UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT: May 24, 2011 (May 18, 2011)
(Date of earliest event reported)
(Date of earliest event reported)
POWELL INDUSTRIES, INC.
(Exact Name of Registrant as Specified in Its Charter)
| Delaware (State or other jurisdiction of incorporation or organization) |
001-12488 (Commission File Number) |
88-0106100 (I.R.S. Employer Identification Number) |
||
| 8550 Mosley Drive Houston, Texas (Address of Principal Executive Offices) |
77075-1180 (Zip Code) |
(713) 944-6900
(Registrant’s Telephone Number, Including Area Code)
(Registrant’s Telephone Number, Including Area Code)
N/A
(Former Name or Former Address, if Changed Since Last Report)
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17CFR230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17CFR240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Action (17CFR240.14D-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17CFR240.13e-4(c))
Item 1.01 — Entry into a Material Definitive Agreement.
On May 14, 2011, Powell Industries, Inc., a Delaware corporation (the Company), entered into the
Ninth Amendment to Credit Agreement (the Ninth Amendment), which amended that certain Credit
Agreement, dated as of June 29, 2005, as amended, by and among Powell Industries, Inc., as Parent,
the subsidiaries of Powell Industries, Inc. identified therein, as Borrowers, Bank of America,
N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, and the Lenders party thereto (the
Credit Agreement). The Ninth Amendment terminated the revolving credit facility for the Company’s
subsidiaries located in the United Kingdom, increased the Company’s borrowing base available in the
United States (the US Revolver) from $58.5 million to $72.0 million and extended the maturity of
the Credit Agreement from December 31, 2012 to December 31, 2016. There were no changes in the
affirmative or negative covenants.
The description of the Ninth Amendment set forth above does not purport to be complete and is
qualified in its entirety by reference to the provisions of the Ninth Amendment, which is filed
hereto as Exhibit 10.1 and is incorporated herein by reference.
Item 2.03 — Creation of a Direct Financial Obligation or an Obligation Under and Off-Balance Sheet
Arrangement of a Registrant.
The information set forth under Item 1.01 of this Current Report on Form 8-K is hereby incorporated
in this Item 2.03 by reference.
If an event of default occurs and is continuing, on the terms and subject to the conditions set
forth in the Credit Agreement, as amended, amounts outstanding under the Credit Agreement, as
amended, may be accelerated and may become or be declared immediately due and payable.
Item 9.01 —Exhibits
(d) Exhibits. The following exhibit is furnished as part of this Report.
| Exhibit | ||||
| Number | Description | |||
| 10.1 | Ninth Amendment to Credit Agreement, dated as of May 18,
2011, among Powell Industries, Inc., as Parent, the
subsidiaries of Powell Industries, Inc. identified therein,
as Borrowers, Bank of America, N.A., as Administrative Agent,
Swing Line Lender and L/C issues, and the Lenders party
thereto. |
|||
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused
this report to be signed on its behalf by the undersigned thereunto duly authorized.
| POWELL INDUSTRIES, INC. |
||||
| Date: May 24, 2011 | By: | /s/ DON R. MADISON | ||
| Don R. Madison | ||||
| Executive Vice President Chief Financial and Administrative Officer (Principal Accounting and Financial Officer) |
||||
Exhibit Index
| Exhibit Number |
Description | |||
| 10.1 | Ninth Amendment to Credit Agreement, dated as of May
18, 2011, among Powell Industries, Inc., as Parent,
the subsidiaries of Powell Industries, Inc. identified
therein, as Borrowers, Bank of America, N.A., as
Administrative Agent, Swing Line Lender and L/C
issues, and the Lenders party thereto. |
|||
Exhibit 10.1
NINTH AMENDMENT TO CREDIT AGREEMENT
THIS NINTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into as of May 18,
2011, 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, Agent and Lenders are parties to that
certain Credit Agreement dated as of June 29, 2005 (as amended by the First Amendment to Credit
Agreement dated November 7, 2005, the Second Amendment to Credit Agreement dated January 11, 2006,
the Third Amendment to Credit Agreement dated August 4, 2006, the Fourth Amendment to Credit
Agreement dated December 7, 2006, the Fifth Amendment to Credit Agreement dated December 4, 2007,
the Sixth Amendment to Credit Agreement dated December 14, 2007, the Seventh Amendment to Credit
Agreement dated December 10, 2008, the Eighth Amendment to Credit Agreement dated March 11, 2010,
and as further amended, restated or supplemented, the “Credit Agreement”).
B. Parent and UK Borrower have requested, and Agent and Lenders have agreed, subject to the
terms and conditions herein, to amend the Credit Agreement to: (i) terminate the Revolving Facility
with respect to UK Borrower, (ii) remove UK Borrower as borrowers under the Credit Agreement, and
(iii) extend the stated maturity date, among other things.
C. Parent, UK Borrower, 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. Removal of UK Borrower.
(a) Termination of Revolving Facility for UK Borrower. As of the Effective
Date, Lenders’ commitments to extend credit to UK Borrower under the Revolving Facility,
including the issuance of Letters of Credit to or for the account of UK Borrower, are
hereby terminated and are of no further force and effect. The Outstanding Amount of all
Revolving Loans to, and L/C Obligations of, UK Borrower, and all accrued and unpaid
interest thereon, shall be deemed to be obligations of Parent only.
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(b) Removal of UK Borrower. As of the Effective Date, each of Inhoco and SI
Properties are hereby removed as borrowers under the Credit Agreement. All references to
“Borrower” or “Borrowers” under the Credit Agreement shall hereinafter be deemed to refer
to Parent only. In consideration of the mutual release given by Inhoco and SI Properties in
Section 6 of this Amendment, as of the Effective Date, Agent and Lenders hereby release and
discharge Inhoco and SI Properties from their respective obligations which arise under the
Credit Agreement solely in the capacity as a “Borrower” (and not in any other capacity).
2. Amendments to Credit Agreement. The Credit Agreement is further amended as set
forth below as of the Effective Date:
(a) The definitions of “Alternative Currency”, “Applicable Rate”, “Approved Period”,
“Borrower”, “Eurocurrency Rate Loan”, “Revaluation Date”, “Letter of Credit Sublimit”, and
“Termination Date” in Section 1.01 of the Credit Agreement are deleted in their entirety
and are replaced with the following:
“Alternative Currency” means Sterling, Canadian Dollars, Euros, and each other
currency (other than Dollars) that is approved in accordance with Section 1.05.
“Applicable Rate means, except as specified below, the following percentages per
annum, based upon the Consolidated Leverage Ratio as set out in the most recent Compliance
Certificate received by Agent pursuant to Section 6.02(b):
| Pricing | Consolidated Leverage | Eurocurrency | Letter of | Commitment | ||||||||||||||||
| Level | Ratio | Rate | Base Rate | Credit Fee | Fee | |||||||||||||||
| 1 | <1.25:1.00 |
+1.00 | % | -0.50 | % | 1.00 | % | 0.1875 | % | |||||||||||
| 2 | ≥1.25:1.00 but <2.25:1.00 |
+1.25 | % | -0.25 | % | 1.25 | % | 0.1875 | % | |||||||||||
| 3 | ≥2.25:1.00 |
+1.75 | % | +0.00 | % | 1.75 | % | 0.1875 | % | |||||||||||
Any increase or decrease in the Applicable Rate resulting from a change in the
Consolidated Leverage Ratio shall become effective as of the first Business Day immediately
following the date a Compliance Certificate is delivered pursuant to Section 6.02(b);
provided that, if a Compliance Certificate is not delivered when due in accordance with
such Section, then Pricing Level 3 shall apply as of the first Business Day after the date
on which such Compliance Certificate was required to have been delivered until the first
Business Day after a Compliance Certificate establishing a lower applicable Pricing Level
is delivered pursuant to Section 6.02(b).
Approved Period means the period commencing on the Closing Date and ending on December 31,
2016 (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).
Borrower means Parent.
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Eurocurrency Rate Loan means a Committed Loan that bears interest at a rate based on the
Eurocurrency Rate. Eurocurrency Rate Loans shall be denominated in Dollars.
Letter of Credit Sublimit means the Commitment amount then in effect per Schedule 2.01. The
Letter of Credit Sublimit is part of, and not in addition to, the Revolving Committed Amount.
Revaluation Date means with respect to any Letter of Credit, each of the following: (a) each
date of issuance of a Letter of Credit denominated in an Alternative Currency, (b) each date of an
amendment of any such Letter of Credit having the effect of increasing the amount thereof (solely
with respect to the increased amount), (c) each date of any payment by the L/C Issuer under any
Letter of Credit denominated in an Alternative Currency, (d) in the case of the Existing Letters of
Credit, the date that the conditions precedent in Section 4.01(c) are satisfied and (e) such
additional dates as Agent or the L/C Issuer shall determine or the Required Lenders shall
require in the amount specified therein.
Termination Date means the earlier of (a) December 31, 2016, 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.”
(b) Section 1.01 of the Credit Agreement is further amended to add the following defined term
in the appropriate alphabetical order:
“Canadian Dollars means lawful money of Canada.”
(c) Section 1.01 of the Credit Agreement is further amended to delete the defined terms
“Alternative Currency Sublimit” and “Designated Sublimit” in their entirety.
(d) Section 1.04 (Exchange Rates; Currency Equivalents) of the Credit Agreement is deleted in
its entirety and replaced with the following:
“1.04 Exchange Rates; Currency Equivalents.
(a) The Agent or the L/C Issuer, as applicable, shall determine the Spot Rates
as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of
L/C Credit Extensions and Outstanding Amounts denominated in Alternative
Currencies. Such Spot Rates shall become effective as of such Revaluation Date and
shall be the Spot Rates employed in converting any amounts between the applicable
currencies until the next Revaluation Date to occur. Except for purposes of
financial statements delivered by Loan Parties hereunder or calculating financial
covenants hereunder or except as otherwise provided herein, the applicable amount
of any currency (other than Dollars) for purposes of the
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Loan Documents shall be such Dollar Equivalent amount as so determined by the Agent
or L/C Issuer, as applicable.
(b) Wherever in this Agreement in connection with the issuance, amendment or
extension of a Letter of Credit, an amount, such as a required minimum or multiple
amount, is expressed in Dollars, but such Letter of Credit is denominated in an
Alternative Currency, such amount shall be the relevant Alternative Currency
Equivalent of such Dollar amount (rounded to the nearest unit of such Alternative
Currency, with 0.5 of a unit being rounded upward), as determined by the Agent or
the L/C Issuer, as the case may be.”
(e) Section 1.05 (Additional Alternative Currencies) of the Credit Agreement is deleted in its
entirety and replaced with the following:
“1.05 Additional Alternative Currencies.
(a) Borrower may from time to time request that Letters of Credit be issued in
a currency other than those specifically listed in the definition of “Alternative
Currency;” provided that, such requested currency is a lawful currency (other than
Dollars) that is readily available and freely transferable and convertible into
Dollars. Such request shall be subject to the approval of the Agent and the L/C
Issuer.
(b) Any such request shall be made to the Agent not later than 11:00 a.m., 20
Business Days prior to the date of the desired L/C Credit Extension (or such other
time or date as may be agreed by the Agent and, the L/C Issuer in their sole
discretion). Agent shall promptly notify the L/C Issuer thereof. The L/C Issuer
shall notify the Agent, not later than 11:00 a.m., 10 Business Days after receipt
of such request whether it consents, in its sole discretion, to the issuance of
Letters of Credit in such requested currency.
(c) Any failure by the L/C Issuer to respond to such request within the time
period specified in the preceding sentence shall be deemed to be a refusal by the
L/C Issuer to permit Letters of Credit to be issued in such requested currency. If
the Agent and the L/C Issuer consent to the issuance of Letters of Credit in such
requested currency, the Agent shall so notify Borrower and such currency shall
thereupon be deemed for all purposes to be an Alternative Currency hereunder for
purposes of any Letter of Credit issuances. If the Agent shall fail to obtain
consent to any request for an additional currency under this Section 1.05, the
Agent shall promptly so notify Borrower.”
(f) Section 2.01(b) (Revolving Commitment) of the Credit Agreement is deleted in its entirety
and replaced with the following:
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“(b) Revolving Commitment. Subject to the terms and conditions of this Agreement each
Lender severally agrees to make one or more Revolving Loans to Borrower in Dollars from
time to time, on any Business Day during the Availability Period, in an amount not to
exceed at any time outstanding the amount of such Lender’s Commitment which, subject to the
other terms and conditions of this Agreement, Borrower may borrow under this Section 2.01,
prepay under Section 2.05, and reborrow under this Section 2.01 (the “Revolving Facility”).
Lenders’ commitments to lend under the Revolving Facility shall expire at 1:00 p.m. on the
last Business Day preceding the Termination Date, provided that, Borrower’s obligations and
Lenders’ rights under the Loan Documents shall continue in full force and effect until the
Obligation is paid in full. Revolving Loans under the Revolving Facility are subject to the
following conditions:
(i) each Revolving Borrowing (unless the remaining Available Revolving Amount is less)
must be in an amount not less than $500,000 or a whole multiple of $100,000 (if a Base Rate
Loan) or $500,000 or a whole multiple of $100,000 (if a Eurocurrency Rate Loan) in excess
thereof;
(ii) no Revolving Borrowing may exceed the Available Revolving Amount; and
(iii) after giving effect to any Revolving Loan, (1) the Outstanding Amount of all
Revolving Loans, L/C Obligations, and Swing Line Loans may not exceed the Revolving
Committed Amount, (2) the Total Outstandings shall not exceed the Aggregate Commitments,
and (3) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not
exceed such Lender’s Commitment.”
(g) Section 2.02(a) of the Credit Agreement is deleted in its entirety and replaced with the
following:
“(a) Each Committed Borrowing, each conversion of Committed Loans from one Type to the
other, and each continuation of Eurocurrency Rate Loans shall be made upon Borrower’s
irrevocable notice to Agent, which may be given by telephone. Each such notice must be
received by Agent not later than 11:00 a.m. (i) 3 Business Days prior to the requested date
of any Borrowing of, conversion to or continuation of Eurocurrency Rate Loans or of any
conversion of Eurocurrency Rate Loans to Base Rate Committed Loans, and (ii) on the
requested date of any Borrowing of Base Rate Committed Loans. Each telephonic notice by
Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to Agent
of a written Committed Loan Notice, appropriately completed and signed by a Responsible
Officer of Borrower. Each Borrowing of, conversion to or continuation of Eurocurrency Rate
Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof. Except as
5
provided in Sections 2.03(c) and 2.04(c), each conversion to Base Rate Committed Loans
shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof. Each Committed Loan Notice (whether telephonic or written) shall specify (i)
whether Borrower is requesting a Committed Borrowing, a conversion of Committed Loans from
one Type to the other, or a continuation of Eurocurrency Rate Loans, (ii) the requested
date of the Borrowing, conversion or continuation, as the case may be (which shall be a
Business Day), (iii) the principal amount of Committed Loans to be borrowed, converted or
continued, (iv) the Type of Committed Loans to be borrowed or to which existing Committed
Loans are to be converted, and (v) if applicable, the duration of the Interest Period with
respect thereto. If Borrower fails to specify a Type of Committed Loan in a Committed Loan
Notice or if Borrower fails to give a timely notice requesting a conversion or
continuation, then the applicable Committed Loans shall be made as, or converted to, Base
Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the
last day of the Interest Period then in effect with respect to the applicable Eurocurrency
Rate Loans. If Borrower requests a Borrowing of, conversion to, or continuation of
Eurocurrency Rate Loans in any such Committed Loan Notice, but fails to specify an Interest
Period, it will be deemed to have specified an Interest Period of one month.”
(h) Section 2.02(b) of the Credit Agreement is deleted in its entirety and replaced with the
following:
“(b) Following receipt of a Committed Loan Notice, Agent shall promptly notify each
Lender of the amount of its Applicable Percentage of the applicable Committed Loans, and if
no timely notice of a conversion or continuation is provided by Borrower, Agent shall
notify each Lender of the details of any automatic conversion to Base Rate Loans described
in the preceding subsection. In the case of a Committed Borrowing, each Lender shall make
the amount of its Committed Loan available to Agent in Same Day Funds at Agent’s Office not
later than 1:00 p.m. on the Business Day specified in the applicable Committed Loan Notice.
Upon satisfaction of the applicable conditions set out in Sections 4.02 and 4.03 (and, if
such Borrowing is the initial Credit Extension, Section 4.01), Agent shall make all funds
so received available to Borrower in like funds as received by Agent either by (i)
crediting the account of Borrower on the books of Bank of America with the amount of such
funds or (ii) wire transfer of such funds, in each case in accordance with instructions
provided to (and reasonably acceptable to) Agent by Borrower; provided that, if, on the
date the Committed Loan Notice with respect to such Borrowing denominated in Dollars is
given by Borrower, there are L/C Borrowings outstanding, then the proceeds of such
Borrowing shall be applied, first, to the payment in full of any such L/C
Borrowings, and, second, shall be made available to Borrower as provided above.”
(i) Section 2.02(c) of the Credit Agreement is deleted in its entirety and replaced with the
following:
6
“(c) Except as otherwise provided in this Agreement, a Eurocurrency Rate Loan may be
continued or converted only on the last day of an Interest Period for such Eurocurrency
Rate Loan. During the existence of a Default, no Loans may be requested as, converted to or
continued as Eurocurrency Rate Loans without the consent of the Required Lenders.”
(j) Section 2.03(a)(i) of the Credit Agreement is deleted in its entirety and replaced with
the following:
“(i) Subject to the terms and conditions set out in this Agreement, (A) the L/C Issuer
agrees, in reliance upon the agreements of the other Lenders set out in this Section 2.03,
(1) from time to time on any Business Day during the period from the Closing Date until the
Termination Date, to issue Letters of Credit denominated in Dollars or in one more
Alternative Currencies for the account of Parent and its Subsidiaries, and to amend Letters
of Credit previously issued by it, in accordance with clause (b) below, and (2) to honor
drafts under the Letters of Credit; and (B) the Lenders severally agree to participate in
Letters of Credit issued for the account of Borrower and any drawing thereunder; provided
that after giving effect to any L/C Extension with respect to any Letter of Credit, (A) the
Total Outstandings shall not exceed the Aggregate Commitments, (B) the Outstanding Amount
of all Revolving Loans, L/C Obligations, and Swing Line Loans shall not exceed the
Revolving Committed Amount, (C) the aggregate Outstanding Amount of the Committed Loans of
any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all
Swing Line Loans would exceed such Lender’s Commitment, (D) the aggregate Outstanding
Amount of the Revolving Loans of any Lender, plus such Lender’s Applicable Percentage of
the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of
the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Applicable
Percentage of the Revolving Committed Amount, and (E) the Outstanding Amount of the L/C
Obligations for Parent shall not exceed its Letter of Credit Sublimit. Each request by the
Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a
representation by Borrower that the L/C Extension so requested complies with the conditions
set forth in the provisos to the preceding sentence. Within the foregoing limits, and
subject to the terms and conditions hereof, Borrower’s ability to obtain Letters of Credit
shall be fully revolving, and accordingly Borrower may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit that have expired or that have been drawn
upon and reimbursed. From and after the occurrence of the Closing Date and the
satisfaction of all conditions precedent in Section 4.01(c), all Existing Letters of Credit
shall be deemed to have been issued pursuant hereto, and shall be subject to and governed
by the terms and conditions hereof.”
(k) Section 2.04(a) of the Credit Agreement is deleted in its entirety and replaced with the
following:
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“(a) Subject to the terms and conditions set out in this Agreement, the Swing Line
Lender agrees to, in reliance upon the agreements of the other Lenders set forth in this
Section 2.04, make loans in Dollars (each such loan, a “Swing Line Loan”) to Borrower from
time to time on any Business Day during the Availability Period in an aggregate amount not
to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding
the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the
Outstanding Amount of Revolving Loans and L/C Obligations of the Lender acting as Swing
Line Lender, may exceed the amount of such Lender’s Applicable Percentage of the Revolving
Committed Amount; provided that, after giving effect to any Swing Line Loan, (i) the Total
Outstandings may not exceed the Aggregate Commitments, (ii) the Outstanding Amount of all
Revolving Loans, L/C Obligations, and Swing Line Loans may not exceed the Revolving
Committed Amount, and (iii) the aggregate Outstanding Amount of the Committed Loans of any
Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all
Swing Line Loans shall not exceed such Lender’s Commitment; and provided further, that
Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding
Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions
hereof, Borrower may borrow under this Section 2.04, prepay under Section 2.05, and
reborrow under this Section 2.04. Each Swing Line Loan shall be a Base Rate Loan.
Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a
risk participation in such Swing Line Loan in an amount equal to the product of such
Lender’s Applicable Percentage times the amount of such Swing Line Loan.”
(l) Section 2.05(d) of the Credit Agreement is deleted in its entirety and replaced with the
following:
“(d) Intentionally Omitted.”
(m) Section 2.05(e) of the Credit Agreement is deleted in its entirety and replaced with the
following:
“(e) If for any reason the Outstanding Amount of Revolving Loans, L/C Obligations,
and Swing Line Loans ever exceeds the Revolving Committed Amount then in effect,
then, subject to Section 2.01(c), Borrower shall promptly, and in any event no
later than 3 Business Days after written notice from Agent, prepay the Revolving
Facility in an amount equal to the excess, together with all accrued and unpaid
interest on the principal amount prepaid and any additional amounts required
pursuant to Section 3.05 and/or Cash Collateralize the L/C Obligations; provided
that, Borrower shall not be required to Cash Collateralize the L/C Obligations
pursuant to this Section 2.05(e) unless after the prepayment in full of the
Revolving Facility the Total Outstandings
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exceed the Aggregate Commitments then in effect. All such prepayments of Borrower
shall be applied ratably among its Revolving Notes (based on the proportion of each
Revolving Note’s outstanding principal to the Outstanding Amount of all Revolving
Loans).”
(n) Section 2.06 of the Credit Agreement is amended to delete the reference to the
“Alternative Currency Sublimit” in clause (iv) so that such Section 2.06 reads as follows:
“2.06 Termination or Reduction of Commitments. Borrower may, upon notice to Agent,
terminate the Aggregate Commitments, or from time to time permanently reduce the Revolving
Committed Amount; provided that (i) any such notice shall be received by Agent not later
than 11:00 a.m. 5 Business Days prior to the date of termination or reduction, (ii) any
such partial reduction shall be in an aggregate amount of $5,000,000 or any whole multiple
of $1,000,000 in excess thereof, (iii) Borrower shall not terminate or reduce the Aggregate
Commitments if, after giving effect thereto and to any concurrent prepayments hereunder,
the Total Outstandings would exceed the Aggregate Commitments, and (iv) if, after giving
effect to any reduction of the Revolving Commitment Amount, the Letter of Credit Sublimit
or the Swing Line Sublimit exceeds the amount of the Revolving Commitment Amount, such
Sublimit shall be automatically reduced by the amount of such excess. Agent will promptly
notify the Lenders of any such notice of termination or reduction of the Aggregate
Commitments. Any reduction of the Aggregate Commitments shall be applied to the Commitment
of each Lender according to its Applicable Percentage. All fees accrued until the effective
date of any termination of the Aggregate Commitments shall be paid on the effective date of
such termination.”
(o) Section 2.12(a) of the Credit Agreement is deleted in its entirety and replaced with the
following:
“(a) General. All payments to be made by Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided in this Agreement, all payments by Borrower hereunder shall be
made to Agent, for the account of the respective Lenders to which such payment is owed, at
Agent’s Office in Dollars and in Same Day Funds not later than 2:00 p.m. on the date
specified in this Agreement. Agent will promptly distribute to each Lender its Applicable
Percentage (or other applicable share as provided in this Agreement) of such payment in
like funds as received by wire transfer to such Lender’s Lending Office. All payments
received by Agent after 2:00 p.m. shall in each case be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to accrue.”
(p) Section 3.02 (Illegality) of the Credit Agreement is amended to delete the parenthetical
phrase “(whether denominated in Dollars or in Alternative Currency)” where such phrase appears.
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(q) Section 3.03 (Inability to Determine Rates) of the Credit Agreement is amended to
delete the parenthetical phrase “(whether denominated in Dollars or in Alternative
Currency)” in each instance where such phrase appears.
(r) Section 4.02(d) of the Credit Agreement is deleted in its entirety and replaced
with the following:
“(d) In the case of an L/C Credit Extension to be denominated in an
Alternative Currency, there shall not have occurred any change in national or
international financial, political or economic conditions or currency exchange
rates or exchange controls which in the reasonable opinion of the Agent or the L/C
Issuer would make it impracticable for such L/C Credit Extension to be denominated
in the relevant Alternative Currency.”
(s) Section 7.11(b) (Minimum EBITDA) of the Credit Agreement is deleted in its
entirety and replaced with the following:
“(b) Intentionally Omitted.”
(t) Section 7.11(c) (Minimum Tangible Net Worth) of the Credit Agreement is deleted in
its entirety and replaced with the following:
“(c) Intentionally Omitted.”
(u) Section 7.11(f) (Capital Expenditures) 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 its Subsidiaries,
$15,000,000, at any time.”
3. Schedules and Exhibits
(a) The existing Schedule 2.01 to the Credit Agreement is deleted in its entirety and
replaced with Schedule 2.01 attached to this Amendment.
(b) The existing Exhibit C-1 to the Credit Agreement is deleted in its entirety and
replaced with Exhibit C-1 attached to this Amendment.
4. Conditions. This Amendment shall be effective as of the date first
set forth above (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;
10
(c) a replacement Revolving Note executed by Parent and made payable to Bank of
America, N.A., in the original principal amount of $72,000,000;
(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.
5. Representations and Warranties. Each Parent and UK 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 such parties, (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.
6. 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.
Parent hereby reaffirms its obligations under the Loan Documents to which each is a party and
agrees that all Loan Documents to which it is 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). AS A MATERIAL PART OF THE CONSIDERATION FOR AGENT
AND LENDERS ENTERING INTO THIS AMENDMENT, EACH OF
PARENT, INHOCO, AND SI PROPERTIES
HEREBY RELEASES AND FOREVER DISCHARGES AGENT AND LENDERS (AND
THEIR RESPECTIVE SUCCESSORS, ASSIGNS, AFFILIATES,
OFFICERS, MANAGERS, DIRECTORS, EMPLOYEES, AND
AGENTS) FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES,
CAUSES OF ACTION, OR LIABILITIES FOR ACTIONS OR OMISSIONS (WHETHER ARISING AT
LAW OR IN EQUITY, AND WHETHER DIRECT OR INDIRECT) IN CONNECTION WITH THE
CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS PRIOR TO
THE DATE OF THIS AMENDMENT, WHETHER OR NOT HERETOFORE ASSERTED,
AND WHICH BORROWER OR ANY COMPANY MAY HAVE OR CLAIM TO HAVE AGAINST
AGENT AND LENDERS.
11
7. 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. Parent agrees 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 Parent, UK Borrower, 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
PARENT, UK BORROWER, 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.]
12
The Amendment is executed as of the date set out in the preamble to this Amendment.
| POWELL INDUSTRIES, INC., as Borrower |
||||
| 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 Ninth Amendment to Credit Agreement
| BANK OF AMERICA, N.A., as Agent |
||||
| By: | /s/ Michelle C. Tabor | |||
| Michelle C. Tabor | ||||
| Vice President | ||||
| BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing Line Lender |
||||
| By: | /s/ Michelle C. Tabor | |||
| Michelle C. Tabor | ||||
| Vice President | ||||
Signature Page to Ninth Amendment to Credit Agreement
GUARANTORS’ CONSENT AND AGREEMENT TO NINTH 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 Madison | By: | /s/ Don Madison | |||
| Don Madison | Don Madison | |||||
| Vice President, Secretary, and | Vice President, Secretary, and | |||||
| Treasurer | Treasurer | |||||
| POWELL INDUSTRIES INTERNATIONAL, | POWELL ELECTRICAL SYSTEMS, INC., | |||||
| INC., a Delaware corporation | a Delaware corporation | |||||
| By: | /s/ Don Madison | By: | /s/ Don Madison | |||
| Don Madison | Don Madison | |||||
| Vice President, Secretary, and | Vice President, Secretary, and | |||||
| Treasurer | Treasurer | |||||
Guarantors’ Consent and Agreement to Ninth Amendment
SCHEDULE 2.01
COMMITMENTS
AND APPLICABLE PERCENTAGES
AND APPLICABLE PERCENTAGES
Revolving Facility for Parent
| Applicable | ||||||||
| Lender | Commitment | Percentage | ||||||
Bank of America, N.A. |
$ | 72,000,000 | 100 | % | ||||
Total |
$ | 72,000,000 | 100 | % | ||||
Schedule 2.01 to the Ninth Amendment
EXHIBIT C-1
COMMITTED LOAN NOTICE
Date: ___________, _____
To: Bank of America, N.A., as Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of June 29, 2005 (as amended by
the First Amendment to Credit Agreement dated November 7, 2005, the Second Amendment to Credit
Agreement dated January 11, 2006, the Third Amendment to Credit Agreement dated August 4, 2006, the
Fourth Amendment to Credit Agreement dated December 7, 2006, the Fifth Amendment to Credit
Agreement dated December 4, 2007, the Sixth Amendment to Credit Agreement dated December 14, 2007,
the Seventh Amendment to Credit Agreement dated December 10, 2008, the Eighth Amendment to Credit
Agreement dated March 11, 2010, the Ninth Amendment to Credit Agreement dated May 18, 2011, and as
further amended, restated or supplemented, the “Agreement”, the terms defined therein being used
herein as therein defined), between Powell Industries, Inc., a Delaware corporation (the
“Borrower”), the Lenders from time to time party thereto, and Bank of America, N.A., as Agent, L/C
Issuer and Swing Line Lender.
Borrower hereby requests, on behalf of itself:
o A Borrowing of Committed Loans o A conversion or continuation of Loans
| 1. | On ____ (a Business Day). | |||||
| 2. | In the amount of _____. | |||||
| 3. | Comprised of ______________. | |||||
| [Type of Committed Loan requested] | ||||||
| 4. | In the following currency: ________________________ * | |||||
| 5. | For Eurocurrency Rate Loans: with an Interest Period of ___ months. |
The Committed Borrowing, if any, requested herein complies with the conditions set forth in
Section 2.01(b) of the Agreement.
[Signature appears on the following page.]
| * | Must be in Dollars. |
Exhibit C-1
Committed Loan Notice
Committed Loan Notice
| BORROWER: POWELL INDUSTRIES, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Exhibit C-1
Committed Loan Notice
Committed Loan Notice