exv4w9



 



Exhibit 4.9


NOTEHOLDER ACKNOWLEDGEMENT AGREEMENT



This ACKNOWLEDGEMENT AGREEMENT, dated as of February 15, 2004, by and among (i)
BUTLER MANUFACTURING COMPANY (the “Company”), (ii) the undersigned holders of
the 1994 Notes (as constituted from time to time, the “1994 Noteholders”),
(iii) the undersigned holders of the 1998 Notes (as constituted from time to
time, the “1998 Noteholders”), and (iv) the undersigned holders of the 2001
Notes (as constituted from time to time, the “2001 Noteholders”, and together
with the 1994 Noteholders and the 1998 Noteholders, the “Noteholders”).


RECITALS



     A.     Pursuant to that certain Note Agreement, dated as of June 1, 1994 (as
amended pursuant to the First Amendment, dated as of February 28, 2003, and as
further amended from time to time), the Company issued to the 1994 Noteholders
$35,000,000 in original principal amount of its 8.02% Senior Notes due December
30, 2003 (the “1994 Notes”);


     B.     Pursuant to that certain Note Agreement, dated as of March 1, 1998 (as
amended pursuant to the First Amendment, dated as of February 28, 2003, and as
further amended from time to time), the Company issued to the 1998 Noteholders
$35,000,000 in original principal amount of its 6.57% Senior Notes due March
20, 2013 (the “1998 Notes”);


     C.     Pursuant to that certain Note Purchase Agreement, dated as of June 20,
2001 (as amended pursuant to the First Amendment, dated as of February 28,
2003, and as further amended from time to time), the Company issued to the 2001
Noteholders $50,000,000 in original principal amount of its 7.87% Senior Notes
due December 30, 2016 (the “2001 Notes”);


     D.     Pursuant to that certain “Noteholder Amendment Agreement”, dated as of
December 30, 2003, the Company, as set forth in section 4.3(a) of the
Noteholder Amendment Agreement, covenanted, agreed and warranted that:



		
	 	     i.     The Noteholders would receive executed copies of definitive
merger documentation within 24 hours of execution, but in no event later
than February 9, 2004;
	 
	 	     ii.     Any merger between the Company and the Purchaser (as defined in
the Noteholder Amendment Agreement) would result in the Company’s
immediate repayment in full of its obligations to the Noteholders,
including, without limitation, principal, interest, default interest,
Make-Whole Amounts (as defined in the Noteholder Amendment Agreement),
and fees;
	 
	 	     iii.     Such Purchaser would have financial qualifications reasonably
acceptable to the Noteholders; and



 






 







		
	 	     iv.     Such definitive merger documentation shall be in form and
substance reasonably satisfactory to the Noteholders with respect to the
treatment of the Notes at the closing of the merger and the conditions to
and of such closing.



     E.     Pursuant to that certain Agreement (the “Payout Agreement”), dated as
of February 15, 2004, by and among the Company, the Noteholders, BlueScope
Steel Limited (the “Purchaser”), and others, the Company has agreed, and the
Purchaser has agreed to cause the Company, to make the payments to the
Noteholders described therein.


     F.     Simultaneously with the execution and delivery of this Agreement and
with the execution and delivery of the Payout Agreement, the Company, the
Purchaser and BSL Acquisition Corporation (the “Subsidiary”) are executing and
delivering an Agreement and Plan of Merger (the “Merger Agreement”), dated the
date hereof, providing for the merger of the Company with and into the
Subsidiary.


ACKNOWLEDGEMENT



     The Noteholders agree that, upon receipt of the executed Payout Agreement
and the executed Merger Agreement:


     1.     All of the obligations of the Company set forth in section 4.3(a) of
the Noteholder Amendment Agreement have been satisfied and performed in full by
the Company; provided, however, that this acknowledgement by the Noteholders is
without prejudice to all rights of the Noteholders under the Payout Agreement;


     2.     The financial qualifications of the Purchaser are acceptable;


     3.     The Merger Agreement is in form and substance satisfactory to the
Noteholders; and


     4.     The reference to the date of “February 9, 2004” in Section 4.3(a) of
the Noteholder Amendment Agreement is hereby replaced and substituted in lieu
thereof with the date of “February 15, 2004”.


     This Agreement shall be governed by, and construed in accordance with the
laws of the State of New York. This Agreement may be executed in counterparts,
each of which shall be constitute an original but all of which together shall
constitute one and the same instrument. Facsimile signatures shall be deemed
to constitute original signatures and shall be admissible into evidence for all
purposes.



	 	 	 
	 	 	
Butler Manufacturing Company
	 	 	 
	 	 	
By: /s/ John J. Holland

Name: John J. Holland

Title: Chairman



 






 



Subsidiary Guarantors



BMC Real Estate, Inc.

BUCON, Inc.

Butler Holdings, Inc.

Butler Real Estate, Inc.

Lester Buildings, Inc.

Butler Pacific, Inc.

Moduline Windows, Inc.

Liberty Building Systems, Inc.


By: /s/ Larry C. Miller

Name: Larry C. Miller

Title: Vice President - Finance


Metropolitan Life Insurance Company


By: /s/ Jacqueline D. Jenkins

Name: Jacqueline D. Jenkins

Title: Managing Director


Nationwide Life Insurance Company

of America


By: /s/ Joseph P. Young

Name: Joseph P. Young

Title: Authorized Signatory


Nationwide Indemnity Company


By: /s/ Joseph P. Young

Name: Joseph P. Young

Title: Authorized Signatory


 






 



Nationwide Mutual Fire Insurance Company


By: /s/ Joseph P. Young

Name: Joseph P. Young

Title: Authorized Signatory


Principal Life Insurance Company

an Iowa Corporation


By: /s/ Jon C. Heiny

Name: Jon C. Heiny

Title: Counsel


By: /s/ Joellen J. Watts

Name: Joellen J. Watts

Title: Counsel


Allstate Life Insurance Company


By: /s/ Jeffrey Cannon

Name: Jeffrey Cannon

Title: Authorized Signatory


By: /s/ Jerry D. Zinkula

Name: Jerry D. Zinkula

Title: Authorized Signatory


Businessmen’s Assurance Company

of America


By: /s/ D.W. Kroske

Name: D.W. Kroske

Title: Vice President


 






 



John Hancock Life Insurance Company


By: /s/ Marlene DeLeon

Name: Marlene DeLeon

Title: Managing Director


John Hancock Variable Life Insurance Company


By: /s/ Marlene DeLeon

Name: Marlene DeLeon

Title: Managing Director


Massachusetts Mutual Life

Insurance Company


By: /s/ Steven J. Katz

Name: Steven J. Katz

Title: Second Vice President and Associate General Counsel


Mellon Bank, solely in its capacity as

Custodian for Aviva Life-Principal Glob

Priv EG Convertible Securities (as directed

by Principal Global Investors, LLC), and not

in its individual capacity (MAC & CO) -

Nominee Name


By: /s/ Carole Bruno

Name: Carole Bruno

Title: Authorized Signatory