AMENDMENT NO. 8 to the AMENDED AND RESTATED OPERATING AGREEMENT of AMERICAN PROCESSING COMPANY, LLC
Exhibit 10.37
THIS AMENDMENT NO. 8 (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, that certain Amendment No. 2 to the
Amended and Restated Operating Agreement, dated as of November 30, 2007, that certain Amendment No.
3 to the Amended and Restated Operating Agreement, dated as of February 28, 2008, that certain
Amendment No. 4 to the Amended and Restated Operating Agreement, dated as of August 15, 2008, that
certain Amendment No. 5 to the Amended and Restated Operating Agreement, dated as of July 1, 2009,
that certain Amendment No. 6 to the Amended and Restated Operating Agreement, dated as of December
1, 2009, that certain Amendment No. 7 to the Amended and Restated Operating Agreement, dated as of
January 4, 2010 (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 28, 2010, by and among the Company, the Manager and the Member listed on
the signature pages hereto. Capitalized terms used but not otherwise defined herein shall have
meanings specified in the Operating Agreement.
RECITALS
A. On February 28, 2010, the Company redeemed 23,560 common units held by Feiwell & Hannoy
Professional Corporation in connection with the exercise of Feiwell & Hannoy’s repurchase right
under Section 7.7 of the Operating Agreement.
B. Pursuant to Section 10.4 of the Operating Agreement, the Manager, who also
represents a Supermajority-in-Interest of the Members, has amended the terms of the Operating
Agreement to reflect this redemption of common units.
AGREEMENT
1. AMENDMENTS
1.1 The definition of “Feiwell & Hannoy” in Article I of the Operating Agreement is deleted in
its entirety.
1.2 Section 7.7 of the Operating Agreement is hereby amended and restated in its
entirety as follows:
“7.7 Liquidity Right.
(a) For a period of six (6) months after the fourth anniversary of the Closing Date
(as defined in the NDEx Equity Purchase Agreement) with respect to the NDEx
Sellers, each Minority Member will have the right to require the Company to
repurchase all or any portion of such Minority Member’s Common Units or other
Membership Interests in the Company for a purchase price equal to the Repurchase
Price by delivering written notice of the exercise of such right to the Manager
(the “Put Notice”). The date on which the Manager receives a Put Notice hereinafter
is referred to as the “Put Delivery Date”. 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 date of the Put Closing (as
defined below).
(b) The Company shall be obligated to purchase all of each applicable Minority
Member’s Common Units or other Membership Interests in the Company requested to be
repurchased by such Minority Member in the Put Notice pursuant to Section
7.7(a) hereof (the “Put Securities”), at a closing (the “Put Closing”) on such
date as mutually agreed to by the Manager and the applicable Minority Members,
which date shall not be prior to thirty (30) days after the Put Delivery Date. At
the Put Closing, (i) each Minority Member shall (A) endorse and deliver any
certificates representing the Put Securities held by such Minority Member to be
repurchased by the Company, (B) execute and deliver any other instruments requested
by the Company to evidence the repurchase of the Put Securities by the Company, and
(C) execute and deliver definitive documentation containing customary
representations, warranties and indemnifications satisfactory to the Manager
(including that such Minority Member has good and marketable title to the Put
Securities free and clear of all liens, hypothecations, mortgages, charges,
security interests, pledges and other encumbrances and claims of any nature), and
(ii) the Manager shall deliver to such Minority Member a promissory note issued by
the Company (a “Put Note”) in the aggregate principal amount equal to the
Repurchase Price. Prior to the Put Closing, a Minority Member and the Manager shall
in good faith negotiate the terms and conditions of the Put Note; provided,
however, that such Put Note will (i) be unsecured, (ii) be for a term of
three years with level payments of principal and interest during the term thereof,
(iii) bear interest at a rate equal to the then prevailing prime rate plus two
percent (2%) and (iv) be subject to the terms and conditions of any subordination
agreement requested by the Senior Agent and the Senior Lenders.”
1.3 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 Manager 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.
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.
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 | |||||
EXHIBIT A
List of Members, Capital Contributions, Capital Accounts
Common Units and Participating Percentages
As of February 28, 2010
List of Members, Capital Contributions, Capital Accounts
Common Units and Participating Percentages
As of February 28, 2010
| Name, Address, Phone | ||||||||
| and Fax of Member | Common Units | Participating Percentage | ||||||
Xxxxx APC, LLC c/x Xxxxx Media Company 000 Xxxxx Xxxxx Xxxxxx Xxxxx 0000 Xxxxxxxxxxx, Xxxxxxxxx 00000 Phone: (000) 000-0000 Fax: (000) 000-0000 Attention: Xxxxx X. Xxxxx |
1,278,857 | 93.82 | % | |||||
Xxxxxxxxxx X. Xxxxxxx 0000 Xxxx Xxxx Xxxxx Xxxxxx, Xxxxx 00000 Phone: (000) 000-0000 Fax: (000) 000-0000 |
34,609 | 2.54 | % | |||||
Xxxxxx X. Xxxxxxxx 0000 Xxxxx Xxxx. Xxxxxxx, Xxxxx 00000 Phone: (000) 000-0000 Fax: (000) 000-0000 |
14,899 | 1.10 | % | |||||
Xxxxx X. Xxxxxxxx and Xxxxxx
X. Xxxxxxxx, JTWROS 0000 Xxxxxx Xxx Xxxxx Xxxxxx Xxxxx, Xxxxx 00000 Phone: (000) 000-0000 Fax: (000) 000-0000 |
5,714 | 0.42 | % | |||||
Xxxx X. Xxxxxx and Xxxxxxx
Xxxxxx Xxxxxx, Xx., Tenants in Common 00000 Xxxxxxx Xxxxx Xxxx Xxxxxxx, Xxxxx 00000 Phone: (000) 000-0000 Fax: (000) 000-0000 |
14,899 | 1.10 | % | |||||
Xxxxx Xxxxx and Xxxxx Xxxxx, JTWROS 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 00000 Phone: (000) 000-0000 Fax: (000) 000-0000 |
5,714 | 0.42 | % | |||||
| Name, Address, Phone | ||||||||
| and Fax of Member | Common Units | Participating Percentage | ||||||
Xxxx X. Xxxxxx and Xxxxx
X. Xxxxxx, JTWROS 0000 Xxxxxxxx Xx. Xxxxxx Xxx, Xxxxx 00000 Phone: (000) 000-0000 Fax: (000) 000-0000 |
5,714 | 0.42 | % | |||||
Xxxxxxx X. Xxxxxx 0000 Xxxxxxxxxxxx Xxxxxxx, XX 00000 Phone: (000) 000-0000 Fax: (000) 000-0000 |
601 | 0.04 | % | |||||
Xxxx X. Xxxxxxx 0000 Xxxxxx Xxxxx Xxxxxx Xxxxx, XX 00000 Phone: (000) 000-0000 Fax: (000)000-0000 |
000 | 0.04 | % | |||||
Xxxxxxxxx X. Xxxxxxx 000 Xxxxxxxx Xxxxx Xxxxxxx, XX 00000 Phone: (000) 000-000000 Fax: (000)000-0000 |
000 | 0.04 | % | |||||
Xxxxx X. Xxxxx X.X. Xxx 00 Xxxxxxxxx, XX 00000 Phone: (000) 000-0000 Fax: (000) 000-0000 |
393 | 0.03 | % | |||||
Xxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx, Tenants in Common 00000 Xxxxxxxxxx Xxxxxx Xxxxxx, XX 00000 Phone: (000) 000-0000 Fax: (000) 000-0000 |
394 | 0.03 | % | |||||
TOTAL:
|
1,362,994 | 100.000 | % | |||||
