exv10w15



 







Exhibit 10.15




SECOND AMENDMENT TO CREDIT AGREEMENT




     THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into as of
January 11, 2006, but shall be effective for all purposes as of the Effective Date (defined below)
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 by the First Amendment to Credit Agreement dated November 7, 2005, and 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. Amendment to Credit Agreement. The Credit Agreement is amended as set forth below
as of the Effective Date:




     (a) The definition of “Fiscal Year” in Section 1.01 of the Credit Agreement is deleted
in its entirety and is replaced with the following:




Fiscal Year means, as to Parent and its Subsidiaries, their fiscal year
ending October 31, 2005, and thereafter each fiscal year ending September
30.




     (b) Sections 6.01(a) and (b) of the Credit Agreement are deleted in their entirety and
replaced with the following:




     “(a) as soon as available, but in any event within 120 days after the end of
each fiscal year of Parent, a consolidated balance sheet of Parent and its
Subsidiaries as at the end of such fiscal year, and the related consolidated
statements of income or operations, Shareholders’ Equity and cash flows for such
fiscal year, setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail and prepared in accordance with



 









 







GAAP, audited and accompanied by a report and opinion of an independent
certified public accountant of nationally recognized standing reasonably acceptable
to the Agent, which report and opinion shall be prepared in accordance with
generally accepted auditing standards and shall not be subject to any “going
concern” or like qualification or exception or any qualification or exception as to
the scope of such audit; and




     (b) as soon as available, but in any event within 45 days after the end of each
fiscal quarter of each fiscal year of Parent, a consolidated balance sheet of Parent
and its Subsidiaries as at the end of such fiscal quarter, and the related
consolidated statements of income or operations, Shareholders’ Equity and cash flows
for such fiscal quarter and for the portion of Parent’s fiscal year then ended,
setting forth in each case in comparative form the figures for the corresponding
fiscal quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail and certified by a Responsible
Officer of Parent as fairly presenting the financial condition, results of
operations, Shareholders’ Equity and cash flows of Parent and its Subsidiaries in
accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes.”




     (c) Section 6.02(a) of the Credit Agreement is deleted in its entirety and replaced
with “[Intentionally Omitted].”




     (d) Section 7.11(f) of the Credit Agreement is deleted in its entirety and replaced
with the following:




     “(f) Capital Expenditures. Make or become legally obligated to
make any expenditure in respect of the purchase or other acquisition of any
fixed or capital asset (excluding normal replacements and maintenance which
are properly charged to current operations), except for capital expenditures
in the ordinary course of business not exceeding, in the aggregate for
Parent and it Subsidiaries, for the most recently completed four fiscal
quarters ending on each quarterly date below, the amount set forth opposite
such period:



	 	 	 	 	 
	Period Ending	 	Maximum Capital Expenditures	 
	Quarter Ending July 31, 2005
	 	$	6,000,000	 
	Quarter Ending October 31, 2005
	 	$	7,000,000	 
	Quarter Ending January 31, 2006
	 	$	7,000,000	”






     2. Conditions. This Amendment shall be effective as of October 31, 2005 (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;



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     (c) Officer’s Certificate from Milburn E. Honeycutt, as Assistant Secretary of
Borrowers and each Guarantor certifying that the prior certificates delivered to Agent are
true and correct as of the date hereof; and




     (d) 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 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.



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     (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.




     (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






Signature Page to the Second Amendment to Credit Agreement





 









 








	 	 	 	 	 	 	 	 	 	 
	 
	 	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 Second Amendment to Credit Agreement




 









 








GUARANTORS’ CONSENT AND AGREEMENT TO SECOND 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:
	 	 
	 	 
	 
	 	 	 	 	 	 
	POWELL ELECTRICAL SYSTEMS, INC.,

a Delaware corporation
	 	POWELL INDUSTRIES ASIA, INC.,

a Delaware corporation	 	 

	 
	 	 	 	 	 	 
	By:

	 	/s/ Don R. Madison
	 	By:
	 	/s/ Don R. Madison
	 

	 	 
	 	
	 	 
	 

	 	Don R. Madison

Vice President, Secretary, and Treasurer
	 	
	 	Don R. Madison

Vice President, Secretary, and Treasurer
	 
	 	 	 	 	 	 
	TRANSDYN, INC.,

a Delaware corporation
	 	 
	 	 
	 
	 	 	 	 	 	 
	By:

	 	/s/ Don R. Madison	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Don R. Madison

Vice President, Secretary, and Treasurer	 	 	 	 
	 
	 	 	 	 	 	 
	POWELL INDUSTRIES INTERNATIONAL, INC.,

a Delaware corporation
	 	 
	 	 
	 
	 	 	 	 	 	 
	By:

	 	/s/ Don R. Madison	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Don R. Madison

Vice President, Secretary, and Treasurer