exv10w16



 








Exhibit 10.16




The Directors

The Companies

(as specified in the Schedule

to this letter)




12 September 2005




Dear Sirs,




HSBC Bank plc (‘the bank’) is pleased to offer the two Companies whose names are listed in the
Schedule to this letter (‘the Companies’) banking facilities (‘the Facilities’) on the terms
referred to below but otherwise subject to normal banking terms and conditions.



We recommend that you seek independent advice before accepting the offer in this letter.



Facilities




Drawings may be made under the following Facilities by any of the Companies, provided that the
aggregate amount of drawings at any time shall not exceed the relevant Limit.



	 	 	 	 	 
	 	 	Limit
	Forward Exchange Contracts and Currency Options
	 	£	1,500,000	 
	 
	Engagements
	 	£	15,000,000	 






Availability




The bank may at any time withdraw all or any of the Facilities and/or demand repayment of all sums
owing. Subject to this, the Facilities are due for review in August 2006.



Security




The repayment and discharge of all monies at any time owing in respect of the Facilities will be
secured by all security at any time given to the bank in respect of the liabilities to the bank of
the Companies or any of them. The security is required as a secondary source of repayment in the
event that the Companies (or any of them) fail to repay the Facilities as set out in this letter.



Without limiting the above, the security listed in the attached Security Schedule is to be held.



All costs, fees and expenses, as mentioned in the General Terms and Conditions attached to this
letter, shall be payable by the Company on whose behalf such costs and expenses are incurred, or as
otherwise agreed with the bank.



By accepting this offer the Companies agree to provide immediately to the bank upon the bank’s
request made at any time or times full cash cover in respect of any of the Companies’



 









 





actual prospective or contingent liabilities owing at any time to the bank including but not
limited to such liabilities in respect of the Facilities referred to in this letter.



Conditions Precedent




The Facilities will not become available until the following pre-conditions have been complied
with:



- the security mentioned in the Security Schedule shall have been perfected to the bank’s
satisfaction, of which the bank shall be the sole judge.



- receipt by the bank of a valuation of Factory Site, Ripley Road, Bradford by an independent
professional valuer, addressed to the bank, showing a valuation of not less than £3,750,000.



- confirmation that entering into the facility agreement and the completion of the facilities and
security will not breach any covenants within existing Facilities between the Borrowers, Powell
Industries Inc and Bank of America dated 29 June 2005.



The Facilities shall be subject to the General Terms and Conditions and Security Schedule and the
further terms and conditions set out in the Appendices attached to this letter.



Additional Matters




In considering from time to time the continuation of the Facilities, the bank will have particular
regard to the matters listed on the attached pages headed “Additional Matters”. Regardless of
whether such Additional Matters are being observed, the bank may still at any time withdraw all or
any of the Facilities and/or demand repayment of all sums owing.



This offer is conditional upon the unqualified acceptance of all of the Companies. However, any
Company accepting the letter shall be bound by its terms even though not all of the other Companies
may have done so, or be so bound through some defect, informality or insufficiency in their powers.



To accept this offer please arrange for the enclosed copy of this letter to be signed and returned.



When accepting this offer you may wish to facilitate future arrangements by authorising any one of
the Companies concerned, or a person holding an official position in one of the Companies or, if
applicable, your holding company, as your agent to agree any changes in the arrangements with the
bank from time to time. If so, please arrange for the authorisation attached to be signed and
returned.



Yours faithfully,




R D N Smalley

Corporate Banking Manager

For and on behalf of HSBC Bank plc.




 









 





THE SCHEDULE




Switchgear & Instrumentation Ltd




Switchgear & Instrumentation Properties Ltd




(`the Companies’)




 









 





GENERAL TERMS AND CONDITIONS





	1	 	DRAWINGS
	 
	 	 	Utilisation of the Facilities shall not at any time exceed any of the relevant Limits.
	 
	 	 	The bank may at any time refuse payment or acceptance of any cheque, bill or other order for payment which would result in
any of the Limits being exceeded.
	 
	 	 	In addition the bank may at any time refuse to allow any drawing or other disposal against any credit balance on any of the
Companies’ current accounts if, as a result, any of the Limits would be exceeded. This right applies irrespective of
whether such Company is indebted to the bank on any other account.
	 
	2	 	UNCLEARED CREDITS
	 
	 	 	When a credit is uncleared, it may still be included in the balances shown on the relevant Company’s account. In such
cases, the bank may treat the uncleared credit as deducted from the balance shown on the relevant Company’s account for the
purposes of working out interest payable and/or the amount available for withdrawal by the relevant Company. It is
possible for interest to be charged by the bank on a larger debit balance, or for a lesser amount of money to be available
for withdrawal by the relevant Company than is shown as the balance on its account.
	 
	 	 	The bank may, on occasions, pay or accept any cheque, bill or other order for payment against uncleared credits, without
affecting its right not to do so on future occasions.
	 
	3	 	PAYMENT AND APPLICATION OF CREDIT MONIES
	 
	 	 	Each of the Companies by accepting the terms of this letter irrevocably authorises the bank at any time in its sole
discretion, with or without prior notice to that Company, to pay and apply any monies from time to time standing to the
credit of any of that Company’s accounts with the bank (whether in sterling or any other currency, on current account or on
any term or deposit account but not accounts expressly designated as trust accounts) (‘the Accounts’) in and towards
satisfaction of any indebtedness or liability to the bank of it or of any of the other Companies in respect of the
Facilities.
	 
	 	 	In connection with the above each of the Companies further irrevocably authorises the bank to:






(i) bring to an end any fixed deposit period applying to any of the Accounts and to adjust
any interest payable by the bank;




(ii) convert one currency to another, and if it does, to do so at its then prevailing spot
selling rate of exchange for that currency;



 









 






and in doing so each of the Companies agrees that the bank shall have no liability to that
Company.




	 	 	Nothing in this paragraph shall prevent the exercise by the bank at any time of any other
right of set-off or of combination of accounts in and towards satisfaction of any
indebtedness to the bank in respect of the Facilities.
	 
	 	 	A Company whose credit balances are paid or applied in satisfaction of any indebtedness or
liability of any other Company will become a creditor of that Company but on the basis that
any resulting claims of the creditor Company will rank behind those of the bank and any
other creditor whose claims are in priority to those of the bank.
	 
	4	 	PAYMENTS
	 
	 	 	All payments shall be made at such branch or office as the bank may
specify from time to time. Such payments shall be made without any
set-off or deduction in the currency of denomination in which the
payment is due and in such funds as the bank may reasonably require.
Payments shall be made on a Business Day and on the due date for such
payment or if that day is not a Business Day on the next Business Day.
	 
	5	 	STERLING EQUIVALENTS
	 
	 	 	The Sterling Equivalent of any amount denominated in another currency
shall be calculated by reference to the bank’s then prevailing spot
selling rate of exchange for the relevant currency of denomination
against Sterling. The aggregate Sterling Equivalents of all drawings
outstanding and/or proposed will be calculated at such time as the
bank shall determine before the drawdown of each drawing, for the
purpose of determining compliance or otherwise with the Limits.
	 
	6	 	LIMIT OBSERVANCE
	 
	 	 	The aggregate amount for the time being (or its Sterling Equivalent
where appropriate) of the bank’s actual or potential liability or risk
in respect of a facility or facilities shall not at any time exceed
the relevant Limit. In the case of a potential liability or risk the
relevant amount shall be as estimated by the bank.
	 
	 	 	Where one Limit is specified in respect of more than one type of
facility such actual or potential liability or risk in respect of such
facilities shall not exceed in the aggregate such Limit.




 









 






	7	 	CHARGES FOR DRAWINGS IN EXCESS OF AGREED LIMITS
	 
	 	 	If any of the Limits are exceeded, the bank may charge interest at
higher rate(s) than set out in this letter. In addition to charging
higher rate(s) of interest, the bank may charge a daily excess fee for
each Business Day that drawings are in excess of the agreed Limits.
Details of the rate(s) and the daily excess fee to be charged, if any,
are available on request. In addition to charging the above, or as an
alternative, the bank may charge management fees if time is spent
monitoring the Companies’ accounts or the circumstances otherwise
require. The bank will advise the amount of these management fees
before debiting them to the appropriate Company’s relevant account.
	 
	8	 	REPAYMENTS AND DRAWINGS ON THE SAME DAY
	 
	 	 	Should a drawing be due for repayment by any of the Companies on a day
when any of the Companies is entitled to make a drawing, the bank may
require the amounts of such drawings to be netted and only the
difference in amount (if any) to be paid. Should the relevant
drawings be denominated in different currencies, any difference so
required will be calculated at such time before such netting as the
bank shall determine by the application of the bank’s then prevailing
spot selling rate of exchange for the currency of denomination due to
the bank against the currency of denomination to be drawn by the
relevant Company.
	 
	9	 	COSTS
	 
	 	 	On written demand by the bank the Companies shall be jointly and
individually liable to pay to the bank all costs, expenses, fees
(including but not limited to any legal, security and valuation fees),
stamp duty, taxes and other charges, and registration costs incurred
or charged by the bank in connection with the negotiation,
preparation, investigation, administration, supervision or enforcement
of the Facilities, this letter or any security.
	 
	10	 	ENVIRONMENTAL RESPONSIBILITY
	 
	 	 	The Companies, by accepting the Facilities, each warrant and represent
to the bank that they are in full compliance with all applicable
current laws, regulations and practices relating to the protection of
the environment from pollution (‘the environmental responsibility’)
and are not aware of any circumstances which may prevent full
compliance in the future.
	 
	 	 	Regardless of whether such warranties and representations are being
observed, the bank may still at any time withdraw all or any of the
Facilities and/or demand repayment of all sums owing.
	 
	 	 	The Companies, by accepting the Facilities jointly and individually
indemnify the bank against all losses, claims, damages, costs, or any
other liability which might arise (by reason of the bank providing
these and any other facilities and/or having a security interest in
the Companies’ assets) in respect of a breach of, or a failure to
meet, an environmental responsibility.




 









 






	11	 	DEMAND AND NOTICE
	 
	 	 	Unless otherwise advised by the bank any demand or notice under this
letter by the bank may be made or given by any manager or officer of
the bank by letter addressed to the Companies’ (or any and/or each of
them). Such letter may be sent by first class post to or left at the
Companies’ address last known to the bank or at their registered
office, or by fax or other electronic means to their last known fax
number or electronic mail address. If sent by post, the demand or
notice shall be deemed to have been made or given at noon the day
following the day the letter was posted. If sent by fax or other
electronic means, the demand or notice shall be deemed to have been
made or given at the time of transmission.
	 
	12	 	INFORMATION
	 
	 	 	The Companies shall provide the bank promptly with such financial or
other information as the bank may from time to time reasonably
request.
	 
	 	 	The information that the bank asks for is required to enable it to
understand the Companies’ financial position to ensure that the
Companies are able to meet their obligations set out in this letter.
	 
	13	 	FORCE MAJEURE
	 
	 	 	The bank shall not be liable to any of the Companies for any loss,
damage or delay attributable in whole or part to action by any
government or government agency or other force majeure and in
particular but not limited to strikes, industrial action, whether
involving the bank’s staff or not, equipment failure or interruption
of power supplies. The bank will always endeavour to give notice
generally to customers of any anticipated delays by notices in
branches.
	 
	14	 	CERTIFICATES
	 
	 	 	The bank’s certificate of any sum due from any of the Companies under
the terms of this letter shall (apart from obvious mistake) be
conclusive.
	 
	15	 	BUSINESS DAY
	 
	 	 	Business Day shall mean a day and time on which the relevant banking
offices, exchanges and markets are open for business, both in London
and in any relevant financial centre for the currency and transaction
involved.
	 
	16	 	TERMS OF THE OFFER
	 
	 	 	The terms of the offer set out above are (except where otherwise
stated or the context otherwise implies) independent of the terms
applicable to any other facility afforded by the bank to any or all of
the Companies.




 









 






	17	 	GOVERNING LAW AND JURISDICTION
	 
	 	 	The Facilities and all matters (including the terms and conditions)
relating to or arising out of or in connection with them shall be
subject to and construed in accordance with the laws of England and
Wales. The Companies and the bank irrevocably submit to the
non-exclusive jurisdiction of the courts of England and Wales.
	 
	18	 	CHANGE OF OWNERSHIP AND CONTROL
	 
	 	 	Should control of the issued share capital of the Companies or voting
rights attached to it be changed or sold or disposed of during the
period of the facilities without the bank’s written consent, the bank
reserves the right in its reasonable discretion to terminate or
renegotiate all facilities available to the Companies.




 









 











Appendix




FORWARD EXCHANGE CONTRACTS AND CURRENCY OPTION FACILITY





	1	 	DRAWINGS
	 
	 	 	Utilisations may be made for the purpose of Spot and Forward Foreign
Exchange transactions and for currency options.
	 
	2	 	AVAILABILITY
	 
	 	 	The bank reserves the right at its absolute discretion to decide
whether or not any utilisation may be made and to specify conditions
only upon compliance with which such utilisation may be made.
	 
	3	 	INTERNATIONAL FOREIGN EXCHANGE MARKET MASTER
AGREEMENT (“IFEMA”) TERMS

INTERNATIONAL CURRENCY OPTIONS MARKET MASTER
AGREEMENT (“ICOM”) TERMS
	 
	 	 	Each foreign exchange utilisation shall be deemed to be subject to and
shall be subject to the terms of IFEMA and each currency option
utilisation shall be deemed to be subject to and shall be subject to
the terms of ICOM notwithstanding any non-execution of product
documentation (copies of IFEMA and ICOM terms are available from the
bank on request). In the event of any conflict between the terms of
this Facility Letter and those of IFEMA or ICOM, the terms of IFEMA or
ICOM (as appropriate) shall prevail except in respect of any
provisions in this Appendix which are expressed to be additional to or
in replacement for any relevant IFEMA or ICOM provisions.
	 
	 	 	While the above option is in force the terms of this Facility Letter
and particularly clause 3 above shall continue to apply
notwithstanding any pre-existing product documentation unless there is
agreement in writing to the contrary.
	 
	4	 	FINANCIAL SERVICES AND MARKETS ACT 2000
	 
	 	 	No forward purchase or sale of any currency shall be made for
investment purposes (as mentioned in article 84 of the Financial
Services and Markets Act 2000 (Regulated Activities) Order 2001)
without the prior consent of the bank.
	 
	5	 	CONTRACT PERIODS
	 
	 	 	Without affecting any of the bank’s rights under the terms of this
letter the duration of any Foreign Exchange transaction entered into
under the above option shall not exceed twelve months.




 









 











ENGAGEMENTS FACILITY





	1	 	DRAWINGS






	 	(a)	 	Drawings in respect of the above Facility shall be subject to the bank’s
current practice from time to time which practice will (on request) be explained as
drawings are requested.
	 
	 	(b)	 	The bank reserves the right in its absolute discretion to decide whether or not
a drawing may be made under the above Facility, and to specify conditions only upon
compliance with which such drawing may be made.






	 	 	Bonds to be issued to a maximum of 48 months expiry. Requests for Bonds in excess of 48
months to be reviewed on a case by case basis and agreed with the relevant Company in
advance of issue.
	 
	 	 	Bonds with an expiry in excess of 24 months will be issued to a maximum £3,500,000. Requests
for the issued of Bonds in excess of this ‘sub limit’ will be reviewed on a case by case
basis and agreed with the relevant Company in advance of issue. This ‘sub limit’ will be
reviewed in March 2006.
	 
	2	 	BILLS AND TERMINATION
	 
	 	 	Following demand for repayment, the bank may require the relevant
Company to pay to the bank monies equivalent in amount to the
aggregate of the face value of all outstanding bills accepted,
purchased, negotiated or discounted by the bank to meet such bills
upon their maturities.




 









 











ADDITIONAL MATTERS




Notwithstanding anything contained in the following provisions, such provisions shall be read at
all times subject to the paragraph headed “Additional Matters” in the attached letter.
Monthly management accounts in a form acceptable to the bank, of which the bank shall be the sole
judge, are to be submitted within days of the end of the month to which they relate. Such
management accounts are to contain:



- detailed
profit and loss account(s),


- individual/consolidated balance sheet(s),



- an aged analysis of debtors and creditors,

- a cash
flow summary,

- a schedule of stock and work in progress,

- details
of order book/contracts awarded,


- comments on material deviations to budget.



The management accounts will, where applicable, compare actual performance with forecast
performance.



Confirmation within Management Information pack that no breaches exist (including any breach that
may have been waived) under the Bank of America lending facility dated 29 June 2005. Copies of
Compliance Certificates to be furnished.



Quarterly (10-Q) reports to be obtained on Powell Industries Inc.



 









 





SECURITY SCHEDULE




The following security is to be held:



Debenture including First Fixed Charge over, among other things, book and other debts, chattels,
and uncalled capital, both present and future; and First Floating Charge over all assets and
undertaking both present and future to be given by Switchgear & Instrumentation Ltd.



Debenture including Fixed Equitable Charge over all present and future freehold and leasehold
property; First Fixed Charge over, among other things, book and other debts,
chattels, goodwill and uncalled capital, both present and future; and First Floating Charge over
all assets and undertaking both present and future to be given by Switchgear &
Instrumentation Properties Ltd.



Freehold property known as Factory Site, Ripley Road, Bradford;. First Legal Charge to be given by
Switchgear & Instrumentation Properties Ltd.



Unlimited Company Guarantee to secure all liabilities of Switchgear & Instrumentation Ltd to be
given by Switchgear & Instrumentation Properties Ltd.



Unlimited Company Guarantee to secure all liabilities of Switchgear & Instrumentation
Properties Ltd to be given by Switchgear & Instrumentation Ltd.



Company Guarantee for £10,000,000 to secure all liabilities of Switchgear & Instrumentation
Ltd to be given by Powell Industries Inc.



Agreement to postpone repayment of £4,000,000 owing by Switchgear & Instrumentation Ltd and
Switchgear & Instrumentation Properties Ltd to Powell Industries Inc to be given to such
parties.



 









 





ACCEPTANCE BY THE COMPANIES




We, the undersigned Companies, each accept the offer and all the terms and conditions contained in
the attached letter dated 12 September 2005.



We each irrevocably authorise the bank to pay and apply our credit monies as mentioned in the
letter.



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Director/	 	Date of	 	Date of
	Company	 	Secretary	 	      Acceptance	 	     Resolution
	 
	Switchgear &
	 	 	 	 	 	 	 	 	 	 	 	 
	Instrumentation Ltd	 	/s/ Mark W. Reid	 	10 November 2005	 	7 November 2005
	 	 	 	 	 	 	   
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Switchgear &
	 	 	 	 	 	 	 	 	 	 	 	 
	Instrumentation
	 	 	 	 	 	 	 	 	 	 	 	 
	Properties Ltd	 	/s/ Mark W. Reid	 	10 November 2005	 	7 November 2005
	 	 	 	 	 	 	   





(Signed in each case for and on behalf of the Company, pursuant to a Resolution of the Board of
Directors passed on the date specified above).



 









 





*AUTHORISATION FOR ANOTHER COMPANY OR PERSON TO AGREE NEW BANKING ARRANGEMENTS IN FUTURE




We, the undersigned companies, each nominate and authorise:



.......................................Don R. Madison.................................................................................
to agree with you from time to time on behalf of each of us new arrangements relating to our
banking facilities.



For the avoidance of doubt and without limitation to the above this authority includes the
authority to irrevocably authorise the bank to pay and apply our credit monies, to alter the amount
and nature of such facilities and to introduce new companies to, and exclude existing companies
from, the companies from time to time party to such facilities.



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Director/	 	Date of	 	Date of
	Company	 	Secretary	 	         Authorisation	 	     Resolution
	 
	Switchgear &
	 	 	 	 	 	 	 	 	 	 	 	 
	Instrumentation Ltd	 	/s/ Mark W. Reid	 	10 November 2005	 	7 November 2005
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Switchgear &
	 	 	 	 	 	 	 	 	 	 	 	 
	Instrumentation
	 	 	 	 	 	 	 	 	 	 	 	 
	Properties Ltd	 	/s/ Mark W. Reid	 	10 November 2005	 	7 November 2005
	 	 	 	 	 	 	 





(Signed in each case for and on behalf of the Company, pursuant to a Resolution of the Board of
Directors passed on the date specified above).



 



*  This form of authorisation is optional. Please complete if you would prefer to nominate one
Company or individual to agree facilities on behalf of the Companies in future. If an individual is
nominated please state title rather than personal name, and include the name of the relevant
Company, e.g. `The Managing Director for the time being of ................. Limited.’