exv10w1



 





EXHIBIT 10.1




SIXTH AMENDMENT TO CREDIT AGREEMENT




     THIS SIXTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into as of December 14,
2007, 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, as amended by
the Second Amendment to Credit Agreement dated January 11, 2006, as amended by the Third Amendment
to Credit Agreement dated August 4, 2006, as amended by the Fourth Amendment to Credit Agreement
dated December 7, 2006, as amended by the Fifth Amendment to Credit Agreement dated December 4,
2007, 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 definitions of Designated Sublimit, Letter of Credit Sublimit, and Termination
Date” in Section 1.01 of the Credit Agreement are deleted in their entirety and replaced
with the following:




     “Designated Sublimit means (a) with respect to Parent, $58,500,000, and (b) with
respect to UK Borrower, £4,000,000.




Letter of Credit Sublimit means (a) with respect to Parent, $58,500,000, and (b)
with respect to UK Borrower, £4,000,000. The Letter of Credit Sublimit is part of,
and not in addition to, the Revolving Committed Amount.



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Termination Date means the earlier of (a) December 31, 2011, or (b) the effective
date that the Lenders’ commitments to make Revolving Loans and purchase
participations in L/C’s and Swing Line Loans are otherwise cancelled or terminated
in accordance with Section 8 of this Agreement, or otherwise.”



     2. Schedule. The existing Schedule 2.01 to the Credit Agreement is deleted in its
entirety and replaced with Schedule 2.01 attached to this Amendment.



     3. Conditions. This Amendment shall be effective as of December 14, 2007 (the
“Effective Date”) once each of the following have been delivered to Agent:




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




     (b) Guarantors’ Consent and Agreement executed by the Guarantors;




     (c) a replacement Revolving Note executed by Parent and made payable to Bank of
America, N.A., in the original principal amount of $58,500,000;




     (d) Officer’s Certificate of Parent certifying as to incumbency of officers, specimen
signatures, no changes to articles of incorporation and bylaws since the date of the
certificate delivered in connection with the Credit Agreement, and resolutions adopted by
the Board of Directors authorizing this Amendment; and




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



     4. 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 (as amended by this Amendment) 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.



     5. 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



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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.



     6. Miscellaneous.




     (a) Waiver. 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.




     (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 Among Borrowers, Agent and Lenders and May Not Be 



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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 	 
	 	 	Executive Vice President 	 
	 
	 	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 	 
	 




 









 





GUARANTORS’ CONSENT AND AGREEMENT TO SIXTH 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.,	 	POWELL INDUSTRIES ASIA, INC.,
	a Delaware corporation	 	a Delaware corporation
	 
	 	 	 	 	 	 
	By:

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

	 	 
	 	 	 	 
	 

	 	Don R. Madison
	 	 	 	Don R. Madison
	 

	 	Vice President, Secretary, and
	 	 	 	Vice President, Secretary, and
	 

	 	Treasurer
	 	 	 	Treasurer
	 
	 	 	 	 	 	 
	POWELL INDUSTRIES INTERNATIONAL, INC., 	 	POWELL ELECTRICAL SYSTEMS, INC.,
	a Delaware corporation	 	a Delaware corporation
	 
	 	 	 	 	 	 
	By:

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

	 	 
	 	 	 	 
	 

	 	Don R. Madison
	 	 	 	Don R. Madison
	 

	 	Vice President, Secretary, and
	 	 	 	Vice President, Secretary, and
	 

	 	Treasurer
	 	 	 	Treasurer






 









 









SCHEDULE 2.01




COMMITMENTS

AND APPLICABLE PERCENTAGES




A. Term Facility for UK Borrower




	 	 	 	 	 	 	 	 	 
	Lender	 	Commitment	 	Applicable Percentage
	 
	Bank of America, N.A.
	 	£	6,000,000	 	 	 	100	%
	 
	 	 	 	 	 	 	 	 
	Total
	 	£	6,000,000	 	 	 	100	%






B. Revolving Facility for UK Borrower




	 	 	 	 	 	 	 	 	 
	Lender	 	Commitment	 	Applicable Percentage
	 
	Bank of America, N.A.
	 	£	4,000,000	 	 	 	100	%
	 
	 	 	 	 	 	 	 	 
	Total
	 	£	4,000,000	 	 	 	100	%






C. Revolving Facility for Parent




	 	 	 	 	 	 	 	 	 
	Lender	 	Commitment	 	Applicable Percentage
	 
	Bank of America, N.A.
	 	$	58,500,000	 	 	 	100	%
	 
	Total
	 	$	58,500,000	 	 	 	100	%