EXHIBIT 10.2
COMMON UNIT PURCHASE AGREEMENT
THIS COMMON UNIT PURCHASE AGREEMENT
(this “ Agreement ”), dated as of
November 30, 2007, is by and between Feiwell & Hannoy
Professional Corporation, an Indiana professional corporation
(“ Seller ”), and Dolan APC LLC, a Delaware
limited liability company (“ Buyer ”).
Capitalized terms used but not otherwise defined herein shall have
the definitions ascribed to them in the hereinafter defined LLC
Agreement.
R E C I T A L S
A. Buyer and Seller, among
others, are each parties to that certain Amended and Restated
Operating Agreement of American Processing Company, LLC, 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 “ LLC Agreement
”).
B. Seller is the owner of 47,120
Common Units of American Processing Company, LLC, a Michigan
limited liability company (the “ Company ”), and
Buyer is the owner of 810,000 Common Units.
C. On the terms and conditions
set forth herein, Seller desires to sell to Buyer, and Buyer
desires to purchase from Seller, 23,560 Common Units (the “
Purchased Units ”).
A G R E E M E N T
In consideration of the foregoing and
the mutual covenants, representations, warranties and agreements
set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF UNITS
1.1 Purchase and Sale . Seller
hereby sells to Buyer, free and clear of any claims, liens,
security interests, pledges, charges or encumbrances whatsoever,
and Buyer hereby purchases from Seller, all of Seller’s
right, title and interest in and to the Purchased Units for an
aggregate purchase price of $3,100,000 (the “ Purchase
Price ”). On the date hereof, Buyer shall deliver the
Purchase Price to Seller by cashier’s or certified check made
payable to the order of Seller or by wire transfer of funds to an
account designated by Seller. Seller acknowledges that, following
the consummation of the purchase of the Purchased Units by Buyer,
Seller shall have no further rights with respect to the Purchased
Units; provided , however , the parties acknowledge
and agree that, upon the consummation of the transactions
contemplated herein, Seller shall continue to own 23,560 Common
Units of the Company (the “ Remaining Units ”)
and thus shall continue to hold a Membership Interest in the
Company with respect to such Remaining Units.
1.2 Closing . The closing of
the transactions that are the subject of this Agreement (the
“ Closing ”) shall be held at the offices of
Katten Muchin Rosenman LLP in Chicago,
Illinois, at 10:00 a.m. (Chicago time) on November 30,
2007 or at such other time or place as the parties hereto shall
mutually agree (the “ Closing Date ”).
1.3 Tax Reporting . Seller and
Buyer will, and will cause the Company to, employ the closing of
the books method and hereby consent to and agree that
Seller’s and Buyer’s respective distributive shares of
the Company’s items set forth in Sections 702 and 704 of
the Internal Revenue Code of 1986, as amended (the “
Code ”) (and any comparable provision of foreign,
state or local law), for the taxable year of the Company that
includes the Closing Date with respect to the Purchased Units,
shall be determined on the basis of an interim closing of the books
of the Company as of the close of the business on the Closing Date,
and shall not be based on a proration of such items for the entire
taxable year. As soon as practicable after the Closing Date, the
Buyer shall prepare an allocation of the Purchase Price (and any
other item of consideration) among the assets of the Company and
such allocation shall be binding on the Seller and Buyer for all
applicable federal, foreign, state and local income tax purposes
and neither Buyer nor Seller shall take any position that
inconsistent therewith.
1.4 Monthly Distributions .
Seller and Buyer agree that, for purposes of Section 4.1(a) of the
LLC Agreement, all distributions due by the Company with respect to
any period prior to the Closing Date shall be based upon the Seller
having a Participating Percentage of 4.50%.
ARTICLE II
CONDITIONS TO BUYER’S OBLIGATION AT THE
CLOSING
The obligation of Buyer to purchase
and pay for the Purchased Units to be purchased by Buyer at the
Closing is conditioned upon the satisfaction of each of the
conditions set forth below:
2.1 Certificates . Seller
shall have delivered certificate(s) evidencing the Purchased Units
duly endorsed in blank or accompanied by duly executed assignments
separate from certificates. Upon the consummation of the
transactions contemplated herein, Purchaser, as the Manager of the
Company, shall cause the Company to issue to Seller a new
certificate representing the Remaining Units.
2.2 Operating Agreement .
Seller shall have executed and delivered the Second Amendment to
Operating Agreement of the Company (the “ Amended
Agreement ”), in a form acceptable to Buyer, which such
Amended Agreement shall reflect the purchase by Buyer of the
Purchased Units and certain other matters, all as described
therein.
2.3 Credit Agreement
Deliveries . Seller shall have executed and delivered each
document or agreement reasonably requested by Senior Agent pursuant
to the terms of the Senior Credit Agreement, including, but not
limited to, any amendments required to the Senior Security
Agreement or any pledge agreement by the Company to the Senior
Lenders.
2.4 FIRPTA Affidavit . Seller
shall have executed and delivered a non-foreign affidavit dated as
of the Closing sworn under penalty of perjury and in form and
substance
2
required
under the Treasury Regulation pursuant to Section 1445 of the
Code stating that Seller is not a “Foreign Person” as
defined in Section 1445 of the Code.
2.5 Pledge Agreement . Seller
shall have executed and delivered an Amended and Restated Pledge
Agreement for the pledge of the Remaining Units in favor of the
Company to secure any amounts payable to the Company by Seller
pursuant to the terms of that certain Asset Purchase Agreement,
dated January 9, 2007, by and between the Company and
Seller.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents to Buyer as
follows:
3.1 Organization and Standing
. Seller is a professional corporation duly organized, validly
existing and in good standing under the laws of the State of
Indiana. Seller has the requisite legal and corporate power and
authority to carry on its business as it is now being
conducted.
3.2 Authority . Seller has the
requisite corporate power and authority to enter into this
Agreement and the Amended Agreement and to carry out and perform
its obligations under the terms of this Agreement and the Amended
Agreement.
3.3 Authorization . All
corporate action on the part of Seller and its stockholders
necessary for the authorization, execution, delivery and
performance by Seller of this Agreement and the Amended Agreement,
and the consummation of the transactions contemplated hereby and
thereby, has been taken. This Agreement and the Amended Agreement
constitute the legal, valid and binding obligations of Seller,
enforceable against Seller in accordance with their terms, except
as limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application affecting
enforcement of creditors’ rights and as limited by general
principles of equity that restrict the availability of specific
performance, injunctive relief or other equitable remedies.
3.4 Title to Units . Seller is
the record and beneficial owner of the Purchased Units free and
clear of any claims, liens, security interests, pledges, charges or
encumbrances whatsoever. Seller has good and marketable title to
the Purchased Units, and full right, power and authority to sell
such Purchased Units to Buyer as provided herein. Seller has not
granted any option or rights and is not a party to any other
agreement that requires (or upon the passage of time, the payment
of money, or the occurrence of any other event may require) Seller
to transfer any of the Purchased Units to any Person other than
Buyer as contemplated herein.
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