Third Amendment to the Credit Agreement



 



     
EXHIBIT 4.5.2


THIRD AMENDMENT TO CREDIT AGREEMENT



THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this “Third Amendment”), dated as of
February 28th, 2003, (the “Third Amendment Date”) is entered into among BUTLER
MANUFACTURING COMPANY, a Delaware corporation (“Borrower”), the banks listed
on the signature pages hereof (collectively, the “Lenders”), and BANK OF
AMERICA, N.A., as Administrative Lender (in said capacity, the “Administrative
Lender”).


Borrower, the Lenders and Administrative Lender are parties to that certain
Credit Agreement, dated as of June 20, 2001, as amended by that First
Amendment to Credit Agreement dated as of December 4, 2001, as amended by that
certain Waiver and Amendment dated as of February 3, 2003, as amended by the
Second Amendment to Credit Agreement dated as of December 17, 2002 (the
“Second Amendment”) (as amended, the “Credit Agreement”; the terms defined in
the Credit Agreement and not otherwise defined herein shall be used herein as
defined in the Credit Agreement).
Borrower has requested that the Administrative Lender and the Lenders amend
the Credit Agreement.
Lenders and Administrative Lender have agreed to amend the Credit Agreement
under certain terms and conditions, which include the Borrower and the
Guarantors granting the Collateral Agent a first priority security interest in
the Collateral, subject to Permitted Liens that was a condition to the relief
granted to Borrower by the Lenders in connection with the Second Amendment.
Borrower and the Guarantors are willing to grant such security interests in
the Collateral. But for Borrower and the Guarantors’ covenant to grant such
security interests, the Administrative Lender and the Lenders would not have
been willing to enter into the Second Amendment or be willing to enter into
this Third Amendment.


NOW, THEREFORE, in consideration of the covenants, conditions and agreements
hereafter set forth, and for other good and valuable consideration, the
receipt and adequacy of which are all hereby acknowledged, Borrower, Lenders
and Administrative Lender covenant and agree as follows:


     1.     AMENDMENTS TO THE CREDIT AGREEMENT.
(a) Section 1.1 of the Credit Agreement is hereby amended by adding a new
definition of “Intercreditor Agreement” thereto in proper alphabetical order to
read as follows:



		
	 	     “Intercreditor Agreement” means that certain Intercreditor and
Agency Services Agreement among Bank of America, N.A., as administrative
agent, issuing bank and collateral agent, the Lenders, the 2001
noteholders, the 1998 noteholders and the 1994 noteholders, and consented
to by the Borrower and the Guarantors dated as of February 28, 2003, as
amended, restated, supplemented or otherwise modified from time to time.



(b)  Section 1.1 of the Credit Agreement is hereby amended by amending and
restating the definition of “Non-recourse Debt” thereto in proper alphabetical
order to read as follows:



		
	 	     “Non-recourse Debt” means (i) non-recourse Debt 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 Borrower or its Subsidiaries do not invest at any time more
than 45% of the purchase and development costs of such real estate,
improvements and related property and (ii) Debt of Foreign Subsidiaries that is
non-recourse to the Borrower and the Guarantors (a) which is listed on Schedule
7.13 and is existing on the Third Amendment Date and (b) not to
exceed $15,000,000 in aggregate amount outstanding at any time if
not listed on Schedule 7.13. As used in (i) above, “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 deductive amounts) and proceeds related
thereto; permits, licenses, certificates of occupancy and other governmental 



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



(c)  Section 1.1 of the Credit Agreement is hereby amended by adding a new
definition of “Third Amendment” thereto in proper alphabetical order to read as
follows:



		
	 	     “Third Amendment” means that certain third amendment to this
Agreement dated as of February 28, 2003.



(d)  Section 7.13 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:



		
	 	     Section 7.13 Debt. The Borrower shall not, and shall not permit
any Subsidiary to, create, assume, incur or otherwise become or remain
obligated in respect of, or permit to be outstanding, any Debt, except
any or all of the following:
	 
	 	     (a) Existing Debt described on Schedule 7.13 hereto and renewals,
refinancings and extensions, but not increases thereof, on terms and
conditions not otherwise materially different from the terms and
conditions thereof immediately preceding such renewal, refinancing or
extension;
	 
	 	     (b) In addition to the Existing Debt described on Schedule 7.13
hereto, provided no Default or Event of Default exists both before and
after giving effect thereto, Non-recourse Debt, provided that such Debt
shall not be payable from the proceeds of Investments of the Borrower or
any Domestic Subsidiary in any Foreign Subsidiary;
	 
	 	     (c) In addition to the Existing Debt described on Schedule 7.13
hereto, provided no Default or Event of Default exists both before and
after giving effect thereto, purchase money Debt or Capitalized Lease
Obligations not to exceed $12,000,000 at any time outstanding;
	 
	 	     (d) In addition to the Existing Debt described on Schedule 7.13
hereto, provided no Default or Event of Default exists both before and
after giving effect thereto, Swap Contracts in respect of interest rates,
foreign exchange or aluminum contracts, in each case that are (i) not for
the purpose of speculation and (ii) on an unsecured basis; and
	 
	 	     (e) in addition to the existing Debt described on Schedule 7.13 hereto,
provided no Default or Event of Default exists both before and after giving
effect thereto, letters of credit securing manufacturing and factory equipment
purchases not to exceed $500,000 at any time outstanding.



(e)  New Section 7.21 of the Credit Agreement is hereby added to the Credit
Agreement to read as follows:



		
	 	7.21. Incorporation By Reference. On the effective date of the
Third Amendment, each financial covenant (together with any
defined terms and schedules related thereto) imposed under the
Note Agreements (as defined in the Intercreditor Agreement) is
incorporated into this Agreement and shall apply as if fully set
forth herein.
	 
	 	     If, after the effective date of the Third Amendment, the Noteholders
(as defined in the Intercreditor Agreement) or any other holder of
Indebtedness of the Borrower impose any additional or more restrictive
covenant (including by amendment of an existing covenant, by waiver or
consent or otherwise) of the type or similar to the type contained in
Article 7 of the this 



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	 	Agreement (as such this Agreement exists on the
date of the Third Amendment), or the Borrower grants to any Noteholder
(as defined in the Intercreditor Agreement) or other holder of
Indebtedness of the Borrower any new covenant of the type or similar to
the type contained in Article 7 of this Agreement (as this Agreement
exists on the date of the Third Amendment) more favorable to such
Noteholder (as defined in the Intercreditor Agreement) or other holder or
Indebtedness of the Borrower than such covenants or similar covenants
contained in this Agreement, the Borrower shall promptly notify, and
furnish a copy thereof to, each holder of the Administrative Agent, and
this Agreement shall be deemed to be amended automatically to incorporate
such additional, more restrictive or more favorable financial covenant
(together with any defined terms and schedules related thereto).



(f)  Section 11.1(a) of the Credit Agreement is hereby amended to change the
notice address for Borrower under heading (i) to read as follows:


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


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     2.     REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT.
By its execution and delivery hereof, Borrower represents and warrants
that, as of the date hereof and after giving effect to the amendments
contemplated by the foregoing Section 1 and the effectiveness of the First
Amendments to the Note Agreements (as defined in the Intercreditor Agreement),
as amended:


the representations and warranties contained in the Credit Agreement are true
and correct on and as of the date hereof as if made on and as of such date;
no event has occurred and is continuing which constitutes a Default or an Event
of Default;


Borrower has full power and authority to execute and deliver this Third
Amendment, and this Third Amendment and the Credit Agreement, as amended
hereby, constitute the legal, valid and binding obligations of Borrower,
enforceable in accordance with their respective terms, except as enforceability
may be limited by applicable debtor relief laws and by general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity
or at law) and except as rights to indemnity may be limited by federal or state
securities laws;


neither the execution, delivery and performance of this Third Amendment or the
Credit Agreement, as amended hereby, nor the consummation of any transactions
contemplated herein or therein, will conflict with any Law to which Borrower or
any of its Subsidiaries is subject, or any indenture, agreement or other
instrument to which Borrower or any of its Subsidiaries or any of their
respective property is subject;


no authorization, approval, consent, or other action by, notice to, or filing
with, any governmental authority or other Person (other than the Board of
Directors of the Borrower and the Guarantors), is required for the execution,
delivery or performance by (i) Borrower of this Third Amendment or (ii) the
acknowledgment of this Third Amendment by each Guarantor; and



each Material Domestic Subsidiary has executed a Subsidiary Guaranty.



     3.     CONDITIONS OF EFFECTIVENESS. This Third Amendment shall be effective
as of the Third Amendment Date first set forth above, subject to the
following:


(a)  Administrative Lender shall have received counterparts of this Third
Amendment executed by all Lenders, the Borrower and the Guarantors;


(b)  there shall be no Default or Event of Default under the Credit Agreement
after giving effect to this Third Amendment;


(c)  Borrower shall cause to be delivered to the Administrative Lender a legal
opinion in connection with the Third Amendment in form and substance reasonably
acceptable to Special Counsel;


(d)  Borrower shall have delivered to the Administrative Lender a secretary’s
certificate, with incumbency provision, certifying the effective corporate
resolutions of the Borrower authorizing the Borrower to enter into this Third
Amendment and deliver the Collateral;


(e)  Borrower shall have caused to be delivered to the Administrative Lender a
secretary’s certificate, with incumbency provision, from each Guarantor
certifying to the effective corporate resolution of such Guarantor authorizing
such Guarantor to execute their respective acknowledgment of this Third
Amendment and if applicable, the delivery of the Collateral;


(f)  Borrower shall deliver to Administrative Lender a fully executed security
agreement of even date therewith together with such other related documents as
the Administrative Lender may require, each on terms and conditions acceptable
to the Administrative Lender;


(g)  Borrower shall deliver or cause to be delivered a fully executed
intercreditor agreement of even date herewith on terms and conditions
acceptable to the Administrative Lender;


(h)  Borrower shall have reimbursed the Administrative Lender for all of the
Administrative Lenders costs, fees and expenses, including attorney fees and
expenses of Special Counsel, incurred in connection with due diligence,
negotiations, drafting and the consummation of the Credit Agreement, the Loan
Documents and this Third Amendment; and


(i)  Administrative Lender and Lenders shall have received in form and substance
satisfactory to Administrative Lender and Lenders, such other documents and
certificates as Lenders shall require.


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     4.     GUARANTOR ACKNOWLEDGMENT. By signing below, each Guarantor (a)
acknowledges, consents and agrees to the execution by the Borrower of this
Third Amendment, (b) acknowledges and agrees that its obligations in respect
of its Subsidiary Guaranty are not released, diminished, waived, modified,
impaired or affected in any manner by this Third Amendment or any of the
provisions contemplated herein, (c) ratifies and confirms its obligations
under its Subsidiary Guaranty, (d) acknowledges and agrees that it has no
claims or offsets against, or defenses or counterclaims to, its Subsidiary
Guaranty, (e) acknowledges, consents and agrees to each of the release
provisions contained in Section 7 of this Third Amendment and (f) to the
extent applicable, agrees to deliver or assist in the delivery of the
Collateral.


     5.     CONSENT REGARDING DISSOLUTION OF SUBSIDIARY. The Lenders and the
Administrative Lender hereby consent to the dissolution and liquidation of
Innovative Building Technology, Inc. and acknowledge that upon its
dissolution and liquidation, it shall no longer be considered as a
Subsidiary for purposes of the Credit Agreement, provided that it
transfers its ownership of all assets of Innovative Building Technology,
Inc. remaining after payment or provision for payment of its claims or
obligations to the Borrower within 20 calendar days of filing its
certificate of dissolution with the Delaware Secretary of State.


     6.     REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this Third Amendment, each reference in the
Credit Agreement to “this Agreement”, “hereunder”, or words of like import
shall mean and be a reference to the Credit Agreement, as affected and amended
by this Third Amendment.
(b) The Credit Agreement, as amended by this Third Amendment, and all other
Loan Documents shall remain in full force and effect and are hereby ratified
and confirmed.


     7.     COSTS, EXPENSES AND TAXES. Borrower agrees to pay on demand all costs
and expenses of Administrative Lender in connection with the preparation,
reproduction, execution and delivery of this Third Amendment and the other
instruments and documents to be delivered hereunder (including the reasonable
fees and out-of-pocket expenses of counsel for Administrative Lender with
respect thereto and with respect to advising Administrative Lender as to its
rights and responsibilities under the Credit Agreement, as amended by this
Third Amendment).


     8.     RELEASE.
(a) Borrower and each of its Subsidiaries (collectively, the “Borrower
Parties”) hereby unconditionally and irrevocably remises, acquits, and fully
and forever releases and discharges the Administrative Lender and the Lenders
and all respective Affiliates and subsidiaries of the Administrative Lender and
the Lenders, their respective officers, servants, employees, agents, attorneys,
financial advisors, principals, directors and shareholders, and their
respective heirs, legal
representatives, successors and assigns (collectively, the “Released Lender
Parties”) from any and all claims, demands, causes of action, obligations,
remedies, suits, damages and liabilities of any nature whatsoever, whether now
known, suspected or claimed, whether arising under common law, in equity or
under statute, which any Borrower Party ever had or now has against the
Released Lender Parties which may have arisen at any time on or prior to the
date of this Third Amendment and which were in any manner related to any of the
Loan Documents or the enforcement or attempted enforcement by the
Administrative Lender or the Lenders of rights, remedies or recourses related
thereto which shall include all Borrower claims related to the Credit Agreement
and the other Loan Documents (collectively, the “Borrower Claims”).
(b) Each Borrower Party covenants and agrees never to commence, voluntarily aid
in any way, prosecute or cause to be commenced or prosecuted against any of the
Released Lender Parties any of the Borrower Claims which may have arisen at any
time on or prior to the date of this Third Amendment and were in any manner
related to any of the Loan Documents.


     9.     EXECUTION IN COUNTERPARTS. This Third Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to
be an original and all of which taken together shall constitute but one and
the same instrument.


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     10.     GOVERNING LAW; BINDING EFFECT. This Third Amendment shall be
governed by and construed in accordance with the laws of the State of Texas
and shall be binding upon Borrower and each Lender and their respective
successors and assigns.


     11.     HEADINGS. Section headings in this Third Amendment are included
herein for convenience of reference only and shall not constitute a part of
this Third Amendment for any other purpose.


     12.     ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS THIRD
AMENDMENT, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AS TO THE SUBJECT MATTER THEREIN AND
HEREIN AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES.


REMAINDER OF PAGE INTENTIONALLY LEFT BLANK


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IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment as
of the date first above written.



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

	 	 	 	 	Name: Larry C. Miller
	 	 	 	 	

	 	 	 	 	Title: Vice President — Finance
	 	 	 	 	




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	ADMINISTRATIVE LENDER:	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as Administrative Lender
	 	 	 	 	 
	 	 	
By:
	 	/s/ John K. Barrett
	 	 	 	 	

	 	 	 	 	Name: John K. Barrett
	 	 	 	 	

	 	 	 	 	Title: Managing Director
	 	 	 	 	

	LENDERS:	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as a Lender and as the
Issuing Bank
	 	 	 	 	 
	 	 	
By:
	 	/s/ John K. Barrett
	 	 	 	 	

	 	 	 	 	Name: John K. Barrett
	 	 	 	 	

	 	 	 	 	Title: Managing Director
	 	 	 	 	




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	 	 	COMMERCE BANK, N.A.
	 	 	 	 	 
	 	 	
By:
	 	/s/ Martin Nay
	 	 	 	 	

	 	 	 	 	Name: Martin Nay
	 	 	 	 	

	 	 	 	 	Title: Vice President
	 	 	 	 	




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	 	 	U.S. BANK NATIONAL ASSOCIATION, as a Lender
and as the Issuing Bank
	 	 	 	 	 
	 	 	
By:
	 	/s/ Barry P. Sullivan
	 	 	 	 	

	 	 	 	 	Name: Barry P. Sullivan
	 	 	 	 	

	 	 	 	 	Title: Vice President
	 	 	 	 	




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ACKNOWLEDGED AND AGREED:
	 	 	 
	
BMC REAL ESTATE, INC.
	 	 	 
	By:	 	
/s/ Larry C. Miller
	 	 	


	 	 	
Name: Larry C. Miller
	 	 	


	 	 	
Title: Vice President — Finance
	 	 	


	 	 	 
	
BUCON, INC.
	 	 	 
	By:	 	
/s/ Larry C. Miller
	 	 	


	 	 	
Name: Larry C. Miller
	 	 	


	 	 	
Title: Vice President — Finance
	 	 	


	 	 	 
	
BUTLER HOLDINGS, INC.
	 	 	 
	By:	 	
/s/ Larry C. Miller
	 	 	


	 	 	
Name: Larry C. Miller
	 	 	


	 	 	
Title: Vice President — Finance
	 	 	


	 	 	 
	
BUTLER REAL ESTATE, INC.
	 	 	 
	By:	 	
/s/ Larry C. Miller
	 	 	


	 	 	
Name: Larry C. Miller
	 	 	


	 	 	
Title: Vice President — Finance
	 	 	


	 	 	 
	
LESTER BUILDINGS, INC.
	 	 	 
	By:	 	
/s/ Larry C. Miller
	 	 	


	 	 	
Name: Larry C. Miller
	 	 	


	 	 	
Title: Vice President — Finance
	 	 	





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BUTLER PACIFIC, INC.
	 	 	 
	By:	 	
/s/ Larry C. Miller
	 	 	


	 	 	
Name: Larry C. Miller
	 	 	


	 	 	
Title: Vice President — Finance
	 	 	


	 	 	 
	
MODULINE WINDOWS, INC.
	 	 	 
	By:	 	
/s/ Larry C. Miller
	 	 	


	 	 	
Name: Larry C. Miller
	 	 	


	 	 	
Title: Vice President — Finance
	 	 	


	 	 	 
	
LIBERTY BUILDING SYSTEMS, INC.
	 	 	 
	By:	 	
/s/ Larry C. Miller
	 	 	


	 	 	
Name: Larry C. Miller
	 	 	


	 	 	
Title: Vice President — Finance
	 	 	






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