ex107formoffirstamendmen






                                                                 EXHIBIT 10.7            FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT          This First Amendment to Purchase and Sale Agreement (this “Amendment”) dated as of  the Effective Date (as hereinafter defined) is by and between ABP ___ (____________) LLC, a  Delaware limited liability company (“Seller”), and BIG ACQUISITIONS LLC, an Illinois limited  liability company (“Buyer”).                                     RECITALS:    A.    Seller  and  Buyer  are  parties  to  that  certain  Purchase  and  Sale  Agreement  dated  as  of        October 16, 2019 pertaining to the proposed sale by Seller to Buyer of certain real property        more particularly described therein (the “Agreement”).   B.    Buyer has requested an extension of time to complete its Due Diligence with respect to the        Property.   C.    The requested extension of the Due Diligence Deadline will necessitate a corresponding        extension of the Closing Deadline.   D.    Seller  is  willing  to  agree  to  such  requests,  upon  the  terms  and  conditions  of  this        Amendment.   E.    The parties also desire to amend certain provisions of the Agreement regarding the Lease.   F.    The parties also hereby confirm their mutual intent that the Lease and the Related Leases        (as hereinafter defined) create and constitute an integrated and unified agreement between        them and, but for execution and delivery of the Related Leases, they would not enter into        the Lease.                                OPERATIVE TERMS:          NOW,  THEREFORE,  for  and  in  consideration  of  the  foregoing  recitals,  the  mutual  covenants set forth in the Agreement and in this Amendment, Ten Dollars ($10.00) and other good  and  valuable  consideration  in  hand  paid,  the  receipt  and  sufficiency  of  which  are  hereby  acknowledged, Seller and Buyer hereby agree as follows:          1.    Recitals; Defined Terms.  The foregoing recitals are true and correct in all material respects  and incorporated in this Amendment and the Agreement. Capitalized terms and phrases used but  not otherwise defined in this Amendment shall have the meanings  ascribed to such terms  and  phrases  in  the  Agreement  or  the  Lease,  as  applicable.   Unless  the  context  clearly  indicates  otherwise,  all  references  to  “this  Agreement”  in  the Agreement  and  in  this  Amendment  shall  hereinafter be deemed to refer to the Agreement, as amended hereby.  As used in this Amendment  (but not for purposes of the Agreement, in which context the definition of the term “Effective  Date” shall remain unchanged), “Effective Date” shall mean the date on which Seller or Buyer  shall have executed this Amendment, as indicated under their respective signatures, whichever is  the later to do so.    ACTIVE 47249871v1                     1 





 






                                                                 EXHIBIT 10.7   2.    Due Diligence Deadline. The definition of “Due Diligence Deadline” in Schedule A to the  Agreement  is  hereby  deleted  in  its  entirety  and  replaced  with  the  following  definition: “‘Due  Diligence Deadline’ shall mean 6:00 P.M. Eastern time on December 13, 2019”.   3.    Closing Deadline. The definition of “Closing Deadline” in Schedule A to the Agreement  is hereby deleted in its entirety and replaced with the following definition: “‘Closing Deadline’  shall mean December 20, 2019”.   4.    Phase  II  Investigations.  Notwithstanding anything in this  Amendment to the contrary,  Buyer shall be permitted to conduct the investigations described in Exhibit A attached hereto and  incorporated  into  this  Amendment  by  reference  (the  “Scope”),  but  only  upon  and  in  strict  accordance  with  the  terms  and  conditions  set  forth  therein  and  in  this  Amendment,  it  being  understood that the activities to be conducted by or on behalf of Buyer in connection therewith  shall be limited to those set forth in the section entitled “Scope” in Exhibit A. Seller shall have  the right to have representatives present during any such investigations, and to this end, Buyer  shall  coordinate  the  scheduling  of  such  investigations  to  ensure  the  availability  of  Seller’s  representatives for such purpose, Buyer acknowledging, however, that it shall not be entitled to  any additional extension of time beyond the Due Diligence Deadline in order to complete and  obtain the results of such investigations. Seller shall also have the right, in Seller’s discretion, to  split  samples  with  Buyer’s  consultant.  Buyer  shall  keep  the  results  of  such  investigations  confidential and shall not disclose such results to Seller or to any third party, except its agents,  attorneys, consultants, investors and Lender or as required by Law. The obligation of Buyer to  keep  such  results  confidential  shall  survive  the  Closing  or  any  earlier  termination  of  the  Agreement. Buyer hereby represents, warrants and covenants to Seller that, as of the date of this  Amendment, it has no information indicating that the results of laboratory analysis of samples  collected in accordance with the Scope will not be available prior to the Due Diligence Deadline.  [NOT APPLICABLE TO MADISON, TN SITE]   5.    Lease  Amendment  regarding  Term.   Section  1.03  of  the  Lease  is  hereby  deleted  and  replaced with the following:   “Section 1.03 Term. This Lease shall begin on the Commencement Date and shall end on the last  day of the 216th full calendar month following the Commencement Date.  The time period during  which this Lease shall actually be in effect, as the same may be terminated prior to its scheduled  expiration pursuant to the provisions hereof, is referred to herein as the “Term”.”   Exhibit C to the Lease shall be updated at Closing to reflect 2% annual Base Rent increases for  Lease Years 16-18.   6.    Lease Amendment regarding Assignment.  The following is added to Section 4.01 of the  Lease:  “Notwithstanding anything to the contrary set forth herein, until the Security Deposit has  been reduced as provided in Section 9.17(b) below, Tenant shall not have the right to assign this  Lease unless Tenant contemporaneously assigns all Related Leases to the same assignee to which  this Lease is to be assigned in accordance with the terms of such Related Leases.”   7.    Lease  Amendment  regarding  Events  of  Default.  The  following  is  added  as  Section  7.01(a)(v) of the Lease:    ACTIVE 47249871v1                     2 





 






                                                                 EXHIBIT 10.7   “(v)  If an event of default, beyond expiration of any applicable grace and/or notice and cure  period, shall occur under any of Tenant’s leases with Landlord (or its Affiliates, as applicable) for  the premises located at [REVISE AS APPLICABLE: (A) 700 Myatt Drive, Madison, Tennessee,  (B) 4700 Bethlehem Road, Richmond, Virginia, (C) 1727 Warren Street, Kansas City, Missouri,  or (D)  13860  Corporate  Woods Trail,  Bridgeton,  Missouri] (the  foregoing,  collectively,  the  “Related Leases”). Notwithstanding the foregoing, at such time as the Security Deposit has been  reduced as provided in Section 9.17(b) below, this Section 7.01(a)(v) shall automatically lapse and  be of no further force and effect, and an event of default under any of the Related Leases shall  thereafter not constitute an Event of Default under this Lease.”   8.    Lease Amendment regarding Security Deposit. Section 9.17 of the Lease is deleted and  replaced with the following:   “Section 9.17 Security Deposit.         (a)   Tenant  shall  deposit  or  cause  to  be  deposited  with  Landlord  or  Mortgagee,  as  Landlord shall designate, on or before the date hereof, $_____________, as a “Security Deposit”  for its full and faithful performance of the terms of this Lease, it being expressly understood that  such Security Deposit shall not be considered an advance payment of any Basic Rent, additional  rent or other sums payable under this Lease or a measure of Landlord’s damages in case of an  Event of Default. Payment of said Security Deposit shall be satisfied by Tenant’s deposit of cash  or a Letter of Credit in said amount. Tenant shall have the right to freely substitute cash for a Letter  of Credit or vice versa, and if paid in cash, any interest earned shall remain as an additional Security  Deposit. If Landlord transfers its interest in the Premises during the Term to a Transferee who  assumes  Landlord’s  obligations  hereunder  and  to  whom  the  Security  Deposit  is  transferred,  Landlord may assign the Security Deposit to the Transferee and, thereafter, Landlord shall have  no further liability for the return of such Security Deposit to Tenant. If the Security Deposit is in  the form of a Letter of Credit, Tenant shall execute and deliver, within five (5) days after request  therefor  by  Landlord,  any  and  all  documents  necessary  to  transfer  the  Letter  of  Credit  to  the  Transferee. For the purposes herein, “Letter of Credit” shall mean an irrevocable standby letter  of credit issued to Landlord by a financially sound national banking association or state chartered  bank  having  assets  in  excess  of  $50,000,000,000.00  and  otherwise  reasonably  acceptable  to  Landlord, the proceeds of which shall be available to Landlord without the need for Landlord to  satisfy any requirements or conditions whatsoever other than delivery of (a) the original Letter of  Credit along with Landlord’s sight draft to the issuing institution with reference to the appropriate  letter of credit number for the Letter of Credit, as set forth therein and (b) (i) a certificate signed  by Landlord certifying that an Event of Default has occurred and is continuing under the Lease, or  (ii) a certificate signed by Landlord certifying that Tenant has failed to renew the Letter of Credit  at least thirty (30) days prior to its stated expiration date. The Letter of Credit shall be valid for an  initial period of one (1) year from and after the date of its issuance and, by its express terms, shall  provide (i) that its term shall automatically be extended for successive one (1) year periods unless  at least thirty (30) days prior to the expiration of the initial one year term or any one year extension  (as applicable) the issuer provides Landlord with written notification that it will not be extended,  (ii) that Landlord may assign (whether by way of outright or collateral assignment) all or any  portion of its interest in the Letter of Credit to Mortgagee or any other Person (including any third  party purchaser) without the payment of any fee, and (iii) that any amount drawn thereunder shall  be paid within three (3) business days.   ACTIVE 47249871v1                     3 





 






                                                                 EXHIBIT 10.7         (b)   Beginning  March  31,  2022  and  continuing  on  March  31st of  each  fiscal  year  thereafter (each, a “Reduction Request Date”), Tenant shall have the right to request, by written  notice  to  Landlord,  a  reduction  of  the  Security  Deposit  to  $____________,  provided  that  (i)  Tenant’s Adjusted EBITDA (hereinafter defined) for each of the two (2) previous fiscal years prior  to  such applicable Reduction Request  Date (as  publicly reported in  connection with  BlueLinx  Holdings Inc.’s (“BlueLinx”) filings with the Securities and Exchange Commission or as shown  on the financial statements that Tenant is required to deliver pursuant to Section 8.02(b) of this  Lease if BlueLinx is no longer publicly traded, as the case may be) is greater than $100,000,000.00  and Tenant’s Leverage is four (4) times or less as of the end of each such fiscal year, and (ii) at  such time there exists no Event of Default under this Lease.  If Tenant is entitled to a reduction in  the Security Deposit, Tenant shall provide Landlord with (A) written notice requesting that the  Security  Deposit  be  reduced,  (B)  a  calculation  of  Tenant’s  Adjusted  EBITDA  and  Tenant’s  Leverage, as provided above, and (C) financial statements required to be delivered pursuant to  Section  8.02(b)  (collectively,  the  “Reduction  Notice”).  If  Tenant  provides  Landlord  with  a  Reduction  Notice,  and  Tenant  is  entitled  to  reduce  the  Security  Deposit  as  provided  herein,  Landlord shall refund the reduction of the Security Deposit to Tenant within fifteen (15) days after  Landlord’s  receipt  of  the  Reduction  Notice,  if  the  Security  Deposit  is  held in  cash,  or,  if  the  Security Deposit is in the form of a Letter of Credit, Tenant shall be entitled to replace or cause  the  amendment of  the  Letter  of  Credit  accordingly.   For  the  purposes  of  this  Lease,  Tenant’s  “Adjusted  EBITDA” shall  mean  the  following,  as  applicable:  (i)  as  publicly  reported  in  connection with BlueLinx’s filings with the Securities and Exchange Commission for so long as  BlueLinx  is  a  publicly  traded  company,  or  (ii)  in  the  event  BlueLinx  is  not  a  publicly  traded  company, an amount as calculated on a consolidated basis for BlueLinx and its subsidiaries for  any period as of any date of determination equal to (a) the sum, without duplication, of the amounts  for such period of (1) net income (loss), plus (2) interest expense and all interest expense related  items, plus (3) depreciation expense and amortization expense, plus (4) income tax expense, plus  (5) non-cash stock option and other equity-based compensation expenses, plus (6) other non-cash  expenses, charges and adjustments to net income (loss) (excluding any such expense, charge or  adjustment incurred in the ordinary course of business that constitutes an accrual of, or a reserve  for, cash charges for any future period), plus (7) to the extent approved by Landlord in its sole  discretion and not otherwise contemplated above, other one-time charges, plus (8) to the extent  approved by Landlord in its sole discretion and not otherwise contemplated above, any losses  arising from the sale, exchange, transfer or other disposition of assets not in the ordinary course of  business, minus (b) the sum, without duplication, of the amounts for such period of (1) other non- cash items increasing net income for such period (excluding any such non-cash item to the extent  it represents the reversal of an accrual or reserve for potential cash item in any prior period), plus  (2) interest income, plus (3) other income, plus (4) gains from dispositions of assets or liabilities  outside  of  the  ordinary  course  of  business  for  such  period.  For  the  purposes of  this  Lease,  “Leverage” for a fiscal year shall mean, as calculated on a consolidated basis for BlueLinx and its  subsidiaries as of the date of the determination, the quotient obtained by dividing all of BlueLinx’s  outstanding third-party borrowings (net of cash and cash equivalents) as of the end of such fiscal  year by Tenant’s Adjusted EBITDA for such fiscal year.”         9.    Miscellaneous Lease Amendments.         (a)   The  last  sentence  of  Section  9.04  of  the  Lease  is  deleted  and  replaced  by  the  following:  “This Lease shall be governed by and interpreted in accordance with the laws of the   ACTIVE 47249871v1                     4 





 






                                                                 EXHIBIT 10.7   State of Illinois, except solely as to conveyancing matters, which shall be governed by the law of  the state in which the Premises are located, and without limitation of Tenant’s obligation to comply  with all state and local laws and ordinances.”         (b)   Section 9.14(b) of the Lease is hereby deleted.         (c)   Arch Street Capital Advisers, L.L.C., is hereby deleted from Section 8.01 of the  Lease as a Landlord notice party.  Tenant agrees that it shall send no notices with respect to the  Lease or the Premises to said entity.   10.   Headings.  The headings to sections of this Amendment are for convenient reference only  and shall not be used in interpreting this Amendment.   11.   Entire  Agreement.   This  Amendment  contains  the  entire  agreement  and  understanding  between the parties concerning the subject matter of this Amendment and supersedes all prior  agreements, terms, understandings, conditions, representations and warranties, whether written or  oral, concerning the matters that are the subject of this Amendment.   12.   Force  and  Effect.   Except  as  otherwise  expressly  modified  by  this  Amendment,  the  Agreement shall remain in full force and effect. Seller and Buyer hereby ratify and confirm their  respective rights and obligations under the Agreement, as amended by this Amendment.   13.   Counterparts.  This Amendment may be executed in counterparts, and all such counterparts  shall when taken together, constitute one and the same instrument.   14.   Electronic  Execution.   This  Amendment  may  be  executed  and  delivered  by  electronic  transmission, with the same force and effect as a fully-executed or counterpart original document.         IN WITNESS WHEREOF, Seller and  Buyer have executed this  Amendment as  of the  Effective Date.                                             SELLER:                                                                                  ABP ___ (____________) LLC                                         a Delaware limited liability company                                                                                                                           By:                                                                             Name: Justin B. Heineman                                         Title: Vice President and Corporate Secretary                                                                                  Date signed: November ___, 2019                                                                                                                                                                      BUYER:   ACTIVE 47249871v1                     5 





 






                                                                 EXHIBIT 10.7                                                                                   BIG ACQUISITIONS LLC, a Delaware limited                                         liability company                                                                                                                           By:                                                                             Name:                                                                           Title:                                                                                                                   Date signed: November ___, 2019                                  ACTIVE 47249871v1                     6 





 






                                                                 EXHIBIT 10.7                                     EXHIBIT A                                                                              SCOPE      ACTIVE 47249871v1                     7