Exhibit 10.1





Exhibit 10.1




FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT




This Fifth Amendment to Loan and Security Agreement (“Fifth Amendment”) is made as of the 14th
day of July, 2011, by and between the entities set forth on Exhibit “A” attached hereto, each a
Delaware limited liability company, (collectively “Borrower” and each an “Individual Borrower”),
and U.S. BANK NATIONAL ASSOCIATION, A NATIONAL BANKING ASSOCIATION ORGANIZED AND EXISTING UNDER THE
LAWS OF THE UNITED STATES OF AMERICA, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY IN ITS CAPACITY AS
TRUSTEE FOR THE REGISTERED HOLDERS OF WACHOVIA BANK COMMERCIAL MORTGAGE TRUST, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2006-C27 (“Lender”) as successor in interest to GERMAN AMERICAN
CAPITAL CORPORATION, a Maryland corporation (“GA”).



R E C I T A L S:




WHEREAS, the entities set forth on Exhibit “B” attached hereto, each a Delaware limited
liability company, (“Original Borrower”) and GA entered into that certain Loan and Security
Agreement dated June 9, 2006 (“Loan Agreement”) pursuant to which GA loaned Original Borrower the
original principal sum of $295,000,000 (“Loan”); and



WHEREAS, the Loan Agreement has been amended by that certain First Amendment to Loan and
Security Agreement dated December 17, 2008, Second Amendment to Loan and Security Agreement dated
December 30, 2008, Third Amendment to Loan and Security Agreement dated May 22, 2009, and Fourth
Amendment to Loan and Security Agreement dated February 18, 2011; and



WHEREAS, the Loan is evidenced by the Loan Documents. The Loan Documents, except for Amended
and Restated Notes A-1 and A-2, were assigned, and Amended and Restated Note A-2 was endorsed, to
Wachovia Bank, National Association, thereafter to Wells Fargo Bank, N.A., as Trustee for the
Registered Holders of Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2006-C27, thereafter to Bank of America, N.A., as Trustee for the registered
holders of Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series 2006-C27, and thereafter Lender replaced Bank of America, N.A. as Trustee, and Amended and
Restated Note A-1 was endorsed to Wachovia Bank, National Association and thereafter to Wells Fargo
Bank, N.A., as Trustee for the Registered Holders of Banc of America Commercial Mortgage, Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-4; and



WHEREAS, Borrower has requested that Section 8.4 of the Loan Agreement be amended to delete
Section 8.4(c).



NOW, THEREFORE, for and in consideration of the foregoing and other valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto consent and agree
as follows:



1. The above and foregoing Recitals are true and correct and incorporated herein by reference
thereto.


 


 









 






2. Section 8.4 of the Loan Agreement is hereby amended to delete Section 8.4(c).



3. Borrower and Lender agree that a Low LCR Cash Sweep Period is currently in effect. Borrower
acknowledges and agrees that Lender shall on the date hereof apply the entirety of the funds held
in the LCR Deterioration Reserve Account on June 30, 2011, one-half (1/2) to Amended and Restated
Note A-1 and one-half (1/2) to Amended and Restated Note A-2, toward the payment of the remaining
principal of said Notes, without the imposition of the otherwise applicable Yield Maintenance
Premium. As of June 30, 2011, the amount on deposit in the LCR Deterioration Reserve Account is
$38,349,062.48.



4. If the Low LCR Cash Sweep Period is still in effect on July 30, 2014, then in that event,
Lender may, in its sole discretion, at any time thereafter while the Low LCR Cash Sweep Period is
in effect, apply all of the funds (less $2,000,000.00) in the LCR Deterioration Reserve Account,
one-half (1/2) to Amended and Restated Note A-1 and one-half (1/2) to Amended and Restated Note
A-2, without the imposition of the otherwise applicable Yield Maintenance Premium.



5. So long as a Low LCR Cash Sweep Period is in effect, Lender agrees, in the reasonable
exercise of its discretion, to disburse funds from the LCR Deterioration Reserve Account to
Borrower for the payment of the cost of alterations, repairs, replacements and other improvements
to the Property and the Improvements and the Building Equipment, on a location by location basis,
from time to time, in response to Borrower requests for the same.



6. At such time as the Low LCR Cash Sweep Period ends, Borrower may request a disbursement to
Borrower of all funds remaining in the LCR Deterioration Reserve Account, and upon Borrower
providing proof satisfactory to Lender that the term of the Master Lease has been extended on the
same terms and conditions currently contained therein for an additional five (5) years, disburse
all of said funds to Borrower.



7. In order to induce Lender to enter into this Fifth Amendment, Borrower shall pay Lender a
fee of one percent (1%) of the outstanding principal balance of the Loan as of the date hereof,
one-half (1/2) thereof to be paid on or before August 15, 2011, and one-half (1/2) thereof on
December 30, 2011, both by wire transfer of federal funds, from Borrower’s separate funds, not from
the Holding Account or any sub-accounts thereof held by Lender.




8. Borrower hereby represents, warrants, acknowledges and covenants to and with Lender that:



(a) To the best of Borrower’s knowledge, no Event of Default or Default under any of the Loan
Documents has occurred and is continuing.



(b) As of the date hereof (but not as to any matters arising hereafter), Borrower has no
defenses, setoffs, claims, counterclaims or causes of action of any kind or nature whatsoever
against Lender or any of Lender’s predecessors in interest or any subsidiary of Lender or any of
the past, present and future officers, directors, contractors, employees, agents, servicers
(including, but not limited to, LNR Partners, LLC, and Wachovia Bank, National Association),
attorneys, representatives, participants, successors and assigns of Lender and Lender’s
predecessors in interest (collectively, the “Lender Partners”) with respect to: (i) the Loan; (ii)
the Loan Documents; (iii) any other documents or instruments now or previously evidencing, securing
or in any way relating to the Loan; (iv) the administration or funding of the Loan; or (v) the
development, operation or financing of the Property. To the extent Borrower would be deemed to have
any such defenses, setoffs, claims, counterclaims or causes of action as of the date hereof,
Borrower waives and relinquishes them.


 


2









 





(c) Borrower acknowledges that as of the date hereof, the outstanding principal balance of the
Loan is $285,668,985.72. In the event of an error or omission in the foregoing information,
neither Borrower nor Lender in any way prejudices their respective right and entitlement to all
monies lawfully due Lender and/or obligations regarding the same.



(d) Borrower reaffirms and confirms the truth and accuracy of all representations and
warranties set forth in the Loan Documents as if made on the date hereof, except to the extent such
representations and warranties may be subject to change in the ordinary course of Borrower’s
business (to the extent permitted by the Loan Documents).



(e) To the best of Borrower’s knowledge, no representation or warranty of Borrower in this
Fifth Amendment or of Guarantor or Maryland Guarantor or Indemnitor executing a Joinder hereto
contains any untrue statement of material fact or intentionally omits to state a material fact
necessary in order to make such representations and warranties not misleading in any material
respect in light of the circumstances under which they are made. Any breach by Borrower or by any
of the parties executing a Joinder hereto of any of the representations, warranties or covenants
set forth herein or any Joinder hereto, after expiration of all applicable notice and cure periods,
shall constitute an Event of Default under the Loan Documents.



(f) All certifications set forth in the Borrower’s Certificate of even date are true and
correct in all material respects. The Borrower/Lessor and Lessee Certificate by Borrower as Lessor
and BlueLinx Corporation as Lessee is true and correct in all material respects.




9. Miscellaneous items:



9.1 Ratification. Borrower hereby ratifies and confirms to Lender, as of the date
hereof that, except as otherwise expressly and specifically modified by the terms of this Fifth
Amendment, all of the terms, representations, warranties, covenants, indemnifications and
provisions of the Note, the Loan Agreement and the other Loan Documents are and shall remain in
full force and effect as legally and binding obligations of Borrower. Consent by Lender shall not
constitute or imply consent to any other amendment or modification of the Loan Documents.



9.2 References. All references in the Loan Documents to the Loan Agreement shall mean
the Loan Agreement, amended by the four (4) amendments described in the second Whereas clause
above, as further amended hereby.



9.3 Counterparts. This Fifth Amendment may be executed in any number of counterparts
with the same effect as if all parties hereto had signed the same document. All such counterparts
shall be construed together and shall constitute one instrument, but in making proof hereof it
shall only be necessary to produce one such counterpart.



9.4 Successors and Assigns. This Fifth Amendment shall be binding upon and inure to
the benefit of the parties and their respective heirs, legal representatives, successors and
assigns.


 


3









 





9.5 Governing Law. This Fifth Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York and any applicable law of the United States of
America. The terms and conditions of Section 19.3 of the Loan Agreement are hereby incorporated
herein by this reference, with the same force and effect as if set forth herein in their entirety.



9.6 Waiver of Jury Trial. BORROWER, GUARANTOR, MARYLAND GUARANTOR, INDEMNITORS AND
LENDER EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND
WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER
EXIST WITH REGARD TO THIS FIFTH AMENDMENT, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN
CONNECTION HEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY
BORROWER, GUARANTOR, INDEMNITORS 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. BORROWER,
GUARANTOR, MARYLAND GUARANTOR, INDEMNITOR AND LENDER ARE EACH HEREBY AUTHORIZED TO FILE A COPY OF
THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER.



9.7 No Modification. No modification, amendment, extension, discharge, termination or
waiver of any provision of this Fifth Amendment or of any other Loan Document, nor consent to any
departure by Borrower therefrom, shall in any event be effective unless the same shall be in a
writing signed by the party against whom enforcement is sought, and then such waiver or consent
shall be effective only in the specific instance, and for the purpose, for which given.



9.8 Defined Terms. Unless otherwise defined in this Fifth Amendment, terms defined in
the Loan Agreement or in any of the other Loan Documents shall have their defined meanings when
used herein.



(Signature on following page)




 


4









 







IN WITNESS WHEREOF, Borrower and Lender, joined by Guarantor, Maryland Guarantor and
Indemnitor, have executed this Fifth Amendment as of the day and date first above written.



BORROWER




	 	 	 
	ABP AL (MIDFIELD) LLC

	 	ABP AR (LITTLE ROCK) LLC
	ABP CA (CITY OF INDUSTRY) LLC

	 	ABP CA (NATIONAL CITY) LLC
	ABP CA (NEWARK) LLC

	 	ABP CO I (DENVER) LLC
	XXXXXXXXXXXXXXXXXXXX

	 	ABP CT (NEWTON) LLC
	ABP CO II (DENVER) LLC

	 	ABP FL (MIAMI) LLC
	ABP FL (LAKE CITY) LLC

	 	ABP FL (TAMPA) LLC
	ABP FL (PENSACOLA) LLC

	 	ABP GA (LAWRENCEVILLE) LLC
	ABP FL (YULEE) LLC

	 	ABP IL (UNIVERSITY PARK) LLC
	ABP IA (DE MOINES) LLC

	 	ABP KY (INDEPENDENCE) LLC
	ABP IN (ELKHART) LLC

	 	ABP MA (BELLINGHAM) LLC
	ABP LA (SHREVEPORT) LLC

	 	ABP ME (PORTLAND) LLC
	ABP MD (BALTIMORE) SUBSIDIARY LLC

	 	ABP MI (GRAND RAPIDS) LLC
	ABP MI (DETROIT) LLC

	 	ABP MN (MAPLE GROVE) LLC
	ABP MN (EAGAN) LLC

	 	ABP MO (KANSAS CITY) LLC
	ABP MO (BRIDGETON) LLC

	 	ABP MS (PEARL) LLC
	ABP MO (SPRINGFIELD) LLC

	 	ABP NC (CHARLOTTE) LLC
	ABP NC (BUTNER) LLC

	 	ABP NJ (DENVILE) LLC
	ABP LA (NEW ORLEANS) LLC

	 	ABP NY (YAPHANK) LLC
	XXXXXXXXXXXXXXXXXXXXXXXXX

	 	ABP OK (TULSA) LLC
	ABP OH (TALMADGE) LLC

	 	ABP PA (ALLENTOWN) LLC
	ABP OR (BEAVERTON) LLC

	 	ABP SC (CHARLESTON) LLC
	ABP PA (STANTON) LLC

	 	ABP TN (ERWIN) LLC
	ABP SD (SIOUX FALLS) LLC

	 	ABP TN (MADISON) LLC
	ABP TN (MEMPHIS) LLC

	 	ABP TX (FORT WORTH) LLC
	ABP TX (EL PASO) LLC

	 	ABP TX (HOUSTON) LLC
	ABP TX (HARLINGEN) LLC

	 	ABP TX (SAN ANTONIO) LLC
	ABP TX (LUBBOCK) LLC

	 	ABP VA (VIRGINIA BEACH) LLC
	ABP VA (RICHMOND) LLC

	 	ABP WA (WOODINVILLE) LLC
	ABP VT (SHELBURNE) LLC

	 	ABP WI (WAUSAU) LLC






	 	 	 	 	 
	 	Each entity listed above

 	 
	 	By:  	/s/ H. Douglas Goforth
 	 
	 	 	H. Douglas Goforth 	 
	 	 	Vice-President and Secretary 	 


 


 









 






	 	 	 	 	 
	 	 	LENDER:
	 
	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION, A NATIONAL BANKING
ASSOCIATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE
UNITED STATES OF AMERICA, NOT IN ITS INDIVIDUAL CAPACITY
BUT SOLELY IN ITS CAPACITY AS TRUSTEE FOR THE REGISTERED
HOLDERS OF WACHOVIA BANK COMMERCIAL MORTGAGE TRUST,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES
2006-C27

	 
	 	 	 	 
	 

	 	By:
	 	LNR Partners, LLC, a Florida limited liability company,

as Attorney-in-Fact






	 	 	 	 
	 	By:  	                             /s/ Larry Golinsky
 	 
	 	 	Larry Golinsky, President 	 
	 	 	 	 


 


 









 






Guarantor hereby acknowledges the modifications to the Loan Agreement made herein and hereby
ratifies and confirms to Lender, as of the date hereof, that all of the terms, covenants,
indemnifications and provisions of the Guaranty of Recourse Obligations dated June 9, 2006 are and
shall remain in full force and effect without change except as otherwise expressly and specifically
modified by this Fifth Amendment.




	 	 	 	 	 	 	 
	 	 	GUARANTOR:	 	 
	 
	 	 	 	 	 	 
	 	 	BLUELINX HOLDINGS, INC., a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ H. Douglas Goforth
 

H. Douglas Goforth
	 	 
	 

	 	 	 	Chief Financial Officer and Treasurer	 	 






Maryland Loan Guarantor hereby acknowledges the modifications to the Loan Agreement made
herein and hereby ratifies and confirms to Lender, as of the date hereof, that all of the terms,
covenants, indemnifications and provisions of the Guaranty dated June 9, 2006 are and shall remain
in full force and effect without change except as otherwise expressly and specifically modified by
this Fifth Amendment.



	 	 	 	 	 	 	 
	 	 	MARYLAND LOAN GUARANTOR:	 	 
	 
	 	 	 	 	 	 
	 	 	ABP MD (BALTIMORE) LLC, a Delaware
limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ H. Douglas Goforth
 

H. Douglas Goforth
	 	 
	 

	 	 	 	Vice-President and Secretary	 	 







Indemnitor hereby acknowledges the modifications to the Loan Agreement and the other Loan
Documents as made herein and hereby ratify and confirm to Lender, as of the date thereof, that all
of the terms, covenants, indemnifications and provisions of the Environmental Indemnity dated June
9, 2006 are and shall remain in full force and effect without change except as otherwise expressly
and specifically modified by this Fifth Amendment.



	 	 	 	 	 	 	 
	 	 	INDEMNITOR:	 	 
	 
	 	 	 	 	 	 
	 	 	BLUELINX HOLDINGS INC., a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ H. Douglas Goforth
 

H. Douglas Goforth
	 	 
	 

	 	 	 	Chief Financial Officer and Treasurer	 	 





 


 









 





EXHIBIT “A”




BORROWER




	 	 	 
	ABP AL (MIDFIELD) LLC

	 	ABP AR (LITTLE ROCK) LLC
	ABP CA (CITY OF INDUSTRY) LLC

	 	ABP CA (NATIONAL CITY) LLC
	ABP CA (NEWARK) LLC

	 	ABP CO I (DENVER) LLC
	XXXXXXXXXXXXXXXXXXXXXXXX

	 	ABP CT (NEWTON) LLC
	ABP CO II (DENVER) LLC

	 	ABP FL (MIAMI) LLC
	ABP FL (LAKE CITY) LLC

	 	ABP FL (TAMPA) LLC
	ABP FL (PENSACOLA) LLC

	 	ABP GA (LAWRENCEVILLE) LLC
	ABP FL (YULEE) LLC

	 	ABP IL (UNIVERSITY PARK) LLC
	ABP IA (DE MOINES) LLC

	 	ABP KY (INDEPENDENCE) LLC
	ABP IN (ELKHART) LLC

	 	ABP MA (BELLINGHAM) LLC
	ABP LA (SHREVEPORT) LLC

	 	ABP ME (PORTLAND) LLC
	ABP MD (BALTIMORE) SUBSIDIARY LLC

	 	ABP MI (GRAND RAPIDS) LLC
	ABP MI (DETROIT) LLC

	 	ABP MN (MAPLE GROVE) LLC
	ABP MN (EAGAN) LLC

	 	ABP MO (KANSAS CITY) LLC
	ABP MO (BRIDGETON) LLC

	 	ABP MS (PEARL) LLC
	ABP MO (SPRINGFIELD) LLC

	 	ABP NC (CHARLOTTE) LLC
	ABP NC (BUTNER) LLC

	 	ABP NJ (DENVILE) LLC
	ABP LA (NEW ORLEANS) LLC

	 	ABP NY (YAPHANK) LLC
	XXXXXXXXXXXXXXXXXXXXXXXXX

	 	ABP OK (TULSA) LLC
	ABP OH (TALMADGE) LLC

	 	ABP PA (ALLENTOWN) LLC
	ABP OR (BEAVERTON) LLC

	 	ABP SC (CHARLESTON) LLC
	ABP PA (STANTON) LLC

	 	ABP TN (ERWIN) LLC
	ABP SD (SIOUX FALLS) LLC

	 	ABP TN (MADISON) LLC
	ABP TN (MEMPHIS) LLC

	 	ABP TX (FORT WORTH) LLC
	ABP TX (EL PASO) LLC

	 	ABP TX (HOUSTON) LLC
	ABP TX (HARLINGEN) LLC

	 	ABP TX (SAN ANTONIO) LLC
	ABP TX (LUBBOCK) LLC

	 	ABP VA (VIRGINIA BEACH) LLC
	ABP VA (RICHMOND) LLC

	 	ABP WA (WOODINVILLE) LLC
	ABP VT (SHELBURNE) LLC

	 	ABP WI (WAUSAU) LLC





 


 









 





EXHIBIT “B”




ORIGINAL BORROWER




	 	 	 
	ABP AL (MIDFIELD) LLC

	 	ABP AR (LITTLE ROCK) LLC
	ABP CA (CITY OF INDUSTRY) LLC

	 	ABP CA (NATIONAL CITY) LLC
	ABP CA (NEWARK) LLC

	 	ABP CO I (DENVER) LLC
	ABP CA (RIVERSIDE) LLC

	 	ABP CT (NEWTON) LLC
	ABP CO II (DENVER) LLC

	 	ABP FL (MIAMI) LLC
	ABP FL (LAKE CITY) LLC

	 	ABP FL (TAMPA) LLC
	ABP FL (PENSACOLA) LLC

	 	ABP GA (LAWRENCEVILLE) LLC
	ABP FL (YULEE) LLC

	 	ABP IL (UNIVERSITY PARK) LLC
	ABP IA (DE MOINES) LLC

	 	ABP KY (INDEPENDENCE) LLC
	ABP IN (ELKHART) LLC

	 	ABP MA (BELLINGHAM) LLC
	ABP LA (SHREVEPORT) LLC

	 	ABP ME (PORTLAND) LLC
	ABP MD (BALTIMORE) SUBSIDIARY LLC

	 	ABP MI (GRAND RAPIDS) LLC
	ABP MI (DETROIT) LLC

	 	ABP MN (MAPLE GROVE) LLC
	ABP MN (EAGAN) LLC

	 	ABP MO (KANSAS CITY) LLC
	ABP MO (BRIDGETON) LLC

	 	ABP MS (PEARL) LLC
	ABP MO (SPRINGFIELD) LLC

	 	ABP NC (CHARLOTTE) LLC
	ABP NC (BUTNER) LLC

	 	ABP NJ (DENVILE) LLC
	ABP ND (NORTH FARGO) LLC

	 	ABP NY (YAPHANK) LLC
	ABP NM (ALBUQUERQUE) LLC

	 	ABP OK (TULSA) LLC
	ABP OH (TALMADGE) LLC

	 	ABP PA (ALLENTOWN) LLC
	ABP OR (BEAVERTON) LLC

	 	ABP SC (CHARLESTON) LLC
	ABP PA (STANTON) LLC

	 	ABP TN (ERWIN) LLC
	ABP SD (SIOUX FALLS) LLC

	 	ABP TN (NASHVILLE) LLC
	ABP TN (MEMPHIS) LLC

	 	ABP TX (FORT WORTH) LLC
	ABP TX (EL PASO) LLC

	 	ABP TX (HOUSTON) LLC
	ABP TX (HARLINGEN) LLC

	 	ABP TX (SAN ANTONIO) LLC
	ABP TX (LUBBOCK) LLC

	 	ABP VA (VIRGINIA BEACH) LLC
	ABP VA (RICHMOND) LLC

	 	ABP WA (WOODINVILLE) LLC
	ABP VT (SHELBURNE) LLC

	 	ABP WI (WAUSAU) LLC