exv10w14



 






Exhibit 10.14




FIRST AMENDMENT TO CREDIT AGREEMENT




     THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into as of
November 7, 2005 (the “Effective Date”) among Powell Industries, Inc., a Delaware corporation
(“Parent”), Switchgear & Instrumentation Ltd., an entity organized under the laws of England and
Wales (formerly known as Inhoco 3210 Limited, “Inhoco”), Switchgear & Instrumentation Properties
Limited, an entity organized under the laws of England and Wales (“SI Properties” and together with
Inhoco, “UK Borrower”), Bank of America, N.A., a national banking association, as Agent, Swing Line
Lender and L/C Issuer under the Credit Agreement (in such capacity as administrative agent,
together with its successors in such capacity, “Agent”), and each lender from time to time party to
the Credit Agreement (collectively, “Lenders” and individually, a “Lender”). Capitalized terms
used but not defined in this Amendment have the meaning given them in the Credit Agreement (defined
below).



RECITALS




     A. Parent, Inhoco, and SI Properties, as borrowers (each a “Borrower” and collectively
“Borrowers”), Agent and Lenders entered into that certain Credit Agreement dated as of June 29,
2005 (as amended, restated or supplemented the “Credit Agreement”).



     B. Borrowers, Agent and Lenders have agreed to amend the Credit Agreement, subject to the
terms and conditions of this Amendment.



     NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
acknowledged, the undersigned hereby agree as follows:



     1. Amendments to Credit Agreement. The Credit Agreement is amended as set forth below
as of the Effective Date:




     (a) Section 1.01 of the Credit Agreement is amended to add the following new definition
in its appropriate alphabetical order:




Approved Period means the period commencing on the Closing Date and
ending on December 31, 2006 (such period may be extended if
requested by UK Borrower and if the Required Lenders agree, in their
sole discretion, to an extension in writing).




HSBC Bond Facility means that certain credit facility (as amended,
restated or supplemented from time to time) entered into among UK
Borrower, as a borrower, and HSBC Bank plc, as lender, for the
purpose of giving UK Borrower the ability to issue bonds and enter
into forward exchange contracts and currency options.




     (b) Section 7.01 of the Credit Agreement is amended to delete the period at the end of
clause (l) and to replace it with “; and” and to add the following new clause (m) as
follows:



 









 






“(m) during the Approved Period, Liens granted by UK Borrower in
favor of HSBC Bank plc securing the HSBC Bond Facility.”




     (c) Section 7.03 of the Credit Agreement is amended to delete the period at the end of
clause (h) and to replace it with semicolon and to add the following new clauses (i), (j)
and (k) as follows:




“(i) during the Approved Period, Indebtedness of UK Borrower
under its HSBC Bond Facility that does not exceed £16,500,000 at any
time;




(j) during the Approved Period, the guaranty by Parent in respect
of Indebtedness under the HSBC Bond Facility, provided that, the
amount of its guaranteed obligation does not exceed £10,000,000 at
any time; and




(k) intercompany Indebtedness incurred in the ordinary course of
business owed (i) by any wholly owned Subsidiary of Borrower to
Borrower, (ii) by Borrower to any of its wholly owned Subsidiaries,
and (iii) by any wholly owned Subsidiary of Borrower to another
wholly owned Subsidiary of Borrower.”



     2. Conditions. This Amendment shall be effective on the Effective Date once each of
the following have been delivered to Agent and Lenders:




     (a) this Amendment executed by Borrowers, Agent and Lenders;




     (b) Guarantors’ Consent and Agreement;




     (c) Officer’s Certificate from Parent together with resolutions adopted by its Board of
Directors authorizing this Amendment;




     (d) Officer’s Certificate from Inhoco together with resolutions adopted by its Board of
Directors authorizing this Amendment;




     (e) Officer’s Certificate from SI Properties together with resolutions adopted by its
Board of Directors authorizing this Amendment;




     (f) an executed copy of UK Borrower’s final agreement with HSBC Bank with respect to
its bonding facility; and




     (g) such other documents as Agent or Lenders may reasonably request.



     3. Representations and Warranties. Each Borrower represents and warrants to Agent and
Lenders that (a) it possesses all requisite power and authority to execute, deliver and comply with
the terms of this Amendment, (b) this Amendment has been duly authorized and approved by all
requisite corporate action on the part of Borrower, (c) no other consent of any Person (other than
Lenders) is required for this Amendment to be effective, (d) the execution and



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delivery of this Amendment does not violate its organizational documents, (e) the
representations and warranties in each Loan Document to which it is a party are true and correct in
all material respects on and as of the date of this Amendment as though made on the date of this
Amendment (except to the extent that such representations and warranties speak to a specific date),
(f) it is in full compliance with all covenants and agreements contained in each Loan Document to
which it is a party, and (g) no Default or Event of Default has occurred and is continuing. The
representations and warranties made in this Amendment shall survive the execution and delivery of
this Amendment. No investigation by Agent or Lenders is required for Agent or Lenders to rely on
the representations and warranties in this Amendment.




     4. Scope of Amendment; Reaffirmation; Release. All references to the Credit Agreement
shall refer to the Credit Agreement as amended by this Amendment. Except as affected by this
Amendment, the Loan Documents are unchanged and continue in full force and effect. However, in the
event of any inconsistency between the terms of the Credit Agreement (as amended by this Amendment)
and any other Loan Document, the terms of the Credit Agreement shall control and such other
document shall be deemed to be amended to conform to the terms of the Credit Agreement. Borrowers
hereby reaffirm their obligations under the Loan Documents to which each is a party and agree that
all Loan Documents to which they are a party remain in full force and effect and continue to be
legal, valid, and binding obligations enforceable in accordance with their terms (as the same are
affected by this Amendment). Borrowers hereby release Agent and Lenders from any liability for
actions or omissions in connection with the Credit Agreement and the other Loan Documents prior to
the date of this Amendment.



     5. Miscellaneous.




     (a) No Waiver of Defaults. This Amendment does not constitute (i) a waiver of,
or a consent to, (A) any provision of the Credit Agreement or any other Loan Document not
expressly referred to in this Amendment, or (B) any present or future violation of, or
default under, any provision of the Loan Documents, or (ii) a waiver of Agent’s or Lenders’
right to insist upon future compliance with each term, covenant, condition and provision of
the Loan Documents.




     (b) Form. Each agreement, document, instrument or other writing to be
furnished to Lenders under any provision of this Amendment must be in form and substance
satisfactory to Agent and its counsel.




     (c) Headings. The headings and captions used in this Amendment are for
convenience only and will not be deemed to limit, amplify or modify the terms of this
Amendment, the Credit Agreement, or the other Loan Documents.




     (d) Costs, Expenses and Attorneys’ Fees. Borrowers agree to pay or reimburse
Agent on demand for all of their reasonable out-of-pocket costs and expenses incurred in
connection with the preparation, negotiation, and execution of this Amendment, including,
without limitation, the reasonable fees and disbursements of Agent’s counsel.



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     (e) Successors and Assigns. This Amendment shall be binding upon and inure to
the benefit of each of the undersigned and their respective successors and permitted
assigns.




     (f) Multiple Counterparts. This Amendment may be executed in any number of
counterparts with the same effect as if all signatories had signed the same document. All
counterparts must be construed together to constitute one and the same instrument. This
Amendment may be transmitted and signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable law, have the same force and effect as
manually-signed originals and shall be binding on Borrowers, Agent and Lenders. Agent may
also require that any such documents and signatures be confirmed by a manually-signed
original; provided that the failure to request or deliver the same shall not limit the
effectiveness of any facsimile document or signature.




     (g) Governing Law. This Amendment and the other Loan Documents must be
construed, and their performance enforced, under Texas law.




     (h) Entirety. The Loan Documents (as amended hereby) Represent the Final
Agreement Between Borrowers, Agent and Lenders and May Not Be Contradicted by Evidence of
Prior, Contemporaneous, or Subsequent Oral Agreements by the Parties. There Are No
Unwritten Oral Agreements among the Parties.



[Signatures appear on the following pages.]




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     The Amendment is executed as of the date set out in the preamble to this Amendment.



	 	 	 	 	 
	 	BORROWERS:



POWELL INDUSTRIES, INC.

 	 
	 	By:  	     /s/ Don R. Madison
 	 
	 	 	Don R. Madison 	 
	 	 	Vice President, Secretary and Treasurer 	 
	 
	 	SWITCHGEAR & INSTRUMENTATION LTD., 

formerly known as Inhoco 3210 Limited

 	 
	 	By:  	     /s/ Don R. Madison
 	 
	 	 	Don R. Madison 	 
	 	 	Director 	 
	 
	 	SWITCHGEAR & INSTRUMENTATION 

PROPERTIES LIMITED

 	 
	 	By:  	     /s/ Don R. Madison
 	 
	 	 	Don R. Madison 	 
	 	 	Director 	 
	 
	 	BANK OF AMERICA, N.A., as Agent

 	 
	 	By:  	     /s/ Daniel J. Lintner
 	 
	 	 	Daniel J. Lintner 	 
	 	 	Senior Vice President 	 
	 
	 	BANK OF AMERICA, N.A., as a Lender, L/C 

Issuer and Swing Line Lender

 	 
	 	By:  	     /s/ Daniel J. Lintner
 	 
	 	 	Daniel J. Lintner 	 
	 	 	Senior Vice President 	 
	 



Signature Page to the First Amendment to Credit Agreement





 









 








GUARANTORS’ CONSENT AND AGREEMENT TO FIRST AMENDMENT





     As an inducement to Agent and Lenders to execute, and in consideration of Agent’s and Lenders’
execution of, this Amendment, the undersigned hereby consents to this Amendment and agrees that
this Amendment shall in no way release, diminish, impair, reduce or otherwise adversely affect the
obligations and liabilities of the undersigned under the Guaranty executed by each of the
undersigned in connection with the Credit Agreement, or under any Loan Documents, agreements,
documents or instruments executed by the undersigned to create liens, security interests or charges
to secure any of the Obligations (as defined in the Credit Agreement), all of which are in full
force and effect. The undersigned further represents and warrants to Agent and Lenders that (a)
the representations and warranties in each Loan Document to which it is a party are true and
correct in all material respects on and as of the date of this Amendment as though made on the date
of this Amendment (except to the extent that such representations and warranties speak to a
specific date), (b) it is in full compliance with all covenants and agreements contained in each
Loan Document to which it is a party, and (c) no Default or Event of Default has occurred and is
continuing. Guarantors hereby release Agent and Lenders from any liability for actions or
omissions in connection with the Loan Documents prior to the date of this Amendment. This
Guarantors’ Consent and Agreement shall be binding upon each of the undersigned, and its permitted
assigns, and shall inure to the benefit of Agent, Lenders, and its successors and assigns.





	 	 	 
	GUARANTORS:
	 
	 	 
	TRANSDYN, INC.,
	a Delaware corporation
	 
	 	 
	By:

	 	     /s/ Don R. Madison
	 

	 	 
	 

	 	Don Madison
	 

	 	Vice President, Secretary, and Treasurer
	 
	 	 
	POWELL INDUSTRIES
	INTERNATIONAL, INC.,
	a Delaware corporation
	 
	 	 
	By:

	 	     /s/ Don R. Madison
	 

	 	 
	 

	 	Don Madison
	 

	 	Vice President, Secretary, and Treasurer
	 
	 	 
	POWELL ELECTRICAL SYSTEMS, INC.,
	a Delaware corporation
	 
	 	 
	By:

	 	     /s/ Don R. Madison
	 

	 	 
	 

	 	Don Madison
	 

	 	Vice President, Secretary, and Treasurer









	 	 	 
	 
	 	 
	 
	 	 
	POWELL — ESCO COMPANY,
	a Texas corporation
	 
	 	 
	By:

	 	     /s/ Don R. Madison
	 

	 	 
	 

	 	Don Madison
	 

	 	Vice President, Secretary, and Treasurer
	 
	 	 
	POWELL INDUSTRIES CHINA, INC.,
	a Delaware corporation
	 
	 	 
	 
	 	 
	By:

	 	     /s/ Don R. Madison
	 

	 	 
	 

	 	Don Madison
	 

	 	Vice President, Secretary, and Treasurer
	 
	 	 
	POWELL INDUSTRIES ASIA, INC.,
	a Delaware corporation
	 
	 	 
	By:

	 	     /s/ Don R. Madison
	 

	 	 
	 

	 	Don Madison
	 

	 	Vice President, Secretary, and Treasurer











Guarantors’ Consent and Agreement to First Amendment