AMENDMENT NO. 2 to the AMENDED AND RESTATED OPERATING AGREEMENT of AMERICAN PROCESSING COMPANY, LLC
EXHIBIT 10.3
AMENDMENT NO. 2
to the
AMENDED AND RESTATED OPERATING AGREEMENT
of
AMERICAN PROCESSING COMPANY, LLC
THIS AMENDMENT NO. 2 (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 (the “Operating Agreement”), by and
among American Processing Company, LLC, a Michigan limited liability company (the “Company”), Xxxxx
APC, LLC, a Delaware limited liability company (“Xxxxx”), Trott & Trott, PC, a Michigan
professional service corporation (“Trott & Trott”) and Feiwell & Hannoy Professional Corporation,
an Indiana professional corporation (“F&H”), is made and entered into to be effective for all
purposes as of November 30, 2007 by and among the Company, the Manager and the persons set forth as
Members on Exhibit A attached hereto. Capitalized terms used but not otherwise defined
herein shall have meanings specified in the Operating Agreement.
RECITALS
X. Xxxxx and Xxxxx & Xxxxx are each parties to a Common Unit Purchase Agreement, dated as of
the date hereof, pursuant to which Xxxxx agreed to purchase 95,000 Common Units from Trott & Trott
on the terms and conditions set forth therein.
X. Xxxxx and F&H are each parties to a Common Unit Purchase Agreement, dated as of the date
hereof, pursuant to which Xxxxx agreed to purchase 23,560 Common Units from F&H on the terms and
conditions set forth therein.
C. 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.
AGREEMENT
1. AMENDMENT
1.1 The definition of “Formula Value Per Common Unit” in Article I of the Operating
Agreement is hereby amended and restated in its entirety as follows:
“Formula Value Per Common Unit” means, as of a specified date, an amount equal to
the quotient of (x) the difference between (i) the product of (A) the Company’s
Adjusted EBITDA for the most recently completed twelve (12) calendar months prior to
such date and (B) 6.25 and (ii) the aggregate amount of any interest bearing
indebtedness of the Company as of such date and (y) the number of Common Units of
the Company outstanding as of such date (determined on a Common Equivalent Basis).
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1.2 The definition of “Supermajority-in-Interest of the Members” in Article I of the Operating
Agreement is hereby amended and restated in its entirety as follows:
“Supermajority-in-Interest of the Members” means the Member or Members holding in
the aggregate ninety percent (90%) or more of the Participating Percentages held by
the Members.
1.3 Section 3.2 of the Partnership Agreement shall be deleted in its entirety and the
following shall be inserted as the amended and restated Section 3.2:
“3.2 Capital Contributions. Each of the Members has made one or more
capital contributions to the Company, which have been recorded on the books and
records of the Company. No Member shall be required to make any further capital
contributions to the Company.”
1.4 The following sentence shall be added to the end of Section 7.7(a) of the Operating
Agreement:
“The parties acknowledge and agree that, for purposes of calculating the Repurchase
Price, the specified date with respect to the Formula Value Per Common Unit shall be
the Put Closing Date (as defined below).”
1.5 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. 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
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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.
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.]
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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: | ||||||
| Its: | Vice President | |||||
| MANAGER: | ||||||
| XXXXX APC LLC | ||||||
| By: | /s/ Xxxxx X. Xxxxxx | |||||
| Name: | ||||||
| Its: | Vice President | |||||
| MEMBERS: | ||||||
| XXXXX APC LLC | ||||||
| By: | /s/ Xxxxx X. Xxxxxx | |||||
| Name: | ||||||
| Its: | Vice President | |||||
| TROTT & TROTT, P.C. | ||||||
| By: | /s/ Xxxxx X. Xxxxx | |||||
| Name: | ||||||
| Its: | President | |||||
| FEIWELL & HANNOY PROFESSIONAL CORPORATION | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||
| Name: | ||||||
| Its: | President | |||||
EXHIBIT A
List of Members, Capital Contributions, Capital Accounts
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 |
928,560 | 88.677 | % | |||||
Trott & Trott, P.C. 00000 Xxxxxxxxxxxx Xxxxxxx Xxxxx 000 Xxxxxxxxxx Xxxxx, XX 00000 Phone: (000) 000-0000 Fax: (000) 000-0000 Attention: Xxxxx X. Xxxxx |
95,000 | 9.073 | % | |||||
Feiwell & Hannoy Professional
Corporation 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxxxxxxx, Xxxxxxx 00000 Phone: (000) 000-0000 Fax: (000) 000-0000 Attention: [ ] |
23,560 | 2.250 | % | |||||
TOTAL:
|
1,047,120 | 100.000 | % | |||||
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