moneys payable in respect
thereof shall be a good discharge to the Company,
notwithstanding any notice it may have, whether express or
otherwise, of the right, title, interest or claim of any other
person to or in such Notes, interest or moneys. The Company
shall not be bound to enter any notice of any trust, whether
express, implied or constructive, on the Register in respect
of any Notes.
7.3 Noteholders shall be entitled to receive a copy of this
Instrument without charge on application to the Company.
8 REDEMPTION
By 11 am (London time) on 30 March 2001 (the "REDEMPTION
DATE"), the Company will pay to each of the Noteholders the
principal amount of the Notes held by the relevant Noteholder
on that date.
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9 GOVERNING LAW
This Instrument and the Notes shall be governed by, and
construed and enforced in accordance with English law without
regard to the conflict of law rules thereof. The Company
irrevocably agrees that the Courts of England are to have
exclusive jurisdiction to settle any disputes which may arise
out of or in connection with this Instrument and the Notes.
IN WITNESS whereof this Instrument has been executed and
delivered as a deed on the date first stated above.
EXECUTED as a DEED by
CENTEX DEVELOPMENT COMPANY )
UK LIMITED )
acting by )
Director /s/ Stewart A. Baseley
Director/Secretary /s/ Paul M. Bak
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THE FIRST SCHEDULE
FORM OF CERTIFICATE
CERTIFICATE NO. ISSUE DATE AMOUNT
The aggregate of (i) (pound) and
(ii) amount of the Additional
Consideration referred to in the
Instrument.
CENTEX DEVELOPMENT COMPANY UK LIMITED
(Incorporated with limited liability under the laws of England
with registered number 3720116)
NEGOTIABLE LOAN NOTES 2001
THIS IS TO CERTIFY THAT the undermentioned is/are the registered
holder(s) of the amount set out below of the Negotiable Loan Notes 2001
constituted by an instrument entered into by the Company on l5 April
1999 (the "INSTRUMENT") and issued with the benefit of and subject to
the provisions contained in the Instrument. Where the context so
admits, words and expressions defined in the Instrument shall bear the
same meanings in the Conditions endorsed hereon.
This Certificate is evidence of entitlement only. Title to the Notes
passes only on due registration on the Register and any payment due on
the Notes will be made only to the duly registered holder.
NAMES OF HOLDER(S) AMOUNT OF NOTES
SIGNED AND DELIVERED AS A DEED
by CENTEX DEVELOPMENT COMPANY UK LIMITED
ACTING BY:
Director /s/ [Illegible] Director/Secretary
DATED: APRIL 1999
NOTES:
1 The Notes are repayable in accordance with the Conditions
endorsed hereon.
2 This Certificate must be surrendered before any transfer,
whether of the whole or any part of the Notes comprised in it,
can be registered or any new Certificate issued in exchange.
3 The Notes are transferable in accordance with the conditions
endorsed hereon and this Certificate must be lodged together
with the instrument of transfer (which must be signed by the
transferor or by a person authorised to sign on behalf of the
transferor) at the Transfer Office.
4 A copy of the Instrument is available for inspection at the
Transfer Office at all reasonable times during office hours on
any Business Day. Noteholders shall be entitled to receive a
copy of the Instrument and its Schedules without charge on
application to the Company.
5 No interest is payable on the Notes.
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THE SECOND SCHEDULE
THE CONDITIONS
1 REPAYMENT, PURCHASE AND REDEMPTION
Unless previously repaid, redeemed or purchased by the Company
the amount of the Notes held by each Noteholder shall be
repaid by 11 am (London time) on 30 March 2001. Payment of the
amount of the Notes shall be in the manner specified in
Condition 2.
2 PAYMENT
Payment under the terms of this Instrument shall be effected
by crediting on the relevant payment date the account
specified by the relevant Noteholder to the Company at least 3
Business Days prior to the relevant payment date. If no such
account has been specified, payment may be made by cheque made
payable to the Noteholder and sent to his address as set out
in the register of Noteholders or, in the case of joint
holders, to the first named holder or to such person or
persons as the registered holder or joint holders may in
writing, received by the Company at least 3 Business Days
prior to the date of such payment, have directed. Every such
cheque may be sent through the post no later than the Business
Day preceding the due date for payment.
3 CANCELLATION
All Notes repaid, redeemed or purchased by the Company in full
shall be cancelled and the Company shall not be at liberty to
keep the same for the purposes of re-issue or to re-issue the
same.
4 TRANSFER OF NOTES
4.1 The Notes are transferable by instrument in writing in
multiples of (pound)100 in the usual or common form (or in
such other form as the Directors may approve) to (a) any
member of the AMEC Retained Group, (b) National Westminster
Bank Plc (the "Bank") pursuant to the Letter of Credit
No.TFPCYF083358 or (c) any transferee of the Bank pursuant to
and in accordance with Clause 24.2 (Transfers by the Bank) of
the Facility Agreement dated 15 April 1999 between (amongst
others) the Company and the Bank.
4.2 Every instrument of transfer must be signed by the transferor
(or by a person authorised to sign on behalf of the
transferor) and the transferor shall be deemed to remain the
owner of the Notes to be transferred until the name of the
transferee is entered in the Register in respect thereof.
4.3 Every instrument of transfer must be sent for registration to
the Transfer Office accompanied by the Certificate(s) for the
Notes to be transferred together with such other evidence as
the Directors or other officers of the Company authorised to
deal with transfers may reasonably require to prove the title
of the transferor or his right to transfer the Notes and, if
the instrument of transfer is executed by some other person on
his behalf, the authority of that person to do so. All
instruments of transfer which shall be registered may be
retained by the Company.
4.4 No fee shall be charged for the registration of any transfer
or for the registration of any power of attorney or other
document relating to or affecting the title to any Notes.
5 MODIFICATION
The provisions of the Instrument or of the Notes and the
rights of the Noteholders may from time to time be modified,
abrogated or compromised or any arrangement agreed between the
Company and the Noteholders.
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6 DEALINGS
The Notes shall not be capable of being dealt in on any stock
exchange in the United Kingdom or elsewhere and no application
has been or is intended to be made to any stock exchange for
the Notes to be listed or otherwise traded.
7 RECEIPT OF JOINT HOLDERS
If two or more persons are entered in the Register as joint
registered holders of any Notes then, without prejudice to
Clause 7 of the Instrument, the receipt by any one of such
persons of any interest or principal or other moneys payable
in respect of such Notes shall be as effective a discharge to
the Company as if the person signing such receipt were the
sole registered holder of such Notes.
8 REPLACEMENT OF CERTIFICATES
If the Certificate for any Notes is lost, defaced or
destroyed, it may, upon payment by the Noteholder of any
out-of-pocket expenses of the Company, be renewed, on such
terms (if any) as to evidence and indemnity as the Directors
may require, but so that, in the case of defacement, the
defaced Certificate shall be surrendered before the new
Certificate is issued.
9 RISK TO NOTEHOLDERS
All Certificates, other documents and remittances sent through
the post shall be sent at the risk of the Noteholder(s)
entitled thereto.
10 NOTICES
10.1 Any notice or other communication required, permitted or
contemplated by this Deed ("NOTICE") must be in writing and
delivered to the recipient by registered or certified mail,
return receipt requested or delivered by facsimile mail with
the original counterpart thereof being sent on the same
business day or on the Business Day immediately following the
date of facsimile transmission. Such Notice shall be deemed
received 3 Business Days after a registered or certified
letter containing such Notice, properly addressed with the
postage prepaid is posted or on the same day if transmitted by
facsimile mail.
10.2 Any notice or other document (including Certificates) may be
given or sent to any Noteholder addressed to such Noteholder
at his registered address in the United Kingdom or (if he has
no registered address within the United Kingdom) to the
address (if any) within the United Kingdom supplied by him to
the Company for the giving of notice to him. In the case of
joint registered holders of any Notes, a notice given to the
Noteholder whose name stands first in the Register in respect
of such Notes shall be sufficient notice to all joint holders.
Notice may be given to the persons entitled to any Notes in
consequence of the death or bankruptcy of any Noteholder by
sending the same by post, in a pre-paid envelope addressed to
them by name or by the title of the representative or trustees
of such holder, at the address (if any) in the United Kingdom
supplied for the purpose by such persons or (until such
address is supplied) by giving notice in the manner in which
it would have been given if the death or bankruptcy has not
occurred. Save as otherwise provided in this paragraph, only
Noteholders with a registered address in the United Kingdom
shall be entitled to receive any notice, demand or other
document.
10.3 Any notice, demand or other document (including Certificates
and transfers of Notes) may be served on the Company either
personally or by sending the same by post in a pre-paid letter
addressed to the Company at its registered office for the time
being (marked for the attention of the Company Secretary) or
to such other address in England as the Company may from time
to time notify to Noteholders.
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11 GENERAL
11.1 The Register together with a copy of the Instrument shall
during business hours be open to the inspection of any
Noteholder or any person (not being a person to whom the
Company may reasonably object) authorised in writing by any
Noteholder without charge at the Transfer Office.
11.2 The Instrument and the Notes are governed by, and will be
construed in accordance with, English law.
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CERTIFICATE NO. ISSUE DATE AMOUNT
1 15 April 1999 The aggregate of (i) (pound)98,930,000 and (ii)
amount of the Additional Consideration
referred to in the Instrument.
CENTEX DEVELOPMENT COMPANY UK LIMITED
(Incorporated with limited liability under the laws of England
with registered number 3720116)
NEGOTIABLE LOAN NOTES 2001
THIS IS TO CERTIFY THAT the undermentioned is/are the registered
holder(s) of the amount set out below of the Negotiable Loan Notes 2001
constituted by an instrument entered into by the Company on 15 April
1999 (the "INSTRUMENT") and issued with the benefit of and subject to
the provisions contained in the Instrument. Where the context so
admits, words and expressions defined in the Instrument shall bear the
same meanings in the Conditions endorsed hereon.
This Certificate is evidence of entitlement only. Title to the Notes
passes only on due registration on the Register and any payment due on
the Notes will be made only to the duly registered holder.
NAMES OF HOLDER(S) AMOUNT OF NOTES
AMEC Finance Unlimited The aggregate of (i) (pound)98,930,000
and (ii) amount of the Additional
Consideration referred to in the
Instrument.
SIGNED AND DELIVERED AS A DEED
by CENTEX DEVELOPMENT COMPANY UK LIMITED
ACTING BY
Director /s/ [Illegible] Director
DATED: 15 APRIL 1999
NOTES:
1 The Notes are repayable in accordance with the Conditions
endorsed hereon.
2 This Certificate must be surrendered before any transfer,
whether of the whole or any part of the Notes comprised in it,
can be registered or any new Certificate issued in exchange.
3 The Notes are transferable in accordance with the conditions
endorsed hereon and this Certificate must be lodged together
with the instrument of transfer (which must be signed by the
transferor or by a person authorised to sign on behalf of the
transferor) at the Transfer Office.
4 A copy of the Instrument is available for inspection at the
Transfer Office at all reasonable times during office hours on
any Business Day. Noteholders shall be entitled to receive a
copy of the Instrument and its Schedules without charge on
application to the Company.
5 No interest is payable on the Notes.
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THE CONDITIONS
1 REPAYMENT, PURCHASE AND REDEMPTION
Unless previously repaid, redeemed or purchased by the Company
the amount of the Notes held by each Noteholder shall be
repaid by 11 am (London time) on 30 March 2001. Payment of the
amount of the Notes shall be in the manner specified in
Condition 2.
2 PAYMENT
Payment under the terms of this Instrument shall be effected
by crediting on the relevant payment date the account
specified by the relevant Noteholder to the Company at least 3
Business Days prior to the relevant payment date. If no such
account has been specified, payment may be made by cheque made
payable to the Noteholder and sent to his address as set out
in the register of Noteholders or, in the case of joint
holders, to the first named holder or to such person or
persons as the registered holder or joint holders may in
writing, received by the Company at least 3 Business Days
prior to the date of such payment, have directed. Every such
cheque may be sent through the post no later than the Business
Day preceding the due date for payment.
3 CANCELLATION
All Notes repaid, redeemed or purchased by the Company in full
shall be cancelled and the Company shall not be at liberty to
keep the same for the purposes of re-issue or to re-issue the
same.
4 TRANSFER OF NOTES
4.1 The Notes are transferable by instrument in writing in
multiples of (pound)100 in the usual or common form (or in
such other form as the Directors may approve) to (a) any
member of the AMEC Retained Group, (b) National Westminster
Bank Plc (the "Bank") pursuant to the Letter of Credit No.
TFPCYF083358 or (c) any transferee of the Bank pursuant to and
in accordance with Clause 24.2 (Transfers by the Bank) of the
Facility Agreement dated 15 April 1999 between (amongst
others) the Company and the Bank.
4.2 Every instrument of transfer must be signed by the transferor
(or by a person authorised to sign on behalf of the
transferor) and the transferor shall be deemed to remain the
owner of the Notes to be transferred until the name of the
transferee is entered in the Register in respect thereof.
4.3 Every instrument of transfer must be sent for registration to
the Transfer Office accompanied by the Certificate(s) for the
Notes to be transferred together with such other evidence as
the Directors or other officers of the Company authorised to
deal with transfers may reasonably require to prove the title
of the transferor or his right to transfer the Notes and, if
the instrument of transfer is executed by some other person on
his behalf, the authority of that person to do so. All
instruments of transfer which shall be registered may be
retained by the Company.
4.4 No fee shall be charged for the registration of any transfer
or for the registration of any power of attorney or other
document relating to or affecting the title to any Notes.
5 MODIFICATION
The provisions of the Instrument or of the Notes and the
rights of the Noteholders may from time to time be modified,
abrogated or compromised or any arrangement agreed between the
Company and the Noteholders.
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6 DEALINGS
The Notes shall not be capable of being dealt in on any stock
exchange in the United Kingdom or elsewhere and no application
has been or is intended to be made to any stock exchange for
the Notes to be listed or otherwise traded.
7 RECEIPT OF JOINT HOLDERS
If two or more persons are entered in the Register as joint
registered holders of any Notes then, without prejudice to
Clause 7 of the Instrument, the receipt by any one of such
persons of any interest or principal or other moneys payable
in respect of such Notes shall be as effective a discharge to
the Company as if the person signing such receipt were the
sole registered holder of such Notes.
8 REPLACEMENT OF CERTIFICATES
If the Certificate for any Notes is lost, defaced or
destroyed, it may, upon payment by the Noteholder of any
out-of-pocket expenses of the Company, be renewed, on such
terms (if any) as to evidence and indemnity as the Directors
may require, but so that, in the case of defacement, the
defaced Certificate shall be surrendered before the new
Certificate is issued.
9 RISK TO NOTEHOLDERS
All Certificates, other documents and remittances sent through
the post shall be sent at the risk of the Noticeholder(s)
entitled thereto.
10 NOTICES
10.1 Any notice or other communication required, permitted or
contemplated by this Deed ("NOTICE") must be in writing and
delivered to the recipient by registered or certified mail,
return receipt requested or delivered by facsimile mail with
the original counterpart thereof being sent on the same
business day or on the Business Day immediately following the
date of facsimile transmission. Such Notice shall be deemed
received 3 Business Days after a registered or certified
letter containing such Notice, properly addressed with the
postage prepaid is posted or on the same day if transmitted by
facsimile mail.
10.2 Any notice or other document (including Certificates) may be
given or sent to any Noteholder addressed to such Noteholder
at his registered address in the United Kingdom or (if he has
no registered address within the United Kingdom) to the
address (if any) within the United Kingdom supplied by him to
the Company for the giving of notice to him. In the case of
joint registered holders of any Notes, a notice given to the
Noteholder whose name stands first in the Register in respect
of such Notes shall be sufficient notice to all joint holders.
Notice may be given to the persons entitled to any Notes in
consequence of the death or bankruptcy of any Noteholder by
sending the same by post, in a pre-paid envelope addressed to
them by name or by the title of the representative or trustees
of such holder, at the address (if any) in the United Kingdom
supplied for the purpose by such persons or (until such
address is supplied) by giving notice in the manner in which
it would have been given if the death or bankruptcy has not
occurred. Save as otherwise provided in this paragraph, only
Noteholders with a registered address in the United Kingdom
shall be entitled to receive any notice, demand or other
document.
10.3 Any notice, demand or other document (including Certificates
and transfers of Notes) may be served on the Company either
personally or by sending the same by post in a pre-paid letter
addressed to the Company at its registered office for the time
being (marked for the attention of the Company Secretary) or
to such other address in England as the Company may from time
to time notify to Noteholders.
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11 GENERAL
11.1 The Register together with a copy of the Instrument shall
during business hours be open to the inspection of any
Noteholder or any person (not being a person to whom the
Company may reasonably object) authorised in writing by any
Noteholder without charge at the Transfer Office.
11.2 The Instrument and the Notes are governed by, and will be
construed in accordance with, English law.
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