EXHIBIT 10.5(b)
SECOND AMENDMENT TO FINANCING SERVICES AND
CONTRIBUTED CAPITAL AGREEMENT
This SECOND AMENDMENT TO FINANCING SERVICES AND CONTRIBUTED CAPITAL
AGREEMENT (the "Amendment") is made as of this 25th day of March, 1999, between
SOUTHERN STATES COOPERATIVE, INCORPORATED (the "Cooperative"), a Virginia
corporation, and MICHIGAN LIVESTOCK CREDIT CORPORATION ("MLCC"), a Virginia
corporation.
The parties hereto are parties to a Financing Services and Contributed
Capital Agreement dated as of the 1st day of April, 1998 as amended by an
Amendment to Financing Services and Contributed Capital Agreement dated as of
November 6, 1998 (as so amended, the "Agreement") and desire to amend the
provisions of Section 13.01 of the Agreement.
Accordingly, the parties hereto agree as follows:
AMENDMENT
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Section 13.01 of the Agreement is amended to read as follows:
SECTION 13.01. DEFINITIONS. As used in this Article the following
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terms shall have the following definitions:
"Contributed Capital Rate" means the ratio of debt to tangible net
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worth which institutional lenders extending credit to MLCC require it to
maintain from time to time, whether such ratio is stated as an affirmative or
negative covenant, and in the event MLCC is required to maintain different
ratios on different dates, "Contributed Capital Rate" means the ratio which is
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in effect on the applicable TAPOS Determination Date.
"Determination Period" or "Determination Periods" means the calendar
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month, the six calendar month period and the twelve calendar month period
immediately preceding the TAPOS Determination Date.
"Minimum Class X Investment" means the number of shares of MLCC Class
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X Preferred Stock determined by MLCC as follows:
MI = (HT/(PV x R)) - RE
where
MI = Minimum Class X Investment (stated at the par value).
HT = The highest TAPOS during any of the three Determination Periods.
PV = The par value of one share of the MLCC Class X Preferred Stock.
R = The Contributed Capital Rate, expressed as a decimal.
RE = The balance of MLCC's retained earnings as of the TAPOS
Determination Date divided by the par value of Class X
Preferred Stock.
If the Minimum Class X Investment computed using this formula is a
fraction, it will be rounded upward to the next whole number of shares.
"TAPOS" means calculated total program outstanding as determined by MLCC
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for each of the three Determination Periods according to the following formula:
TAPOS = AL + L + LFP + CA + NBC - TD - SAP
where
AL = Average amount of Loans outstanding during such Determination
Period.
L = Average Leases outstanding during such Determination Period.
LFP = Average cost to MLCC of livestock owned by MLCC which is subject
to a Livestock Feeding Agreement.
CA = Assets acquired in satisfaction of contractual obligations owing
to MLCC, including without limitation, assets acquired by
foreclosure or by transfer in lieu of foreclosure, valued as
carried on the books of MLCC.
NBC = Average investment (stated at par value) which MLCC was required
to maintain in CoBANK ACB during such Determination Period.
TD = Average term debt which is excluded in the determination of the
Contributed Capital Rate during such Determination Period.
SAP = Average outstanding Preferred Stock of MLCC of all classes
during such Determination Period (stated at the par value).
In the computation for a Determination Period of one month, the amounts of
AL, LFP, L, CA, NBC, TD and SAP as of the last Business Day of such calendar
month shall be used as the average for such month. In computations for other
Determination Periods, the average for each such amount shall be computed using
the outstanding amounts as of the last Business Day of each month in such
Determination Period.
"TAPOS Determination Date" means the date during each calendar month on
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which the month-end calculation is made to determine the amount due.
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PRIOR AGREEMENT
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Except as otherwise expressly amended by this Amendment, the Agreement is
and shall continue to be in full force and effect in accordance with its terms.
The Cooperative and MLCC further covenant and agree that each reference in any
agreement or other document to the Agreement shall be deemed to refer to the
Agreement as amended by this Amendment and as it may be amended from time to
time hereafter.
This Amendment shall be governed by and construed and be interpreted in
accordance with the laws of the Commonwealth of Virginia.
IN WITNESS WHEREOF, SOUTHERN STATES COOPERATIVE, INCORPORATED and MICHIGAN
LIVESTOCK CREDIT CORPORATION have caused this Amendment to be executed by their
duly authorized officers all as of the date first above written.
SOUTHERN STATES COOPERATIVE,
INCORPORATED
By: Xxxx Xxxxxxx
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Its: Sr. Vice President and CFO
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MICHIGAN LIVESTOCK CREDIT CORPORATION
By: Xxxxxx X. Xxxxxx
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Its: V.P. and Treasurer
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