October 1, 2008 Mr. Robert L. Montgomery Mr. Steven D. Albright Reliv’ International, Inc. Chesterfield, MO 63005 Dear Mr. Montgomery & Mr. Albright:
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Exhibit
10.1
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October
1, 2008
Xx.
Xxxxxx X. Xxxxxxxxxx
Xx.
Xxxxxx X. Xxxxxxxx
Reliv’
International, Inc.
000
Xxxxxxxxxxxx Xxxxxxxxxx Xxxx.
Xxxxxxxxxxxx,
XX 00000
Dear
Xx.
Xxxxxxxxxx & Xx. Xxxxxxxx:
This
Letter Agreement (the “Agreement”) is made and entered into as of this
1st
day of
October 2008, by and between Reliv’
International, Inc.
(the
“Borrower”) and Southwest
Bank, an M&I Bank
(the
“Lender”).
Borrower
covenants that so long as any obligation is owed to Lender or Lender has any
outstanding commitment to lend to Borrower, under the terms and conditions
of a
promissory note from Borrower to Lender under the Revolving
Loan(s),
in the
aggregate principal amount of $5,000,000.00
dated
October 1, 2008 or under any note(s) evidencing a loan, (the “Note(s)”) and all
extensions, renewals or modifications of the Note(s).
Notes(s)
and all indebtedness (the “Obligations”) include, without limitation all
obligations, indebtedness and liabilities arising pursuant to or in connection
with any interest rate swap transaction, basis swap, forward rate transaction,
interest rate option, price risk hedging transaction or any similar transaction
between the Borrower and Lender:
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1.
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Lender
shall have received the following security documents (the "Security
Documents") in form and substance satisfactory to
Lender:
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(i)
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Promissory
Note(s);
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(ii)
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General
Business Security Agreement;
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(iii)
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UCC
Financing Statements as required by Lender;
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(iv)
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Organization
Perfection Certificate; and
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(v)
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Deed
of Trust on property located at 112 & 000 Xxxxxxxxxxxx Xxxxxxxxxx
Xxxx., Xxxxxxxxxxxx, XX 00000.
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2.
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Borrower
shall furnish
to Lender, as soon as available, such financial information respecting
Borrower as Lender from time to time requests, and without request
furnish
to Lender:
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(i)
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Within
120 days after the end of each fiscal year of Borrower, a balance
sheet of
Borrower as of the close of such fiscal year and related statements
of
income and retained earnings and cash flow for such year all in reasonable
detail and satisfactory in scope to Lender, prepared in accordance
with
generally accepted accounting principles applied on a consistent
basis,
audited by an independent certified public accountant, selected by
Borrower and acceptable to Lender.
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(ii)
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Within
45 days after the end of each third month, a balance sheet of Borrower
as
of the end of such third month and related statements of income and
retained earnings and cash flow for the period from the beginning
of the
fiscal year to the end of such third month, prepared in accordance
with
generally accepted accounting principles applied on a consistent
basis,
certified, subject to normal year-end adjustments, by a financial
representative of Borrower.
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3.
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Borrower
shall timely perform and observe the following financial covenants,
calculated in accordance with generally accepted accounting principles
applied on a consistent basis:
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(i)
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Maintain
at all times a tangible net worth of not less than $10,500,000.00,
tested
quarterly.
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(ii)
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Maintain
at all times Total Funded Debt to EBITDA of not greater than 3.50
to 1.00,
tested quarterly. “Total Funded Debt” shall mean the principal balance
outstanding under the Loans. “EBITDA” shall mean, for any period,
operating income for such period plus all amounts deducted in arriving
at
such operating income in respect of (i) all interest expense with
respect
to all indebtedness, (ii) all taxes imposed on or measured by income
or
excess profits (whether deferred or paid), (iii) all charges for
depreciation of fixed assets and (iv) charges for amortization of
intangibles.
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4.
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This
Letter Agreement amends and restates in its entirety an existing
Letter
Agreement dated April 30, 2006, by and between Reliv’ International, Inc.
(the “Customer”) and Southwest Bank of St. Louis n/k/a Southwest Bank, an
M&I Bank (the “Lender”).
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A
breach
of any term or condition in this Agreement or Obligations shall constitute
an
additional event of default under the Note(s) and Lender may, at its option,
declare the Note(s) due and payable, and may pursue all remedies available
to it
with regard to the Note(s). The undersigned shall reimburse Lender for all
expenses incurred by it in protecting or enforcing its rights under this
Note(s), including without limitation, costs of administration of the Note(s)
and costs of collection before and after judgment, including reasonable
attorney’s fees and legal expenses.
In
the
case of any ambiguity or conflict between this Agreement, any note evidencing
a
Loan, or any Security Document, this Agreement will govern.
Please
confirm your acknowledgment and acceptance of the terms and conditions of this
Agreement by signing and dating below.
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Very
truly yours,
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Very
truly yours,
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By:
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/s/
Xxxxx X. Xxxxxx
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By:
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/s/
Xxxx X. Xxxxxxx
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Xxxxx
X. Xxxxxx, Senior Vice President
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Xxxx
X. Xxxxxxx, Senior Vice President
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Accepted
and Agreed as of November 20, 2008
Reliv’
International, Inc.
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By:
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/s/
Xxxxxx X. Xxxxxxxxxx
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11/20/08
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Xxxxxx
X. Xxxxxxxxxx, President
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By:
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/s/
Xxxxxx X. Xxxxxxxx
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11/20/08
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Xxxxxx
X. Xxxxxxxx, CFO
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