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EXHIBIT 4.13
DATED 15 APRIL 1999
CENTEX DEVELOPMENT COMPANY UK LIMITED
INSTRUMENT
CONSTITUTING
GUARANTEED UNSECURED SET OFF LOAN NOTES 2001
LINKLATERS & PAINES
One Silk Street
London EC2Y 8HQ
TEL: (+44) 171 456 2000
Ref: SGG/JLF
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THIS INSTRUMENT is entered into as a deed this 15 day of April 1999 by
CENTEX DEVELOPMENT COMPANY UK LIMITED (Company No 3720116]) whose
registered office is at Goldville House, Church Street West, Woking
GU21 1DJ (hereinafter called the "COMPANY")
WHEREAS:
(A) The Company by a resolution of its Board of Directors or a duly
authorised committee thereof passed on 15 April 1999 authorised
the creation of the Guaranteed Unsecured Loan Notes 2001 in
connection with the acquisition by the Company of the entire
issued class "A" share capital of Fairclough Homes Group Limited
(the "ACQUISITION") to be constituted as hereinafter provided and
subject to and with the benefit of the Schedules which shall be
deemed to be part of this Instrument; and
(B) The payment of amounts due in respect of the Notes and
performance of the Company's obligations under this Deed have
been guaranteed pursuant to a Guarantee (as defined below).
NOW THIS INSTRUMENT WITNESSES AND DECLARES as follows:
1 DEFINITIONS
1.1 In this Instrument and the Schedules the following expressions shall,
unless the context requires otherwise, have the following meanings:
"AMEC" means AMEC Finance Limited;
"AMEC RETAINED GROUP" means AMEC p.l.c. and its subsidiary undertakings
from time to time other than the Group Companies and the Management
Companies (as defined in the Share Purchase Agreement);
"BUSINESS DAY" means any day (excluding Saturdays and Sundays) on which
banks in London are open for business;
"CERTIFICATE" means a certificate substantially in the form set out in
the First Schedule duly executed by the Company relating to the Notes
represented by it;
"CLOSING" shall have the meaning set out in the Share Purchase
Agreement;
"CONDITIONS" means the conditions set out in the Second Schedule as the
same may be modified from time to time in accordance with the
provisions herein contained;
"DIRECTORS" means the Board of Directors for the time being of the
Company or a duly authorised committee thereof;
"FHGL" means Fairclough Homes Group Limited;
"GROUP COMPANY" means any one of Fairclough Homes Group Limited and its
subsidiary undertakings other than in Condition 5 when Group Company
shall have the meaning set out in the Share Purchase Agreement;
"GUARANTEE" means the Guarantee dated of even date hereof executed by
Centex Homes, Centex Development Company L.P., Centex Corporation and
the Company;
"GUARANTORS" means Centex Homes, Centex Development Company LP. and
Centex Corporation;
"INDEBTEDNESS" includes any obligation (whether present or future,
actual or contingent, secured or unsecured, as principal, surety or
otherwise) for the payment or repayment of money;
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"NOTEHOLDERS" means the several persons for the time being entered on
the Register as the holders of the Notes;
"NOTES" means the Guaranteed Unsecured Loan Notes 2001 hereby
constituted;
"REGISTER" means the register of Noteholders to be maintained by the
Company in accordance with Clause 7;
"REPAYMENT" includes "redemption" and vice versa and the words "repay",
"redeem", "repayable", "redeemable", "repaid" and "redeemed" shall be
construed accordingly;
"SHARE PURCHASE AGREEMENT" means the agreement entered into on even
date hereto between AMEC p.l.c., AMEC Finance Limited and the Company
in connection with the Acquisition; and
"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.
1.7 "LIQUIDATED LOSS", "LOSS", "OPERATING PROFITS", "SHAREHOLDERS
AGREEMENT" and "WARRANTIES" shall have their respective meanings as set
out in the Share Purchase Agreement.
2 AMOUNT OF THE NOTES
The principal amount of the Notes constituted by this Instrument is
(pounds) l0,000.000. The Notes shall be issued fully-paid in
denominations of (pounds) 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 the "GUARANTEED UNSECURED 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.
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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, two
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 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.
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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. The provisions of this Clause 7.2 are subject to the
provisions of Condition 5 in Schedule 2.
7.3 Noteholders shall be entitled to receive a copy of this Instrument
without charge on application to the Company.
8 REDEMPTION
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.
9 SET OFF
The Loan Notes are issued subject to the set off provisions contained
in Condition 5 of Schedule 2.
10 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
L.
CENTEX DEVELOPMENT COMPANY UK LIMITED
(Incorporated with limited liability under the laws of England
with registered number 3720116)
GUARANTEED UNSECURED LOAN NOTES 2001
THIS IS TO CERTIFY THAT the undermentioned is/are the registered
holder(s) of the amount set out below of the Guaranteed Unsecured 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
SIGNED AND DELIVERED AS A DEED
by CENTEX DEVELOPMENT COMPANY UK LIMITED
ACTING BY:
Director 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 and
subject to Condition 5, the amount of the Notes held by each Noteholder
shall be repaid on 30 March 2001. Payment of the amount of the Notes
shall be in the manner specified in Condition 3.
2 EVENTS ON WHICH NOTES BECOME IMMEDIATELY REPAYABLE
Notwithstanding any other provisions of the Instrument or these
Conditions, each Noteholder shall be entitled to require all or part of
the Notes registered in the name of that Noteholder (so far as not
previously repaid and unless otherwise agreed in writing by that
Noteholder) to be repaid at par, (subject to any legal requirement to
deduct tax therefrom), in each and every of the following events,
immediately upon written notice by such Noteholder to the Company
whilst the same is continuing:
2.1 failure by the Company to pay, within five Business Days after the due
date for payment, any amount payable on any of the Notes held by that
Noteholder and such failure is not remedied within five Business Days
after notice of that default has been given by such Noteholder to the
Company; or
2.2 the making of an order by a competent court or the passing of an
effective resolution for the winding-up or dissolution of any Group
Company (other than for the purposes of a reconstruction, amalgamation,
merger or members' voluntary winding-up on terms previously approved in
writing by any director or the Company Secretary of AMEC p.l.c., (such
consent not to be unreasonably withheld or delayed); or
2.3 the taking of possession by an encumbrancer of, or the appointment of a
trustee, administrator or administrative receiver or manager or a
similar officer over, or an administration order being made in respect
of, the whole or substantially the whole of the undertaking or property
of any Group Company, unless the same is paid out or discharged within
thirty days or any similar or analogous event in any jurisdiction; or
2.4 the Company does not perform or comply with any one or more of its
other obligations under this Instrument and, if that default is capable
of remedy, it is not remedied within five Business Days after notice of
that default has been given to it by any Noteholder or AMEC p.l.c.; or
2.5 Centex Corporation fails to procure a letter of credit from a USA or UK
bank (reasonably acceptable to AMEC p.l.c.) in accordance with clause 7
of the Guarantee and such failure is not remedied within five Business
Days after notice of that default has been given by any Noteholder or
AMEC p.l.c. to the Company; or
2.6 any other Indebtedness of any Group Company (other than Fairpine
Limited, Viewton Properties and the Management Companies) becomes due
and payable before its normal maturity by reason of any actual default,
event of default or the like (however described) or is not paid when
due nor within any applicable grace period in any agreement relating to
that Indebtedness or, as a result of any actual event of default or the
like (however described) any facility relating to any such Indebtedness
is or is declared to be cancelled or terminated before its normal
expiry date and such failure is not remedied within three Business Days
after notice of that default has been given by any Noteholder to the
Company; or
2.7 Centex Corporation is insolvent or unable to pay its debts, stops,
suspends payment of all or a material part of (or of a particular type
of) its Indebtedness, begins negotiations or takes any other step with
a view to the deferral, rescheduling or other readjustment of all of
(or all of a particular
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type of) its Indebtedness (or of any part which it will or might
otherwise be unable to pay when due), proposes or makes a general
assignment or an arrangement or composition with or for the benefit of
the relevant creditors or a moratorium is agreed or declared in respect
of or affecting all or a material part of (or of a particular type of)
the Indebtedness of the Company, the Guarantors or any Group Company;
2.8 it is or will become unlawful for the Company and/or the Guarantor to
perform or comply with any one or more of its payment obligations under
the Instrument or the Notes;
2.9 the Guarantees contained in the Guarantee are not (or are claimed by
the Company or any one of the Guarantors not to be) in full force and
effect; or
2.10 any event occurs which under the law of any relevant jurisdiction, has
an analogous or equivalent effect to any event mentioned in this
Condition.
The Company shall give the Noteholders notice of the happening of any
of the foregoing events promptly after becoming aware of the same.
3 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 three 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 three 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.
4 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.
5 RIGHT OF SET OFF
5.1 LIQUIDATED LOSSES; SET OFF
5.1.1 Subject to AMEC's right to object to any set off or recoupment
of any Loss which has become a Liquidated Loss, the Company
shall be entitled to set off or recoup any Liquidated Loss
that has been actually incurred by or imposed upon the Company
pursuant to the Share Purchase Agreement against this Set Off
Loan Note (a "SET OFF").
5.1.2 Prior to or concurrently with each exercise by the Company of
its right of Set Off, the Company shall deliver a written
notice to AMEC (the "SET OFF NOTICE"), which notice shall set
forth the amount of the Liquidated Loss, together with a
reasonably detailed statement of the circumstances under which
such Liquidated Loss was incurred and the total of all
Liquidated Losses that have been Set Off by the Company up to
the date of the Set Off Notice.
5.1.3 The Company acknowledges that other than where the provisions
of Condition 5.1.4 below apply, the Company shall not be
entitled to a Set Off to the extent that the amount of any
loss is or has been reflected in a diminution of the Operating
Profits or a provision or reserve has been made by the Company
or the Group Company (and not disputed by AMEC).
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5.1.4 If at the time the Company is entitled to a Set Off the
Company has injected equity capital into the Group Companies
or any of them pursuant to the Shareholders' Agreement, and
accordingly the Company is entitled to a proportionate share
of the net after tax earnings of the Group Companies, then
such Set Off will be applied against this Set Off Loan Note as
opposed to reducing the Operating Profits.
5.2 UNLIQUIDATED LOSSES; SET OFF RESERVES
5.2.1 ESTABLISHMENT OF SET OFF RESERVES
Subject to AMEC's right to object to any set off or recoupment
of any Loss as provided below, at any time prior to the date
of redemption of this Set Off Loan Note (the "REDEMPTION
DATE"), if and to the extent that the Company reasonably
determines that it has a bona fide claim under the Warranties
that has not yet become a Liquidated Loss (an "UNLIQUIDATED
LOSS"), the Company shall be entitled to establish a reserve
equivalent to the amount it reasonably considers to be a
genuine estimate of the amount of the Loss (a "SET OFF
RESERVE") against this Set Off Loan Note in respect of such
Unliquidated Loss, provided that AMEC receives from the
Company the Set Off Reserve Notice 10 Business Days prior to
the Redemption Date. The Company shall take into consideration
the availability of insurance coverage for any Unliquidated
Loss in establishing any Set Off Reserve.
5.2.2 SET OFF RESERVE NOTICE
10 Business Days prior to the establishment of a Set Off
Reserve, the Company shall deliver a written notice to AMEC
(the "SET OFF RESERVE NOTICE"), which notice shall set forth
the amount of the Unliquidated Loss, together with a
reasonably detailed statement of the basis for the Company's
determination that such Unliquidated Loss is reasonably likely
to be incurred by or imposed and the total of all Unliquidated
Losses that have been reserved by the Company to the date of
the Set Off Reserve Notice.
5.2.3 SUSPENSION OF OBLIGATIONS
The obligation of the Company to pay this Set Off Loan Note to
AMEC, as provided in this Set Off Loan Note Instrument, shall
be suspended (but not the accrual of interest payable pursuant
to Condition 5.2.4) to the extent of the aggregate amount of
Set Off Reserves not settled pursuant to this Condition 5.2 at
the time of such payment.
5.2.4 SETTLEMENT OF SET OFF RESERVES
If at any time it is determined (whether by agreement between
the parties or pursuant to the dispute resolution procedures
set forth in Condition 5.4 or as a result of a judicial
determination of the Final Loss Amount (as defined below))
that any Set Off Reserve exceeds the aggregate amount of the
Losses ultimately incurred by or imposed upon the Company as a
result of or based upon the events or conditions to which the
Set Off Reserve relates (or that Claim to which the Set Off
Reserve relates is not a valid claim) (the "FINAL LOSS
AMOUNT") or that the claim to which the Set Off Reserve
relates is not a valid claim, the amount of such Set Off
Reserve in excess of such Final Loss Amount or, as
appropriate, the entire Set Off Reserve, shall cease to be
suspended and shall be paid within 2 Business Days under and
in accordance with the terms of this Set Off Loan Note
together with interest at the rate of 1 % above the base rate
of National Westminster Bank Plc from 30 March 2001 until the
date of payment.
If and to the extent that at any time an Unliquidated Loss (in
respect of which a Set Off Reserve has been established)
becomes a Liquidated Loss which has not otherwise been
satisfied (the "FINAL LOSS AMOUNT"), the nominal value of this
Set Off Loan Note equivalent to the Final Loss Amount shall be
paid by the Company immediately upon such Unliquidated Loss
becoming a Liquidated Loss but the Company shall be deemed
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to be irrevocably and conditionally instructed by the
Noteholder to apply the proceeds of such repayment in payment
of the Liquidated Loss in full and final settlement of the
Liquidated Loss and so that AMEC shall have no further
liability to the Company in respect of the amount of Set Off
Reserve relating to such Liquidated Loss but, without
prejudice to the Company's right to recover the balance of
such Liquidated Loss from AMEC and the Company shall have no
further liability to any Noteholder in relation to this Set
Off Loan Note subject to such to repayment.
If and to the extent any Set Off Reserve has been established
and a provision is subsequently made in the accounts prepared
pursuant to clause 5 of the Shareholders' Agreement, then the
amount of such Set Off Reserve shall be reduced to the extent
that the preferential dividend paid to the holders of the "B"
Shares in the Company on or around 30 June 2001 is reduced by
the inclusion of such provision and the relevant amount shall
cease to be suspended and shall be paid within 2 Business Days
of the date on which the preferential dividend is paid
together with interest at the rate of 1% above the base rate
of National Westminster Bank Plc from 30 March 2001 until the
date of payment.
For the purpose of this Condition 5.2, "Loss" or "Losses"
shall not include any amount of a claim in respect of
Taxation.
5.3 OBJECTION PROCEDURE
If AMEC disputes any exercise by the Company of its right to make a Set
Off or a Set Off Reserve, then AMEC shall deliver a written notice to
the Company ("OBJECTION NOTICE") within 5 Business Days following
receipt of a Set Off Reserve Notice. The Objection Notice shall state
the portion of the applicable Loss to which AMEC objects and a
reasonably detailed description of the basis of such objection. AMEC
and the Company shall negotiate in good faith to resolve any dispute
with respect to the matters set forth in the Objection Notice for a
period of 20 days following receipt of such Objection Notice by the
Company.
5.4 DETERMINATION BY AN EXPERT
5.4.1 If AMEC and the Company are not able to agree during the
dispute resolution period provided above:
(a) whether or not there are reasonable grounds for making a claim
under the Warranties; and/or
(b) whether or not the amount of the claim under the Warranties
represents a reasonable estimate of the loss and/or liability
which is likely to be awarded in respect of such claim.
((a) and (b) together being the "CLAIM CRITERIA"), either of
them may by written request to the other specify a counsel of
at least 10 years' standing (or other appropriate person) whom
they wish to opine on the Claim Criteria. If they cannot agree
on the counsel or other appropriate person within 3 Business
Days of the written request then either of them may at any
time thereafter apply to the President of the Bar Council to
nominate a counsel of at least 10 years' standing to opine on
the Claim Criteria. The counsel or other appropriate person so
agreed or appointed (who shall act as an expert and not as an
arbitrator and whose costs shall be borne as he shall direct
and whose determination shall (subject to Condition 5.4.2) be
final and binding on the Company and AMEC) shall be asked to
opine on the Claim Criteria.
5.4.2 Any Claim Criteria determined in accordance with this
Condition 5.4 shall be relevant solely for the purpose of
determining whether a claim under the Warranties constitutes
an Unliquidated Loss and if so what the appropriate amount of
such loss is and shall
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have no other effect whatsoever. and in particular shall not
operate to determine or settle any actual liability or the
quantum thereof on account of any claim under the Warranties.
5.4.3 If the amount of the Unliquidated Loss determined by the
expert is less than any Set Off Reserve already established,
the amount of such difference shall cease to be suspended and
shall be paid to AMEC within two Business Days together with
interest at the rate of 1% above the base rate of National
Westminster Bank Plc from 30 March 2001 until the date of
payment.
5.5 OBLIGATION TO RESOLVE WARRANTY CLAIMS
To the extent that any Set Off Reserve has been established in
relation to any Unliquidated Loss, the Company shall use
reasonable endeavours to pursue the claim in respect of such
Unliquidated Loss under the Warranties to which such
Unliquidated Loss applies with a view to ensuring that the Set
Off Reserve is reduced as quickly as possible.
6 TRANSFER OF NOTES
6.1 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 any member of
the AMEC Retained Group.
6.2 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.
6.3 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.
6.4 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.
7 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.
8 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.
9 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.
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10 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.
11 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.
12 NOTICES
12.1 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 three 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.
12.2 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.
12.3 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.
13 GENERAL
13.1 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.
13.2 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
15 April 1999 L.10,000,000
CENTEX DEVELOPMENT COMPANY UK LIMITED
(Incorporated with limited liability under the laws of England
with registered number 3720116)
GUARANTEED UNSECURED LOAN NOTES 2001
THIS IS TO CERTIFY THAT the undermentioned is/are the registered
holder(S) of the amount set out below of the Guaranteed Unsecured 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 Limited L.10,000,000
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 and
subject to Condition 5. the amount of the Notes held by each Noteholder
shall be repaid on 30 March 2001. Payment of the amount of the Notes
shall be in tie manner specified in Condition 3.
2 EVENTS ON WHICH NOTES BECOME IMMEDIATELY REPAYABLE
Notwithstanding any other provisions of the Instrument or these
Conditions, each Noteholder shall be entitled to require all or part of
the Notes registered in the name of that Noteholder (so far as not
previously repaid and unless otherwise agreed in writing by that
Noteholder) to be repaid at par, (subject to any legal requirement to
deduct tax therefrom), in each and every of the following events,
immediately upon written notice by such Noteholder to the Company
whilst the same is continuing:
2.1 failure by the Company to pay, within five Business Days after the due
date for payment, any amount payable on any of the Notes held by that
Noteholder and such failure is not remedied within five Business Days
after notice of that Default has been given by such Noteholder to the
Company; or
2.2 the making of an order by a competent Court or the passing of an
effective resolution for the winding-up or dissolution of any Group
Company (other than for the purposes of a reconstruction. amalgamation,
merger or members' voluntary winding-up on terms previously approved in
writing by any director or the Company Secretary of AMEC p.l.c.; (such
consent not to be unreasonably withheld or delayed); or
2.3 the taking of possession by an encumbrancer of, or the appointment of a
trustee, administrator or administrative receiver or manager or a
similar officer over, or an administration order being made in respect
of, the whole or substantially the whole of the undertaking or property
of any Group Company, unless the same is paid out or discharged within
thirty days or any similar or analogous event in any jurisdiction: or
2.4 the Company does not perform or comply with any one or more of its
other obligations under this Instrument and, if that default is capable
of remedy, it is not remedied within five Business Days after notice of
that default has been given to it by any Noteholder or AMEC p.l.c.; or
2.5 Centex Corporation fails to procure a letter of credit from a USA or UK
bank (reasonably acceptable to AMEC p.l.c.) in accordance with clause 7
of the Guarantee and such failure is not remedied within five Business
Days after notice of that default has been given by any Noteholder or
AMEC p.l.c. to the Company; or
2.6 any other Indebtedness of any Group) Company (other than Fairpine
Limited, Viewton Properties and the Management Companies) becomes due
and payable before its normal maturity by reason of any actual default,
event of default or the like (however described) or is not paid when
due nor within any applicable grace period in any agreement relating to
that Indebtedness or, as a result of any actual event of default or the
like (however described) any facility relating to any such Indebtedness
is or is declared to be cancelled or terminated before its normal
expiry date and such failure is not remedied within three Business Days
after notice of that default has been given by any Noteholder to the
Company; or
2.7 Centex Corporation is insolvent or unable to pay its debts, stops,
suspends payment of all or a material part of (or of a particular type
of) its Indebtedness begins negotiations or takes any other step with a
view to the deferral, rescheduling or other readjustment of all of (or
all of a particular type of) its Indebtedness (or of any part which it
will or might otherwise be unable to pay when due), proposes or makes a
general assignment or an arrangement or composition with or for the
benefit of the relevant creditors or a moratorium is agreed or declared
in respect of or affecting all
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or a material part of (or of a particular type of) the Indebtedness of
the Company, the Guarantors, or any Group Company:
2.8 it is or will become unlawful for the Company and/or the Guarantor to
perform or comply with any one or more of its payment obligations under
the Instrument or the Notes;
2.9 the Guarantees contained in the Guarantee are not (or are claimed by
the Company or any one of the Guarantors not to be) in full force and
effect; or
2.10 any event occurs which, under the law of any relevant jurisdiction, has
an analogous or equivalent effect to any event mentioned in this
Condition.
The Company shall give the Noteholders notice of the happening of any
of the foregoing events promptly after becoming aware of the same.
3 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 three 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 three 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.
4 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.
5 RIGHT OF SET OFF
5.1 LIQUIDATED LOSSES; SET OFF
5.1.1 Subject to AMEC's right to object to any set off or recoupment
of any Loss which has become a Liquidated Loss, the Company
shall be entitled to set off or recoup any Liquidated Loss
that has been actually incurred by or imposed upon the Company
pursuant to the Share Purchase Agreement against this Set Off
Loan Note (a "SET OFF").
5.1.2 Prior to or concurrently with each exercise by the Company of
its right of Set Off, the Company shall deliver a written
notice to AMEC (the "SET OFF NOTICE"), which notice shall set
forth the amount of the Liquidated Loss, together with a
reasonably detailed statement of the circumstances under which
such Liquidated Loss was incurred and the total of all
Liquidated Losses that have been Set Off by the Company up to
the date of the Set Off Notice.
5.1.3 The Company acknowledges that other than where the provisions
of Condition 5.1.4 below apply, the Company shall not be
entitled to a Set Off to the extent that the amount of any
loss is or has been reflected in a diminution of the Operating
Profits or a provision or reserve has been made by the Company
or the Group Company (and not disputed by AMEC).
5.1.4 If at any time the Company is entitled to a Set Off the
Company has injected equity capital into the Group Companies
or any of them pursuant to the Shareholders' Agreement and
accordingly the Company is entitled to a proportionate share
of the net
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after tax earnings of the Group Companies, then such Set Off
will be applied against this Set Off Loan Note as opposed to
reducing the Operating Profits.
5.2 UNLIQUIDATED LOSSES; SET OFF RESERVES
5.2.1 ESTABLISHMENT OF SET OFF RESERVES
Subject to AMEC's right to object to any set off or recoupment
of any Loss as provided below, at any time prior to the date
of redemption of this Set Off Loan Note (the "REDEMPTION
DATE"), if and to the extent that the Company reasonably
determines that it has a bona fide claim under the Warranties
that has not yet become a Liquidated Loss (an "UNLIQUIDATED
LOSS"), the Company shall be entitled to establish a reserve
equivalent to the amount it reasonably considers to be a
genuine estimate of the amount of the Loss (a "SET OFF
RESERVE") against this Set Off Loan Note in respect of such
Unliquidated Loss, provided that AMEC receives from the
Company the Set Off Reserve Notice 10 Business Days prior to
the Redemption Date. The Company shall take into consideration
the availability of insurance coverage for any Unliquidated
Loss in establishing any Set Off Reserve.
5.2.2 SET OFF RESERVE NOTICE
10 Business Days prior to the establishment of a Set Off
Reserve, the Company shall deliver a written notice to AMEC
(the "SET OFF RESERVE NOTICE"), which notice shall set forth
the amount of the Unliquidated Loss, together with a
reasonably detailed statement of the basis for the Company's
determination that such Unliquidated Loss is reasonably likely
to be incurred by or imposed and the total of all Unliquidated
Losses that have been reserved by the Company to the date of
the Set Off Reserve Notice.
5.2.3 SUSPENSION OF OBLIGATIONS
The obligation of the Company to pay this Set Off Loan Note to
AMEC, as provided in this Set Off Loan Note Instrument, shall
be suspended (but not the accrual of interest payable pursuant
to Condition 5.2.4) to the extent of the aggregate amount of
Set Off Reserves not settled pursuant to this Condition 5.2 at
the time of such payment.
5.2.4 SETTLEMENT OF SET OFF RESERVES
If at any time it is determined (whether by agreement between
the parties or pursuant to the dispute resolution procedures
set forth in Condition 5.4 or as a result of a judicial
determination of the Final Loss Amount (as defined below))
that any Set Off Reserve exceeds the aggregate amount of the
Losses ultimately incurred by or imposed upon the Company as a
result of or based upon the events or conditions to which the
Set Off Reserve relates (or that Claim to which the Set Off
Reserve relates is not a valid claim) (the "FINAL LOSS
AMOUNT") or that the claim to which the Set Off Reserve
relates is not a valid claim, the amount of such Set Off
Reserve in excess of such Final Loss Amount or, as
appropriate, the entire Set Off Reserve. shall cease to be
suspended and shall be paid within 2 Business Days under and
in accordance with the terms of this Set Off Loan Note
together with interest at the rate of 1% above the base rate
of National Westminster Bank Plc from 30 March 2001 until the
date of payment.
If and to the extent that at any time an Unliquidated Loss (in
respect of which a Set Off Reserve has been established)
becomes a Liquidated Loss which has not otherwise been
satisfied (the "FINAL LOSS AMOUNT"), the nominal value of this
Set Off Loan Note equivalent to the Final Loss Amount shall be
paid by the Company immediately upon such Unliquidated Loss
becoming a Liquidated Loss but the Company shall be deemed to
be irrevocably and conditionally instructed by the Noteholder
to apply the proceeds of such repayment in payment of the
Liquidated Loss in full and final settlement of the Liquidated
Loss and so that AMEC shall have no further liability to the
Company in
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respect of the amount of Set Off Reserve relating to such
Liquidated Loss but, without prejudice to the Company's right
to recover the balance of such Liquated Loss from, AMEC and
the Company shall have no further liability to any Noteholder
in relation to this Set Off Loan Note subject to such
repayment.
If and to the extent any Set Off Reserve has been established
and a provision is subsequently made in the accounts prepared
pursuant to clause 5 of the Shareholders Agreement, then the
amount of such Set Off Reserve shall be reduced to the extent
that the preferential dividend paid to the holders of the "B"
Shares in the Company on or around 30 June 2001 is reduced by
the inclusion of such provision and the relevant amount shall
cease to be suspended and shall be paid within 2 Business Days
of the date on which the preferential dividend is paid
together with interest at the rate of 1% above the base rate
of National Westminster Bank Plc from 30 March 2001 until the
date of payment.
For the purpose of this Condition 5.2. "Loss" or "Losses"
shall not include any amount of a claim in respect of
Taxation.
5.3 OBJECTION PROCEDURE
If AMEC disputes any exercise by the Company of its right to make a Set
Off or a Set Off Reserve, then AMEC shall deliver a written notice to
the Company ("OBJECTION NOTICE") within 5 Business Days following
receipt of a Set Off Reserve Notice. The Objection Notice small state
the portion of the applicable Loss to which AMEC objects and a
reasonably detailed description of the basis of such objection. AMEC
and the Company shall negotiate in good faith to resolve any dispute
with respect to the matters set forth in the Objection Notice for a
period of 20 days following receipt of such Objection Notice by the
Company.
5.4 DETERMINATION BY AN EXPERT
5.4.1 If AMEC and the Company are not able to agree during the
dispute resolution period provided above:
(a) whether or not there are reasonable grounds for making a claim
under the Warranties and/or
(b) whether or not the amount of the claim under the Warranties
represents a reasonable estimate of the loss and/or liability
which is likely to be awarded in respect of such. claim,
((a) and (b) together being the "CLAIM CRITERIA"), either of
them may by written request to the other specify a counsel of
at least 10 years' standing (or other appropriate person) whom
they wish to opine on the Claim Criteria. If they cannot agree
on the counsel or other appropriate person within 3 Business
Days of the written request then either of them may at any
time thereafter apply to the President of the Bar Council to
nominate a counsel of at least 10 years' standing to opine on
the Claim Criteria. The counsel or other appropriate person so
agreed or appointed (who shall act as an expert and not as an
arbitrator and whose costs shall be borne as he shall direct
and whose determination shall (subject to Condition 5.4.2) be
final and binding on the Company and AMEC) shall be asked to
opine on the Claim Criteria.
5.4.2 Any Claim Criteria determined in accordance with this
Condition 5.4 shall be relevant solely for the purpose of
determining whether a claim under the Warranties constitutes
an Unliquidated Loss and if so what the appropriate amount of
such loss is and shall have no other effect whatsoever, and in
particular shall not operate to determine or settle any actual
liability or the quantum thereof on account of any claim under
the Warranties.
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5.4.3 If the amount of the Unliquidated Loss determined by the
expert is less than any Set Off Reserve already established,
the amount of such difference shall cease to be suspended and
shall be paid to AMEC within two Business Days together with
interest at the rate of 1% above the base rate of National
Westminster Bank Plc from 30 March 2001 until the date of
payment.
5.5 OBLIGATION TO RESOLVE WARRANTY CLAIMS
To the extent that any Set Off Reserve has been established in relation
to any Unliquidated Loss, the Company shall use reasonable endeavours
to pursue the claim in respect of such Unliquidated Loss under the
Warranties to which such Unliquidated Loss applies with a view to
ensuring that the Set Off Reserve is reduced as quickly as possible.
6 TRANSFER OF NOTES
6.1 The Notes are transferable by instrument in writing in multiples of
(pounds)100 in the usual or common form (or in such other form as the
Directors may approve) to any member of the AMEC Retained Group.
6.2 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.
6.3 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.
6.4 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.
7 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.
8 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.
9 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.
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10 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.
11 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.
12 NOTICES
12.1 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 three 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.
12.2 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.
12.3 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 prepaid 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.
13 GENERAL
13.1 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.
13.2 The Instrument and the Notes are governed by, and will be construed in
accordance with, English law.
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