ENVIRONMENTAL INDEMNITY
Exhibit 10.4
ENVIRONMENTAL INDEMNITY, is made as of June 9, 2006 (this “Agreement”), by BLUELINX
HOLDINGS INC., a Delaware corporation (“Indemnitor”), having an office at 0000 Xxxxxxxx
Xxxxxxx, Xxxxxxx, Xxxxxxx 00000, for the benefit of GERMAN AMERICAN CAPITAL CORPORATION, a Maryland
corporation, on behalf of the holders of the Notes (“Lender”), having an office at 00 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
RECITALS:
WHEREAS, the entities listed on Exhibit A attached hereto and incorporated herein,
each a Delaware limited liability company, are each hereinafter referred to an “Individual
Borrower” and collectively as “Borrower”.
WHEREAS, ABP MD (Baltimore) LLC, a Delaware limited liability company (“Maryland Loan
Guarantor”) and the Individual Borrowers (other than Maryland Borrower), each own certain real
property, and the improvements located thereon, all as more particularly described in Exhibit
B attached hereto and incorporated herein (each an “Individual Property” and
collectively, the “Property”);
WHEREAS, on the date hereof, in accordance with the terms of a Loan and Security Agreement,
dated as of the date hereof (as amended, restated, replaced, supplemented, or otherwise modified
from time to time, the “Loan Agreement”), among Borrower, Maryland Loan Guarantor and
Lender, Lender is making a loan to Borrower in the principal amount of $295,000,000 (the
“Loan”), which Loan is evidenced by that certain Amended and Restated Note A-1 in the
aggregate principal amount of $147,500,000 and that certain Amended and Restated Note A-2 in the
aggregate principal amount of $147,500,000, each dated as of the date hereof (as amended, restated,
replaced, supplemented, or otherwise modified from time to time, collectively, the “Note”),
made by Borrower in favor of Lender and secured by certain mortgages, deeds of trust and/or deeds
to secure debt, each dated as of the date hereof (as amended, restated, replaced, supplemented, or
otherwise modified from time to time, collectively, the “Security Instrument”), from the
applicable Individual Borrower(s) (other than Maryland Borrower) and the Maryland Loan Guarantor to
Lender, as mortgagee, or to certain trustees for the benefit of Lender, as beneficiary, as
applicable, and the other Loan Documents (as defined in the Loan Agreement);
WHEREAS, Indemnitor is the owner of a direct or indirect beneficial interest in Borrower and
Maryland Loan Guarantor and will derive substantial benefit from the Loan;
WHEREAS, as a condition to making the Loan, Lender has required Indemnitor to deliver this
Agreement for the benefit of Lender; and
WHEREAS, the forgoing recitals are intended to form an integral part of this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, Ten Dollars ($10.00) paid in hand,
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Indemnitor agrees as follows:
1. Definitions.
(a) The following terms shall have the meaning ascribed thereto:
“Agreement”: Shall have the meaning provided in the first paragraph.
“Borrower”: Shall have the meaning provided in the Recitals.
“Environmental Law”: Shall mean any federal, state or local statute, regulation or
ordinance or any judicial or administrative decree or decision, whether now existing or
hereinafter enacted, promulgated or issued, with respect to the protection of human health
or the environment, or any Hazardous Materials, drinking water, groundwater, wetlands,
landfills, open dumps, storage tanks, underground storage tanks, solid waste, waste water,
storm water run-off, waste emissions or xxxxx. Without limiting the generality of the
foregoing, the term shall encompass each of the following statutes, and regulations
promulgated thereunder, and amendments and successors to such statutes and regulations, as
may be enacted and promulgated from time to time: (i) the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (codified in scattered sections of 26
U.S.C.; 33 U.S.C.; 42 U.S.C. and 42 U.S.C. §9601 et seq.); (ii) the
Resource Conservation and Recovery Act of 1976 (42 X.X.X. §0000 et seq.);
(iii) the Hazardous Materials Transportation Act (49 U.S.C. §1801 et seq.);
(iv) the Toxic Substances Control Act (15 X.X.X. §0000 et seq.); (v) the
Clean Water Act (33 X.X.X. §0000 et seq.); (vi) the Clean Air Act (42
X.X.X. §0000 et seq.); (vii) the Safe Drinking Water Act (21 U.S.C. §349;
42 U.S.C. §201 and §300f et seq.); (viii) the National Environmental Policy
Act of 1969 (42 U.S.C. §4321); (ix) the Superfund Amendment and Reauthorization Act of 1986
(codified in scattered sections of 10 U.S.C., 29 U.S.C., 33 U.S.C. and 42 U.S.C.); and (x)
Title III of the Superfund Amendment and Reauthorization Act (40 X.X.X. §0000 et
seq.).
“Hazardous Materials”: Shall mean each and every element, compound, chemical
mixture, contaminant, pollutant, material, waste or other substance which is defined,
determined or identified as hazardous or toxic under any Environmental Law. Without
limiting the generality of the foregoing, the term shall mean and include:
(i) “hazardous substances” as defined in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, the Superfund Amendment and
Reauthorization Act of 1986, or Title III of the Superfund
Amendment and Reauthorization Act, each as amended, and regulations promulgated
thereunder; excluding, however, common maintenance and cleaning
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products regularly found at
properties with a standard of operation and maintenance comparable to the Property;
(ii) “hazardous waste” and “regulated substances” as defined in the
Resource Conservation and Recovery Act of 1976, as amended, and regulations promulgated
thereunder;
(iii) “hazardous materials” as defined in the Hazardous Materials
Transportation Act, as amended, and regulations promulgated thereunder; and
(iv) “chemical substance or mixture” as defined in the Toxic Substances
Control Act, as amended, and regulations promulgated thereunder.
“Indemnified Parties”: Shall mean Lender, its parent, subsidiaries and Affiliates,
each of their respective shareholders, directors, officers, employees and agents, and the
successors and assigns of any of them; and “Indemnified Party” shall mean any one of the
Indemnified Parties.
“Indemnitor”: Shall have the meaning provided in the first paragraph.
“Individual Borrower”: Shall have the meaning provided in the Recitals.
“Individual Property”: Shall have the meaning provided in the Recitals.
“Lender”: Shall have the meaning provided in the first paragraph.
“Loan Agreement”: Shall have the meaning provided in the Recitals.
“Maryland Loan Guarantor”: Shall have the meaning provided in the Recitals.
“Note”: Shall have the meaning provided in the Recitals.
“Release”: Shall mean any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, storing, escaping, leaching, dumping, discarding, burying,
abandoning, or disposing into the environment.
“Security Instrument”: Shall have the meaning provided in the Recitals.
“Threat of Release”: Shall mean a substantial likelihood of a Release which
requires action to prevent or mitigate damage to the environment which may result from such
Release.
(b) Capitalized terms used but not otherwise defined herein shall have the respective meanings
given thereto in the Loan Agreement, unless otherwise expressly provided herein. All references to
sections shall be deemed to be references to Sections of this Agreement, unless otherwise
indicated.
2. Indemnity Agreement. Indemnitor covenants and agrees, at its sole cost and
expense, to indemnify, defend (at trial and appellate levels and with attorneys,
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consultants and
experts selected by Indemnitor and reasonably acceptable to Lender) and hold harmless each
Indemnified Party against and from any and all liens, damages, losses, liabilities, obligations,
settlement payments, penalties, assessments, citations, directives, claims, litigation, demands,
defenses, judgments, suits, proceedings, costs, disbursements or expenses of any kind or of any
nature whatsoever (including, without limitation, but subject to the provisions hereof, reasonable
attorneys’, consultants’ and experts’ fees and disbursements incurred in investigating, defending
against, settling or prosecuting any claim, litigation or proceeding) which may at any time be
imposed upon, incurred by or asserted or awarded against such Indemnified Party or any Individual
Property arising directly or indirectly from or out of: (A) the Release or Threat of Release of
any Hazardous Materials on, in, under, from or affecting all or any portion of any Individual
Property, regardless of whether or not caused by or within the control of Borrower, Maryland Loan
Guarantor or Indemnitor,; (B) the Release or Threat of Release of Hazardous Materials at any other
location if the Hazardous Materials were generated, treated, stored, transported or disposed of by
or on behalf of the Borrower or Maryland Loan Guarantor, (C) the violation of any Environmental
Laws relating to or affecting any Individual Property or Borrower or Maryland Loan Guarantor,
whether or not caused by or within the control of Borrower, Maryland Loan Guarantor or Indemnitor;
(D) the failure of Indemnitor to comply fully with the terms and conditions of this Agreement; (E)
the violation of any Environmental Laws as a result of actions or omissions of Borrower, Maryland
Loan Guarantor and/or Indemnitor with respect to other real property of Borrower, Maryland Loan
Guarantor or Indemnitor which gives or may give rise to any rights whatsoever in any party with
respect to any Individual Property by virtue of any Environmental Laws; or (F) the enforcement of
this Agreement, including, without limitation, (i) the costs of assessment, containment and/or
removal of any and all Hazardous Materials from all or any portion of any Individual Property, any
surrounding areas or any other areas, (ii) the costs of any actions taken in response to a Release
or Threat of Release of any Hazardous Materials on, in, under or affecting all or any portion of
any Individual Property, any surrounding areas, or any other areas to prevent or minimize such
Release or Threat of Release so that it does not migrate or otherwise jeopardize the present or
future public health, safety, welfare or the environment and (iii) costs incurred to comply with
the Environmental Laws in connection with all or any portion of any Individual Property or any
surrounding areas or other areas affected by any Release or Threat of Release in, under or from all
or any portion of any Individual Property. Indemnitor’s obligations hereunder are separate and
distinct from its obligations under the other Loan Documents, and Lender’s and the other
Indemnified Parties’ rights under this Agreement shall be in addition to all rights of Lender under
the other Loan Documents. Notwithstanding anything herein to the contrary, the foregoing
indemnification shall not apply to any event or condition described in the foregoing clauses (A)
and (C) if such event or condition (1) is caused solely by, or results solely from, the gross
negligence or willful misconduct of any of the Indemnified Parties or (2) did not occur prior to
(x) Lender or its designee taking title the applicable Individual Property, whether by foreclosure,
conveyance in lieu thereof or otherwise or (y) Lender or its designee taking possession
and control of the applicable Individual Property and excluding Borrower or Maryland Loan
Guarantor (as applicable) and Indemnitor
from such Individual Property following the occurrence of
an Event of Default. Subject to the
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foregoing, Indemnitor shall be liable for any and all losses
or damages incurred by the Lender relating to the presence, Release, or Threatened Release of any
Hazardous Materials on or about any Individual Property as a result of the acts or negligent
omissions of Borrower, Maryland Loan Guarantor or Indemnitor, or any principal, officer, member or
partner of Borrower, Maryland Loan Guarantor or Indemnitor. If any action or other proceeding
shall be brought against any Indemnified Party with respect to any matter for which indemnification
is required by Indemnitor pursuant to this Agreement, upon written notice from Indemnitor to Lender
(given reasonably promptly following Lender’s notice to Indemnitor of such action or proceeding),
Indemnitor shall be entitled to assume the defense thereof, at Indemnitor’s expense, with counsel
reasonably acceptable to Lender; provided, however, Lender may, at its own expense, retain separate
counsel to participate in such defense, but such participation shall not be deemed to give Lender a
right to control such defense, which right Indemnitor expressly retains. Notwithstanding the
foregoing, if any action or proceeding shall be brought against an Indemnified Party with respect
to any matter for which indemnification is required by Indemnitor pursuant to this Agreement and
the named defendants therein include both Indemnitor and an Indemnified Party, if such Indemnified
Party reasonably believes (and advises Indemnitor in writing as such) that there are legal defenses
available to it that are different from or in addition to those available to Indemnitor or that
there otherwise exists a conflict or potential conflict between Indemnitor and such Indemnified
Party that makes separate representation advisable, then such Indemnified Party shall have the
right, at the sole cost and expense of Indemnitor, to engage a separate counsel in any such action
and to participate in the defense thereof. Notwithstanding the foregoing, Lender and the other
Indemnified Parties agree to seek recovery against Indemnitor for losses for which they are
indemnified under this Agreement only after a claim for such losses has been filed under any
Environmental Insurance Policy then in full force and effect which covers such losses and Lender
has received any written communication from the insurer rejecting such claim. Notwithstanding
anything to the contrary in this Agreement, in no event shall the liability of Indemnitor under
this Agreement exceed an aggregate amount of Fifteen Million Dollars ($15,000,000.00).
3. Survival.
(a) This Agreement and the indemnities provided herein shall survive the repayment of the Loan
and, subject to the terms of such indemnity, any exercise of any remedies under the Loan Documents,
including without limitation, any remedy in the nature of foreclosure, and shall not merge with any
assignment or conveyance given by Borrower or Maryland Loan Guarantor to Lender in lieu of
foreclosure.
(b) It is agreed and intended by Indemnitor and Lender that this Agreement and the indemnities
provided herein may be assigned or otherwise transferred by Lender to its successors and assigns
and to any subsequent purchaser of all or any portion of the
Loan by, through or under Lender, without notice to Indemnitor and without any further consent
of Indemnitor. To the extent consent of any such assignment or transfer is required by law,
advance consent to any such assignment or transfer is hereby given by Indemnitor in order to
maximize the extent and effect of the indemnity given hereby.
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4. Miscellaneous.
(a) No Waiver. The liabilities of Indemnitor under this Agreement shall in no way be
limited or impaired by, and Indemnitor hereby consents to and agrees to be bound by, any amendment
or modification of the provisions of the Loan Documents to or with Lender by Borrower or Maryland
Loan Guarantor or any Person who succeeds Borrower, Maryland Loan Guarantor or any other Person as
owner of any portion of any Individual Property. In addition, notwithstanding any terms of any of
the Loan Documents to the contrary, the liability of Indemnitor under this Agreement shall in no
way be limited or impaired by: (i) any extensions of time for performance required by any of the
Loan Documents; (ii) any sale, assignment or foreclosure of the Note or the Loan Documents or any
sale or transfer of all or part of any Individual Property; (iii) the accuracy or inaccuracy of the
representations and warranties made by Borrower or Maryland Loan Guarantor under any of the Loan
Documents; (iv) the release of Borrower, Maryland Loan Guarantor or any other Person from
performance or observance of any of the agreements, covenants, terms or conditions contained in the
Loan Documents by operation of law, Lender’s voluntary act, or otherwise; (v) the release or
substitution, in whole or in part, of any security for the Loan; or (vi) Lender’s failure to record
the Security Instrument or file any UCC-1 financing statements (or Lender’s improper recording or
filing of any thereof) or to otherwise perfect, protect, secure or insure any security interest or
lien given as security for the Loan; and, in any such case, whether with or without notice to
Indemnitor and with or without consideration. Indemnitor acknowledges and agrees that, except as
otherwise set forth herein, Indemnitor is personally liable for the indemnification obligations set
forth in this Agreement and the personal liability of Indemnitor under this Agreement is not
limited by the provisions of Section 18.1.1 of the Loan Agreement or any other exculpatory
provision in any of the Loan Documents limiting Lender’s recourse to property encumbered by the
Loan Documents or to any other security or limiting Lender’s rights to a deficiency judgment
against Borrower or Maryland Loan Guarantor.
(b) MARSHALLING. INDEMNITOR WAIVES ANY RIGHT OR CLAIM OF RIGHT TO CAUSE A MARSHALLING
OF THE ASSETS OF BORROWER OR MARYLAND LOAN GUARANTOR OR TO CAUSE LENDER TO PROCEED AGAINST ANY OF
THE SECURITY FOR THE LOAN BEFORE PROCEEDING UNDER THIS AGREEMENT AGAINST INDEMNITOR OR TO PROCEED
AGAINST INDEMNITOR OR BORROWER OR MARYLAND LOAN GUARANTOR IN ANY PARTICULAR ORDER. INDEMNITOR
AGREES THAT ANY PAYMENTS REQUIRED TO BE MADE HEREUNDER SHALL BECOME DUE AND PAYABLE TEN (10) DAYS
AFTER DEMAND. INDEMNITOR EXPRESSLY WAIVES AND
RELINQUISHES ALL RIGHTS AND REMEDIES (INCLUDING ANY RIGHTS OF SUBROGATION) ACCORDED BY
APPLICABLE LAW TO INDEMNITOR.
(c) Joint and Several Obligation. If Indemnitor consists of more than one Person or
entity, each shall be jointly and severally liable to perform the obligations of Indemnitor
hereunder. Any one of Borrower, Maryland Loan Guarantor or one or more parties constituting
Indemnitor or any other party liable upon or in respect of this
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Agreement or the Loan may be
released without affecting the liability of any party not so released.
(d) Further Assurances. Indemnitor shall execute and acknowledge (or cause to be
executed and acknowledged) and deliver to Lender all documents, and take all actions, reasonably
required by Lender from time to time to confirm the rights created or now or hereafter intended to
be created under this Agreement, to protect and further the validity and enforceability of this
Agreement or otherwise carry out the purposes of this Agreement.
(e) Notices. Any notice, election, request, demand, report or statement which by any
provision of this Agreement is required or permitted to be given or served hereunder shall be in
writing and shall be given or served by (i) hand delivery against receipt, (ii) next day delivery
by any nationally recognized overnight courier service providing evidence of the date of delivery
or (iii) certified mail return receipt requested, postage prepaid. Any notice shall be addressed
to the addresses set forth below or to such other address as shall be designated by such party in a
written notice to the other party.
If to Indemnitor:
|
BlueLinx Holdings, Inc. | |
| 0000 Xxxxxxxx Xxxxxxx | ||
| Xxxxxxx, Xxxxxxx 00000 | ||
| Attention: Mr. Xxxxx Xxxxxx, CFO & Treasurer | ||
with a copy to:
|
Xxxxxxx Xxxx & Xxxxx LLP | |
| 000 Xxxxx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Xxxxxxx X. Xxxxxxx, Esq. | ||
If to Lender:
|
German American Capital Corporation | |
| 00 Xxxx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Xxxx Xxxxxxx and General Counsel | ||
with a copy to:
|
Wachovia Bank, National Association | |
| 000 Xxxx Xxxxxx, 0xx Xxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Xx. Xxxxx Xxxxx | ||
and copy to:
|
Wachovia Bank, National Association, as Servicer, at such notice address as shall be designated by notice delivered in accordance with this Section. | |
and copy to:
|
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP | |
| Xxxx Xxxxx Xxxxxx |
0
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Attention: Xxxxxx X. Xxxx, Esq.
All notices, elections, requests and demands required or permitted under this Agreement shall
be in the English language. All notices, elections, requests and demands under this Agreement
shall be effective and deemed received upon the earliest of (i) the actual receipt of the same by
personal delivery or otherwise, (ii) one (1) Business Day after being deposited with a nationally
recognized overnight courier service as required above or (iii) three (3) Business Days after being
deposited in the United States mail as required above. Rejection or other refusal to accept or the
inability to deliver because of changed address of which no notice was given as herein required
shall be deemed to be receipt of the notice, election, request, or demand sent.
(f) Entire Agreement. This Agreement constitutes the entire and final agreement
between Indemnitor and Lender with respect to the subject matter hereof and may only be changed,
amended, modified or waived by an instrument in writing signed by Indemnitor and Lender.
(g) No Waiver. No waiver of any term or condition of this Agreement, whether by
delay, omission or otherwise, shall be effective unless in writing and signed by the party sought
to be charged, and then such waiver shall be effective only in the specific instance and for the
purpose for which given. No delay by any of Lender, any Individual Borrower or Maryland Loan
Guarantor in exercising any right, power or privilege available to it under this Agreement or any
other Loan Document shall operate as a waiver of any privilege, power or right of such party
hereunder.
(h) Successors and Assigns. This Agreement shall be binding upon Indemnitor and its
successors and assigns and shall inure to the benefit of Lender and its successors and permitted
assigns. Indemnitor, without the prior written consent of Lender in each instance, may assign,
transfer or set over to another, in whole or in part, all or any part of its benefits, rights,
duties and obligations hereunder, including, but not limited to, performance of and compliance with
conditions hereof, provided that such assignment shall not release Indemnitor of its obligations
hereunder.
(i) Captions. All paragraph, section, exhibit and schedule headings and captions
herein are used for reference only and in no way limit or describe the scope or intent of, or in
any way affect, this Agreement.
(j) Counterparts. This Agreement may be executed in counterparts, each of which shall
be an original and all of which, when taken together, shall constitute one binding Agreement.
(k) Severability. The provisions of this Agreement are severable, and if any one
clause or provision hereof shall be held invalid or unenforceable in whole or in part, then such
invalidity or unenforceability shall affect only such clause or provision, or part thereof, and not
any other clause or provision of this Agreement.
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(l) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CHOICE OF LAW RULES. INDEMNITOR AGREES
THAT ANY SUIT FOR THE ENFORCEMENT OF THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF
NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH
COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON INDEMNITOR IN THE MANNER AND AT
THE ADDRESS SPECIFIED FOR NOTICES IN THIS AGREEMENT. INDEMNITOR HEREBY WAIVES ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS
BROUGHT IN AN INCONVENIENT COURT.
(m) JURY TRIAL WAIVER. INDEMNITOR AND, BY ITS ACCEPTANCE OF THIS AGREEMENT, LENDER,
AND ALL PERSONS CLAIMING BY, THROUGH OR UNDER INDEMNITOR OR LENDER, HEREBY EXPRESSLY, KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION (I) ARISING UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY PRESENT OR
FUTURE MODIFICATION THEREOF OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF INDEMNITOR OR LENDER WITH RESPECT TO THIS AGREEMENT (AS NOW OR HEREAFTER MODIFIED) OR
ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION IS NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE;
AND EACH OF INDEMNITOR AND LENDER HEREBY AGREES AND CONSENTS THAT AN ORIGINAL COUNTERPART OR A COPY
OF THIS SECTION MAY BE FILED WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT HERETO TO THE WAIVER
OF ANY RIGHT TO TRIAL BY JURY. EACH OF INDEMNITOR AND LENDER ACKNOWLEDGES THAT IT HAS CONSULTED
WITH LEGAL COUNSEL REGARDING THE MEANING OF THIS WAIVER AND ACKNOWLEDGES THAT THIS WAIVER IS AN
ESSENTIAL INDUCEMENT FOR THE MAKING OF THE LOAN. THIS WAIVER SHALL SURVIVE THE REPAYMENT OF THE
LOAN.
(n) Counterclaims and Other Actions. Indemnitor hereby expressly and unconditionally
waives, in connection with any suit, action or proceeding brought by Lender on this Agreement, any
and every right it may have to (i) interpose any counterclaim therein (other than a counterclaim
which can only be asserted in the suit, action or proceeding brought by Lender on this Agreement
and cannot be maintained in a separate action) and (ii) have any such suit, action or proceeding
consolidated with any other or separate suit, action or proceeding.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, Indemnitor has executed and delivered this Agreement as of the day and
year first written above.
| BLUELINX HOLDINGS INC., a Delaware corporation |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | CFO | |||
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 CA (RIVERSIDE) LLC
ABP CO I (DENVER) LLC
ABP CO II (DENVER) LLC
ABP CT (NEWTOWN) LLC
ABP FL (LAKE CITY) LLC
ABP FL (MIAMI) LLC
ABP FL (PENSACOLA) LLC
ABP FL (TAMPA) LLC
ABP FL (YULEE) LLC
ABP GA (LAWRENCEVILLE) LLC
ABP IA (DES MOINES) LLC
ABP IL (UNIVERSITY PARK) LLC
ABP IN (ELKHART) LLC
ABP KY (INDEPENDENCE) LLC
ABP LA (SHREVEPORT) LLC
ABP MA (BELLINGHAM) LLC, d/b/a ABP MA (Bellingham) Management
ABP MD (BALTIMORE) SUBSIDIARY LLC
ABP ME (PORTLAND) LLC
ABP MI (GRAND RAPIDS) LLC
ABP MI (DETROIT) LLC
ABP MN (MAPLE GROVE) LLC
ABP MN (XXXXX) LLC
ABP MO (BRIDGETON) LLC
ABP MO (KANSAS CITY) LLC
ABP MO (SPRINGFIELD) LLC
ABP MS (PEARL) LLC
ABP NC (XXXXXX) LLC
ABP NC (CHARLOTTE) LLC
ABP ND (NORTH FARGO) LLC
ABP NJ (DENVILLE) LLC
ABP NM (ALBUQUERQUE) LLC
ABP NY (YAPHANK) LLC
ABP OH (XXXXXXXX) LLC
ABP OK (TULSA) LLC
ABP OR (BEAVERTON) LLC
ABP PA (ALLENTOWN) LLC
ABP PA (XXXXXXX) LLC
ABP AR (LITTLE ROCK) LLC
ABP CA (CITY OF INDUSTRY) LLC
ABP CA (NATIONAL CITY) LLC
ABP CA (NEWARK) LLC
ABP CA (RIVERSIDE) LLC
ABP CO I (DENVER) LLC
ABP CO II (DENVER) LLC
ABP CT (NEWTOWN) LLC
ABP FL (LAKE CITY) LLC
ABP FL (MIAMI) LLC
ABP FL (PENSACOLA) LLC
ABP FL (TAMPA) LLC
ABP FL (YULEE) LLC
ABP GA (LAWRENCEVILLE) LLC
ABP IA (DES MOINES) LLC
ABP IL (UNIVERSITY PARK) LLC
ABP IN (ELKHART) LLC
ABP KY (INDEPENDENCE) LLC
ABP LA (SHREVEPORT) LLC
ABP MA (BELLINGHAM) LLC, d/b/a ABP MA (Bellingham) Management
ABP MD (BALTIMORE) SUBSIDIARY LLC
ABP ME (PORTLAND) LLC
ABP MI (GRAND RAPIDS) LLC
ABP MI (DETROIT) LLC
ABP MN (MAPLE GROVE) LLC
ABP MN (XXXXX) LLC
ABP MO (BRIDGETON) LLC
ABP MO (KANSAS CITY) LLC
ABP MO (SPRINGFIELD) LLC
ABP MS (PEARL) LLC
ABP NC (XXXXXX) LLC
ABP NC (CHARLOTTE) LLC
ABP ND (NORTH FARGO) LLC
ABP NJ (DENVILLE) LLC
ABP NM (ALBUQUERQUE) LLC
ABP NY (YAPHANK) LLC
ABP OH (XXXXXXXX) LLC
ABP OK (TULSA) LLC
ABP OR (BEAVERTON) LLC
ABP PA (ALLENTOWN) LLC
ABP PA (XXXXXXX) LLC
A-1
ABP SC (CHARLESTON) LLC
ABP SD (SIOUX FALLS) LLC
ABP TN (XXXXX) LLC
ABP TN (MEMPHIS) LLC
ABP TN (NASHVILLE) LLC
ABP TX (EL PASO) LLC, d/b/a Delaware ABP TX (El Paso) LLC
ABP TX (FORT WORTH) LLC, d/b/a Delaware ABP TX (Fort Worth) LLC
ABP TX (HARLINGEN) LLC, d/b/a Delaware ABP TX (Harlingen) LLC
ABP TX (HOUSTON) LLC, d/b/a Delaware ABP TX (Houston) LLC
ABP TX (LUBBOCK) LLC, d/b/a Delaware ABP TX (Lubbock) LLC
ABP TX (SAN ANTONIO) LLC, d/b/a Delaware ABP TX (San Antonio) LLC
ABP VA (RICHMOND) LLC
ABP VA (VIRGINIA BEACH) LLC
ABP VT (SHELBURNE) LLC
ABP WA (WOODINVILLE) LLC
ABP WI (WAUSAU) LLC
ABP SD (SIOUX FALLS) LLC
ABP TN (XXXXX) LLC
ABP TN (MEMPHIS) LLC
ABP TN (NASHVILLE) LLC
ABP TX (EL PASO) LLC, d/b/a Delaware ABP TX (El Paso) LLC
ABP TX (FORT WORTH) LLC, d/b/a Delaware ABP TX (Fort Worth) LLC
ABP TX (HARLINGEN) LLC, d/b/a Delaware ABP TX (Harlingen) LLC
ABP TX (HOUSTON) LLC, d/b/a Delaware ABP TX (Houston) LLC
ABP TX (LUBBOCK) LLC, d/b/a Delaware ABP TX (Lubbock) LLC
ABP TX (SAN ANTONIO) LLC, d/b/a Delaware ABP TX (San Antonio) LLC
ABP VA (RICHMOND) LLC
ABP VA (VIRGINIA BEACH) LLC
ABP VT (SHELBURNE) LLC
ABP WA (WOODINVILLE) LLC
ABP WI (WAUSAU) LLC
A-2
EXHIBIT B
Legal Descriptions
[To Be Attached]
B-1
