AMENDMENT NO. 5 to the AMENDED AND RESTATED OPERATING AGREEMENT of AMERICAN PROCESSING COMPANY, LLC

EXHIBIT 10.2

AMENDMENT NO. 5
to the
AMENDED AND RESTATED OPERATING AGREEMENT
of
AMERICAN PROCESSING COMPANY, LLC

THIS AMENDMENT NO. 5 (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, and that certain Amendment No. 4 to the Amended and Restated Operating Agreement (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 July 1, 2009, by and among the Company, the Manager and the Members listed on the signature pages hereto. Capitalized terms used but not otherwise defined herein shall have meanings specified in the Operating Agreement.

RECITALS

A. Upon Xxxxxxx X. Xxxxxxx’x death on January 11, 2009, his surviving spouse, Xxxxxxxxxx X. Xxxxxxx, became the sole owner of all 34,609 Common Units held by Xxxxxxx X. Xxxxxxx and Xxxxxxxxxx X. Xxxxxxx in joint tenancy with right of survivorship.

B. On July 1, 2009, Xxxxxxx Xxxxxx Xxxxxxxx Xxxxxx & Xxxxx, LLP transferred all of its 1,801 Common Units as follows:

Assignee		No. of Common Units
Xxxx X. Xxxxxxx			600
Xxxxxxx X. Xxxxxx			601
Xxxxxxxxx X. Xxxxxxx			600

Upon the consummation of such transfer (the “Xxxxxxx Transfer”), each of the assignees identified above became a Substituted Member of the Company.

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. AMENDMENTS

1.1 The definition of “NDeX Sellers” in Article I of the Operating Agreement is hereby amended and restated in its entirety as follows:

“NDEx Sellers” means Xxxxxxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxxx, Xxxx X. Xxxxxx, Xxxxx Xxxxx, Xxxx X. Xxxxxx, Xxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxx and Xxxxxxxxx X. Xxxxxxx.

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 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
	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

As of July 1, 2009

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			1,173,952				84.67	%
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				7.57	%
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				1.70	%
Xxxxxxxxxx X. Xxxxxxx 0000 Xxxx Xxxx Xxxxx Xxxxxx, Xxxxx 00000 Phone: (000) 000-0000 Fax: (000) 000-0000			34,609				2.50	%
Xxxxxx X. Xxxxxxxx 0000 Xxxxx Xxxx. Xxxxxxx, Xxxxx 00000 Phone: (000) 000-0000 Fax: (000) 000-0000			14,899				1.07	%
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				0.41	%

Name, Address, Phone
and Fax of Member		Common Units				Participating Percentage
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				1.07	%
Xxxxx Xxxxx and Xxxxx Xxxxx, JTWROS 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 00000 Phone: (000) 000-0000 Fax: (000) 000-0000			5,714				0.41	%
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				0.41	%
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:			1,386,554				100.000	%