1st Amendment to the June 20, 2001 Note Agreement



 



EXHIBIT 4.4.1



First Amendment

To The June 20,2001

Note Agreement

Dated February 28, 2003


BUTLER MANUFACTURING COMPANY



FIRST AMENDMENT

TO NOTE PURCHASE AGREEMENT



$50,000,000 Principal Amount

7.87% Senior Notes

Due December 30, 2016


Dated as of February 28, 2003



To Each of the Holders of Senior Notes
    of
Butler Manufacturing Company
    Named
in the Attached Schedule I


Ladies and Gentlemen:


     Reference is made to the Note Purchase Agreement dated as of June 20, 2001
among Butler Manufacturing Company (the “Company”) and each of the Purchasers
named in Schedule A thereto (as amended, the “Note Agreement”), pursuant to
which the Company issued $50,000,000 principal amount of its 7.87% Senior Notes
due December 30, 2016 (the “Notes”). You are referred to herein individually
as a “Holder” and collectively as the “Holders.” Capitalized terms used and
not otherwise defined herein shall have the meanings ascribed to them in the
Note Agreement.


     The Company has requested the modification of certain of the covenants and
other provisions contained in the Note Agreement. In addition, the Company has
recently entered into a Second Amendment to its Credit Agreement with the Banks
pursuant to which it has agreed that, among other things, the obligations to
the Banks under the Credit Agreement will be secured pursuant to certain
security documents. Concurrently with the execution of this First Amendment,
the Company is entering into a First Amendment to its Note Agreement dated as
of June 1, 1994 with the noteholders


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party thereto (the “1994 Amendment”) and a First Amendment to its Note Purchase
Agreement dated as of March 1, 1998 with the noteholders party thereto (“1998
Amendment”).


     The Holders are willing to grant an amendment on the terms and conditions
set forth in this First Amendment.


     In consideration of the premises and for good and valuable consideration,
the receipt and sufficiency of which are acknowledged, the Company and the
Holders agree as follows:


SECTION 9. AMENDMENTS



     9.1. Amendment of Section 1. Section 1 is amended to include the
following final sentence:



		
	 	“The Notes will be secured until the Collateral Release Date
pursuant to the Security Documents by a Lien on the Collateral in
favor of the Collateral Agent appointed by the holders of the
Notes, the holders of the Other Notes and the Banks under the
Intercreditor Agreement.”



     9.2. Amendment of Section 7.1. Section 7.1 is amended by redesignating
Section 7.1(h) as Section 7.1(i) and by adding a new Section 7.1(h) to read in
its entirety as follows:



		
	 	     "(h) Collateral and Other Reports and Information — copies
of all reports concerning the Collateral and any other reports or
information (including compliance reports) related to the
Company’s compliance under the Credit Agreement that are provided
to the Banks, concurrently with their delivery to the Banks; and"



     9.3. Amendment of Section 7.2. The reference in Section 7.2(a) to
“Section 10.13” is amended to read “Section 10.16.”


     9.4. Amendment of Section 8.3. Section 8.3 is amended to read in its
entirety as follows:


     "8.3. Change of Control.



		
	 	     In the event of a Change of Control Event, the Company, upon
notice as provided below, shall offer to prepay the entire
principal amount outstanding of the Notes at 100% of the principal
amount thereof, plus the Make-Whole Amount determined for the
prepayment date with respect to such principal amount. The
Company shall give notice of any offer to prepay the Notes to each
holder of the Notes within three Business Days after any executive
officer has knowledge that a Change of Control Event is likely to
occur and in any event not later than the date of such Change



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	 	of Control Event. Such notice shall be certified by the principal
accounting officer or principal financial officer and shall
specify (i) the nature of the Change of Control Event, (ii) the
date fixed for prepayment, which shall not be later than 30
calendar days following the Change of Control Event, (iii) the
estimated date of the Change of Control Event, if it has not
occurred, (iv) the accrued and unpaid interest applicable to the
prepayment, (v) the estimated Make-Whole Amount due in connection
with such prepayment (calculated as if the date of such notice
were the date of prepayment), setting forth the details of such
computation, and (vi) the date by which any holder of a Note that
wishes to accept such offer must deliver notice thereof to the
Company, which shall not be later than 10 calendar days prior to
the date fixed for prepayment. Not earlier than seven calendar
days prior to the date fixed for prepayment, the Company shall
give written notice to each holder of the Notes of those holders
who have given notices of acceptance of the Company’s offer, and
the principal amount of Notes held by each, and thereafter any
holder may change its response to the Company’s offer by written
notice to such effect delivered to the Company not less than three
calendar days prior to the date fixed for prepayment. Upon
receipt by the Company of any non-revoked notice of acceptance
from any holder within the required time period, the aggregate
principal amount of Notes held by such holder shall become due and
payable on the prepayment date. Failure of a holder to respond to
a notice shall be deemed to be a rejection by such holder of the
offer to prepay.”



     9.5. Addition of Section 9.6. New Section 9.6 is added to read as follows:


     "9.6. Engagement of Financial Advisor.



		
	 	     If requested by the holders of the Notes at any time when any
other holder of Indebtedness has a similar right and without
limiting the Company’s obligations under Section 15, the Company
covenants and agrees that it shall, and shall cause each of its
Subsidiaries to, (i) cooperate in all reasonable respects and (ii)
reimburse the holders of the Notes for any reasonable fees, costs
or expenses incurred, in connection with a financial advisor
engaged by special counsel to such holders on their behalf,
including, but not limited to, the Company granting the financial
advisor reasonable access to its facilities, files, records and
reports and providing reasonable access to its officers and
directors until the engagement has been completed, as the scope of
such engagement may be amended from time to time in the discretion
of the holders of the Notes. If acceptable to the holders of
other Indebtedness, including the holders of the Other Notes, the
holders of the Notes agree that one financial advisor may be
engaged on behalf of all holders of Indebtedness.”



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     9.6. Addition of Section 9.7. New Section 9.7 shall be added to read as follows:


     "9.7 Interest.



		
	 	     In consideration of the holders of the Notes entering into
the First Amendment, the Company will pay:




		
	 	     (i) additional interest equal to 0.50% of the
outstanding principal amount of the Notes per annum
(computed on the basis of a 360-day year comprised of twelve
30-day months), payable semi-annually on the interest
payment dates set forth in the Notes, commencing on the
effective date of the First Amendment and ending at such
time as the Banks and the holders of the Notes have equal
and ratable priority in any Collateral;




		
	 	     (ii) additional interest equal to 0.75% of the
outstanding principal amount of the Notes per annum
(computed on the basis of a 360-day year comprised of twelve
30-day months), payable semi-annually on the interest
payment dates set forth in the Notes, commencing on the
effective date of the First Amendment and ending on the
later of (1) such time as the Banks and the holders of the
Notes have equal and ratable priority in any Collateral, and
(2) such time as the ratio referred to in Section 10.5 has
been at least 2.25 times for the period of four fiscal
quarters ending on the last day of each of two consecutive
fiscal quarters; and




		
	 	     (iii) additional interest equal to 0.25% of the
outstanding principal amount of the Notes per annum
(computed on the basis of a 360-day year comprised of twelve
30-day months), payable semi-annually on the interest
payment dates set forth in the Notes, commencing on the
effective date of the First Amendment.




		
	 	Solely for purposes of the calculation pursuant to clause (ii)(2),
the additional interest referred to in clause (i) (to the extent
otherwise included) shall be excluded for all periods covered by
such calculation. Any Notes issued after the effective date of
the First Amendment will be substantially in the form set out in
Exhibit 1(a) as amended by such First Amendment, which form will
reflect the additional interest described in clause (iii) of this
Section. For purposes of this Agreement, including Section 11(b),
the amounts due under this Section 9.7 shall be deemed to be
interest on the Notes.”



     9.7. Amendment of Section 10.1. Section 10.1 is amended to read in its
entirety as follows:


     "10.1. Net Worth.



		
	 	     The Company will not permit at any time its Adjusted
Consolidated Tangible Net Worth to be less than $110,000,000 plus
the



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	 	cumulative sum of 50% of Consolidated Net Income (but only if a
positive number) for each fiscal quarter ending after December 31,
2002.”



     9.8. Amendment of Section 10.2. Section 10.2 is amended to read in its
entirety as follows:


     "10.2. Consolidated Indebtedness.



		
	 	     The Company will not permit at any time Consolidated
Indebtedness to exceed:




		
	 	     (i)50% of Consolidated Total Capitalization as of the
then most recently ended fiscal quarter until the later of
(1) such time as the Banks and the holders of the Notes have
equal and ratable priority in any Collateral and (2) such
time as the ratio referred to in Section 10.5 has been at
least 2.25 times for the period of four fiscal quarters
ending on the last day of each of two consecutive fiscal
quarters; and




		
	 	     (ii)55% of Consolidated Total Capitalization as of the
then most recently ended fiscal quarter thereafter.”



     9.9. Amendment of Section 10.3. Section 10.3 is amended to read in its
entirety as follows:


     "10.3. Reserved.”


     9.10. Amendment of Section 10.4. Section 10.4 is amended to read in its
entirety as follows:


     "10.4. Indebtedness of Subsidiaries.



		
	 	     The Company will not permit at any time Indebtedness of
Restricted Subsidiaries (other than (i) Non-Recourse Debt, and
(ii) Indebtedness to the Company or another Restricted Subsidiary)
to exceed 5% of Adjusted Consolidated Tangible Net Worth.”



     9.11. Amendment of Section 10.5. Section 10.5 is amended to read in its
entirety as follows:


     "10.5. Fixed Charge Coverage.



		
	 	     The Company will not permit the ratio (calculated as of the
end of each fiscal quarter) of Consolidated Income Available for
Fixed Charges to Fixed Charges for the period of four fiscal
quarters ending as of the last day of each fiscal quarter to be
less than:



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	 	     (i)1.0 to 1.0 for the period of four fiscal quarters
ending March 31, 2003 and June 30, 2003;




		
	 	     (ii)1.25 to 1.0 for the period of four fiscal quarters
ending September 30, 2003, December 31, 2003, March 31, 2004
and June 30, 2004;




		
	 	     (iii)1.5 to 1.0 for the period of four fiscal quarters
ending September 30, 2004 and December 31, 2004;




		
	 	     (iv)1.75 to 1.0 for the period of four fiscal quarters
ending March 31, 2005;




		
	 	     (v)2.0 to 1.0 for the period of four fiscal quarters
ending June 30, 2005 and thereafter.”



     9.12. Amendment of Section 10.6.



		
	 	     9.12.1. Clause (g) of Section 10.6 is amended to read in its entirety as
follows:




		
	 	     "(g) Liens granted in connection with Non-Recourse
Debt.”




		
	 	     9.12.2. Clause (h) of Section 10.6 is amended to read in its entirety as
follows:




		
	 	     "(h) Liens not otherwise permitted by paragraphs (a)
through (g), (i) and (j) incurred subsequent to the Closing
Date to secure Indebtedness; provided that the Indebtedness
of the Company and its Restricted Subsidiaries secured by
Liens incurred pursuant to this paragraph (h) does not
exceed 5% of Adjusted Consolidated Tangible Net Worth;”



              9.12.3. The period at the end of Section 10.6(i) is replaced with “; and”
and the following new Section 10.6(j) is added:



		
	 	     "(j) Liens in favor of the Collateral Agent under the
Security Documents for the benefit of the holders of the
Notes, the Other Notes and the Banks. Notwithstanding
anything contained herein to the contrary, the Company will
not permit to exist, create, assume or incur, directly or
indirectly, any Lien in favor of the Banks other than as
contemplated by this paragraph (j).”



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     9.13. Amendment of Section 10.7. The period at the end of clause (a)(i)
of Section 10.7 is replaced with “; and” and clause (a)(ii) is amended to read
in its entirety as follows:



		
	 	     "(ii) Reserved.”



     9.14. Amendment of Section 10.10. Section 10.10 is amended to read in its
entirety as follows:


     "10.10. Designation of Unrestricted and Restricted Subsidiaries.



		
	 	     The Company may designate any Restricted Subsidiary as an
Unrestricted Subsidiary and any Unrestricted Subsidiary as a
Restricted Subsidiary; provided that,




		
	 	     (a) the Company may not designate a Restricted
Subsidiary as an Unrestricted Subsidiary unless: (i) such
Restricted Subsidiary does not own, directly or indirectly,
any Indebtedness or capital stock of the Company or any
other Restricted Subsidiary, (ii) such designation,
considered as a sale of assets, is permitted pursuant to
Section 10.8(c)(ii) and (c)(iii) and Section 10.9, and (iii)
immediately before and after such designation there exists
no Default or Event of Default; and




		
	 	     (b) each Subsidiary Guarantor must be designated a
Restricted Subsidiary.”



     9.15.Addition of Section 10.14. New Section 10.14 is added to read as follows:


     "10.14. Restricted Payments.



		
	 	     The Company will not, except as hereinafter provided:




		
	 	     (a) declare or pay any dividends, either in cash or
property, on any shares of its capital stock of any class
(except dividends or other distributions payable solely in
shares of common stock of the Company);




		
	 	     (b) directly or indirectly, or through any Subsidiary,
purchase, redeem or retire any shares of its capital stock
of any class or any warrants, rights or options to purchase
or acquire any shares of its capital stock; or




		
	 	     (c) make any other payment or distribution, directly or
indirectly, or through any Subsidiary, in respect of its
capital stock;



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	 	(all such declarations, payments, purchases, redemptions,
retirements and distributions described in clauses (a) through (c)
being herein collectively referred to as “Restricted Payments”)
if, after giving effect thereto, (i) the aggregate amount of
Restricted Payments made after March 31, 2003 to and including the
date of the making of the Restricted Payment in question would
exceed the sum of (A) $10,000,000, plus (B) 75% of Consolidated
Net Income (or less 100% of any deficit) for each fiscal quarter
(or portion thereof) of the Company subsequent to March 31, 2003,
plus (C) the net cash proceeds received by the Company after March
31, 2003 from the sale of shares of any class of its common or
nonredeemable preferred stock and (ii) no Default or Event of
Default exists or would exist. Notwithstanding anything contained
in this Section 10.14 to the contrary, the Company will not make
any Restricted Payments from the date of this First Amendment
through and including March 31, 2003.”



     9.16. Addition of Section 10.15. New Section 10.15 is added to read as
follows:


     "10.15. Letters of Credit.



		
	 	     The Company will not permit to be outstanding at any time in
excess of $30,000,000 aggregate face amount of letters of credit
as to which it or any Restricted Subsidiary has any reimbursement
obligation, contingent or otherwise, that obligates it or such
Restricted Subsidiary to provide cash collateral for such
obligation.”



     9.17. Addition of Section 10.16. New Section 10.16 is added to read as
follows:


     "10.16. Most Favored Nation.



		
	 	     On the effective date of the First Amendment, any financial
covenant (together with any defined terms and schedules related
thereto) imposed under the Credit Agreement is incorporated into
this Agreement and shall apply as if fully set forth herein.




		
	 	     If, after the effective date of the First Amendment, the
Banks or any other holder of Indebtedness of the Company impose
any additional or more restrictive covenant (including by
amendment of an existing covenant, by waiver or consent or
otherwise) of the type contained in Article 7 of the Credit
Agreement (as such Credit Agreement exists on the date of the
First Amendment), or the Company grants to any Bank or other
holder of Indebtedness any new covenant of the type contained in
Article 7 of the Credit Agreement (as such Credit Agreement exists
on the date of the First Amendment) more favorable to such Bank or
holder than is contained in the Note Agreement, the Company shall
promptly notify, and furnish a copy thereof to, each holder of the
Notes, and the Note Agreement shall be deemed to be amended
automatically to incorporate such additional, more



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	 	restrictive or more favorable financial covenant (together with
any defined terms and schedules related thereto).”




		
	 	     9.18. Amendment of Section 11.



                    9.18.1. Section 11(c) is amended to read in its entirety as follows:



		
	 	     "(c) the Company defaults in the performance of or compliance
with (i) any term contained in Section 7.1(e), (ii) Sections 10.1
through 10.15, or (iii) any covenant incorporated by reference
pursuant to Section 10.16 or any term contained in any Security
Document and such default continues beyond any period of grace
provided therein.”



                    9.18.2. Section 11(e) is amended to read in its entirety as follows:



		
	 	     "(e) any representation or warranty made in writing by or on
behalf of the Company, any Subsidiary or by any officer of thereof
in this Agreement or any Security Document, or in any writing
furnished in connection with the transactions contemplated hereby
proves to have been false or incorrect in any material respect on
the date as of which made; or"



                    9.18.3. Section 11(f) is amended to read in its entirety as follows:



		
	 	     "(f) (i) the Company or any Restricted Subsidiary is in
default (as principal or as guarantor or other surety) in the
payment of any principal of or premium or make-whole amount or
interest on any Indebtedness that is outstanding in an aggregate
principal amount of at least $5,000,000 beyond any period of grace
provided with respect thereto, or (ii) the Company or any
Restricted Subsidiary is in default in the performance of or
compliance with any term of any evidence of any Indebtedness in an
aggregate outstanding principal amount of at least $5,000,000 or
of any mortgage, indenture or other agreement relating thereto or
any other condition exists, and as a consequence of such default
or condition such Indebtedness has become, or has been declared
(or one or more Persons are entitled to declare such Indebtedness
to be), due and payable before its stated maturity or before its
regularly scheduled dates of payment, or (iii) as a consequence of
the occurrence or continuation of any event or condition (other
than the passage of time or the right of the holder of
Indebtedness to convert such Indebtedness into equity interests),
(x) the Company or any Restricted Subsidiary has become obligated
to purchase or repay Indebtedness before its regular maturity or
before its regularly scheduled dates of payment in an aggregate
outstanding principal amount of at least $5,000,000, or (y) one or
more Persons have the right to require the Company or any
Restricted Subsidiary so to purchase or repay such Indebtedness;
or;”



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                    9.18.4. The period at the end of Section 11(k) is replaced with a
semicolon followed by the word “or” and new Section 11(l) is added as follows:



		
	 	     "(l) a default or event of default occurs under any of the
Security Documents and such default or event of default continues
beyond any period of grace with respect thereto or any of the
Security Documents are deemed or are judicially determined not to
be valid, binding or enforceable.”



     9.19. Amendment of Section 15. Section 15 is amended to read in its
entirety as follows:


     “15. Transaction Expenses.



		
	 	     Whether or not the transactions contemplated hereby are
consummated, the Company will pay all costs and expenses
(including reasonable attorneys’ fees of a special counsel and, if
reasonably required, local or other counsel) incurred by you and
each Other Purchaser or holder of a Note in connection with such
transactions and in connection with any amendments, waivers or
consents under or in respect of this Agreement, the Subsidiary
Guaranty, the Notes or any Security Document (whether or not such
amendment, waiver or consent becomes effective), including,
without limitation: (a) the costs and expenses incurred in
enforcing or defending (or determining whether or how to enforce
or defend) any rights under this Agreement, the Subsidiary
Guaranty, the Notes or any Security Document or in responding to
any subpoena or other legal process or informal investigative
demand issued in connection with this Agreement, the Subsidiary
Guaranty, the Notes or any Security Document, or by reason of
being a holder of any Note, and (b) the costs and expenses,
including financial advisors’ fees, incurred in connection with
the insolvency or bankruptcy of the Company or any Subsidiary or
in connection with any work-out or restructuring of the
transactions contemplated hereby and by the Notes. The Company
will pay, and will save you and each other holder of a Note
harmless from, all claims in respect of any fees, costs or
expenses if any, of brokers and finders (other than those retained
by you).”



     9.20. Amendment of Schedule B.


            9.20.1. Schedule B is amended to include the following defined terms:



		
	 	     “Adjusted Consolidated Tangible Net Worth” means, as of any
date, consolidated stockholders’ equity of the Company and its
Restricted Subsidiaries on such date, determined in accordance
with GAAP, less the sum or all goodwill, trademarks, trade names,
service marks, brand names, copyrights, patents and unamortized
debt discount and expense,



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	 	and other similar intangibles properly classified as such in
accordance with GAAP, less the amount by which outstanding
Restricted Investments on such date exceed 5% of consolidated
stockholders’ equity of the Company and its Restricted
Subsidiaries.”




		
	 	     “Banks” means the institutions that are now or hereafter
become party to the Credit Agreement in their capacity as a lender
or agent thereunder.




		
	 	     “Collateral” has the meaning given thereto in the Security
Documents.




		
	 	     “Collateral Agent” means Bank of America, N.A. and its
successors and assigns.




		
	 	     “Collateral Release Date” means the earlier to occur of (i)
the date the Liens against the Collateral are released in
accordance with the Intercreditor Agreement and (ii) the date the
Liens against the Collateral are released under the Security
Documents, whether as provided in the Security Documents, by
operation of law or otherwise.




		
	 	     “First Amendment” means the First Amendment to Note Purchase
Agreement dated as of February 28, 2003 between the Company and
each other institution named in the signature pages thereto.




		
	 	     “Intercreditor Agreement” means that certain Intercreditor
and Collateral Agency Agreement dated February 28, 2003 among the
Collateral Agent, the Banks, the holders of the Notes and the
holders of the Other Notes, as the same may be amended, modified
or restated from time to time.




		
	 	     “Non-Recourse Debt” means non-recourse Indebtedness secured
by Liens granted on real estate, the improvements thereon and
related property purchased or held for development and sale,
including any completed project until its sale to a customer, not
to exceed $35,000,000 in aggregate amount outstanding at any time
and in which the Company or its Restricted Subsidiaries do not
invest at any time more than 45% of the purchase and development
costs of such real estate, improvements and related property. For
purposes of this definition, “related property” for a particular
real estate project includes: leases, rents, profits and security
deposits for the project; books and records for the project;
condemnation rights, insurance payments (including deductible
amounts) and proceeds related thereto; permits, licenses,
certificates of occupancy and other governmental authorizations
for the project; franchise, management, service, governmental
(including tax incentive) and other agreements related to the
project; trademarks and trade names for the project;



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	 	construction contracts, architect’s and engineer’s agreements,
plans, specifications, drawings, surveys, models, sample materials
and other items for the construction, fixturing, renovation or
improvement of the project; and deposit accounts used exclusively
for the project.




		
	 	     “Other Note Agreements” means the Note Agreement dated as of
June 1, 1994 among the Company and the institutions named therein
and the Note Agreement dated as of March 1, 1998 among the Company
and the institutions named therein.




		
	 	     “Other Notes” means the 8.02% Senior Notes due December 30,
2003 issued by the Company pursuant to the Note Agreement dated as
of June 1, 1994 and the 6.57% Senior Notes due March 20, 2013
issued by the Company pursuant to the Note Agreement dated as of
March 1, 1998.




		
	 	     “Restricted Payments” is defined in Section 10.14.




		
	 	     “Security Documents” means the mortgages, deeds of trust,
security agreements, financing statements and any other agreements
or documents entered into by the Company or any Subsidiary
creating Liens securing the Notes and other obligations payable by
the Company or any Subsidiary pursuant to this Agreement, as the
same may be amended from time to time in accordance with the
Intercreditor Agreement.



            9.20.2. The following definition is amended to read in its entirety as
follows:



		
	 	     “Material Adverse Effect” means a material adverse effect on
(a) the business, operations, affairs, financial condition, assets
or properties of the Company and its Restricted Subsidiaries taken
as a whole, or (b) the ability of the Company to perform its
obligations under this Agreement, the Notes or any Security
Document, or (c) the ability of any Subsidiary Guarantor to
perform its obligations under the Subsidiary Guaranty or any
Security Document, or (d) the validity or enforceability of this
Agreement, the Notes, the Subsidiary Guaranty, any Security
Document or the Liens created by the Security Documents.



            9.20.3. Schedule B is amended to delete the definitions of “Adjusted
Consolidated Net Worth”, “Funded Debt”, and “Short-Term Debt”.


     9.21. Amendment of Exhibit 1(a). Exhibit 1(a) to the Note Agreement is
amended in the form attached as Exhibit 1(a) to this First Amendment.


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SECTION 10. REAFFIRMATION; REPRESENTATIONS AND WARRANTIES



     10.1. Reaffirmation of Note Agreement. The Company reaffirms its agreement
to comply with each of the covenants, agreements and other provisions of the
Note Agreement and the Notes, including the additions and amendments of such
provisions effected by this First Amendment.


     10.2. Note Agreement. The Company represents and warrants that, subject to
the effectiveness of this First Amendment, the representations and warranties
contained in the Note Agreement are true and correct as of the date hereof,
except for such changes, facts, transactions and occurrences that have arisen
since June 27, 2001 in the ordinary course of business or as contemplated by
this First Amendment and such other matters as have been previously disclosed
in writing by the Company to the Holders, and except that any representation
made in the Note Agreement that specifies a certain date is only affirmed to be
true and correct as of such date.


     10.3. No Default or Event of Default. The Company represents and warrants
that, after giving effect to the transactions contemplated hereby, there will
exist no Default or Event of Default.


     10.4. Authorization. The Company represents and warrants that:


               10.4.1. Company. The execution, delivery and performance by the Company of
this First Amendment and each Security Document to which it is a party have
been duly authorized by all necessary corporate or other action and, except as
provided herein, do not and will not require any registration with, consent or
approval of, notice to or action by, any Person (including any Governmental
Authority) in order to be effective and enforceable. The Note Agreement, this
First Amendment and such Security Documents each constitute the legal, valid
and binding obligations of the Company, enforceable against it in accordance
with its respective terms, except as such enforceability may be limited by (i)
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws affecting the enforcement of creditors’ rights
generally and (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).


               10.4.2. Subsidiaries. The execution, delivery and performance by each
Subsidiary of each Security Document to which it is a party have been duly
authorized by all necessary corporate or other action and, except as provided
herein, do not and will not require any registration with, consent or approval
of, notice to or action by, any Person (including any Governmental Authority)
in order to be effective and enforceable. Such Security Documents each
constitute the legal, valid and binding obligations of such Subsidiary,
enforceable in accordance with their respective terms, except as such
enforceability may be limited by (i) applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws
affecting the enforcement of creditors’ rights generally and (ii) general
principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).


     10.5. Compliance with Laws, Other Instruments, etc. The Company represents
and warrants that:


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               10.5.1. Company. The execution, delivery and performance by the Company of
this First Amendment and each Security Document to which it is a party will
not, except as contemplated herein, (i) contravene, result in any breach of, or
constitute a default under, or result in the creation of any Lien in respect of
any property of the Company or any Subsidiary under, any indenture, mortgage,
deed of trust, loan, purchase or credit agreement, lease, corporate charter or
by-laws, or any other agreement or instrument by which the Company or any
Subsidiary is bound or by which the Company or any Subsidiary or any of their
respective properties may be bound or affected, (ii) conflict with or result in
a breach of any of the terms, conditions or provisions of any order, judgment,
decree or ruling of any court, arbitrator or Governmental Authority applicable
to the Company or any Subsidiary or (iii) violate any provision of any statute
or other rule or regulation of any Governmental Authority applicable to the
Company or any Subsidiary.


               10.5.2. Subsidiaries. The execution, delivery and performance by each
Subsidiary of each Security Document to which it is a party will not, except as
contemplated herein, (i) contravene, result in any breach of, or constitute a
default under, or result in the creation of any Lien in respect of any property
of such Subsidiary under any indenture, mortgage, deed of trust, loan, purchase
or credit agreement, lease, corporate charter or by-laws, or any other
agreement or instrument by which such Subsidiary is bound or by which any of
its properties may be bound or affected, (ii) conflict with or result in a
breach of any of the terms, conditions or provisions of any order, judgment,
decree, or ruling of any court, arbitrator or Governmental Authority applicable
to such Subsidiary or (iii) violate any provision of any statute or other rule
or regulation of any Governmental Authority applicable to such Subsidiary.


SECTION 11. EFFECTIVE DATE



     This First Amendment shall become effective as of the date set forth above
upon satisfaction of the following conditions:


     11.1. Consent of Holders to First Amendment. The Holders of 100% of the
aggregate principal amount of the Notes outstanding shall have executed
counterparts of this First Amendment.


     11.2. Amendment of Other Note Agreements. The holders of the Other Notes
shall have entered into the 1994 Amendment and the 1998 Amendment, as
appropriate.


     11.3. Intercreditor Agreement. The Holders shall have entered into the
Intercreditor Agreement on terms satisfactory to them with the Banks, the
holders of the Other Notes, and the Collateral Agent.


     11.4. Security Interest. The Holders shall have received executed Security
Documents satisfactory to them that create perfected Liens on the Collateral as
provided therein and evidence of the perfection of such Liens.


     11.5. Amendment to Credit Agreement. The Holders shall have received a
copy of an executed Third Amendment to the Credit Agreement.


14






 


     11.6. Amendment Fee. Each Holder, whether or not such Holder executes this
First Amendment, shall have received payment of an amendment fee equal to 0.50%
of the principal amount of the outstanding Notes held by such Holder.


     11.7. Opinion of Company Counsel. The Holders shall have received an
opinion of counsel for the Company, in form and substance satisfactory to the
Holders and their special counsel, to the effect set forth in Sections 2.4 and
2.5.


     11.8. Expenses. The Company shall have paid the fees and expenses of
special counsel to the Holders.


SECTION 12. MISCELLANEOUS


     12.1. Ratification. Except to the extent amended, modified, deleted or
added to hereby, the terms and provisions of the Note Agreement, including the
representations and warranties contained therein, shall remain in full force
and effect and are ratified, confirmed, remade and approved in all respects as
of the date hereof.


     12.2. Reference to and Effect on the Note Agreement. Upon the final
effectiveness of this First Amendment, each reference in the Note Agreement and
in other documents describing or referencing the Note Agreement to the
“Agreement,” “Note Agreement,” “hereunder,” “hereof,” “herein,” or words of
like import referring to the Note Agreement, shall mean and be a reference to
the Note Agreement, as amended hereby.


     12.3. Actions in Respect of Future Collateral. The Company agrees to
provide such information, take such action, execute such Security Documents and
make such other filings as may be necessary to grant the Collateral Agent a
Lien on any property now or hereafter constituting Collateral for the equal and
ratable benefit of the holders of the Notes, the holders of the Other Notes and
the Banks.


     12.4. Binding Effect. This First Amendment shall be binding upon and inure
to the benefit of the respective successors and assigns of the parties hereto.


     12.5. Governing Law. This First Amendment shall be governed by and
construed in accordance with Illinois law.


     12.6. Counterparts. This First Amendment may be executed in any number of
counterparts, each executed counterpart constituting an original, but
altogether only one instrument.


     12.7. Exchange of Notes. It shall not be necessary for the Holders to
surrender their Notes in exchange for new Notes. However, upon any surrender
for exchange or transfer, Notes issued in exchange or in connection with a
transfer shall be in the form of the attached Exhibit 1(a).


     12.8. Notices to the Company. Pursuant to Section 18 of the Note
Agreement, the Company hereby designates the following address for the receipt
of all notices and communications provided in connection with the Note
Agreement:


15






 



	 	Butler Manufacturing Company

1540 Genessee

Kansas City, MO 64102

Attn: Chief Financial Officer

Telephone: (816) 968-3216

Facsimile: (816) 968-6504

Electronic: lcmiller@butlermfg.com



                                                                                        
                       With a copy to:



	 	Butler Manufacturing Company

1540 Genessee

Kansas City, MO 64102

Attn: General Counsel

Telephone: (816) 968-3214

Facsimile: (816) 968-3211

Electronic: jwhuey@butlermfg.com



16






 


     If you are in agreement with the foregoing, please sign the accompanying
counterpart of this First Amendment and return it to the Company, whereupon the
foregoing shall become a binding agreement between you and the Company upon
satisfaction of the conditions set forth in Section 3 of this First Amendment.



	 
	BUTLER MANUFACTURING COMPANY
	 
	By:     /s/ Larry C. Miller

Name:   Larry C. Miller

Title:  Vice President - Finance



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

Larry C. Miller

Vice President - Finance



S-1






 


The foregoing is hereby agreed

to as of the date thereof.


ALLSTATE LIFE INSURANCE COMPANY


By: /s/ Rhonda L. Hopps

Name: Rhonda L. Hopps


By: /s/ Jerry D. Zinkula

Name: Jerry D. Zinkula


     Authorized Signatories


METROPOLITAN LIFE INSURANCE COMPANY


By: /s/ Timothy L. Powell

Name: Timothy L. Powell

Title: Director


PRINCIPAL LIFE INSURANCE

        COMPANY, an Iowa corporation



	 	 	 
	By:	 	
Principal Global Investors, LLC

a Delaware limited liability company,

its authorized signatory
	 
	 	 	
By:   /s/ L.S. Valentine

Its:  Counsel
	 
	 	 	
By:   /s/ Stephen G. Skrivanek

Its:  Counsel



CGU LIFE INSURANCE COMPANY OF

        AMERICA, a Delaware corporation



	 	 	 
	By:	 	
Principal Global Investors, LLC, a

Delaware limited liability company,

its attorney in fact




	 	By: /s/ L.S. Valentine

Its: Counsel



S-2






 



	 	By: /s/ Stephen G. Skrivanek

Its: Counsel



JOHN HANCOCK LIFE INSURANCE

        COMPANY


By: /s/ Michael L. Short

Name: Michael L. Short

Title: Managing Director


JOHN HANCOCK VARIABLE LIFE

        INSURANCE COMPANY


By: /s/ Michael L. Short

Name: Michael L. Short

Title: Authorized Signatory


NATIONWIDE INDEMNITY COMPANY


By: /s/ Joseph P. Young

Name: Joseph P. Young

Title: Credit Officer


     Fixed Income Securities


NATIONWIDE MUTUAL FIRE

        INSURANCE COMPANY


By: /s/ Joseph P. Young

Name: Joseph P. Young

Title: Credit Officer


     Fixed Income Securities


NATIONWIDE LIFE INSURANCE

        COMPANY OF AMERICA


By: /s/ Joseph P. Young

Name: Joseph P. Young

Title: Credit Officer


     Fixed Income Securities


S-3






 


EXHIBIT 1(a)



[FORM OF NOTE]



BUTLER MANUFACTURING COMPANY


8.12% SENIOR NOTE

DUE DECEMBER 30, 2016



	 	 	 
	No.  [        ] 

$[                   ]	 	
[Date]

PPN



     FOR VALUE RECEIVED, the undersigned, BUTLER MANUFACTURING COMPANY (herein
called the “Company”), a corporation organized and existing under the laws of
the State of Delaware, promises to pay to [       ], or registered
assigns, the principal sum of [         ] DOLLARS on December 30,
2016 with interest (computed on the basis of a 360-day year of twelve 30-day
months) (a) on the unpaid balance thereof at the rate of 8.12% per annum from
the date hereof, payable semiannually, on the June 30 and December 30 in each
year, commencing with the June 30 or December 30 next succeeding the date
hereof, until the principal hereof shall have become due and payable, and (b)
to the extent permitted by law on any overdue payment (including any overdue
prepayment) of principal, any overdue payment of interest and any overdue
payment of any Make-Whole Amount (as defined in the Note Purchase Agreement
referred to below), payable semiannually as aforesaid (or, at the option of the
registered holder hereof, on demand), at a rate per annum from time to time
equal to the greater of (i) 10.12% or (ii) 2.0% over the rate of interest
publicly announced by Bank of America from time to time in Chicago, Illinois as
its “base” or “prime” rate.


     Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America in Chicago or at such other
place as the Company shall have designated by written notice to the holder of
this Note as provided in the Note Purchase Agreement referred to below.


     This Note is one of the Senior Notes (herein called the “Notes”) issued
pursuant to the Note Purchase Agreement, dated as of June 20, 2001 (as from
time to time amended, the “Note Purchase Agreement”), between the Company and
the respective Purchasers named therein and is entitled to the benefits
thereof. Each holder of this Note will be deemed, by its acceptance hereof,
(i) to have agreed to the confidentiality provisions set forth in Section 20 of
the Note Purchase Agreement and (ii) to have made


Exhibit 1(a)






 


the representations set forth in Section 6.2 and the second sentence of Section
6.1 of the Note Purchase Agreement.


     This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder’s attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.


     The Company will make required prepayments of principal on the dates and
in the amounts specified in the Note Purchase Agreement. This Note is also
subject to prepayment, in whole or from time to time in part, at the times and
on the terms specified in the Note Purchase Agreement, but not otherwise.


     If an Event of Default, as defined in the Note Purchase Agreement, occurs
and is continuing, the principal of this Note may be declared or otherwise
become due and payable in the manner, at the price (including any applicable
Make-Whole Amount) and with the effect provided in the Note Purchase Agreement.


     Payment of the principal of, and interest and Make-Whole Amount, if any,
on this Note, and all other amounts due under the Note Purchase Agreement, is
guaranteed pursuant to the terms of a Subsidiary Guaranty dated as of June 20,
2001 of certain Subsidiaries of the Company.*


     This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Illinois
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.



	 
	BUTLER MANUFACTURING

COMPANY
	 
	By:
	 
	 



Name:
	 
	 



Title:
	 
	 












	*	 	This paragraph must be removed at such time as there are no Subsidiary Guarantors.


2



Exhibit 1(a)






 





SCHEDULE I


Information as to Holders of Notes



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Percentage of
	 	 	 	 	 	 	 	 	 	 	Total
	 	 	Principal	 	Total Principal	 	Principal
	Note Holder	 	Amount of Note	 	Amount	 	Outstanding
	
	 	
	 	
	 	

	Allstate Life Insurance Company
	 	$	8,000,000	 	 	$	16,000,000	 	 	 	32.00	%
	 
	 	 	8,000,000	 	 	 	 	 	 	 	 	 
	Metropolitan Life Insurance Company	 	$	10,000,000	 	 	$	10,000,000	 	 	 	20.00	%
	Principal Life Insurance Company
	 	$	4,250,000	 	 	$	7,000,000	 	 	 	14.00	%
	
	 	 	1,000,000	 	 	 	 	 	 	 	 	 
	 
	 	 	1,000,000	 	 	 	 	 	 	 	 	 
	 
	 	 	750,000	 	 	 	 	 	 	 	 	 
	Commercial Union Life Insurance Company of America	 	$	1,000,000	 	 	$	1,000,000	 	 	 	2.00	%
	John Hancock Life Insurance Company	 	$	7,750,000	 	 	$	7,750,000	 	 	 	15.50	%
	John Hancock Variable Life Insurance Company	 	$	250,000	 	 	$	250,000	 	 	 	.50	%
	Nationwide Indemnity Company
	 	$	3,000,000	 	 	$	3,000,000	 	 	 	6.00	%
	Nationwide Mutual Fire Insurance Company	 	$	3,000,000	 	 	$	3,000,000	 	 	 	6.00	%
	Nationwide Life Insurance Company of America5
	 	$	2,000,000	 	 	$	2,000,000	 	 	 	4.00	%
	TOTAL
	 	$	50,000,000	 	 	$	50,000,000	 	 	 	100.00	%








	 	 	5 Formerly Provident Mutual Life Insurance Company.