mis_8k0118ex109.htm


    Exhibit
      10.9

     

    


    SUBORDINATION
      AGREEMENT

    


    


    This
      Subordination Agreement, dated as of January 14, 2008, is made by JOHN A.
      MARTELL (the “Subordinated Creditor”), for the benefit of WELLS FARGO BANK,
      NATIONAL ASSOCIATION, acting through its Wells Fargo Business Credit operating
      division (the “Lender”).

     

    MISCOR
      GROUP, LTD., an Indiana corporation (“MISCOR”), MAGNETECH INDUSTRIAL SERVICES,
      INC., an Indiana corporation (“MIS”), MARTELL ELECTRIC, LLC, an Indiana
      limited liability company (“Martell”), HK ENGINE COMPONENTS, LLC, an Indiana
      limited liability company (“HK”), MAGNETECH POWER SERVICES, LLC, an Indiana
      limited liability company (“MPS”), IDEAL CONSOLIDATED, INC., an Indiana
      corporation (“Ideal”), 3-D SERVICE, LTD., an Ohio limited liability company
      (“3D”), and AMERICAN MOTIVE POWER, INC., a Nevada corporation (“AMP” and
      together with MISCOR, MIS, Martell, HK, MPS, Ideal and 3D, the “Borrowers” and
      each a “Borrower”) are now or hereafter may be indebted to the Lender on account
      of loans or the other extensions of credit or financial accommodations from
      the
      Lender to the Borrowers, or to any other person under the guaranty or
      endorsement of the Borrowers.

     

    The
      Subordinated Creditor has made or may make loans or grant other financial
      accommodations to one or more of the Borrowers.

     

    As
      a condition to making any loan or extension of credit to the Borrowers, the
      Lender has required that the Subordinated Creditor subordinate the payment
      of
      the Subordinated Creditor’s loans and other financial accommodations to the
      payment of any and all indebtedness of the Borrowers to the
      Lender.  Assisting the Borrowers in obtaining credit accommodations
      from the Lender and subordinating his interests pursuant to the terms of this
      Agreement are in the Subordinated Creditor’s best interest.

     

    ACCORDINGLY,
      in consideration of the loans and other financial accommodations that have
      been
      made and may hereafter be made by the Lender for the benefit of the Borrower,
      and for other good and valuable consideration, the receipt and sufficiency
      of
      which are hereby acknowledged, the Subordinated Creditor hereby agrees as
      follows:

     

    1.           
      Definitions.  As
      used herein, the following terms have the meanings set forth below:

     

    “Borrower
      Default” means a Default or Event of Default as defined in any agreement or
      instrument evidencing, governing, or issued in connection with Lender
      Indebtedness, including, but not limited to, the Credit Agreement, or any
      default under or breach of any such agreement or instrument.

     

    “Collateral”
      means all collateral now or hereafter securing payment of the Lender
      Indebtedness, including all proceeds thereof.


    
      
         

      

      
         

        
          

        

      

      
         

      

    


     

    “Credit
      Agreement” means that certain Credit and Security Agreement dated as of January
      14, 2008, by and among the Borrowers and the Lender as the same may hereafter
      be
      amended, supplemented or restated from time to time.

     

    “Lender
      Indebtedness” means each and every debt, liability and obligation of every type
      and description which the Borrowers may now or at any time hereafter owe to
      the
      Lender, whether such debt, liability or obligation now exists or is hereafter
      created or incurred, and whether it is or may be direct or indirect, due or
      to
      become due, absolute or contingent, primary or secondary, liquidated or
      unliquidated, or joint, several or joint and several, all interest thereon
      and
      all fees, costs and other charges related thereto (including all interest,
      fees,
      costs and other charges accruing after the commencement of any case, proceeding
      or other action relating to the bankruptcy insolvency or reorganization of
      any
      Borrower, whether or not allowed in such proceeding or other action), all
      renewals, extensions and modifications thereof and any notes issued in whole
      or
      partial substitution therefor.

     

    “Lien”
      means any security interest, mortgage, deed of trust, pledge, lien, charge,
      encumbrance, title retention agreement or analogous instrument or device,
      including the interest of each lessor under any capitalized lease and the
      interest of any bondsman under any payment or performance bond, in, of or on
      any
      assets or properties of a person, whether now owned or hereafter acquired and
      whether arising by agreement or operation of law.

     

    “Subordinated
      Indebtedness” means all obligations arising under the Subordinated Note and each
      and every other debt, liability and obligation of every type and description
      which any Borrower may now or at any time hereafter owe to the Subordinated
      Creditor, whether such debt, liability or obligation now exists or is hereafter
      created or incurred, and whether it is or may be direct or indirect, due or
      to
      become due, absolute or contingent, primary or secondary, liquidated or
      unliquidated, or joint, several or joint and several.

     

    “Subordinated
      Note” means the Borrower’s Promissory Note, dated as of January 1, 2004, payable
      to the order of the Subordinated Creditor in the original principal amount
      of
      Three Million Dollars ($3,000,000), together with all renewals, extensions
      and
      modifications thereof and any note or notes issued in substitution
      therefor.

     

    2.           
      Subordination.  The
      payment of all of the Subordinated Indebtedness is hereby expressly subordinated
      to the extent and in the manner hereinafter set forth to the payment in full
      of
      the Lender Indebtedness; and regardless of any priority otherwise available
      to
      the Subordinated Creditor by law or by agreement, the Lender shall hold a first
      priority Lien in the Collateral, and any Lien claimed therein (including any
      proceeds thereof) by the Subordinated Creditor shall be and remain fully
      subordinate for all purposes to the Lien of the Lender therein for all purposes
      whatsoever.  The Subordinated Indebtedness shall continue to be
      subordinated to the Lender Indebtedness even if the Lender Indebtedness
      is


    
      
         

      

      
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    subordinated,
      avoided or disallowed under the United States Bankruptcy Code or other
      applicable law.

     

    3.           
      Payments.  Until
      all of the Lender Indebtedness has been paid in full and the Lender has released
      its Lien in the Collateral, the Subordinated Creditor shall not, without the
      Lender’s prior written consent, demand, receive or accept any payment (whether
      of principal, interest or otherwise) from any Borrower in respect of the
      Subordinated Indebtedness, or exercise any right of or permit any setoff in
      respect of the Subordinated Indebtedness, except that the Subordinated Creditor
      may accept (a) scheduled payments (but not prepayments) of interest
      required to be paid under the Subordinated Note, so long as no Borrower Default
      has occurred and is continuing or will occur as a result of or immediately
      following any such payment and (b) payments of salaries and bonuses to the
      extent that the payment thereof does not cause a Borrower Default to
      occur.

     

    4.           
      Receipt of Prohibited
      Payments.  If the Subordinated Creditor receives any payment on
      the Subordinated Indebtedness that the Subordinated Creditor is not entitled
      to
      receive under the provisions of this Agreement, the Subordinated Creditor will
      hold the amount so received in trust for the Lender and will forthwith turn
      over
      such payment to the Lender in the form received (except for the endorsement
      of
      the Subordinated Creditor where necessary) for application to then-existing
      Lender Indebtedness (whether or not due), in such manner of application as
      the
      Lender may deem appropriate.  If the Subordinated Creditor exercises
      any right of setoff which the Subordinated Creditor is not permitted to exercise
      under the provisions of this Agreement, the Subordinated Creditor will promptly
      pay over to the Lender, in immediately available funds, an amount equal to
      the
      amount of the claims or obligations offset.  If the Subordinated
      Creditor fails to make any endorsement required under this Agreement, the
      Lender, or any of its officers or employees or agents on behalf of the Lender,
      is hereby irrevocably appointed as the attorney-in-fact (which appointment
      is
      coupled with an interest) for the Subordinated Creditor to make such endorsement
      in the Subordinated Creditor’s name.

     

    5.           
      Action on Subordinated
      Indebtedness.  The Subordinated Creditor will not commence any
      action or proceeding against any Borrower to recover all or any part of the
      Subordinated Indebtedness, or join with any creditor (unless the Lender shall
      so
      join) in bringing any proceeding against any Borrower under any bankruptcy,
      reorganization, readjustment of debt, arrangement of debt receivership,
      liquidation or insolvency law or statute of the federal or any state government,
      or take possession of, sell, or dispose of any Collateral, or exercise or
      enforce any right or remedy available to the Subordinated Creditor with respect
      to any such Collateral, unless and until the Lender Indebtedness has been paid
      in full and the Lender has released its Lien in the Collateral.

     

    6.           
      Action Concerning
      Collateral.

     

    (a)           
      Notwithstanding any Lien now held or hereafter acquired by the Subordinated
      Creditor, the Lender may take possession of, sell, dispose of, and otherwise
      deal with all or any part of the Collateral, and may enforce any right or


    
      
         

      

      
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    remedy
      available to it with respect to any Borrower or the Collateral, all without
      notice to or consent of the Subordinated Creditor except as specifically
      required by applicable law.

     

    (b)           
      In addition, and without limiting the generality of the foregoing, if (i) a
      Borrower Default has occurred and is continuing, (ii) a Borrower or the Lender
      intends to sell or otherwise dispose of any Collateral to an unrelated third
      party outside the ordinary course of business, (iii) the Lender has given
      written notice thereof to the Subordinated Creditor, and (iv) the Subordinated
      Creditor has failed, within ten (10) days after receipt of such notice, to
      purchase for cash the Lender Indebtedness for the full amount thereof, the
      Subordinated Creditor shall be deemed to have consented to such sale or
      disposition, to have released any Lien it may have in such Collateral and to
      have authorized the Lender and its agents to file partial releases with respect
      to such Collateral.

     

    (c)           
      The Lender shall have no duty to preserve, protect, care for, insure, take
      possession of, collect, dispose of, or otherwise realize upon any of the
      Collateral, and in no event shall the Lender be deemed the Subordinated
      Creditor’s agent with respect to the Collateral.  All proceeds
      received by the Lender with respect to any Collateral may be applied, first,
      to
      pay or reimburse the Lender for all costs and expenses (including reasonable
      attorneys’ fees) incurred by the Lender in connection with the collection of
      such proceeds, and, second, to any Lender Indebtedness secured by the Lender’s
      Lien in that Collateral in any order that it may choose.

     

    7.           
      Bankruptcy and
      Insolvency.  In the event of any receivership, insolvency,
      bankruptcy, assignment for the benefit of creditors, reorganization or
      arrangement with creditors, whether or not pursuant to bankruptcy law, the
      sale
      of all or substantially all of the assets of any Borrower, dissolution,
      liquidation or any other marshalling of the assets or liabilities of any
      Borrower, the Subordinated Creditor will file all claims, proofs of claim or
      other instruments of similar character necessary to enforce the obligations
      of
      such Borrower in respect of the Subordinated Indebtedness and will hold in
      trust
      for the Lender and promptly pay over to the Lender in the form received (except
      for the endorsement of the Subordinated Creditor where necessary) for
      application to the then-existing Lender Indebtedness, any and all moneys,
      dividends or other assets received in any such proceedings on account of the
      Subordinated Indebtedness, unless and until the Lender Indebtedness has been
      paid in full and the Lender’s Lien in the Collateral has been
      terminated.  If the Subordinated Creditor shall fail to take any such
      action, the Lender, as attorney-in-fact for the Subordinated Creditor, may
      take
      such action on the Subordinated Creditor’s behalf.  The Subordinated
      Creditor hereby irrevocably appoints the Lender, or any of its officers or
      employees on behalf of the Lender, as the attorney-in-fact for the Subordinated
      Creditor (which appointment is coupled with an interest) with the power but
      not
      the duty to demand, sue for, collect and receive any and all such moneys,
      dividends or other assets and give acquittance therefor and to file any claim,
      proof of claim or other instrument of similar character, to vote claims
      comprising Subordinated Indebtedness to accept or reject any planof partial or complete liquidation, reorganization,
      arrangement,
      composition or extension and 


    
      
         

      

      
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    to
      take such other action in the Lender’s own name or in the name of the
      Subordinated Creditor as the Lender may deem necessary or advisable for the
      enforcement of the agreements contained herein; and the Subordinated Creditor
      will execute and deliver to the Lender such other and further powers-of-attorney
      or instruments as the Lender may request in order to accomplish the
      foregoing.  If the Lender desires to permit the use of cash collateral
      or to provide post-petition financing to a Borrower, the Subordinated Creditor
      shall not object to the same or assert that its interests are not being
      adequately protected.

     

    8.           
      Restrictive Legend;
      Transfer of Subordinated Indebtedness.  The Subordinated
      Creditor will cause the Subordinated Note and all other notes, bonds, debentures
      or other instruments evidencing the Subordinated Indebtedness or any part
      thereof to contain a specific statement thereon to the effect that the
      indebtedness thereby evidenced is subject to the provisions of this Agreement,
      and the Subordinated Creditor will mark its books conspicuously to evidence
      the
      subordination effected hereby.  Attached hereto is a true and correct
      copy of the Subordinated Note bearing such legend.  At the request of
      the Lender, the Subordinated Creditor shall deposit with the Lender the
      Subordinated Note and all of the other notes, bonds, debentures or other
      instruments evidencing the Subordinated Indebtedness, which notes, bonds,
      debentures or other instruments may be held by the Lender so long as any Lender
      Indebtedness remains outstanding or the Lender’s Lien in the Collateral has not
      been terminated.  The Subordinated Creditor is the lawful holder of
      the Subordinated Note and has not transferred any interest therein to any other
      person or entity.  Without the prior written consent of the Lender,
      the Subordinated Creditor will not assign, transfer or pledge to any other
      person any of the Subordinated Indebtedness or agree to a discharge or
      forgiveness of the same.

     

    9.           
      Continuing
      Effect.  This Agreement shall constitute a continuing agreement
      of subordination, and the Lender may, without notice to or consent by the
      Subordinated Creditor, modify any term of the Lender Indebtedness in reliance
      upon this Agreement.  Without limiting the generality of the
      foregoing, the Lender may, at any time and from time to time, without the
      consent of or notice to the Subordinated Creditor and without incurring
      responsibility to the Subordinated Creditor or impairing or releasing any of
      the
      Lender’s rights or any of the Subordinated Creditor’s obligations
      hereunder:

     

    (a)           
      change the interest rate or change the amount of payment or extend the time
      for
      payment or renew or otherwise alter the terms of any Lender Indebtedness or
      any
      instrument evidencing the same in any manner;

     

    (b)           
      sell, exchange, release or otherwise deal with any property at any time securing
      payment of the Lender Indebtedness or any part thereof;

     

    (c)           
      release anyone liable in any manner for the payment or collection of the Lender
      Indebtedness or any part thereof;

     

    (d)           
      exercise or refrain from exercising any right against any Borrower or any other
      person (including the Subordinated Creditor); and

     

     

    
      
         

      

      
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    (e)           
      apply any sums received by the Lender, by whomsoever paid and however realized,
      to the Lender Indebtedness in such manner as the Lender shall deem
      appropriate.

     

    10.           
      No
      Commitment.  None of the provisions of this Agreement shall be
      deemed or construed to constitute or imply any commitment or obligation on
      the
      part of the Lender to make any future loans or other extensions of credit or
      financial accommodations to the Borrowers.

     

    11.           
      Marshalling.  The
      Subordinated Creditor hereby waives any and all rights to require the
      marshalling of assets in connection with the exercise of any of the Lender’s
      remedies permitted by applicable law or agreement.

     

    12.           
      Notice.  All
      notices and other communications hereunder shall be in writing and shall be
      (i) personally delivered, (ii) transmitted by registered mail, postage
      prepaid, or (iii) transmitted by telefacsimile, in each case addressed to
      the party to whom notice is being given at its address as set forth
      below:

     

    If
      to the Lender:

     

    Wells
      Fargo Business Credit

    111
      East Wayne Street, 2nd
      Floor

    MAC
      N8622-02A

    Fort
      Wayne, Indiana 46802

    Attention:  Lynn
      A. Gruber

    Telefacsimile:  260/461-6037

    


     

    If
      to the Subordinated Creditor:

     

    John
      A. Martell

    _________________________________

    _________________________________

    Telefacsimile:  _______/______________

    Attention:  ________________________

     

    or
      at such other address as may hereafter be designated in writing by that
      party.  All such notices or other communications shall be deemed to
      have been given on (i) the date received if delivered personally,
      (ii) the date of posting if delivered by mail, or (iii) the date of
      transmission if delivered by telefacsimile.

     

    13.           
      Conflict in
      Agreements.  If the subordination provisions of any instrument
      evidencing Subordinated Indebtedness conflict with the terms of this Agreement,
      the terms of this Agreement shall govern the relationship between the Lender
      and
      the Subordinated Creditor.

     

    

      
        
           

        

        
          6

          
            

          

        

        
           

        

      

    

     

    14.           
      No
      Waiver.  No waiver shall be deemed to be made by the Lender of
      any of its rights hereunder unless the same shall be in writing signed on behalf
      of the Lender, and each such waiver, if any, shall be a waiver only with respect
      to the specific matter or matters to which the waiver relates and shall in
      no
      way impair the rights of the Lender or the obligations of the Subordinated
      Creditor to the Lender in any other respect at any time.

     

    15.           
      Binding Effect;
      Acceptance.  This Agreement shall be binding upon the
      Subordinated Creditor and the Subordinated Creditor’s heirs, legal
      representatives, successors and assigns and shall inure to the benefit of the
      Lender and its participants, successors and assigns irrespective of whether
      this
      or any similar agreement is executed by any other subordinated creditor of
      any
      Borrower.  Notice of acceptance by the Lender of this Agreement or of
      reliance by the Lender upon this Agreement is hereby waived by the Subordinated
      Creditor.

     

    16.           
      Miscellaneous.  The
      paragraph headings herein are included for convenience of reference only and
      shall not constitute a part of this Agreement for any other
      purpose.  This Agreement may be executed in any number of
      counterparts, each of which shall be an original, but all of which together
      shall constitute one instrument.

     

    17.           
      Governing Law; Consent
      to Jurisdiction and Venue; Waiver of Jury Trial.  This
      Agreement shall be governed by and construed in accordance with the substantive
      laws (other than conflict laws) of the State of Wisconsin.  Each party
      consents to the personal jurisdiction of the state and federal courts located
      in
      the State of Wisconsin in connection with any controversy related to this
      Agreement, waives any argument that venue in any such forum is not convenient,
      and agrees that any litigation initiated by any of them in connection with
      this
      Agreement may be venued in either the state or federal courts located in
      Milwaukee County, Wisconsin.

     

    THE
      PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED
      ON OR
      PERTAINING TO THIS ACKNOWLEDGMENT.

     

    IN
      WITNESS WHEREOF, the Subordinated Creditor has executed this Subordination
      Agreement as of the date and year first above-written.

    


    


    


    
      	 	
              /s/
                John A. Martell

            
	 	
              John
                A. Martell

            


    

    


    


    


    



    
      
         

      

      
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    ACKNOWLEDGMENT
      BY BORROWERS

    


    


    The
      undersigned, being the Borrowers referred to in the foregoing Agreement, hereby
      (i) acknowledges receipt of a copy thereof, (ii) agrees to all of the
      terms and provisions thereof, (iii) agrees to and with the Lender that it
      shall make no payment on the Subordinated Indebtedness that the Subordinated
      Creditor would not be entitled to receive under the provisions of the Agreement,
      (iv) agrees that any such payment will constitute a default under the
      Lender Indebtedness, and (v) agrees to mark its books conspicuously to
      evidence the subordination of the Subordinated Indebtedness effected
      hereby.

    


    
      	
              MISCOR
                GROUP, LTD.

            	 	
              MAGNETECH
                POWER SERVICES, LLC

            
	 	 	 	 	 
	 	 	 	 	 
	
              By:

            	
              /s/
                Richard J. Mullin

            	 	
              By:

            	
              /s/
                Richard J. Mullin

            
	 	
              Richard
                J. Mullin, Treasurer

            	 	 	
              Richard
                J. Mullin, Treasurer

            
	 	 	 	 	 
	 	 	 	 	 
	
              MAGNETECH
                INDUSTRIAL SERVICES, INC.

            	 	
              IDEAL
                CONSOLIDATED, INC.

            
	 	 	 	 	 
	
              By:

            	
              /s/
                Richard J. Mullin

            	 	
              By:

            	
              /s/
                Richard J. Mullin

            
	 	
              Richard
                J. Mullin, Treasurer

            	 	 	
              Richard
                J. Mullin, Treasurer

            
	 	 	 	 	 
	
              MARTELL
                ELECTRIC, LLC

            	 	
              3-D
                SERVICE, LTD.

            
	 	 	 	 	 
	
              By:

            	
              /s/
                Richard J. Mullin

            	 	
              By:

            	
              /s/
                Richard J. Mullin

            
	 	
              Richard
                J. Mullin, Treasurer

            	 	 	
              Richard
                J. Mullin, Treasurer

            
	 	 	 	 	 
	
              HK
                ENGINE COMPONENTS, LLC

            	 	
              AMERICAN
                MOTIVE POWER, INC.

            
	 	 	 	 	 
	
              By:

            	
              /s/
                Richard J. Mullin

            	 	
              By:

            	
              /s/
                Richard J. Mullin

            
	 	
              Richard
                J. Mullin, Treasurer

            	 	 	
              Richard
                J. Mullin, Treasurer

            


    

    


     

     

    



    
      
         

      

      
         

        
          

        

      

      
         

      

    


     

    Exhibit
      A

     

    Attach
      copy of Subordinated Note with following legend:

     

    THIS
      INSTRUMENT IS SUBJECT TO THE TERMS OF A SUBORDINATION AGREEMENT BY JOHN A.
      MARTELL IN FAVOR OF WELLS FARGO BANK, NATIONAL ASSOCIATION, ACTING THROUGH
      ITS
      WELLS FARGO BUSINESS CREDIT OPERATING DIVISION, DATED AS OF JANUARY 14,
      2008.