HomeMy WebLinkAbout2011-OR-48 Need Bank Signatures ORDINANCE NO. 2011 -OR -fit
AN ORDINANCE AUTHORIZING THE EXECUTION AND DELIVERY OF
TWO FIRST SUPPLEMENTAL INDLN'1'URES DATED AS OF
SEPTEMBER 1, 2011 BY AND BETWEEN THE CITY OF
JEFFERSONVILLE, INDIANA AND THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., WITH RESPECT TO THE $7,750,000 CITY OF
JEFFERSONVILLE, INDIANA VARIABLE RATE DEMAND ECONOMIC
DEVELOPMENT REVENUE BONDS, SERIES 2001 (EAGLE STEEL
PRODUCTS, INC. PROJECT) AND THE $4,515,000 CITY OF
JEFFERSONVILLE, INDIANA VARIABLE RATE DEMAND ECONOMIC
DEVELOPMENT REVENUE BONDS, SERIES 2007 (EAGLE STEEL.
PRODUCTS, INC. PROJECT); AND AUTHORIZING OTHER ACTIONS IN
CONNECTION WITH SUCH SUPPLEMENTAL INDENTURES.
WHEREAS, the City of Jeffersonville, Indiana (the "Issuer "), is a municipal corporation
and political subdivision of the State of Indiana, and by virtue of the constitution and laws of the
state, including Indiana Code, Title 36, Article 7, Chapters 11.9 and 12, as supplemented and
amended (the "Act "), is authorized and empowered, among other things, to (a) provide funds for
the acquisition, construction, installation and equipping of economic development facilities; (b)
issue its revenue bonds; (c) secure such revenue bonds by a pledge and assignment of revenues
and other documents; and (d) enact this Ordinance (the "Ordinance "), execute the Indenture
Supplements (hereinafter identified) and all other documents to be executed by it, upon the terms
and conditions provided therein; and
WHEREAS, the Issuer has heretofore executed and delivered to The Bank of New York
Mellon Trust Company, N.A., as successor to Fifth Third Bank, as Trustee, (the "Trustee ") a
Trust Indenture (the "2001 Indenture "), dated as of October 1, 2001, providing for the issuance
of $7,750,000 City of Jeffersonville, Indiana Variable Rate Demand Economic Development
Revenue Bonds, Series 2001 (Eagle Steel Products, Inc. Project) (the "2001 Bonds ") and a Trust
Indenture (the "2007 Indenture"), dated as of December 1, 2007, providing for the issuance of
the $4,515,000 City of Jeffersonville, Indiana Variable Rate Demand Economic Development
Revenue Bonds, Series 2007 (Eagle Steel Products, Inc. Project) (the "2007 Bonds"); and
WHEREAS, pursuant to the terms of a Loan Agreement dated as of October 1, 2001,
between the Issuer and Metals USA, Inc. ("Metals "), as successor to Eagle Steel Products, Inc.
("Eagle "), the Issuer loaned the proceeds from the 2001 Bonds to Eagle, as succeeded by Metals;
and
WHEREAS, pursuant to the terms of a Loan Agreement dated as of' December 1, 2007,
between the Issuer and Metals, as successor to Eagle, the Issuer loaned the proceeds from the
Bonds to Eagle, as succeeded by Metals; and
WHEREAS, Fifth Third Bank ( "Fifth Third ") issued Irrevocable Letter of Credit No.
R430089 on October 31, 2001, as amended, (the "2001 Letter of Credit ") in favor of the Trustee
to secure payments due under the 2001 Bonds and in connection therewith caused Eagle, as
Aff248003ME.848832:3:LOUIS VILLE
r
•
succeeded by Metals, to enter into a Reimbursement and Pledge Agreement (the "2001
Reimbursement Agreement "), dated as of October 1, 2001, as amended, with Fifth Third; and
WHEREAS, Fifth Third issued Irrevocable Letter of Credit No. R430941 (the "2007
Letter of Credit ") on December 13, 2007 in favor of the Trustee to secure payments due under
the 2007 Bonds and in connection therewith caused Eagle, as succeeded by Metals, to enter into
a Reimbursement Agreement (the "2007 Reimbursement Agreement "), dated as of December 1,
2007, as amended, with Fifth Third; and
WIIEREAS, Metals entered into an Amended and Restated Loan and Security
Agreement, dated as of December 17, 2010 by and among Metals, Flag Intermediate Holdings
Corporation, Bank of America, N.A. (("BofA "), as administrative and collateral agent and the
lenders party thereto (the "ABL Facility ") pursuant to which Metals has requested that BofA
provide letters of credit (the "Alternate Letters of Credit ") in replacement of both the 2001 Letter
of Credit and the 2007 Letter of Credit; and
WHEREAS, the Alternate Letter of Credits will be governed by the terms of the ABL
Facility, which shall replace both the 2001 Reimbursement Agreement and the 2007
Reimbursement Agreement; and
WHEREAS, because of' the use of the ABL Facility in replacement of the 2001
Reimbursement Agreement and the 2007 Reimbursement Agreement, comedian of
inconsistencies and ambiguities between the ABL Facility and each of the 2001 Indenture and
the 2007 Indenture is necessary; and
WHEREAS, pursuant to Section 8.01 of the 2001 Indenture and Section 8.02 of the 2007
Indenture, the Issuer and the Trustee are authorized to enter into supplemental indentures (the
"Supplemental Indentures ") with respect to each of the 2001 Bonds and the 2007 Bonds to
correct the inconsistencies and ambiguities; and
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE ISSUER
THAT:
SECTION L Surplemental Indentures and all other Documents to be Executed or
Accepted by the Issuer. In order to correct inconsistencies and ambiguities between the ABL
Facility and each of the 2001 Indenture and the 2007 Indenture, the Mayor of the Issuer and the
Clerk- Treasurer of the Issuer are authorized and directed to execute, acknowledge and deliver, in
the name and on behalf of the Issuer, the Indentures, one each with respect to the 2001 Bonds
and the 2007 Bonds, and all other documents, agreements, certificates or forms to be executed or
accepted by the Issuer in substantially the forms submitted to the Issuer or its counsel, which are
hereby approved, with such changes therein not inconsistent with this Ordinance and not
substantially adverse to the Issuer as may be approved by the officers executing the same on
behalf of the issuer without further approval of the City Council. The approval of such changes
by such officers to the extent such are not substantially adverse to the Issuer, shall be
conclusively evidenced by the execution or acceptance of receipt of any of' the foregoing
documents by such officers.
ME248:000MER48833:3:LOUISVJLLE
•
SECTION 2. No Personal Liability. No recourse under or upon any obligation,
covenant, acceptance or agreement contained in this Ordinance, or each of the Supplemental
Indentures, or under any judgment obtained against the Issuer or by the enforcement of any
assessment or by any legal or equitable proceeding by virtue of any constitution or statute or
otherwise, or under any circumstances, shall be had against any member, director, or officer or
attorney, as such, past, present, or future, of the Issuer, either directly or through the Issuer, or
otherwise, for the payment for or to the Issuer or any receiver thereof, or for or to any holder of
either the 2001 Bonds or the 2007 Bonds secured thereby, or otherwise, of any sum that may be
due and unpaid by the Issuer upon any of such 2001 Bonds or 2007 Bonds. Any and all personal
liability of every nature, whether at common law or in equity, or by statute or by constitution or
otherwise, of any such member, director, or officer or attorney, as such, to respond by reason of
any act or omission on his or her part, or otherwise, for directly or indirectly the payment for or
to the Issuer or any receiver thereof, or for or to any owner or holder of the Bonds, or otherwise,
of any such that may remain due and unpaid upon either the 2001 Bonds or the 2007 Bonds
hereby secured or any of them, shall be expressly waived and released as a condition of and
consideration for the execution and delivery of the Supplemental Indentures and related
documents.
SECTION 3. Severability. If any section, paragraph or provision of this Bond
Ordinance shall be held to be invalid or unenforceable for any reason, the invalidity or
unenforceability of such section; paragraph or provision shall not affect any of the remaining
provisions of this Ordinance.
SECTION 4. Repeal of Conflicting Ordinances and Resolutions. All ordinances,
resolutions and orders, or parts thereof, in conflict with the provisions of this Ordinance are, to
the extent of such conflict, hereby repealed.
SECTION 5. Public Inspection. A copy of each of the Supplemental Indentures is
available for public inspection upon request to the Clerk- Treasurer of the Issuer.
SECTION 6. Compliance with Open Door Law. It is hereby determined that all formal
actions of the City Council relating to the adoption of this Ordinance were taken in an open
meeting of the City Council, that all deliberations of the City Council and of its committees, if
any, which resulted in formal action, were in meetings open to the public, and that all such
meetings were convened, held and conducted in compliance with applicable legal requirements.
SECTION 7. Effective Date. This Ordinance shall be in full force and effect upon
adoption hereof.
W .. F24$iXIONII:118612:3:LOUISVILLE
I
The foregoing was passed by the City Council this ak day of Suth n b .
2011.
By:
Name: M/. 4 .5po�;a
Its: tourer Y(ttaunt
Presented by me to the Mayor of the City ofJeffersonville, Indiana this day of
____I , 2011 at /0:16 [•m.
,, iad;U.tu
Peg: II ilder, Clerk- Treasurer
City of Jeffersonville, Indiana
A proved igne by me, Tom Galligan, Mayor of the City of Jeffersonville, Indiana
th day of��2011 at 3 • tpm.
<e
Tom Galligan, Mayor
City of Jeffersonville, Indi
ATTEST:
Pc:
111 ilder, Clerk - Treasurer
City ofJeffersonville, Indiana
•
ME248:OcOt•O:848832:3:WUISVILLE
STATE OF INDIANA )
SS:
COUNTY OF CLARK )
1, Peggy Wilder, Clerk- Treasurer of the City of Jeffersonville, Indiana, do hereby certify
thc above and foregoing is a full, true and complete copy of Ordinance No. qg (9oil -o&r i t)
passed by the City Council on the rill day of cot( aibtr 2011, by a vote of
AYES and O NAYS, w ich was signed by thc resident of the City Council on the
Alt day of a e r , 2011 and was approved and signed by the Mayor on
the 2.1 day of Ze r 2011, and now remains on file and on record in
my office.
WITNESS my hand and official seal of the City ofJeffersonville, Indiana this 2 id day
of Sepi'ombar ,2011.
Peggy VItter, Clerk - Treasurer
City ofJeffersonville, Indiana
MF24& d:OM 1is80812 1 I AUISVII.LI£
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE ( this "Supplemental Indenture "), dated as of
September _, 2011 is by and between the CITY OF JEFFERSONVILLE, INDIANA, a
municipal corporation and political subdivision of the State of Indiana (the "Issuer"), and THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association
duly authorized to exercise corporate trust powers, as trustee (the "Trustee "), under the
circumstances summarized in the following recitals.
WITNESSETH:
WHEREAS the Issuer has heretofore executed and delivered to the Trustee a
Trust Indenture (the "Indenture"), dated as of October 1, 2001, providing for the issuance of
Variable Rate Demand Economic Development Revenue Bonds, Series 2001 (Eagle Steel
Products, Inc. Project) (the "Bonds ");
WHEREAS, pursuant to the terms of a Loan Agreement (the "Loan Agreement ")
dated as of October 1, 2001, between the Issuer and Metals USA, Inc. ( "Metals "), as successor to
Eagle Steel Products, Inc. ( "Eagle "), the Issuer loaned the proceeds from the Bonds to Eagle, as
succeeded by Metals;
WHEREAS, Fifth Third Bank ( "Fifth Third ") issued Irrevocable Letter of Credit
No. R430089 (the "Original Letter of Credit ") on October 31, 2001, as amended in favor of the
Trustee to secure payments due under the Bonds and in connection therewith caused Eagle, as
succeeded by Metals, to enter into a Reimbursement and Pledge Agreement (the "Original
Reimbursement Agreement "), dated as of October 1, 2001, as amended, with Fifth Third;
WHEREAS, Metals USA, Inc. ( "Metals ") entered into an Amended and Restated
Loan and Security Agreement, dated as of December 17, 2010 by and among Metals USA, Inc.,
Flag Intermediate Holdings Corporation, Rank of America, N.A. ("BofA "), as administrative and
collateral agent and the lenders party thereto (the "ABL Facility") pursuant to which Metals may
request that BofA provide letters of credit;
WHEREAS, Metals desires to have BofA provide an Alternate Letter of Credit to
replace the Original Letter of Credit in accordance with the terms of the Loan Agreement;
WHEREAS, the Alternate Letter of Credit will be governed by the terms of the
ABL Facility and which shall replace the Original Reimbursement Agreement;
WHEREAS, pursuant to Section 801 of the Indenture, the Issuer and the Trustee
and the Company are authorized to execute and deliver this Supplemental Indenture; and
NOW THEREFORE, in consideration of the foregoing and for good and i
valuable consideration, the receipt of which is hereby acknowledged, the Issuer and the Trustee
USAdive 24131445.4
mutually covenant and agree for the equal and ratable benefit of the Holders of the Bonds as
follows:
SECTION 1. Capitalized Terms. Capitalized terms used herein but not defined
shall have the meanings assigned to them in the Indenture.
•
SECTION 2. Amendments to Article I of the Indenture.
(a) The definitions of the term "Pledged Bonds" and "Reimbursement
Agreement" are hereby amended and restated to read as follows:
"Pledged Bonds" means, at the time of' determination thereof, any Bonds or
beneficial interests in Bonds purchased by the Trustee with payments made under the Letter of
Credit as described in Section 404 thereof.
"Reimbursement Agreement" means with respect to each Letter of Credit, the
agreement pursuant to which such Letter of Credit is issued, including all amendments thereof
and supplements thereto, and currently shall mean the Amended and Restated Loan and Security
Agreement, dated as of' December 17, 2010 by and among Metals USA, Inc., Flag Intermediate
Holdings Corporation, Bank of America, N.A., as administrative and collateral agent and the
lenders party thereto pursuant to which Metals may request that BofA provide letters of credit.
SECTION 3. Amendment to Section 202 of the Indenture. Section 202 of the
Indenture is hereby amended by deleting the words "pursuant to the terms of the Reimbursement
Agreement" in the third paragraph.
SECTION 4. Amendment to Section 301 of the indenture. Section 301 of the
Indenture is hereby amended by deleting the words "pursuant to the Reimbursement
Agreement," in the last paragraph.
SECTION 5. Amendments to Section 401 of the Indenture.
(a) The fourth paragraph of Section 401 of the Indenture is hereby amended
and restated to read as follows:
"Moneys in the Bond Fund shall be held in trust first for the Bondholders and then
for the Bank subject to the provisions of Section 501 hereof. Except as otherwise expressly
provided herein, such moneys shall be used first solely for the payment of the interest on the
Bonds and for the payment of principal of and premium, if any, on the Bonds upon maturity,
whether stated or accelerated, or mandatory or optional redemption, and then, to the extent of
any moneys remaining on deposit therein, for the payment of any amounts owed by the Borrower
to the Issuer and the Trustee and then to the Bank pursuant to the Borrower's obligations with
respect to the Bonds under the Reimbursement Agreement; provided, however, that any Surplus
Bond Proceeds transferred from the Construction Fund to the Bond Fund as provided in
Section 5.4 of the Loan Agreement may only be used by the Trustee as provided in Section 11.1
of the Loan Agreement."
USAdive 24131445.4
(b) The second paragraph immediately after clause (bxiii) of Section 404 of
the Indenture is hereby amended and rcstatcd to read as follows:
"If the Bonds are in a book -entry only system, the Trustee shall instruct the
Depository to record in the books of the Depository for the account of the Borrower any Bonds
(or portions thereof in Authorized Denominations) purchased with moneys described in clause
(ii) above and the Trustee shall record such beneficial ownership interest of the Borrower on its
books, and such Bonds shall be referred to as Pledged Bonds, shall be deemed to be held by the
Trustee in trust for account of the Bank and to the fullest extent permitted by law shall be subject
to a security interest in favor of the Bank as security for the Borrower's obligations with respect
to any Letter of Credit issued in connection with the Bonds under the Reimbursement
Agreement, which security interest shall be released only after (a) the Letter of Credit has been
reinstated in the amount of the aggregate principal amount of such Bonds and the amount
realized under the Letter of Credit to pay the portion of the Purchase Price equal to the accrued
interest, if any, on such Bonds or, (b) the obligations of the Borrower with respect to the Bonds
under the Reimbursement Agreement have been paid in full; provided, however, that any such
Pledged Bonds which have been recorded in the books of the Depository for the account of the
Borrower for a period of six months and have not been remarketed shall, at the written direction
of the Bank, be cancelled. If the Bonds are in a book -entry only system, the Trustee shall, with
respect to any Bonds (or portions thereof in Authorized Denominations) purchased with moneys
described in clause (iii) above which the Borrower does not instruct the Trustee to cancel,
instruct the Depository to record such Bonds in the books of the Depository for the account of
the Trustee, and such Bonds shall be Borrower Bonds. ".
(c) Section 404 of the Indenture is hereby further amended by inserting
"with respect to the Bonds" immediately preceding "under the Reimbursement Agreement"
throughout clause (d).
SECTION 7. Amendment to Section 501 of the Indenture. Section 501 of the
Indenture is hereby amended by inserting `with respect to the Bonds" immediately preceding
"under the Reimbursement Agreement" in the second paragraph.
SECTION 8. Amendment to Section 503 of the Indenture. Section 503 of the
Indenture is hereby amended by inserting "with respect to the Bonds" immediately preceding
"under the Reimbursement Agreement ".
SECTION 9. Amendment to Section 701 of the Indenture. Section 701 of the
Indenture is hereby amended by inserting `with respect to the Bonds" immediately preceding
"under the Reimbursement Agreement" in clause (d).
SECTION 10. Amendment to Section 902 of the Indenture. Section 902 of the
Indenture is hereby amended by inserting "with respect to the Bonds" immediately preceding
"pursuant to the Reimbursement Agreement" in clause (ii).
SECTION 11. Amendment to Section 904 of the Indenture.
(a) The names and addresses of the following parties are hereby changed to
read as follows:
USActive 24131445.4
If to the Borrower: Metals USA, Inc.
2400 E. Commercial Blvd., Suite 905
Fort Lauderdale, FL 33308
Attention: General Counsel
If to the Trustee: The Bank of New York Mellon Trust Company, N.A.
Attn: Corporate Trust Department
300 North Meridian Street, Suite 910
Indianapolis, IN 46204
Fax:(317)637 -9820
If to the Bank: Bank of America, N.A.
1 Fleet Way
PA6- 580 -02 -30
Scranton, PA 18507
Attn: Standby Letter of Credit Dept.
(b) Section 904 of the indenture is hereby further amended by inserting the
paragraph set forth below at the end of such section.
"The Trustee agrees to accept and act upon instructions or directions pursuant to
this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured
electronic methods by persons believed by the Trustee to be authorized to give instructions and
direction. The Trustee shall not be liable for any losses, costs or expenses arising directly or
indirectly from the Trustee's reasonable reliance upon and compliance with such directions and
instructions notwithstanding any such directions and instructions that conflict or are inconsistent •
with a subsequent written instruction. Any party providing information to the Trustee via
electronic methods agrees to assume all risks arising out of the use of such electronic methods,
including without limitation, the risk of the Trustee's acting on unauthorized instructions, the
risk of interception and misuse by third parties or non - receipt of directions or instructions by the
Trustee."
SECTION 12. Ratification of Indenture: Supplemental Indenture Part of
Indenture. Except as expressly amended hereby, the indenture is in all respects ratified and
confirmed and all the terms, conditions and provisions thereof shall remain in full force and
effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every
holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
SECTION 13. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF INDIANA.
SECTION 14. Trustee Makes No Representation. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental Indenture.
USActve 24131445.4
a �
SECTION 15. Counterparts. 'The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
SECTION 16. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction of this Supplemental indenture.
USACIve 74131445
IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture
to be duly executed as of the date first written above.
CITY OF JEFFERSONVILLE, INDIANA
B. r Ii
Tit
By V -
Title: '
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.
By:
Title:
CONSENTED TO:
BANK OF AMERICA, N.A.
By:
Title:
Date:
METALS USA, INC.
By:
Title:
Date:
USActive 24131445.4 [Siganture Page to First Supplemental Indenture]
•
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture "), dated as of
September -, 2011 is by and between the CITY OF JEFFERSONVILLE, INDIANA, a
municipal corporation and political subdivision of the State of Indiana (the "Issuer"), and THE
BANK OF NEW YORK MELLON TRUS'f COMPANY, N.A., a national banking association
duly authorized to exercise corporate trust powers, as trustee (the 'Trustee "), under the
circumstances summarized in the following recitals.
W!TNES &CTH:
WHEREAS, the Issuer has heretofore executed and delivered to the Trustee a
Trust Indenture (the "Indenture "), dated as of December 1, 2007, providing for the issuance of
Variable Ratc Demand Economic Development Revenue Bonds, Series 2007 (Eagle Steel
Products, Inc. Project) (the `Bonds ");
WHEREAS, pursuant to the terms of a Loan Agreement (the "Loan Agreement ")
dated as of December 1, 2007, between the Issuer and Metals USA, Inc. ( "Metals "), as successor
to Eagle Steel Products, Inc. ("Eagle'), the Issuer loaned the proceeds from the Bonds to Eagle,
as succeeded by Metals;
WHEREAS, Fifth Third Bank ( "Fifth Third ") issued Irrevocable Letter of Credit
No. R430941 (the "Original Letter of Credit ") on December 13, 2007 in favor of the Trustee to
secure payments due under the Bonds and in connection therewith caused Eagle, as succeeded by
Metals, to enter into a Reimbursement Agreement (the "Original Reimbursement Agreement "),
dated as of December 1, 2007, as amended, with Fifth Third;
WHEREAS, Metals USA, Inc. ( "Metals ") entered into an Amended and Restated
Loan and Security Agreement, dated as of December 17, 2010 by and among Metals, Flag
Intermediate Holdings Corporation, Bank of America, N.A. ( "BofA "), as administrative and
collateral agent and the lenders party thereto (the "ABL Facility ") pursuant to which Metals may
request that BofA provide letters of credit;
WHEREAS, Metals desires to have BofA provide an Alternate Letter of Credit to
replace the Original Letter of Credit in accordance with the terms of the Indenture;
WHEREAS, the Alternate Letter of Credit will be governed by the terms of the
ABL Facility, which shall replace the Original Reimbursement Agreement; and
WHEREAS, pursuant to Section 8.02 of the Indenture, the Issuer and the Trustee
and with the consent of BofA are authorized to execute and deliver this Supplemental Indenture;
and
NOW THEREFORE, in consideration of the foregoing and for good and
valuable consideration, the receipt of' which is hereby acknowledged, the Issuer and the Trustee
ME248 WBME:848761:2:LOUISVII.I.E
mutually covenant and agree for the equal and ratable benefit of the Holders of the Bonds as
follows:
SECTION 1. Capitalized Terms. Capitalized terms used herein but not defined
shall have the meanings assigned to them in the indenture.
SECTION 2. Amendments to Section 1.01 of the Indenture.
(a) The definition of the term "Letter of Credit Termination Date" is hereby
amended by (i) deleting the ")" after "2012" and (ii) deleting the words "and the Reimbursement
Agreement ".
(b) The definition of the term "Pledged Bonds" is hereby amended by deleting
the words "and securing the obligations of the Borrower under the Reimbursement Agreement as
provided in Section 6.20 hereof'.
(c) The definition of the term "Reimbursement Agreement" is hereby
amended and restated as follows:
"Reimbursement Agreement" means the Amended and Restated Loan and
Security Agreement, dated as of December 17, 2010, by and among the Borrower, Flag
Intermediate Holdings Corporation, Bank of America, N.A., as administrative and collateral
agent and the lenders party thereto, as amended and supplemented from time to time.
SECTION 3. Amendments to Section 5.03 of the Indenture. Section 5.03 is
hereby amended by changing 10:00 a.m. in subsections (a) and (b) thereof to 12:00 p.m.
SECTION 4. Amendment to Section 5.07 of the Indenture. Section 5.07 of the
Indenture is hereby amended by inserting the phrase "by Borrower with respect to the Bonds" in
the second paragraph immediately preceding the phrase "under the Reimbursement Agreement ".
SECTION 5. Amendment to Section 5.08 of the Indenture. Section 5.08 of the
Indenture is hereby amended by inserting the phrase "by the Borrower with respect to the
Bonds" immediately preceding "under the Reimbursement Agreement".
SECTION 6. Amendment to Section 13.01 of the Indenture. Section 13.01 of the
Indenture is hereby amended by deleting the words "for reimbursement of drawings under the
Lever of Credit" and substituting in lieu therefor the phrase `with respect to the Bonds under the
Reimbursement Agreement ".
SECTION 7. Amendment of Section 13.03 of the Indenture. The notice
addresses for the following parties are hereby amended to read as follows:
(a) If to the Borrower, at: Metals USA, Inc.
2400 E. Commercial Blvd., Suite 905
Fort Lauderdale, FL 33308
Attention: General Counsel
•
If to the Trustee, at: The Bank of New York Mellon Trust
Company, N.A.
Attn: Corporate Trust Department
525 Vine Street, Suite 900
Cincinnati, OH 45202
Fax: (513) 721 -3240
(b) If to the Bank, at: Bank of America, N.A.
1 Fleet Way
PA6- 580 -02 -30
Scranton, PA 18507
Attn: Standby Letter of Credit Dept.
(c) Section 13.03 of the Indenture is hereby further amended by inserting the
paragraph set forth below at the end of such section.
"The Trustee agrees to accept and act upon instructions or directions pursuant to
this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured
electronic methods by persons believed by the Trustee to be authorized to give instructions and
direction. The Trustee shall not be liable for any losses, costs or expenses arising directly or
indirectly from the Trustee's reasonable reliance upon and compliance with such directions and
instructions notwithstanding any such directions and instructions that conflict or are inconsistent
with a subsequent written instruction. Any party providing information to the Trustee via
electronic methods agrees to assume all risks arising out of the use of such electronic methods,
including without limitation, the risk of the Trustee's acting on unauthorized instructions, the
risk of interception and misuse by third parties or non - receipt of directions or instructions by the
Trustee."
SECTION 8. Ratification of Indenture: Supplemental Indenture Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and
confirmed and all the terms, conditions and provisions thereof shall remain in full force and
effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every
holder of Bonds heretofore or hereafter authenticated and delivered shall be bound hereby.
SECTION 9. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF INDIANA.
SECTION 10. Trustee Makes No Representation. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental Indenture.
SECTION 11. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
SECTION 12. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction of this Supplemental Indenture.
t
IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture
to be duly executed as of the date fast written above.
CITY OF JEFFERSONVILLE, INDIANA
By J r
Tit : - ;
By: Atte syl
By: ly_C��-"Q
Title: )` D u i lwiatktt.t.
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.
By:
Title:
CONSENTED TO:
BANK OF AMERICA, N.A.
By:
Title:
Date:
METALS USA, INC.
By:
Title:
Date:
[Siganturc Pagc to First Supplemcnud Indenture]