AMENDMENT NO. 3 to the AMENDED AND RESTATED OPERATING AGREEMENT of AMERICAN PROCESSING COMPANY, LLC
EXHIBIT 10.3
THIS AMENDMENT NO. 3 (this “Amendment”) to that certain Amended and Restated Operating
Agreement, dated as of March 14, 2006, as amended by that certain Amendment No. 1 to the Amended
and Restated Operating Agreement, dated as of January 9, 2007 and that certain Amendment No. 2 to
the Amended and Restated Operating Agreement, dated as of November 30, 2007 (the “Operating
Agreement”), of American Processing Company, LLC, a Michigan limited liability company (the
“Company”), is made and entered into to be effective for all purposes as of February 21, 2008, by
and among the Company, the Manager and the Members listed on the signature page hereto.
Capitalized terms used but not otherwise defined herein shall have meanings specified in the
Operating Agreement.
RECITALS
A. On February 1, 2008, Trott & Trott transferred all of its 95,000 Common Units to APC
Investments, LLC, a Michigan limited liability company (“APCI”), and, upon the consummation of such
transfer (the “Trott Transfer”), APCI became a Substituted Member of the Company.
B. On January 21, 2008, the Manager sent a Call Notice to each Member (the “W&G Notice”)
whereby the Manager requested that each Member contribute to the capital of the Company its pro
rata share of an amount equal to $13,000,000, which such amount was being raised in connection with
the purchase by the Company of the mortgage default processing assets of Xxxxxxx & Xxxxx, a
Minnesota professional association.
C. APCI and Xxxxx have elected to make capital contributions to the Company in connection with
the W&G Notice and Xxxxx has agreed to make an additional contribution to the Company in the amount
equal to Feiwell & Hannoy’s Optional Capital Contribution Amount set forth in the W&G Notice.
D. Pursuant to Section 10.4 of the Operating Agreement, the Manager and a
Supermajority-in-Interest of the Members have agreed to amend the terms of the Operating Agreement
as provided in this Amendment in order to reflect (1) the Trott Transfer and the admission of APCI
as a Substituted Member and (2) the additional Common Units issued to APCI and Xxxxx in connection
with the additional capital contributions made by such Members and described above.
AGREEMENT
1. AMENDMENT
1.1 The definition of “Trott & Trott” in Article I of the Operating Agreement is hereby
amended and restated in its entirety as follows:
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“Trott & Trott” means APC Investments, LLC, a Michigan limited liability company.
1.2 Exhibit A of the Operating Agreement is hereby replaced with Exhibit A
attached hereto.
2. REFERENCE TO AND EFFECT ON THE OPERATING AGREEMENT
2.1 Each reference in the Operating Agreement to “this Agreement”, “hereunder”, “hereof”,
"herein”, or words of like import shall mean and be a reference to the Operating Agreement as
amended hereby.
2.2 Except as specifically amended above, the Operating Agreement shall remain in full force
and effect and is hereby ratified and confirmed.
3. MISCELLANEOUS
3.1 This Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute one and the same instrument. In
accordance with the Operating Agreement, this Amendment shall be effective upon execution by the
Company, the Manger and a Supermajority-in-Interest of the Members. This Amendment, to the extent
signed and delivered by means of a facsimile machine or other electronic transmission (including
transmission in portable document format by electronic mail), shall be treated in all manner and
respects and for all purposes as an original agreement and shall be considered to have the same
binding legal effect as if it were the original signed version thereof delivered in person. At the
request of any party hereto, each other party hereto shall re-execute original forms hereof and
deliver them to all other parties, except that the failure of any party to comply with such a
request shall not render this Amendment invalid or unenforceable. No party hereto shall raise the
use of a facsimile machine or other electronic transmission to deliver a signature, or the fact
that any signature was transmitted or communicated through the use of a facsimile machine or other
electronic transmission, as a defense to the formation or enforceability of a contract and each
such party forever waives any such defense.
3.2 Section headings in this Amendment are included herein for convenience of reference only
and shall not constitute a part of this Amendment for any other purpose.
3.3 Each party shall do and perform, or cause to be done and performed, all such further acts
and things, and shall execute and deliver all such other agreements, certificates, instruments and
documents, as the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Amendment and the consummation of the transactions contemplated
hereby.
3.4 The language used in this Amendment will be deemed to be the language chosen by the
parties to express their mutual intent, and no rules of strict construction will be applied against
any party.
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3.5 If and to the extent there are any inconsistencies between the Operating Agreement and
this Amendment, the terms of this Amendment shall control.
[Remainder of Page Intentionally Left Blank.
Signature Pages Follow.]
Signature Pages Follow.]
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the date first written
above.
| COMPANY: | ||||||
| AMERICAN PROCESSING COMPANY, LLC | ||||||
| By: | XXXXX APC LLC | |||||
| Its: | Manager | |||||
| By: | /s/ Xxxxx X. Xxxxxx | |||||
| Name: Xxxxx X. Xxxxxx | ||||||
| Its: Vice President | ||||||
| MANAGER: | ||||||
| XXXXX APC LLC | ||||||
| By: | /s/ Xxxxx X. Xxxxxx | |||||
| Name: Xxxxx X. Xxxxxx | ||||||
| Its: Vice President | ||||||
| MEMBERS: | ||||||
| XXXXX APC LLC | ||||||
| By: | /s/ Xxxxx X. Xxxxxx | |||||
| Name: Xxxxx X. Xxxxxx | ||||||
| Its: Vice President | ||||||
| APC INVESTMENTS, LLC | ||||||
| By: | /s/ Xxxxx X. Xxxxx | |||||
| Name: Xxxxx X. Xxxxx | ||||||
| Its: Manager | ||||||
EXHIBIT A
List of Members, Capital Contributions, Capital Accounts
Common Units and Participating Percentages
Common Units and Participating Percentages
| Name, Address, Phone and Fax of Member | Common Units | Participating Percentage | ||||||
Xxxxx APC, LLC |
||||||||
c/x Xxxxx Media Company |
||||||||
1200 Xxxxx Building |
||||||||
000 Xxxxxx Xxxxxx Xxxxx |
||||||||
Xxxxxxxxxxx, Xxxxxxxxx 00000 |
||||||||
Phone: (000) 000-0000 |
||||||||
Fax: (000) 000-0000 |
||||||||
Attention: Xxxxx X. Xxxxx |
1,027,823 | 88.890 | % | |||||
APC Investments, LLC |
||||||||
00000 Xxxxxxxxxxxx Xxxxxxx |
||||||||
Xxxxx 000 |
||||||||
Xxxxxxxxxx Xxxxx, XX 00000 |
||||||||
Phone: (000) 000-0000 |
||||||||
Fax: (000) 000-0000 |
||||||||
Attention: Xxxxx X. Xxxxx |
104,905 | 9.073 | % | |||||
Feiwell & Hannoy Professional |
||||||||
Corporation |
||||||||
000 Xxxxx Xxxxxxxx Xxxxxx, |
||||||||
Xxxxx 0000 |
||||||||
Xxxxxxxxxxxx, Xxxxxxx 00000 |
||||||||
Phone: (000) 000-0000 |
||||||||
Fax: (000) 000-0000 |
||||||||
Attention: Xxxxxxx Xxxxxx and |
||||||||
Xxxxxxx Xxxxxxx |
23,560 | 2.038 | % | |||||
TOTAL: |
1,156,288 | 100.000 | % | |||||
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