FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
Exhibit 10.19.1
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
This FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”) is made as of February
17, 2009, by and between Citibank, N.A. (“Lender”) and Energy Recovery, Inc., a Delaware
corporation (“Borrower”), with respect to the Loan and Security Agreement between Borrower and
Lender dated as of January 7, 2009 (as amended and modified through but excluding the date hereof,
the “Agreement”).
RECITALS
WHEREAS, Borrower and Lender entered into the Agreement; and
WHEREAS, the parties have agreed to the changes in the Agreement set forth below.
NOW THEREFORE, IT IS AGREED THAT:
1. Definitions. Unless otherwise indicated, words and terms which are defined in the
Agreement have the same meaning where used herein.
2. Amendment.
(a) Clauses (i) and (j) of the definition of “Permitted Indebtedness” in Section 1.1 of
the Agreement are hereby amended and restated as follows:
(i) Indebtedness specifically disclosed to, and specifically approved by,
Lender in writing on or prior to the date of this Agreement;
(j) the Indebtedness existing under the documents described in Exhibit
G hereto;
and
(k) refinanced Permitted Indebtedness, provided that the amount
of such Indebtedness is not increased except by an amount equal to a reasonable premium or
other reasonable amount paid in connection with such refinancing and by an amount
equal to any existing, but unutilized, commitment thereunder.
(b) Exhibit G is added to the Agreement in the form attached to this
Amendment.
3. Payment of Fees and Expenses. Borrower must pay Lender, on demand, all
fees and expenses (including attorneys’ fees) incurred by Lender in connection with the
negotiation and preparation of this Amendment and all documents related thereto.
4. Continued Validity of Agreement. Except as modified by this Amendment, the
Agreement and all notes, deeds of trust, security agreements, guaranties, and other documents
(including all amendments of and modifications to such documents) executed by Borrower with or in
favor of Lender (collectively referred to as the “Loan Documents”), will continue in full force and
effect as originally constituted and are ratified and affirmed by the parties hereto. Each
reference in the Agreement or the other Loan Documents to the Agreement means the
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Agreement, together with this Amendment, unless the context otherwise requires. This Amendment
and the Agreement must be read as one document.
5. Compliance with Loan Documents. Borrower represents and warrants to Lender as
follows: (a) as of the effective date of this Amendment, Borrower has complied, and is in
compliance with, all of the terms, covenants and conditions of the Agreement and the other Loan
Documents; (b) as of the effective date of this Amendment, there exists no Event of Default under
the Agreement or any of the other Loan Documents or an event which would constitute an Event of
Default upon the lapse of time or upon the giving of notice and the lapse of time specified
therein; (c) the representations and warranties of Borrower in the Agreement and the other Loan
Documents are true and with the same effect as of the date hereof; and (d) Borrower will continue
to be in compliance with all of the terms, covenants and conditions of the Agreement and the other
Loan Documents, and all representation and warranties will continue to be true, upon this
Amendment becoming effective.
6. Authorization. Each party represents to the others that the individual executing this
document on its behalf is the duly appointed signatory of such party to this document and that
such individual is authorized to execute this document by or on behalf of such party and to take
all action required by the terms of this document.
7. When Amendment is Effective. This Amendment will be deemed binding and deemed
effective when this Amendment is executed by Borrower and Lender, and Lender has received a fully
executed original of this Amendment.
8. No Novation. This document is not intended to be, and may not be construed to create, a
novation or accord and satisfaction, and, except as otherwise provided herein, the Agreement will
remain in full force and effect.
9. Entire Agreement. This document constitutes the entire agreement by and between
Borrower and Lender with respect to the subject matter hereof and supersedes all prior and
contemporaneous negotiations, communications, discussions and agreements concerning such subject
matter.
10. Counterparts. This document may be executed in any number of counterparts, each of
which will be an original, but all of which together constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this document as of
the date first set forth above.
| LENDER: | BORROWER: | |||||||||||||
| Citibank, N.A. | Energy Recovery, Inc., a Delaware corporation | |||||||||||||
| By | /s/ Xxxxxx Xxxxxx | By | /s/ Xxxxxx Xxxxxxxxxx | |||||||||||
| Name: | Xxxxxx Xxxxxx | Name: | Xxxxxx Xxxxxxxxxx | |||||||||||
| Title: | Vice President | Title: | Chief Financial Officer | |||||||||||
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Exhibit G
1. That certain Promissory Note in the original principal amount of $1,000,000, dated March 28,
2007 and executed by Energy Recovery, Inc. in favor of Comerica Bank, as amended by Amendment to
Note dated June 13, 2007.
2. That certain letter agreement dated February 17, 2009 between Energy Recovery, Inc. and Comerica
Bank.
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CONSENT OF GUARANTORS
The undersigned each executed a Guaranty dated as of January 7, 2009 in favor of Citibank,
N.A. with respect to the indebtedness and other obligations of the Borrower (the “Guaranty”). The
undersigned acknowledge that Lender has no obligation to provide them with notice of, or to obtain
their consent to, this First Amendment to Loan and Security Agreement. The undersigned
nevertheless have reviewed and consent to, the above Amendment, and acknowledge that the Guaranty
remains fully valid, binding and enforceable against them in accordance with its terms.
Dated: February 17, 2009
| GUARANTOR(S): Osmotic Power, Inc., a Delaware corporation |
||||
| By: | /s/ Xxx Xxxxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxxxx | |||
| Title: | Chief Financial Officer | |||
| Energy Recovery, Inc., International, a Delaware corporation |
||||
| By: | /s/ Xxx Xxxxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxxxx | |||
| Title: | Chief Financial Officer | |||
BORROWER:
Energy Recovery, Inc., a Delaware
corporation
corporation
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