Exhibit 10.2


 


FIRST AMENDMENT TO


ASSET PURCHASE AGREEMENT


 


This First Amendment, dated as of May 6, 2004
(this “Amendment”), to the Asset
Purchase Agreement (the “Agreement”),
dated as of March 12, 2003, by and among Georgia-Pacific Corporation, a Georgia
corporation (“GP” or a “Seller”), Georgia-Pacific Building
Materials Sales, Ltd., a New Brunswick corporation and a wholly owned
subsidiary of GP (“GPBMS” or a “Seller” and, together with GP, “Sellers”), and BlueLinx Corporation (f/k/a
ABP Distribution Inc.), a Georgia corporation (“Purchaser”).


 


WHEREAS,
the parties to the Agreement desire to enter into this Amendment to amend
certain provisions and Schedules of the Agreement upon the terms and conditions
set forth herein.


 


NOW,
THEREFORE, in consideration of the foregoing and the respective agreements
herein contained, the parties, intending to be legally bound, agree as follows:


 


Section 1.        Capitalized
Terms.  All capitalized terms used in
this Amendment and not otherwise defined herein shall have their respective
meanings set forth in the Agreement.


 


Section 2.        Amendments.


 


Section 2.1      Purchase and
Sale of Acquired Assets; Assumption of Assumed Liabilities.


 


(a)    Section
1.2(a)(iv) of the Agreement is hereby deleted and replaced in it entirety to
read as follows:


 


“(iv)
all Tanks listed on Schedule 1.2(a)(iv)(A) and all tools, machinery, equipment,
parts, office and other supplies and other items of tangible personal property
of each Seller primarily related to or primarily used in the operation of the Business,
whether located on site at the Real Property or off site, to the extent such
personal property is stored or used off site in the ordinary course of the
operation of the Business (excluding the items listed on Schedule
1.2(a)(iv)(B)) (the “Personal Property”);”


 


(b)    Section
1.2(b)(i) of the Agreement is hereby deleted and replaced in it entirety to
read as follows:


 


“(i)
other than Petty Cash, all cash and cash equivalents on hand, all cash in
banks, all bank accounts, all lock box receipts received prior to the Closing
Date and all certificates of deposit and other bank deposits owned or held by
either Seller or any of its affiliates;”


 
















 


Section 2.2      The Closing;
Purchase Price Adjustment.  Section
2.1 of the Agreement is hereby deleted and replaced in it entirety to read as
follows:


 


“SECTION
2.1       Closing Date.  The closing of the sale and transfer of the
Acquired Assets and the assumption of the Assumed Liabilities (the “Closing”)
shall take place at the offices of Schulte Roth & Zabel LLP, 919 3rd
Avenue, New York, New York 10022, at 11:00 a.m., local time, on May 7, 2004.”


 


Section 2.3      Product
Liability Claim Procedures.  Section
8.5(d) of the Agreement is hereby deleted and replaced in it entirety to read
as follows:


 


“(d)    Purchaser
shall perform administrative services related to asserted Product Liability
Claims (e.g., processing customer returns and customer complaints) as may be
reasonably requested by GP from time to time. 
Purchaser shall submit a complaint/claim form in a form mutually
acceptable to Purchaser and GP and, as may be reasonably requested by GP,
supporting documentation for each asserted Product Liability Claim, including,
but not limited to, documentation that establishes the date of sale for the
product(s) that is (are) the subject of the Product Liability Claim.  Purchaser and GP each shall designate a
single point of contact for routine Product Liability Claims.


 


Purchaser
shall, on a monthly basis, submit to GP for payment a billing invoice setting
forth the number of Product Liability Claims for which administrative services
were performed during such period.  The
amount for such services shall be $50.00 per Product Liability Claim.  Payment of all such amounts owed, which shall
not exceed $50,000 per month, shall be remitted within thirty (30) days after
the date in which GP receives Purchaser’s invoices.”


 


Section 2.4      Personal
Property.  Section 3.10 is hereby
amended by deleting the last sentence of such section and replacing it in its
entirety to read as follows:


 


“Section
3.10 shall not apply to Computer Hardware or Computer Software, which are the
subject of Section 3.24, or Tanks, which are the subject of Section 3.18.”


 


Section 2.5      Construction
and Interpretation of Certain Terms and Phrases.  Section 10.2 of the Agreement is hereby
amended by adding the following sentences at the end of such Section:


 


“The
parties have participated jointly in the negotiation and drafting of this
Agreement.  Consequently, in the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provision of this Agreement.”


 


Section 2.6      Schedule
1.2(b)(xvii) of the Agreement is hereby amended by deleting such Schedule
in its entirety and replacing the same with Annex A attached hereto.


 
















 


Section 3.        Miscellaneous.


 


Section 3.1.     Governing Law.  This Amendment shall be governed by, and construed
in accordance with, the laws of the State of New York applicable to contracts
made and to be performed entirely in the State of New York, regardless of the
laws that might otherwise govern under applicable principles of conflicts of
law.


 


Section 3.2.     Severability.  If any provision of this Amendment (or any
portion thereof) or the application of any such provision (or any portion
thereof) to any Person or circumstance shall be held invalid, illegal or
unenforceable in any respect by a court of competent jurisdiction, the
remainder of this Amendment will continue in full force and effect and the
application of such provision will be interpreted so as reasonably to effect
the intent of the parties hereto.  The parties
further agree to replace such invalid, illegal or unenforceable provision with
a valid, legal and enforceable provision that will achieve, to the extent
possible, the economic, business and other purposes of such invalid, illegal or
unenforceable provision.


 


Section 3.3.     Headings.  The section and paragraph headings contained
in this Amendment are for reference purposes only and shall not in any way
affect the meaning or interpretation of this Amendment.


 


Section 3.4.     Counterparts.  This Amendment may be executed in two (2) or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered (including by facsimile) to the other
parties.


 


Section 3.5.     Full Force and
Effect.  Except as expressly amended
hereby, the Agreement remains in full force and effect in accordance with its
terms and the parties shall prepare a composite of the Agreement and this
Amendment.  Notwithstanding the
foregoing, to the extent that there is any inconsistency between the provisions
of the Agreement and this Amendment, the provisions of this Amendment shall
control.


 


Section 3.6      Entire
Agreement; No Third Party Beneficiaries. 
The Agreement (including the Schedules and Exhibits hereto), this
Amendment, the Ancillary Documents, the Confidentiality Agreement and any side
letters entered into by GP and Cerberus Capital Management, L.P.  or its affiliates in connection with the
Agreement (a) constitute the entire agreement and supersede all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof or thereof and (b) are not intended to
confer upon any Person (other than the parties identified herein or in the
Agreement, the parties entitled to indemnification under Article VIII of the
Agreement and their respective successors and permitted assigns) any rights or
remedies under the Agreement or this Amendment.


 


Section 3.7      Assignment.  Neither this Amendment nor any of the rights,
interests or obligations thereunder or hereunder shall be assigned by any party
hereto without the prior written consent of the other party or parties hereto; provided,
that Purchaser, its subsidiaries or affiliates may assign its rights hereunder
(i) as collateral security for any financing of Purchaser, subsidiary or
affiliate or (ii) to the purchaser of all or substantially all of the assets of


 
















 


Purchaser, such subsidiary
or affiliate.  Subject to the preceding
sentence, this Amendment will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and assigns.


 


Section 3.8      Consent to
Jurisdiction.  Each of Purchaser and
Sellers irrevocably submits to the exclusive jurisdiction of (a) the State
Court of Georgia, Fulton County and (b) the United States District Court for
the Northern District of Georgia located in Atlanta, Georgia, for the purposes
of any suit, action or other proceeding arising out of this Amendment or any
transaction contemplated hereby.  Each of
Purchaser and Sellers further agrees that service of any process, summons,
notice or document by U.S.  registered
mail to such party’s respective address set forth in Section 9.1 shall be
effective service of process for any action, suit or proceeding in Georgia with
respect to any matters to which it has submitted to jurisdiction as set forth
above in the immediately preceding sentence. 
Each of Purchaser and Sellers irrevocably and unconditionally waives any
objection to the laying of venue of any action, suit or proceeding arising out
of this Amendment or the transactions contemplated hereby in (a) the State
Court of Georgia, Fulton County, or (b) the United States District Court for
the Northern District of Georgia, and hereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such action,
suit or proceeding brought in any such court has been brought in an
inconvenient forum.


 


[Remainder
of page intentionally left blank. 
Signature page follows.]


 
















 


IN WITNESS WHEREOF, each party has caused this
Amendment to be duly executed on its behalf by its duly authorized officer as
of the date first written above.


 


	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  BLUELINX CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven C. 
  Hardin

  	
   

  
	
   

  	
  Name:  Steven C.  Hardin

  
	
   

  	
  Title:    Vice President – West

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SELLERS:

  
	
   

  	
   

  
	
   

  	
  GEORGIA-PACIFIC
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David J.  Paterson

  	
   

  
	
   

  	
  Name:  David J.  Paterson

  
	
   

  	
  Title:    Executive Vice President – Building Products

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GEORGIA-PACIFIC BUILDING

  MATERIALS SALES, LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David J.  Paterson

  	
   

  
	
   

  	
  Name:  David
  J.  Paterson

  
	
   

  	
  Title:    Executive Vice President – Building Products

  
	
   

  	
   

  
						



 


[Signature Page to First Amendment to Asset
Purchase Agreement]


 
















 


•                  Supplier Agreement by and between Georgia-Pacific
Corporation and Atlanta MinMetals dated
June 12, 2001(1)


 


•                  Supplier Agreement by and between
Georgia-Pacific Corporation and International
Staple and Machine Company dated January 1, 1994(1)


 


•                  Supplier Agreement by and between
Georgia-Pacific Corporation and Tycoons dated
August 19, 1999(1)


 


•                  Supplier Agreement by and between
Georgia-Pacific Corporation and Dubai Wire
FZE dated February 7, 2001(1)


 


•                  Supplier Agreement by and between
Georgia-Pacific Corporation and Steelex /
Mitsui & Co. (USA), Inc. 
dated January 1, 2003(2)


 


•                  Supplier Agreement and Committed Purchase
Agreement by and between Georgia-Pacific Corporation and Promotional Containers, Inc.  both dated February 1, 2004(2)


 


•                  Private Label Agreement by and between
Georgia-Pacific Corporation and Memphis
Hardwood Flooring Co.  dated
July 2, 2001


 


•                  Private Label Supplier Agreement by and
between Georgia-Pacific Corporation and C&C
Wood Products Ltd.  dated
April 21, 1989


 


•                  Supplier Agreement by and between
Georgia-Pacific Corporation and Hak
Houtindustrie (Hakwood) dated March 1, 2004


 


•                  Supplier Agreement by and between
Georgia-Pacific Corporation and Brandywine
Industrial Paper Corporation dated October 27, 2003


 


•                  Supplier Agreement by and between
Georgia-Pacific Corporation and American
Millwork dated September 13, 2002


 


•                  Supplier Agreement with Clifton Moulding [Unexecuted](1)


 


•                  Supplier Agreement dated January 1, 2003, by
and between Georgia-Pacific Corporation and Carlisle
Coatings and Waterproofing Incorporated for the sale of roofing
products.


 


•                  Private Label Supplier Agreement dated
February 23, 1999, by and between Georgia-Pacific Corporation and Waldun Forest Products for the sale of
cedar shingles.(1)


 


•                  Supplier Agreement by and between
Georgia-Pacific Corporation and Monterra
Lumber Mills dated September 17, 2001


 
















 


•                  Dietrich – no written agreement (gypsum drywall corner
bead)(1)


 










1.               Purchaser
has elected not to take assignment of this Agreement.


2.               Purchaser
has elected to take assignment of this Agreement without the private label
aspect of the agreement.