NOTEHOLDER ACKNOWLEDGEMENT AGREEMENT
Exhibit 4.9
NOTEHOLDER ACKNOWLEDGEMENT AGREEMENT
This ACKNOWLEDGEMENT AGREEMENT, dated as of February 15, 2004, by and among (i) XXXXXX 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.
| Xxxxxx Manufacturing Company | ||
|
By: /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Chairman |
Subsidiary Guarantors
BMC Real Estate, Inc.
BUCON, Inc.
Xxxxxx Holdings, Inc.
Xxxxxx Real Estate, Inc.
Xxxxxx Buildings, Inc.
Xxxxxx Pacific, Inc.
Moduline Windows, Inc.
Liberty Building Systems, Inc.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President - Finance
Metropolitan Life Insurance Company
By: /s/ Xxxxxxxxxx X. Xxxxxxx
Name: Xxxxxxxxxx X. Xxxxxxx
Title: Managing Director
Nationwide Life Insurance Company
of America
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Authorized Signatory
Nationwide Indemnity Company
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Authorized Signatory
Nationwide Mutual Fire Insurance Company
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Authorized Signatory
Principal Life Insurance Company
an Iowa Corporation
By: /s/ Xxx X. Xxxxx
Name: Xxx X. Xxxxx
Title: Counsel
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Counsel
Allstate Life Insurance Company
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
Businessmen’s Assurance Company
of America
By: /s/ X.X. Xxxxxx
Name: X.X. Xxxxxx
Title: Vice President
Xxxx Xxxxxxx Life Insurance Company
By: /s/ Xxxxxxx XxXxxx
Name: Xxxxxxx XxXxxx
Title: Managing Director
Xxxx Xxxxxxx Variable Life Insurance Company
By: /s/ Xxxxxxx XxXxxx
Name: Xxxxxxx XxXxxx
Title: Managing Director
Massachusetts Mutual Life
Insurance Company
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
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/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Authorized Signatory
