FIRST AMENDMENT
EXHIBIT 10.1
FIRST AMENDMENT
FIRST AMENDMENT, dated as of June 1, 2006 (this “First Amendment”), to the Term Loan Agreement, dated as of May 12, 2006 (the “Loan Agreement”), among Integrated Electrical Services, Inc., a Delaware corporation (the “Borrower”), the several lenders party thereto (collectively, the “Lenders”) and Wilmington Trust Company, in its capacity as administrative agent (in such capacity, the “Administrative Agent”).
W I T N E S S E T H :
WHEREAS, the Borrower, the Lenders and the Administrative Agent are parties to the Loan Agreement; and
WHEREAS, the Borrower has requested that the Lenders agree to amend the Loan Agreement in order to permit the Borrower to issue $1,000,000 in common stock to Tontine Capital Partners, the proceeds of which will be used by the Borrower to invest $1,000,000 in Energy Photovoltaics, Inc. in up to three installments, and the Lenders are agreeable to such request but only upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual agreements contained herein, and for other valuable consideration the receipt of which is hereby acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. Unless otherwise defined herein, capitalized terms are used herein as defined in the Guarantee and Collateral Agreement.
|
SECTION 2. |
AMENDMENTS. |
2.1 Amendment to Section 1.1. Section 1.1 of the Loan Agreement is hereby amended by inserting the following new definitions in appropriate alphabetical order:
“EPV”: Energy Photovoltaics, Inc.
“EPV Transaction”: the transaction pursuant to which the Borrower will issue $1,000,000 in common stock to Tontine Capital Partners, the proceeds of which will be used by the Borrower to invest $1,000,0000 in EPV in up to three installments.
“EPV Transaction Documents”: any and all agreements, instruments and other documents executed in connection with or otherwise evidencing the EPV Transaction.
“First Amendment”: the First Amendment, dated as of June 1, 2006, to this Agreement.
“First Amendment Effective Date”: the First Amendment Effective Date under and as defined in the First Amendment.
2.2 Amendment to Section 6.7. Section 6.7 of the Loan Agreement is hereby amended by adding the following proviso at the end of paragraph (g) thereof:
“provided that the Borrower’s investment in EPV shall be deemed not to reduce the $2,000,000 of Investments permitted to be made under this paragraph (g) so long as such investment does not exceed $1,000,000 and is made pursuant to, and in accordance with, the EPV Transaction Documents delivered to the Administrative Agent and the Initial Lenders three Business Days prior to the date that the first installment payment is made in respect of the EPV Transaction, which documents shall be in form and substance reasonably satisfactory to the Initial Lenders”.
2.3 Amendment to Section 6.9. Section 6.9 of the Loan Agreement is hereby amended by adding the following proviso at the end of such Section:
“provided that on and after the First Amendment Effective Date through August 31, 2006, so long as no Default or Event of Default shall have occurred and be continuing, the Borrower may consummate the EPV Transaction pursuant to, and in accordance with, the EPV Transaction Documents delivered to the Administrative Agent and the Initial Lenders pursuant to Section 6.7(g)”.
2.4. Amendment to Guarantee and Collateral Agreement. Section 2 of the Guarantee and Collateral Agreement is hereby amended by inserting the following new Section 2.8 at the end of Section 2 thereof:
“2.8 Bermuda Insurance Act. Notwithstanding anything herein to the contrary, the obligations under this Agreement of IES Reinsurance, Ltd., a Bermuda limited partnership (“IES Reinsurance”), shall be subject to IES Reinsurance meeting its solvency margins and liquidity ratios pursuant to the Bermuda Insurance Act of 1978 and related regulations.”
|
SECTION 3. |
MISCELLANEOUS. |
3.1 Limited Effect. Except as expressly amended hereby, the Loan Agreement, Guarantee and Collateral Agreement and the other Loan Documents are, and shall remain, in full force and effect in accordance with their respective terms. This First Amendment shall not constitute an amendment of any provision of the Loan Agreement, Guarantee and Collateral Agreement or the other Loan Documents not expressly referred to herein and shall not be construed as (or indicate the Lenders’ willingness to agree to) an amendment, waiver or consent to any action on the part of the Borrower that would require an amendment, waiver or consent of the Administrative Agent or the Lenders except as expressly stated herein.
3.2 Effectiveness. This First Amendment shall become effective as of the date first set forth above (the “First Amendment Effective Date”) (a) upon receipt by the Administrative Agent and the Initial Lenders of (i) counterparts hereof duly executed by the
Borrower, the Administrative Agent, the Required Lenders and the Initial Lenders and (ii) a consent to the EPV Transaction duly executed by the requisite ABL Lenders and (b) no Default or Event of Default shall have occurred and be continuing on the First Amendment Effective Date after giving effect to this First Amendment.
3.3 Representations and Warranties. In order to induce the Administrative Agent and each Lender to enter into this First Amendment, each Grantor hereby represents and warrants to the Administrative Agent and each Lender that:
(a) all of the representations and warranties contained in the Loan Agreement and in each Loan Document are true and correct in all material respects as of the date hereof after giving effect to this First Amendment, except to the extent that any such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date;
(b) the execution, delivery and performance of by each Grantor of this First Amendment have been duly authorized by all necessary corporate action required on its part and this First Amendment is the legal, valid and binding obligation of each Grantor, enforceable against it in accordance with its terms; and
(c) the execution, delivery and performance of this First Amendment by each Grantor does not contravene, and will not result in a breach of, or violate (i) any provision of any Grantor’s certificate or articles of incorporation or bylaws or other similar constituent documents, (ii) any law or regulation, or any order or decree of any court or government instrumentality, or (iii) any indenture, mortgage, deed of trust, lease, agreement or other instrument to which any Grantor is a party or by which any Grantor or any of its property is bound.
3.4 Counterparts. This First Amendment may be executed by one or more of the parties hereto on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. This First Amendment may be delivered by facsimile transmission of the relevant signature pages hereof.
3.5 Consent of Guarantors. Each of the Guarantors acknowledges and consents to all of the terms and conditions of this First Amendment and agrees that this First Amendment does not operate to reduce or discharge such Guarantor’s obligations under the Guarantee and Collateral Agreement or the other Loan Documents to which such Guarantor is a party.
3.6 Successors and Assigns. This First Amendment shall be binding upon and inure to the benefit of the Borrower and each of their respective successors and assigns, and upon the Administrative Agent and the Lenders and their successors and assigns. The execution and delivery of this First Amendment by any Lender prior to the First Amendment Effective Date shall be binding upon its successors and assigns and shall be effective as to any Loans assigned to it after such execution and delivery.
|
3.7 |
Administrative Agent. By executing this First Amendment, the Initial |
Lenders are hereby directing the Administrative Agent to execute and deliver this First Amendment.
3.8 GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
3.9 Headings. Section headings used in this First Amendment are for convenience of reference only, are not part of this First Amendment and are not to affect the construction of, or to be taken into consideration in interpreting this First Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized as of the day and year first above written.
INTEGRATED ELECTRICAL SERVICES, INC.
By: /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx
|
Title: |
Senior Vice President |
Signature Page to First Amendment
ALADDIN XXXX ELECTRIC & AIR, INC.
AMBER ELECTRIC, INC.
ARC ELECTRIC INCORPORATED
XXXXXXXXX ELECTRIC, INC.
BEAR ACQUISITION CORPORATION
XXXXXX ELECTRIC COMPANY, INC.
BW/BEC, INC.
BW CONSOLIDATED, INC.
XXXXXXX X. XXXXX CO., INC.
XXXXXXX ELECTRIC COMPANY, INC.
COMMERCIAL ELECTRICAL CONTRACTORS, INC.
CROSS STATE ELECTRIC, INC.
CYPRESS ELECTRICAL CONTRACTORS, INC.
XXXXXX ELECTRICAL CONTRACTORS, INC.
XXXXXX ELECTRICAL OF TREASURE COAST, INC.
XXXXXX INTEGRATE TECHNOLOGIES, INC.
XXXXX ELECTRICAL CONSTRUCTORS, INC.
ELECTRO-TECH, INC.
EMC ACQUISTIION CORPORATION
FEDERAL COMMUNICATIONS GROUP, INC.
GENERAL PARTNER, INC.
XXXXXXXX XXXXXXXX ELECTRIC COMPANY
HOLLAND ELECTRICAL SYSTEMS, INC.
XXXXXXX-XXXXXXXX ELECTRIC HOLDINGS III, INC.
XXXXXXX-XXXXXXXX MANAGEMENT LLC
ICS HOLDINGS LLC
IES ALBUQUERQUE, INC.
IES AUSTIN, INC.
IES AUSTIN MANAGEMENT LLC
IES CHARLESTON, INC.
IES CHARLOTTE, INC.
IES COLLEGE STATION, INC.
IES COLLEGE STATION MANAGEMENT LLC
IES COMMUNICATIONS, INC.
IES CONTRACTORS MANAGEMENT LLC
IES DECATUR, INC.
IES EAST MCKEESPORT, INC.
IES ENC, INC.
IES ENC MANAGEMENT, INC.
IES MERIDIAN, INC.
IES NEW IBERIA, INC.
IES OKLAHOMA CITY, INC.
IES OPERATIONS GROUP, INC.
Signature Page to First Amendment
IES PROPERTIES, INC.
IES PROPERTIES MANAGEMENT, INC.
IES RALEIGH, INC.
IES RAPID CITY, INC.
IES RESIDENTIAL GROUP, INC.
IES SPECIALTY LIGHTING, INC.
IES VALDOSTA, INC.
IES VENTURES INC.
IES XXXXXX, INC.
INTEGRATED ELECTRICAL FINANCE, INC.
INTELLIGENT BUILDING SOLUTIONS, INC.
X.X. XXXX ELECTRIC CO., INC.
X.X. XXXX MANAGEMENT LLC
XXXXXX ELECTRIC, INC.
KEY ELECTRICAL SUPPLY, INC.
LINEMEN, INC.
XXXX XXXXXXXXX, INCORPORATED
XXXXXXXX ELECTRIC, INC.
MID-STATES ELECTRIC COMPANY, INC.
XXXXX ELECTRICAL CONTRACTORS, INC.
XXXXX MANAGEMENT LLC
XXXXXXXX ELECTRIC COMPANY, INC.
M-S SYSTEMS, INC.
XXXXXX ELECTRICAL CONTRACTORS, INC.
MBH HOLDING CO., INC.
XXXX ELECTRIC MANAGEMENT LLC
NEW TECHNOLOGY ELECTRICAL CONTRACTORS, INC.
XXXXXXX ELECTRIC COMPANY, INC.
PAN AMERICAN ELECTRIC COMPANY, INC.
PAN AMERICAN ELECTRIC, INC.
XXXXXX ELECTRIC COMPANY, INC.
XXXXXXX ELECTRIC, INC.
PRIMENET, INC.
PRIMO ELECTRIC COMPANY
XXXXXX ELECTRIC CO., INC.
XXXXXX MANAGEMENT LLC
RIVIERA ELECTRIC, LLC
RKT ELECTRIC, INC.
ROCKWELL ELECTRIC, INC.
XXXXXXX ELECTRIC COMPANY, INC.
RON’S ELECTRIC, INC.
SEI ELECTRICAL CONTRACTOR, INC.
SPECTROL, INC.
SUMMIT ELECTRIC OF TEXAS, INC.
TESLA POWER GP, INC.
Signature Page to First Amendment
XXXXXX XXXX & COMPANY
VALENTINE ELECTRICAL, INC.
XXXXXX ELECTRICAL CONTRACTING, INC.
|
By: |
/s/ Xxxx X. Xxxxxxx |
Xxxx X. Xxxxxxx
Vice President
IES CONTRACTORS, INC.
|
By: |
/s/ Xxxx X. Xxxxxxx |
Xxxx X. Xxxxxxx
Secretary
IES REINSURANCE, LTD.
|
By: |
/s/ Xxxx X. Xxxxxxx |
Xxxx X. Xxxxxxx
President
BEXAR ELECTRIC COMPANY, LTD.
|
By: |
BW/BEC, Inc., its general partner |
|
By: |
/s/ Xxxx X. Xxxxxxx |
Xxxx X. Xxxxxxx
Vice President
XXXXXXXX ELECTRIC, LTD.
|
By: |
General Partner, Inc., its general partner |
|
By: |
/s/ Xxxx X. Xxxxxxx |
Xxxx X. Xxxxxxx
Vice President
Signature Page to First Amendment
XXXXXXX-XXXXXXXX ELECTRICAL CONTRACTORS LP
|
By: |
Xxxxxxx-Xxxxxxxx Management LLC, its general partner |
|
By: |
/s/ Xxxx X. Xxxxxxx |
Xxxx X. Xxxxxxx
Vice President
IES AUSTIN HOLDING LP
|
By: |
IES Austin Management LLC, its general partner |
|
By: |
/s/ Xxxx X. Xxxxxxx |
Xxxx X. Xxxxxxx
Vice President
IES COLLEGE STATION HOLDINGS, LP
|
By: |
IES College Station Management LLC, its general partner |
|
By: |
/s/ Xxxx X. Xxxxxxx |
Xxxx X. Xxxxxxx
Vice President
IES FEDERAL CONTRACT GROUP, L.P.
By: IES Contractors Management LLC
|
By: |
/s/ Xxxx X. Xxxxxxx |
Xxxx X. Xxxxxxx
Vice President
IES MANAGEMENT ROO, LP
By: Xxxx Electric Management LLC, its general partner
|
By: |
/s/ Xxxx X. Xxxxxxx |
Xxxx X. Xxxxxxx
Vice President
Signature Page to First Amendment
IES MANAGEMENT, LP
By: IES Residential Group, Inc., its general partner
|
By: |
/s/ Xxxx X. Xxxxxxx |
Xxxx X. Xxxxxxx
Vice President
IES PROPERTIES, LP
By: IES Properties Management, Inc., its general partner
|
By: |
/s/ Xxxx X. Xxxxxxx |
Xxxx X. Xxxxxxx
Vice President
X.X. XXXX ELECTRICAL CONTRACTORS LP
By: X.X. Xxxx Management LLC, its general partner
|
By: |
/s/ Xxxx X. Xxxxxxx |
Xxxx X. Xxxxxxx
Vice President
XXXXX ELECTRIC LP
By: Xxxxx Management LLC
|
By: |
/s/ Xxxx X. Xxxxxxx |
Xxxx X. Xxxxxxx
Vice President
XXXX ELECTRIC LP
By: BW/BEC, Inc., its general partner
|
By: |
/s/ Xxxx X. Xxxxxxx |
Xxxx X. Xxxxxxx
Vice President
Signature Page to First Amendment
XXXXXXX SUMMIT ELECTRIC LP
By: Xxxxxxx Electric, Inc. and Summit Electric of Texas, Inc., its general partners
|
By: |
/s/ Xxxx X. Xxxxxxx |
Xxxx X. Xxxxxxx
Vice President
XXXXXX ELECTRIC LP
By: Xxxxxx Management LLC, its general partner
|
By: |
/s/ Xxxx X. Xxxxxxx |
Xxxx X. Xxxxxxx
Vice President
TESLA POWER AND AUTOMATION, L.P.
By: Tesla Power GP, Inc., its general partner
|
By: |
/s/ Xxxx X. Xxxxxxx |
Xxxx X. Xxxxxxx
Vice President
TESLA POWER PROPERTIES, L.P.
By: Tesla Power GP, Inc., its general partner
|
By: |
/s/ Xxxx X. Xxxxxxx |
Xxxx X. Xxxxxxx
Vice President
Signature Page to First Amendment
BEXAR ELECTRIC II LLC
BW/BEC II LLC
BW/BEC, L.L.C.
XXXXXXX-XXXXXXXX HOLDINGS II LLC
XXXXXXX-XXXXXXXX HOLDINGS LLC
IES AUSTIN HOLDINGS II LLC
IES AUSTIN HOLDINGS LLC
IES COLLEGE STATION HOLDINGS II LLC
IES COLLEGE STATION HOLDINGS LLC
IES CONTRACTORS HOLDINGS LLC
IES HOLDINGS II LLC
IES HOLDINGS LLC
IES PROPERTIES HOLDINGS II LLC
X.X. XXXX HOLDINGS II LLC
X.X. XXXX HOLDINGS LLC
XXXXX ELECTRIC HOLDINGS II LLC
XXXXX ELECTRICAL HOLDINGS LLC
XXXXXXX SUMMIT HOLDINGS II LLC
XXXXXX HOLDINGS II LLC
XXXXXX HOLDINGS LLC
TESLA POWER (NEVADA) II LLC
|
By: |
/s/ Xxxxxx Xxxx |
Xxxxxx Xxxx
Manager
Signature Page to First Amendment
IES PROPERTIES HOLDINGS, INC.
XXXXXXX SUMMIT HOLDINGS INC.
TESLA POWER (NEVADA), INC.
|
By: |
/s/ Xxxxxx Xxxx |
Xxxxxx Xxxx, President
Signature Page to First Amendment
WILMINGTON TRUST COMPANY, in its capacity as Administrative Agent
By: /s/ Xxxxx X. Harrley
|
Name: Xxxxx X. Harrley |
| |
|
Title: |
Senior Financial Services Officer | |
Signature Page to First Amendment
ETON PARK FUND, L.P., by its investment manager Eton Park Capital Management, L.P.
By: /s/ Xxxxx Xxxxx
|
Name: |
Xxxxx Xxxxx |
|
|
Title: |
General Counsel | |
ETON PARK MASTER FUND, LTD, by its investment manager Eton Park Capital Management, L.P.
By: /s/ Xxxxx Xxxxx
|
Name: |
Xxxxx Xxxxx |
|
|
Title: |
General Counsel | |
Signature Page to First Amendment
XXXXX STREET PARTNERS LP, by its general partner Xxxxx Street Capital LLC
By: /s/ Xxxxxx Xxxx
|
Name: |
Xxxxxx Xxxx |
|
|
Title: |
COO/General Counsel | |
XXXXX STREET PARTNERS QUALIFIED LP, by its general partner Xxxxx Street Capital LLC
By: /s/ Xxxxxx Xxxx
|
Name: |
Xxxxxx Xxxx |
|
|
Title: |
COO/General Counsel | |
XXXXX STREET OFFSHORE L.P., by its general partner Xxxxx Street Capital LLC
By: /s/ Xxxxxx Xxxx
|
Name: |
Xxxxxx Xxxx |
|
|
Title: |
COO/General Counsel | |
Signature Page to First Amendment
