exv4w10



 



Exhibit 4.10


February 15, 2004



To each of the Noteholders who are signatories hereto

c/o Bingham McCutchen LLP

399 Park Avenue

New York, NY 10022

Attention: Ronald J. Silverman, Esq.



BlueScope Steel Limited

Level 11

120 Collins Street

Melbourne, Victoria 3000

Australia


BSL Acquisition Corporation

c/o BlueScope Steel Limited

Level 11

120 Collins Street

Melbourne, Victoria 3000

Australia


     Re:    Payout Arrangements


Ladies and Gentlemen:



     We refer to the (i) 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 “1994 Note Agreement”), by and among Butler
Manufacturing Company (including its successors and assigns, the “Company”) and
the holders of the Company’s 8.02% Senior Notes due December 30, 2003 (as
constituted from time to time, the “1994 Noteholders”), (ii) 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 “1998 Note
Agreement”), by and


 






 


among the Company and the holders of the Company’s 6.57% Senior Notes due
March 20, 2013 (as constituted from time to time, the “1998 Noteholders”),
(iii) Note 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 “2001 Note Agreement”, and together with the 1994 Note
Agreement and the 1998 Note Agreement, the “Note Agreements”), by and among the
Company and holders of the Company’s 7.87% Senior Notes due December 30, 2016
(as constituted from time to time, the “2001 Noteholders”, and together with
the 1994 Noteholders and the 1998 Noteholders, the “Noteholders”), (iv)
Noteholder Amendment Agreement, dated as of December 30, 2003 (“Noteholder
Amendment Agreement”), by and among the Company and the Noteholders and (v) the
Acknowledgement Agreement, dated as of the date hereof, by and among the
Company and the Noteholders (the “Acknowledgement Agreement” and together with
the Note Agreements, the Noteholder Amendment Agreement, this letter agreement
and all other documents executed in connection with any such documents, the
“Note Documents”). All capitalized terms used herein without definition shall
have the respective meanings assigned to such terms in the Note Documents.


     As you are aware, the Company has entered into that certain Agreement and
Plan of Merger, dated as of February 15, 2004 (the “Merger Agreement”), among
the Company, BlueScope Steel Limited, (the “Parent”) and BSL Acquisition
Corporation, a wholly-owned subsidiary of the Parent (the “Purchaser”). In
connection with the merger pursuant to the terms and conditions of the Merger
Agreement (the “Merger”), the Company will repay, contemporaneously with the
closing of the Merger, all amounts due under the Note Documents, including,
without limitation, all principal, interest, deferred amounts, accrued expenses
and Make-Whole Amount as set forth herein. The Company, the Purchaser and the
Parent acknowledge and agree that under the terms of the Merger Agreement, the
Company is permitted with the Parent’s consent (and after April 29, 2004 the
Parent can not unreasonably withhold or delay such consent) to agree to
modifications to obligations to the Noteholders (to the extent the Noteholders
in their sole and absolute discretion agree) without causing a breach under the
Merger Agreement.


     Make-Whole Amount. Subject to satisfaction of the conditions precedent
and conditions subsequent set forth herein, the Make-Whole Amount due under the
Note Agreements shall be calculated based upon an interest rate of (i) 6.82%
with respect to the 1998 Notes and (ii) 8.12% with respect to the 2001 Notes
(and no Make-Whole Amount shall be due in respect of the 1994 Notes).


 






 


     Pay-Off Amount as of the Computation Date. The pay-off figures for the
Company due as of the Closing Date, as defined in the Merger Agreement (herein
referred to as the “Computation Date”) are as follows (collectively, together
with any additional interest accruing, or legal fees and expenses incurred,
after the Computation Date, the “Pay-Off Amount”):



	 	 	 	 	 
	1994 Notes: Principal	 	 	
$5,000,001	 
	 	 	 	 	 
	1994 Notes: Accrued Interest at the
rate of 11.52%	 	 	
To be calculated on Computation
Date in accordance with the terms
of the Note Documents	 
	 	 	 	 	 
	1998 Notes: Principal	 	 	
$35,000,000	 
	 	 	 	 	 
	1998 Notes: Accrued Interest at the
rate of 8.07%	 	 	
To be calculated on Computation
Date in accordance with the terms
of the Note Documents	 
	 	 	 	 	 
	1998 Notes: Accrued Interest on
Deferred Amortization Payment due on
3/20/04 at the rate of 10.07%	 	 	
To be calculated on Computation
Date in accordance with the terms
of the Note Documents	 
	 	 	 	 	 
	2001 Notes: Principal	 	 	
$50,000,000	 
	 	 	 	 	 
	2001 Notes: Accrued Interest at the
rate of 9.37%	 	 	
To be calculated on Computation
Date in accordance with the terms
of the Note Documents	 
	 	 	 	 	 
	Make-Whole Amounts	 	 	
To be calculated on the Computation
Date in accordance with the terms
of the Note Documents	 
	 	 	 	 	 
	Deferred Amounts, pursuant to the
Noteholder Amendment Agreement	 	 	
$3,992,750	 
	 	 	 	 	 
	Accrued Interest on Deferred Amounts
at the rates of 11.52% for 1994
Notes, 10.07% for 1998 Notes, and
11.37% for 2001 Notes	 	 	
To be calculated on Computation
Date in accordance with the terms
of the Note Documents	 
	 	 	 	 	 
	Noteholders’ Professionals and Other
Fees and Expenses	 	 	
To be calculated on Computation
Date in accordance with the terms
of the Note Documents	 



     Reaffirmation of Obligations. The Pay-Off Amount set forth above is
without prejudice to, and the Company expressly reaffirms its obligations to
pay when and if due, any obligations owed that are not expressly stated in the
Pay-Off Amount above (and the Pay-Off Amount is deemed to include any such
other outstanding amounts, including, without limitation, in respect of overdue
amounts, accruing at the rate of 2.00% in addition to rates otherwise payable).


     Restriction on Computation Date. Under no circumstances shall the
Computation Date be a date later than August 1, 2004. For the avoidance of
doubt, if the Pay-Off Amount is not paid on or prior to 2:00 PM (New York


 






 


time) on August 1, 2004, all rights and remedies of the Noteholders are
reserved under the Note Documents and all applicable law, including, without
limitation, the ability to assert that the amount due and owing is greater than
the Pay-Off Amount calculated herein.


     Interest, Etc. Accruing after the Computation Date. From and after the
Computation Date and until the Pay-Off Date (as defined below), interest shall
continue to accrue on the Pay-Off Amount calculated as of the Computation Date
at the Default Rates set forth in the Note Documents. The Company further
agrees to pay any and all reasonable fees and expenses, if any, incurred by
Noteholders’ Professionals (as defined in the Noteholder Amendment Agreement)
in connection with this letter agreement and the Note Documents and the
enforcement or termination of the Note Documents, including those amounts which
are billed after the Computation Date; such obligations of payment are in
addition to any of the Company’s obligations in respect of the Note Documents.
In addition, nothing contained in this letter shall terminate or otherwise
impair any expense reimbursement, indemnification or other provisions of the
Note Documents.


     Discharge of Obligations on the Payment Date. Each of the Noteholders
acknowledge and agree that, upon the Noteholders receipt of payment in full in
cash of the Pay-Off Amount, including any additional interest accruing and
additional fees and expenses incurred after the Computation Date, subject to
the conditions precedent indicated below, on or prior to 2:00 p.m. (New York
time) on the date of payment (the time of the Noteholders’ receipt of such
payment being hereinafter referred to as the “Pay-Off Date”) all indebtedness
and obligations of the Company to the Noteholders under or in respect of the
Note Documents shall be deemed to be and shall be paid and discharged in full,
except as expressly set forth herein.


     Conditions Precedent and Subsequent. Noteholders agree to accept the
Pay-Off Amount subject to each of the following conditions having been
satisfied: (i) the Pay-Off Amount is received by each of the Noteholders in
full in cash contemporaneously with the closing of the Merger on or before
August 1, 2004, (ii) the Merger has been consummated, and (iii)
contemporaneously with payment of the Pay-Off Amount, (A) the Company shall
deliver a release to the Noteholders and the Noteholders’ Professionals,
substantially in the form as delivered in that certain letter agreement to the
Noteholder Amendment Agreement by and between the Company and the Noteholders,
dated December 30, 2003, and (B) the Parent shall deliver a release to the
Noteholders and the Noteholders’ Professionals on terms reasonably acceptable
to the Noteholders.


 






 


     Change of Control Termination Payments. Each of the five executives who
are entitled to receive the Change of Control Termination Payments (as defined
in the Merger Agreement) (collectively, the “Management Group”) hereby agree
(and have signed this letter agreement below to reflect such agreement) that
(i) they will promptly return to the Company all of the Change of Control
Termination Payments if immediately after their receipt of the Change of
Control Termination Payments (x) the Merger is not consummated and (y) the
Pay-Off Amount is not paid in full in cash to the Noteholders contemporaneously
with the closing of the Merger and (ii) pending consummation of the Merger and
such payment to the Noteholders, the Management Group will not use such funds
for any purpose.


     Obligations to Noteholders. Other than as has been disclosed to the
Noteholders, none of the Company, the Parent or the Purchaser have executed
and/or delivered, and none shall execute and/or deliver, any agreement, letter,
instrument or other document with respect to such parties’ treatment of any of
the indebtedness and/or obligations that the Company owes to each of the
Noteholders.


     Parent Obligations. If the Merger is consummated on or prior to 2:00
p.m. (New York time) on August 1, 2004, the Parent agrees to cause the Company
to take all actions contemplated herein. The Company, the Management Group and
the Parent further acknowledge and agree that (i) until all conditions of the
Merger have been satisfied or waived, no Change of Control Termination Payments
will be paid and (ii) until the termination of the Merger Agreement, except in
respect of Change of Control Termination Payments, no payments are now or will
in the future be due and no payments will be paid, to the Management Group,
other than existing salary and benefit contributions, prior to the payment of
the Pay-Off Amount in full in cash.


     Reservations. Each of the Company, the Parent and the Purchaser
acknowledges and agrees that except as expressly set forth herein, all of the
rights and remedies of the Noteholders are reserved under the Note Documents
and all applicable law, including, without limitation, acceleration of all
indebtedness and obligations under the Note Documents. Each of the Company,
the Parent and the Purchaser further acknowledges and agrees that the
obligations and liabilities under the Note Documents, and the rights and
remedies of the Noteholders under the Note Documents and applicable law, shall
be reinstated with full force and effect, if at any time on or after the
Pay-Off Date, all or any portion of the Pay-Off Amount paid to the Noteholders
is voided or rescinded or must otherwise be returned by any of the Noteholders
to the Company, the Parent or the Purchaser upon the


 






 


Company’s, the Parent’s or Purchaser’s insolvency, bankruptcy or
reorganization or otherwise, all as though such payment had not been made.


     Governing Law. This letter shall be governed by the laws of the State of
New York (without reference to conflict of laws).


     Counterpart Signature Pages. This agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same
instrument. Facsimile signatures shall be deemed to constitute original
signatures and shall be admissible into evidence for all purposes.


[THE FOLLOWING PAGES ARE SIGNATURE PAGES.]



 






 






	 	 	 
	 	 	
Very truly yours,
	 	 	 
	 	 	
BUTLER MANUFACTURING
COMPANY
	 	 	 
	 	 	
By: /s/ John J. Holland
	 	 	 
	 	 	
Title: Chairman



 






 



Acknowledged and agreed to

by each Subsidiary Guarantor:



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


 






 



The foregoing is hereby agreed

to as of the date thereof


BSL ACQUISITION CORPORATION


By /s/ Brian Kruger

Name: Brian Kruger

Title: Director


 






 



BLUESCOPE STEEL LIMITED


By /s/ Kirby C. Adams

Name: Kirby C. Adams

Title: Managing Director


 






 



ALLSTATE LIFE INSURANCE COMPANY


By /s/ illegible

Name: illegible

Title: Authorized Signatory


By /s/ Robert B. Bodett

Name: Robert B. Bodett

Title:Authorized Signatory


BUSINESS MEN’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


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:	 	
Principal Global Investors, LLC

a Delaware limited liability company,

its authorized signatory



By /s/ Jon C. Heiny

Name: Jon C. Heiny

Title: Counsel



By /s/ Joellen J. Watts

Name: Joellen J. Watts

Title: Counsel


Mellon Bank, N.A., 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


 






 



The foregoing is hereby agreed

to as of the date thereof


JOHN HOLLAND


/s/ John Holland


RONALD RUTLEDGE


/s/ Ronald Rutledge


JOHN HUEY


/s/ John Huey


LARRY MILLER


/s/ Larry Miller


BARBARA BRIDGER


/s/ Barbara Bridger