Exhibit 10.13


 


GUARANTY
AGREEMENT


 


THIS  GUARANTY AGREEMENT (the “Guaranty”)
is executed as of October 26, 2004, by BLUELINX HOLDINGS, INC., a Delaware
corporation, with an office at 4300 Wildwood Parkway, Atlanta, Georgia, 30339
(whether one or more collectively referred to as “Guarantor”), for the benefit
of COLUMN
FINANCIAL, INC., a Delaware corporation, having an address at 11
Madison Avenue, New York, New York 10010 (“Lender”).


 


W  I  T  N  E  S  S  E
T  H  :


 


WHEREAS, pursuant to that certain Promissory
Note, dated of even date herewith, executed by the entities set forth on the
signature pages thereof (collectively, “Borrower”) and payable to the order of
Lender in the original principal amount of One Hundred Sixty-Five Million and
No/100 Dollars ($165,000,000) (as the same may be amended, restated, replaced,
supplemented, or otherwise modified from time to time, the “Note”),
Borrower has become indebted, and may from time to time be further indebted, to
Lender with respect to a loan (“Loan”), made pursuant to that certain Loan
Agreement, dated of even date herewith, between Borrower and Lender (as the
same may be amended, restated, replaced, supplemented, or otherwise modified
from time to time, the “Loan Agreement”), which Loan is secured by
the liens and security interests of certain mortgages, deeds of trust and/or
deeds to secure debt, each dated of even date herewith (as the same may be
amended, restated, replaced, supplemented, or otherwise modified from time to
time, collectively, the “Mortgages”), and further evidenced, secured
or governed by other instruments and documents executed in connection with the
Loan (together with the Note, the Loan Agreement and Mortgages, the “Loan
Documents”); and


 


WHEREAS, Lender is not willing to make the Loan,
or otherwise extend credit, to Borrower unless Guarantor unconditionally
guarantees payment and performance to Lender of the Guaranteed Obligations (as
herein defined); and


 


WHEREAS, Guarantor is the owner of a direct or
indirect interest in Borrower, and Guarantor will directly benefit from
Lender’s making the Loan to Borrower.


 


NOW, THEREFORE, as an inducement to Lender to make the
Loan to Borrower, and for other good and valuable consideration, the receipt
and legal sufficiency of which are hereby acknowledged, the parties do hereby
agree as follows:


 


ARTICLE I



NATURE AND SCOPE OF GUARANTY


 


1.1          Guaranty of Obligation.  Guarantor hereby irrevocably and
unconditionally guarantees to Lender and its successors and assigns the payment
and performance of the Guaranteed Obligations as and when the same shall be due
and payable, whether by lapse of time, by acceleration of maturity or
otherwise; provided, however, that notwithstanding anything contained in this
Guaranty or any of the other Loan Documents to the


 






















 


contrary, the
liability of Guarantor with respect to the Guaranteed Obligations in the
aggregate shall not exceed the Guaranteed Amount, and provided, further, that
the payment and performance of the Guaranteed Obligations by a Person other
than Guarantor shall not reduce the maximum potential liability of Guarantor
hereunder with respect to the Guaranteed Obligations.  Guarantor hereby irrevocably and unconditionally covenants and
agrees that it is liable for the Guaranteed Obligations as a primary obligor.


 


As used herein the term “Guaranteed Amount” shall mean
(i) the sum of Ten Million Dollars ($10,000,000.00), (ii) interest payable by
Guarantor under Section 1.5 hereof, and (iii) amounts due under Section
1.8 hereof; provided, however, that solely with respect to Guarantor’s
liability under subclauses (i) or (iv) of Section 1.2 below, the amount
set forth in subclause (i) of this paragraph shall be increased by the amount
of any economic benefit actually derived by Guarantor (and or Affiliates of
Guarantor controlled by Guarantor) from the events giving rise to such
liability to the extent such amount exceeds Ten Million Dollars
($10,000,000.00).  As used in this
paragraph the term “controlled” means the possession, directly or indirectly,
of the power to direct or cause the direction of the management, policies or
activities of a Person, whether through ownership of voting interests, by
contract, or otherwise.


 


1.2          Definition of Guaranteed
Obligations.  As
used herein, the term “Guaranteed Obligations” means (a) the
obligations and liabilities of Borrower to Lender for any actual out-of-pocket
loss, damage, cost, expense, liability, claim and any other obligation incurred
by Lender (including attorneys’ fees and costs reasonably incurred) arising out
of or in connection with the following:


 


(i)            fraud
or intentional material misrepresentation by Borrower, Guarantor, or any of
their principals, officers, agents or employees in connection with the Loan;


 


(ii)           damage
to the Properties arising from intentional misconduct of Borrower, Guarantor,
or any of their principals, officers, agents or employees, and any removal of
assets forming part of any Individual Property by Borrower in violation of the
Loan Documents;


 


(iii)          the
breach of any representation, warranty, covenant or indemnification provision
in the Environmental Indemnity or in the Mortgages concerning environmental
laws, hazardous substances and asbestos and any indemnification of Lender with
respect thereto in the Environmental Indemnity or the Mortgages, but only to
the extent that the same are not insured against by an environmental insurance
policy reasonably acceptable to Lender;


 


(iv)          the
misappropriation or conversion by Borrower of (A) any Insurance Proceeds
paid by reason of any Casualty, (B) any Awards received in connection with
a Condemnation, (C) any Rents following and during the continuance of an
Event of Default, or (D) any Rents paid more than one (1) month in advance
(it being agreed that no use of funds for the repair, maintenance or operations
of the Properties shall be treated as a “misappropriation” hereunder);


 


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(v)           a
breach of any representation set forth in Section 4.1.39 of the Loan Agreement;
or


 


(vi)          if
Borrower fails to obtain Lender’s prior consent to any Indebtedness or
voluntary Lien encumbering the Properties as required by the Loan Agreement or
by the Mortgages; and


 


(b)           the
entire amount of the Debt (i) in the event of:  (A) any Individual Borrower filing a voluntary petition under
the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law;
(B) any Individual Borrower soliciting or causing to be solicited
petitioning creditors for an involuntary petition against any Individual
Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or
insolvency law, (C) any Individual Borrower filing an answer consenting to
or otherwise acquiescing in or joining in any involuntary petition filed
against it, by any other Person under the Bankruptcy Code or any other Federal
or state bankruptcy or insolvency law; (D) any Individual Borrower
consenting to or acquiescing in or joining in an application for the
appointment of a custodian, receiver, trustee, or examiner for any such
Individual Borrower or any portion of the Properties; (E) any Individual
Borrower making an assignment for the benefit of creditors, or admitting, in
writing or in any legal proceeding, its insolvency or inability to pay its
debts as they become due; or (ii) if any Individual Borrower fails to
obtain Lender’s prior written consent to any Transfer as required by the Loan
Agreement or the Mortgages.


 


1.3          Nature of Guaranty.  This Guaranty is an irrevocable, absolute,
continuing guaranty of payment and performance and not a guaranty of collection.  This Guaranty may not be revoked by
Guarantor and shall continue to be effective with respect to any Guaranteed
Obligations arising or created after any attempted revocation by Guarantor.  The fact that at any time or from time to
time the Guaranteed Obligations may be increased or reduced shall not release
or discharge the obligation of Guarantor to Lender with respect to the
Guaranteed Obligations so long as the Guaranteed Amount is not affected
thereby.  This Guaranty may be enforced
by Lender and any subsequent holder of the Note and shall not be discharged by
the assignment or negotiation of all or part of the Note.


 


1.4          Guaranteed Obligations Not Reduced
by Offset.  The
Guaranteed Obligations and the liabilities and obligations of Guarantor to Lender
hereunder, shall not be reduced, discharged or released because or by reason of
any existing or future offset, claim or defense of any Person other than
Guarantor against Lender or against payment of the Guaranteed Obligations,
whether such offset, claim or defense arises in connection with the Guaranteed
Obligations (or the transactions creating the Guaranteed Obligations) or
otherwise (except for payment and performance of the Guaranteed Obligations,
and then only to the extent of such payment and performance; provided that if
such payment and performance is by a Person other than Guarantor, such payment
and performance shall not reduce the maximum potential liability of Guarantor
under this Guaranty with respect to the Guaranteed Obligations).


 


1.5          Payment By Guarantor.  If all or any part of the Guaranteed
Obligations shall not be punctually paid when due, whether at demand, maturity,
acceleration or otherwise, Guarantor shall, immediately upon demand by Lender,
and without presentment, protest, notice of protest, notice of non-payment,
notice of intention to accelerate the maturity, notice of


 


 


3






















 


acceleration of
the maturity, or any other notice whatsoever, pay in lawful money of the United
States of America, the amount due on the Guaranteed Obligations to Lender at
Lender’s address as set forth herein. 
Such demand(s) may be made at any time coincident with or after the time
for payment of all or part of the Guaranteed Obligations, and may be made from
time to time with respect to the same or different items of Guaranteed
Obligations.  Such demand shall be
deemed made, given and received in accordance with the notice provisions
hereof.  If the amount due on the
Guaranteed Obligations is not paid by the Guarantor to Lender as aforesaid
within ten (10) days after demand by Lender, the same shall bear interest
at the Default Rate from the date of demand until the date on which the said
amount shall have been paid.


 


1.6          No Duty To Pursue Others.  It shall not be necessary for Lender (and
Guarantor hereby waives any rights which Guarantor may have to require Lender),
in order to enforce the obligations of Guarantor hereunder, first to
(a) institute suit or exhaust its remedies against Borrower or others liable
on the Loan or the Guaranteed Obligations or any other person, (b) enforce
Lender’s rights against any collateral which shall ever have been given to
secure the Loan, (c) enforce Lender’s rights against any other guarantors
of the Guaranteed Obligations, (d) join Borrower or any others liable on
the Guaranteed Obligations in any action seeking to enforce this Guaranty,
(e) exhaust any remedies available to Lender against any collateral which
shall ever have been given to secure the Loan, or (f) resort to any other
means of obtaining payment of the Guaranteed Obligations.  Lender shall not be required to mitigate
damages or take any other action to reduce, collect or enforce the Guaranteed
Obligations.


 


1.7          Waivers.  Guarantor agrees to the provisions of the
Loan Documents, and hereby waives notice of (a) any loans or advances made
by Lender to Borrower, (b) acceptance of this Guaranty, (c) any
amendment or extension of the Note, the Loan Agreement or any of the other Loan
Documents, (d) the execution and delivery by Borrower and Lender of any
other loan or credit agreement or of Borrower’s execution and delivery of any
promissory notes or other documents arising under the Loan Documents or in
connection with the Properties, (e) the occurrence of any breach by
Borrower of any of the terms or conditions of the Loan Agreement or any of the
other Loan Documents or an Event of Default, (f) Lender’s transfer or
disposition of the Guaranteed Obligations, or any part thereof, (g) sale
or foreclosure (or posting or advertising for sale or foreclosure) of any
collateral for the Guaranteed Obligations, (h) protest, proof of
non-payment or default by Borrower and (i) any other action at any time
taken or omitted by Lender, and, generally, all demands and notices of every
kind in connection with this Guaranty, the other Loan Documents, any documents
or agreements evidencing, securing or relating to any of the Guaranteed
Obligations, unless any such notice or demand is required to be given by Lender
to Guarantor pursuant to the express terms and provisions of this Guaranty.


 


1.8          Payment of Expenses.  In the event that Guarantor shall breach or
fail to timely perform any provisions of this Guaranty, Guarantor shall, within
ten (10) Business Days after written demand by Lender, pay to Lender all costs
and expenses (including court costs and reasonable attorneys’ fees) incurred by
Lender in the enforcement hereof or the preservation of Lender’s rights
hereunder.  The covenant contained in
this Section shall survive the payment and performance of the Guaranteed
Obligations.


 


1.9          Effect of Bankruptcy.  In the event that, pursuant to any
insolvency, bankruptcy, reorganization, receivership or other debtor relief
law, or any judgment, order or


 


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decision
thereunder, Lender must rescind or restore any payment, or any part thereof,
received by Lender in satisfaction of the Guaranteed Obligations, as set forth
herein, any prior release or discharge from the terms of this Guaranty given to
Guarantor by Lender shall be without effect, and this Guaranty shall remain in
full force and effect.  It is the
intention of Borrower and Guarantor that Guarantor’s obligations hereunder
shall not be discharged except by Guarantor’s payment and performance of such
obligations and then only to the extent of such payment and performance.


 


1.10        Waiver of Subrogation, Reimbursement
and Contribution. 
Notwithstanding anything to the contrary contained in this Guaranty,
Guarantor hereby unconditionally and irrevocably waives, releases and
abrogates, but only for so long as the Debt shall remain outstanding, any and
all rights it may now or hereafter have under any agreement, at law or in
equity (including, without limitation, any law subrogating the Guarantor to the
rights of Lender), to assert any claim against or seek contribution,
indemnification or any other form of reimbursement from Borrower or any other
party liable for payment of any or all of the Guaranteed Obligations for any
payment made by Guarantor under or in connection with this Guaranty or
otherwise.


 


1.11        Borrower.  The term “Borrower” as used herein
shall include any new or successor corporation, association, partnership
(general or limited), limited liability company, joint venture, trust or other
individual or organization formed as a result of any merger, reorganization,
sale, transfer, devise, gift or bequest of Borrower or any interest in
Borrower.  Without limiting the effect
of specific references in any provision of this Guaranty, the term “Borrower”
shall be deemed to refer to each and every Person comprising a Borrower from
time to time, as the sense of a particular provision may require.  If Borrower is comprised of more than one
Person, all representations, warranties, covenants (both affirmative and
negative) and all other obligations of Borrower under the Loan Documents shall
be the joint and several obligation of each entity making up Borrower and a
Default or Event of Default by any such Person shall be deemed a Default or
Event of Default by all such entities and Borrower.  The representations, covenants and warranties of Borrower
contained in the Loan Documents shall be read to apply to the individual
entities comprising Borrower when the context so requires but a breach of any
such representation, covenant or warranty or a breach of any obligation under
the Loan Documents shall be deemed a breach by all such entities and Borrower.


 


ARTICLE II



EVENTS AND CIRCUMSTANCES NOT REDUCING

OR DISCHARGING GUARANTOR’S OBLIGATIONS


 


Guarantor
hereby consents and agrees to each of the following, and agrees that
Guarantor’s obligations under this Guaranty shall not be released, diminished,
impaired, reduced or adversely affected by any of the following, and waives, to
the fullest extent permitted by applicable law, any common law, equitable,
statutory or other rights (including without limitation rights to notice) which
Guarantor might otherwise have as a result of or in connection with any of the
following:


 


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2.1          Modifications.  Any renewal, extension, increase,
modification, alteration or rearrangement of all or any part of the Guaranteed
Obligations, the Note, the Loan Agreement, the other Loan Documents, or any
other document, instrument, contract or understanding between Borrower and
Lender, or any other Person, pertaining to the Guaranteed Obligations or any
failure of Lender to notify Guarantor of any such action; provided, however,
that the Guaranteed Amount shall not be affected by such renewal, extension,
increase, modification, alteration or rearrangement.


 


2.2          Adjustment.  Any adjustment, indulgence, forbearance or
compromise that might be granted or given by Lender to Borrower or Guarantor of
any or all of the Loan or the Guaranteed Obligations.


 


2.3          Condition of Borrower or Guarantor.  The insolvency, bankruptcy, arrangement,
adjustment, composition, liquidation, disability, dissolution or lack of power
of Borrower, Guarantor or any other Person at any time liable for the payment
of all or part of the Guaranteed Obligations; or any dissolution of Borrower,
Guarantor or such other Person, or any sale, lease or transfer of any or all of
the assets of Borrower, Guarantor or such other Person, or any changes in the
shareholders, partners or members of Borrower, Guarantor or such other Person;
or any reorganization of Borrower, Guarantor or such other Person.


 


2.4          Invalidity of Guaranteed
Obligations.  The
invalidity, illegality or unenforceability of all or any part of the Guaranteed
Obligations, or any document or agreement executed in connection with the
Guaranteed Obligations, for any reason whatsoever, including without limitation
the fact that (a) the Guaranteed Obligations, or any part thereof, exceeds
the amount permitted by law, (b) the act of creating the Guaranteed
Obligations or any part thereof is ultra  vires, (c) the
officers or representatives executing the Note, the Loan Agreement or the other
Loan Documents or otherwise creating the Guaranteed Obligations acted in excess
of their authority, (d) the Guaranteed Obligations violate applicable
usury laws, (e) the Borrower has valid defenses, claims or offsets
(whether at law, in equity or by agreement) which render the Guaranteed
Obligations wholly or partially uncollectible from Borrower (except for payment
and performance of the Guaranteed Obligations, and then only to the extent of
such payment and performance by Borrower, provided that such payment and
performance by Borrower shall not reduce the maximum potential liability of
Guarantor under this Guaranty with respect to the Guaranteed Obligations),
(f) the creation, performance or repayment of the Guaranteed Obligations
(or the execution, delivery and performance of any document or instrument
representing part of the Guaranteed Obligations or executed in connection with
the Guaranteed Obligations, or given to secure the repayment of the Guaranteed
Obligations) is illegal, uncollectible or unenforceable, or (g) the Note,
the Loan Agreement or any of the other Loan Documents has been forged or
otherwise is irregular or not genuine or authentic, it being agreed that
Guarantor shall remain liable hereon regardless of whether Borrower or any
other Person be found not liable on the Guaranteed Obligations or any part
thereof for any reason.


 


2.5          Release of Obligors.  Any full or partial release of the liability
of Borrower on the Guaranteed Obligations, or any part thereof, or of any
co-guarantors, or any other Person or entity now or hereafter liable, whether
directly or indirectly, jointly, severally, or jointly and severally, to pay,
perform, guarantee or assure the payment of the Guaranteed Obligations, or any
part thereof, it being recognized, acknowledged and agreed by Guarantor that


 


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Guarantor may be
required to pay the Guaranteed Obligations in full without assistance or
support from any other Person, and Guarantor has not been induced to enter into
this Guaranty on the basis of a contemplation, belief, understanding or
agreement that other Persons will be liable to pay or perform the Guaranteed
Obligations or any part thereof, or that Lender will look to other Persons to
pay or perform the Guaranteed Obligations or any part thereof.


 


2.6          Other Collateral.  The taking or accepting of any other
security, collateral or guaranty, or other assurance of payment, for all or any
part of the Guaranteed Obligations.


 


2.7          Release of Collateral.  Any release, surrender, exchange,
subordination, deterioration, waste, loss or impairment (including without
limitation negligent, willful, unreasonable or unjustifiable impairment) of any
collateral, property or security at any time existing in connection with, or
assuring or securing payment of, all or any part of the Guaranteed Obligations.


 


2.8          Care and Diligence.  The failure of Lender or any other party to
exercise diligence or reasonable care in the preservation, protection,
enforcement, sale or other handling or treatment of all or any part of such
collateral, property or security, including but not limited to any neglect,
delay, omission, failure or refusal of Lender (a) to take or prosecute any
action for the collection of any of the Guaranteed Obligations or (b) to
foreclose, or initiate any action to foreclose, or, once commenced, prosecute
to completion any action to foreclose upon any security therefor, or
(c) to take or prosecute any action in connection with any instrument or
agreement evidencing or securing all or any part of the Guaranteed Obligations.


 


2.9          Unenforceability.  The fact that any collateral, security,
security interest or lien contemplated or intended to be given, created or
granted as security for the repayment of the Guaranteed Obligations, or any
part thereof, shall not be properly perfected or created, or shall prove to be
unenforceable or subordinate to any other security interest or lien, it being
recognized and agreed by Guarantor that Guarantor is not entering into this
Guaranty in reliance on, or in contemplation of the benefits of, the validity,
enforceability, collectibility or value of any of the collateral for the
Guaranteed Obligations or any part thereof.


 


2.10        Offset.  Any existing or future right of offset,
claim or defense of Borrower against Lender, or any other Person, or against
payment of the Guaranteed Obligations or any part thereof, whether such right
of offset, claim or defense arises in connection with the Guaranteed
Obligations or any part thereof (or the transactions creating the Guaranteed
Obligations) or otherwise (except for payment and performance of the Guaranteed
Obligations, and then only to the extent of such payment and performance,
provided that such payment and performance by any Person other than Guarantor
shall not reduce the maximum potential liability of Guarantor under this
Guaranty with respect to the Guaranteed Obligations).


 


2.11        Merger.  The reorganization, merger or consolidation
of Borrower into or with any other corporation or entity.


 


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2.12        Preference.  Any payment by Borrower to Lender is held to
constitute a preference under bankruptcy laws, or for any reason Lender is
required to refund such payment or pay such amount to Borrower or someone else.


 


2.13        Other Actions Taken or Omitted.  Any other action taken or omitted to be
taken with respect to the Loan Documents, the Guaranteed Obligations, or the
security and collateral therefor, whether or not such action or omission
prejudices Guarantor or increases the likelihood that Guarantor will be
required to pay the Guaranteed Obligations pursuant to the terms hereof, it is
the unambiguous and unequivocal intention of Guarantor that Guarantor shall be
obligated to pay the Guaranteed Obligations when due, notwithstanding any
occurrence, circumstance, event, action, or omission whatsoever, whether
contemplated or uncontemplated, and whether or not otherwise or particularly
described herein, which obligation shall be deemed satisfied only upon the full
and final payment and satisfaction of the Guaranteed Obligations.


 


ARTICLE III



REPRESENTATIONS AND WARRANTIES


 


To
induce Lender to enter into the Loan Documents and extend credit to Borrower,
Guarantor represents and warrants to Lender as follows:


 


3.1          Benefit.  Guarantor is an affiliate of Borrower, is
the owner of a direct or indirect interest in Borrower, and has received, or
will receive, direct or indirect benefit from the making of this Guaranty with
respect to the Guaranteed Obligations.


 


3.2          Familiarity and Reliance.  Guarantor is familiar with, and has
independently reviewed books and records regarding, the financial condition of
Borrower and is familiar with the value of any and all collateral intended to
be created as security for the payment of the Note or Guaranteed Obligations;
however, Guarantor is not relying on such financial condition or the collateral
as an inducement to enter into this Guaranty.


 


3.3          No Representation By Lender.  Neither Lender nor any other party has made
any representation, warranty or statement to Guarantor in order to induce the
Guarantor to execute this Guaranty.


 


3.4          Guarantor’s Financial Condition.  As of the date hereof, and after giving
effect to this Guaranty and the contingent obligation evidenced hereby,
Guarantor is, and intends to remain, solvent, and has and intends to have
assets which, fairly valued, exceed its obligations, liabilities (including
contingent liabilities) and debts, and has and intends to have property and
assets sufficient to satisfy and repay its obligations and liabilities.


 


3.5          Legality.  The execution, delivery and performance by
Guarantor of this Guaranty and the consummation of the transactions
contemplated hereunder do not, and will not, contravene or conflict with any
law, statute or regulation whatsoever to which Guarantor is subject or
constitute a default (or an event which with notice or lapse of time or both
would constitute a default) under, or result in the breach of, any indenture,
mortgage, deed of trust, charge, lien, or any contract, agreement or other
instrument to which Guarantor is a party or


 


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which may be
applicable to Guarantor.  This Guaranty
is a legal and binding obligation of Guarantor and is enforceable against
Guarantor in accordance with its terms, except as limited by bankruptcy,
insolvency or other laws of general application relating to the enforcement of
creditors’ rights and limitations imposed by general principles of equity.


 


3.6          Survival.  All representations and warranties made by
Guarantor herein shall survive the execution hereof.


 


ARTICLE IV



SUBORDINATION OF CERTAIN INDEBTEDNESS


 


4.1          Subordination of All Guarantor
Claims.  As used
herein, the term “Guarantor Claims” shall mean all debts and
liabilities of Borrower to Guarantor, whether such debts and liabilities now
exist or are hereafter incurred or arise, or whether the obligations of
Borrower thereon be direct, contingent, primary, secondary, several, joint and
several, or otherwise, and whether such debts or liabilities be evidenced by
note, contract, open account, or otherwise, and irrespective of the Person in
whose favor such debts or liabilities may, at their inception, have been, or
may hereafter be created, or the manner in which they have been or may
hereafter be acquired by Guarantor.  The
Guarantor Claims shall include without limitation all rights and claims of
Guarantor against Borrower (arising as a result of subrogation or otherwise) as
a result of Guarantor’s payment of all or a portion of the Guaranteed
Obligations.  Upon the occurrence and
during the continuance of a monetary Default or an Event of Default, Guarantor
shall not receive or collect, directly or indirectly, from Borrower or any
other party any amount upon the Guarantor Claims.


 


4.2          Claims in Bankruptcy.  In the event of receivership, bankruptcy,
reorganization, arrangement, debtor’s relief, or other insolvency proceedings
involving Guarantor as debtor, Lender shall have the right to prove its claim
in any such proceeding so as to establish its rights hereunder and, to the
fullest extent permitted by applicable law, receive directly from the receiver,
trustee or other court custodian dividends and payments which would otherwise
be payable upon Guarantor Claims. 
Guarantor hereby assigns such dividends and payments to Lender.  Should Lender receive, for application upon
the Guaranteed Obligations, any such dividend or payment which is otherwise
payable to Guarantor, and which, as between Borrower and Guarantor, shall
constitute a credit upon the Guarantor Claims, then upon payment to Lender in
full of the Guaranteed Obligations, Guarantor shall become subrogated to the
rights of Lender to the extent that such payments to Lender on the Guarantor
Claims have contributed toward the liquidation of the Guaranteed Obligations,
and such subrogation shall be with respect to that proportion of the Guaranteed
Obligations which would have been unpaid if Lender had not received dividends
or payments upon the Guarantor Claims.


 


4.3          Payments Held in Trust.  In the event that, notwithstanding anything
to the contrary in this Guaranty, Guarantor should receive any funds, payment,
claim or distribution which is prohibited by this Guaranty, Guarantor agrees to
hold in trust for Lender an amount equal to the amount of all funds, payments,
claims or distributions so received, and agrees that it shall have absolutely
no dominion over the amount of such funds, payments, claims or 


 


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distributions so
received except to pay them promptly to Lender, and Guarantor covenants
promptly to pay the same to Lender, to the fullest extent permitted by law.


 


4.4          Liens Subordinate.  Guarantor agrees that any liens, security
interests, judgment liens, charges or other encumbrances upon Borrower’s assets
securing payment of the Guarantor Claims shall be and remain inferior and
subordinate to any liens, security interests, judgment liens, charges or other
encumbrances upon Borrower’s assets securing payment of the Guaranteed
Obligations, regardless of whether such encumbrances in favor of Guarantor or
Lender presently exist or are hereafter created or attach.  Without the prior written consent of Lender
until the Loan shall have been satisfied in full, Guarantor shall not
(a) exercise or enforce any creditor’s right it may have against Borrower,
or (b) foreclose, repossess, sequester or otherwise take steps or
institute any action or proceedings (judicial or otherwise, including without
limitation the commencement of, or joinder in, any liquidation, bankruptcy,
rearrangement, debtor’s relief or insolvency proceeding) to enforce any liens,
mortgages, deeds of trust, security interests, collateral rights, judgments or
other encumbrances on assets of Borrower held by Guarantor.


 


ARTICLE V



MISCELLANEOUS


 


5.1          Waiver.  No failure to exercise, and no delay in
exercising, on the part of Lender, any right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right.  The rights of Lender hereunder shall be in
addition to all other rights provided by law. 
No modification or waiver of any provision of this Guaranty, nor consent
to departure therefrom, shall be effective unless in writing and no such
consent or waiver shall extend beyond the particular case and purpose
involved.  No notice or demand given in
any case shall constitute a waiver of the right to take other action in the
same, similar or other instances without such notice or demand.


 


5.2          Notices.  Any notice, demand, statement, request or
consent made hereunder shall be in writing and shall be deemed to be received
by the addressee on the third day following the day such notice is deposited
with the United States Postal Service first class certified mail, return
receipt requested, addressed to the address, as set forth below, of the party
to whom such notice is to be given, or to such other address as either party
shall in like manner designate in writing. 
The addresses of the parties hereto are as follows:


 


	
  Guarantor:

  
	
   

  
	
   

  	
  BlueLinx Holdings, Inc.

  
	
   

  	
  4300 Wildwood Parkway

  
	
   

  	
  Atlanta, Georgia 30339

  
	
   

  	
  Attention: Jason Bixby

  
	
   

  	
  Facsimile No.:

  



 


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  with a copy to:

  
	
   

  
	
   

  	
  Schulte Roth &
  Zabel LLP

  
	
   

  	
  919 Third Avenue

  
	
   

  	
  New York, New York
  10022

  
	
   

  	
  Attention: Jeffrey A.
  Lenobel, Esq.

  
	
   

  	
  Facsimile No.: (212)
  593-5955

  
	
   

  	
   

  
	
  Lender:

  
	
   

  	
   

  
	
   

  	
  Column Financial, Inc.

  
	
   

  	
  11 Madison Avenue

  
	
   

  	
  New York, New York
  10010

  
	
   

  	
  Attention: Casey
  McCutcheon, Esq.

  
	
   

  	
  Facsimile No.:

  
	
   

  	
   

  
	
  with a copy to:

  	
  Column Financial, Inc.

  
	
   

  	
  11 Madison Avenue

  
	
   

  	
  New York, New York 10010

  
	
   

  	
  Legal and Compliance Department

  
	
   

  	
  Attention: Rodney Schiffer

  
	
   

  	
  Facsimile No.: (212) 743-5228

  
	
   

  	
   

  
	
  with a copy to:

  	
  Cadwalader, Wickersham & Taft LLP

  
	
   

  	
  100 Maiden Lane

  
	
   

  	
  New York, New York 10038

  
	
   

  	
  Attention: William P. McInerney, Esq.

  
	
   

  	
  Facsimile No.: (212) 504-6666

  



 


5.3          Governing Law.  This Guaranty shall be governed in
accordance with the State of New York and the applicable law of the United
States of America.


 


5.4          Invalid Provisions.  If any provision of this Guaranty is held to
be illegal, invalid, or unenforceable under present or future laws effective
during the term of this Guaranty, such provision shall be fully severable and
this Guaranty shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of this Guaranty, and the
remaining provisions of this Guaranty shall remain in full force and effect and
shall not be affected by the illegal, invalid or unenforceable provision or by
its severance from this Guaranty, unless such continued effectiveness of this
Guaranty, as modified, would be contrary to the basic understandings and
intentions of the parties as expressed herein.


 


5.5          Amendments.  This Guaranty may be amended only by an
instrument in writing executed by the party or an authorized representative of
the party against whom such amendment is sought to be enforced.


 


5.6          Parties Bound; Assignment; Joint
and Several.  This
Guaranty shall be binding upon and inure to the benefit of the parties hereto
and their respective successors, assigns and legal representatives; provided,
however, that Guarantor may not, without the prior written


 


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consent of Lender,
assign any of its rights, powers, duties or obligations hereunder.  If Guarantor consists of more than one
Person, the obligations and liabilities of each such Person shall be joint and
several.


 


5.7          Headings.  Section headings are for convenience of
reference only and shall in no way affect the interpretation of this Guaranty.


 


5.8          Recitals.  The recital and introductory paragraphs
hereof are a part hereof, form a basis for this Guaranty and shall be
considered prima
facie evidence of the facts and documents referred to therein.


 


5.9          Counterparts.  To facilitate execution, this Guaranty may
be executed in as many counterparts as may be convenient or required.  It shall not be necessary that the signature
of, or on behalf of, each party, or that the signature of all Persons required
to bind any party, appear on each counterpart. 
All counterparts shall collectively constitute a single instrument.  It shall not be necessary in making proof of
this Guaranty to produce or account for more than a single counterpart
containing the respective signatures of, or on behalf of, each of the parties
hereto.  Any signature page to any
counterpart may be detached from such counterpart without impairing the legal
effect of the signatures thereon and thereafter attached to another counterpart
identical thereto except having attached to it additional signature pages.


 


5.10        Rights and Remedies.  If Guarantor becomes liable for any
indebtedness owing by Borrower to Lender, by endorsement or otherwise, other
than under this Guaranty, such liability shall not be in any manner impaired or
affected hereby and the rights of Lender hereunder shall be cumulative of any
and all other rights that Lender may ever have against Guarantor.  The exercise by Lender of any right or
remedy hereunder or under any other instrument, or at law or in equity, shall
not preclude the concurrent or subsequent exercise of any other right or
remedy.


 


5.11        Other Defined Terms.  Any capitalized term utilized herein shall
have the meaning as specified in the Loan Agreement, unless such term is
otherwise specifically defined herein.


 


5.12        Entirety.  THIS GUARANTY EMBODIES THE FINAL AND ENTIRE AGREEMENT OF GUARANTOR AND
LENDER WITH RESPECT TO GUARANTOR’S GUARANTY OF THE GUARANTEED OBLIGATIONS AND
SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER
HEREOF.  THIS GUARANTY IS INTENDED BY
GUARANTOR AND LENDER AS A FINAL AND COMPLETE EXPRESSION OF THE TERMS OF THE
GUARANTY, AND NO COURSE OF DEALING BETWEEN GUARANTOR AND LENDER, NO COURSE OF
PERFORMANCE, NO TRADE PRACTICES, AND NO EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSIC EVIDENCE OF ANY
NATURE SHALL BE USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY ANY TERM OF THIS


 


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GUARANTY AGREEMENT.  THERE ARE NO ORAL AGREEMENTS BETWEEN
GUARANTOR AND LENDER.


 


5.13        Waiver of Right To Trial By Jury.  GUARANTOR AND LENDER EACH HEREBY AGREE NOT
TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVE ANY
RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR
HEREAFTER EXIST WITH REGARD TO THIS GUARANTY, THE NOTE, THE LOAN AGREEMENT, THE
MORTGAGES, OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER
ACTION ARISING IN CONNECTION THEREWITH. 
THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY
BY EACH OF GUARANTOR AND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH
INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD
OTHERWISE ACCRUE. EACH OF GUARANTOR AND LENDER IS HEREBY AUTHORIZED TO FILE A
COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER
BY GUARANTOR.


 


5.14        Reinstatement in Certain
Circumstances.  If
at any time any payment of the principal of or interest under the Note or any
other amount payable by Borrower under the Loan Documents is rescinded or must
be otherwise restored or returned to Borrower upon the insolvency, bankruptcy
or reorganization of Borrower or otherwise, the Guarantor’s obligations
hereunder with respect to such payment, to the extent same constitute
Guaranteed Obligations hereunder, shall be reinstated as though such payment
has been due but not made at such time.


 


5.15        Termination.  Except to the extent provided in Section 5.14
above, this Guaranty shall automatically terminate upon the payment in full of
the Loan.


 


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EXECUTED as of the day and year first above
written.


 


	
   

  	
  GUARANTOR:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BLUELINX HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David J. Morris

  
	
   

  	
   

  	
  Name: David J. Morris

  
	
   

  	
   

  	
  Title: Vice President

  



 


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