Deere Credit, Inc. et al v. Clayton Railroad Construction, LLC et al, No. 1:2011cv00823 - Document 43 (S.D. Ohio 2012)

Court Description: AGREED FINAL JUDGMENT ORDER. Signed by Magistrate Judge Karen L. Litkovitz on 9/13/2012. (art)

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Deere Credit, Inc. et al v. Clayton Railroad Construction, LLC et al Doc. 43 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION- CINCINNATI DEERE CREDIT, INC., et al., Plaintiffs, Case No. 1:11-cv-00823-MRB -vsJUDGE MICHAEL R. BARRETT CLAYTON RAILROAD CONSTRUCTION, LLC, et al., Mag. Judge Litkovitz Defendants. AGREED FINAL JUDGMENT ORDER This matter comes before the Court upon the agreement of plaintiffs Deere Credit, Inc. ("Deere Credit"), Deere & Company ("Deere & Co."), and John Deere Construction & Forestry Company ("Deere Construction") (collectively "Plaintiffs") and defendants Clayton Railroad Construction, LLC and James R. McAdams, Sr. (collectively "Defendants"). The Court is informed that the parties have reached an agreement to resolve all remaining issues in this case; it is, therefore ORDERED, ADJUDGED and DECREED that judgment be, and hereby is, entered in favor of Plaintiffs against Defendants, jointly and severally, in the amount of $864,902.60 as of September 20, 2012 including additional attorney's fees and costs of $2,800.00 incurred after August 1, 2012, with interest continuing to accrue at the rate of Dockets.Justia.com six percent (6.00%) per annum from September 20, 2012, plus attorney's fees above the $2,800.00 referenced above and costs incurred after that date; and it is further ORDERED, ADJUDGED and DECREED that Plaintiffs be, and hereby are, awarded permanent possession of the following equipment (hereinafter jointly referred to as the "Equipment") and costs of repossession of said Equipment, and that said Equipment be sold and the proceeds of sale be applied in accordance with the rights and priorities of the parties: • John Deere model CT332 Track Loader with 48" HD Forks (Serial No. T0332TA159955); • John Deere model HH75 TOHH75X120022; • John Deere model 320 Skid Steer Loader (Serial No. T00320A128685); • John Deere Pallet Fork, John Deere Bale Spear, John Deere model 50DXFF Compact Excavator with 18" & Adapter (Serial No. FF050DX270349); • John Deere model CT332 Compact Track Loader (Serial No. T0332TB129820); • John Deere model RC78 Rotary Cutter (Serial No. TORC78X110010); • John Deere model PA30 Auger with 9" and 12" Augers; • John Deere model CT322 Loader (Serial No. T0322TB 169040); • John Deere model310SJ Wheel Loader Backhoe (Serial No. T0310SJ160937); • John Deere model 550J Crawler Dozer (Serial No. T0550JX141082); • John Deere model 120C Excavator (Serial No. FF120CX036572); • John Deere model 350DLC Excavator (Serial No. FF350DX806628); • John Deere model 624KXDW 4WD Loader (Serial No. DW624KZ624527); • John Deere model 655C Crawler Loader (Serial No. LU655CX008642); Hydraulic Breaker (Serial No. 2 • Skytrak 8042 Forklift (Serial No. 160035657); • John Deere model450J LT Crawler Dozer (Serial No. T0450JX137020); and • John Deere model 50DXFF Compact Excavator (Serial No. FF050DX270657; and it is further ORDERED, ADJUDGED and DECREED that all of the terms of the existing contracts attached to the complaint as Ex. A, C, E, G, I, K and M (and reattached hereto at Exhibit A) shall remain in force and effect, except those reflecting the amount of payment and when payment is due; and it is further ORDERED, ADJUDGED and DECREED that execution of this judgment shall be held in abeyance so long as Defendants timely pay all of the following installments to Plaintiffs: • $150,000 on or before October 12, 2012; • $21,843.88 on or before the twelfth day of each month thereafter until the full amount of the judgment is paid as set forth in the amortization schedule attached hereto as Exhibit B; and it is further ORDERED, ADJUDGED and DECREED that if Defendants miss a payment, they will have ten (1 0) days to make any payment without penalty. If payment is received after the lOth day, late charges (per contract terms) accrue from the due date. Notice will be sent on the 20th day after payment was due, with ten (1 0) days to cure. An affidavit of non-payment/default shall be submitted if the failure to pay is not cured within thirty (30) days of due date; and it is further ORDERED, ADJUDGED and DECREED that each check or money order shall be made payable to "John Deere Financial", have the Defendants' account numbers of 227541, 227542, 388806, 416168, 318040, 113159 and a new account number to be 3 provided by Plaintiffs written on the instrument, and mailed by ordinary U.S. mail, in time to be received on or before the dates specified above, to John Deere Credit, 23176 Network Place, Chicago, IL 60673-1231. Payments may also be sent by overnight delivery to JP Morgan/Chase Corp, 525 West Monroe Street, 8th Floor, Chicago, IL 60661; and it is further ORDERED, ADJUDGED and DECREED, that if Defendants timely make each of the installment payments specified above, Plaintiffs will promptly file a full and complete satisfaction and release of this judgment; and it is further ORDERED, ADJUDGED and DECREED that on the condition that all future payments as outlined above are made to Plaintiffs, then Defendants shall be entitled to retain possession of the Equipment; provided, however, that in the event that Defendants fail to timely make any payment, then Plaintiffs shall be entitled to file an affidavit of non-payment/default with the Clerk and serve same on Defendants and their counsel, and thereupon the execution of the judgment granted Plaintiffs herein shall no longer be held in abeyance and Defendants shall be required, without further order of the Court, to immediately transfer possession of the Equipment to Plaintiffs; in the event an affidavit of non-payment is filed, then Plaintiffs shall also be entitled to file a praecipe for issuance of a writ to the Sheriff and/or U.S. Marshall in order to enforce Plaintiffs' right to possession of the Equipment. Upon recovery of the Equipment, Plaintiffs shall be required to dispose of same in a commercially reasonable manner as required by Chapter 1309 of the Ohio Revised Code, and Plaintiffs shall be required to file a partial or complete satisfaction, as the case may be, of the money judgment granted by this order for the net amount realized from disposition of its collateral; and it is further 4 ORDERED, ADJUDGED and DECREED that Defendants shall co-operate fully with Plaintiff in the signing of documents necessary to convert any of the original leases into Retail Installment Contacts; and it is further ORDERED, ADJUDGED and DECREED that all claims against defendant James R. McAdams, Jr. are dismissed with prejudice to future action; and it is further ORDERED, ADJUDGED and DECREED that this Agreed Final Judgment Order resolves all claims and issues raised by all parties. IT IS SO ORDERED. Dated: Karen L. Litkovitz United States Magistrate Judge APPROVED: APPROVED: Is/ Douglas J. Segerman Is/ Robert W. Cettel Douglas J. Segerman (0064779) Robert W. Cettel (0034205) MCFADDEN WINNER SAVAGE & The Drees Center Suite 21 0 7265 Kenwood Road, Cincinnati, Ohio 45236-4411 Telephone (513) 766-3883 LLP 175 South Third Street, Suite 350 Columbus, Ohio 43215-5188 Telephone (614) 221-8868 Fax (614) 221-3985 Email: djsegerman@earthlink.net SEGERMAN, Fax (513) 766-3883 Email: cettel@mac.com Trial Attorney for Plaintiffs Deere Credit, Inc., Deere & Company and John Deere Construction & Forestry Company 5 Trial Attorney for Defendants Clayton Railroad Construction, LLC, James R. McAdams, Sr. and James R. McAdams, Jr. (Paqe 6 of 41) (;) ()) JOHN DEERE Master Lease A reement CREDIT Agreement No. ..... rv 00&8401 CLAYTON RAILROAD CONSTRUCTION, LLC 500 LANE RD. , VVEST UNION, OH 45693 Lessor: DEERE CREDIT, INC. 6400 NW 86rn ST, PO BOX 6600, JOHNSTON. lA 50131-6600 Th1s Master Lease Agreement r'Master Agreement") 1s entered 1nto between Deere Credit Inc as Lessor (''we" "us" or "our") end the lassee and any co lessee below ("you• or "your") "Schedule" shall mean any Lease Schedule Signed by you and us, 1ncorporates the terms of th1s Maste; Agreement Lea&e" shall mean this Master Agreement and any Schedule TERMS AND CONDITIONS 1 Lease Term You agree to lease from us the property ("Equ1pment'1 descn m each Schedule for the Lease Term The Lease Term w1ll begin on the Lease Term Start Date and end on the Lease End Date All attachments and accessones on the Schedule and all replacements, parts and repws to the Equipment shall form part or the Eq1.11prnenl A Sdled\lle 1s not accepted by us unlll we s1gn 11, even 11 you have made a paymenl to us You agree to rcm11 to us the Lease Payments 1nd1ca1ed m the Schedule and all other amounts when l:lue and payable each B1l1111g Penod, even 1f we do not send you a bil or an m11o1oe YOUR PAYMENT OBUGATIONS ARE ABSOLUTE AND UNCONDmONAL AND ARE NOT SUBJECT TO CANCELLATION, REDUCTION OR SETOFF FOR ANY REASON WHATSOEVER. For any paymenl Which IS not received by 1ts due date, you agree to pay a late charge equal to 4% of the past due amount (not to exceed tho maXImum amount porml\led by law) as reasonable colectlon cosls, plus 1nterest from the due date unu pa1d at a rate ol1 5% per month, but m no event more than the lawful rate Re&tnctlv9 endorsements on checks you send us w1n nol change or reduce your obbgallons to us If a payment IS returned to us by the bank for any reason, you agree to pay us a fee of $25 00. or the maXImum amount perfnltted by law, whichever I& less Leas eo Payments and other payments may be applied. at our to any obligation you may have to us or any of our affllllltes If the total of all payments made dunng the Lease Term (and any Renewal Term), exceeds the total of an amounts dUii under the Lease by less than $25 00, we may retam such excess 2 Secu nty Deooad. If tho Schedule provides for a Secunty Deposit, the Deposit wdl be held by us 1n a non-mterest beanng account. comm1ngled With other funds We apply lhe Secooty DepOSlt to any amounts due under the Lease and, If we do so, you agree to promptly rom1t to us the amount to restore the Secunty Depos1t to the ongmal amount The Seounty Depos1t wlll be retumed to you w1thln thll1y day111 of term1natl0fl of a Schedule and final mspect1on by us, proVIded you are not 1ndofault 3 Taxea. You agree to pay us when 1nvo1Ced, al sales, use, rental, gross. recetpts and all other taxes which may be 1mposed on the EqUipment or 118 use You agree, at our discretion. to either (a) us annually for all taxes and governmental charges assoCiated With the ownership, use or possess1on of the Equ1pmen1 mclud1ng, but not limited to, personal properly and advalorem taxes C'Property Taxesj, or (b) rem1t to us each B1U1ng Penod our esllmate of the pro-rated eqwvalenl of such Property Taxes If the est1mated Property Taxes pa1d by you are greater than or tess than the Property Taxes pa1d by us, no adJUstment wdl be macle Taxes do not mdude those measured by Oll' nel mcome You agree to pay us an admm1strat1ve lee for the processmg of ta.xes, assessments or fees which may be due and payable unl:ler the Lease If applicable law reqwes tax returns or reports to be flied by you, you agree to promptly file such tax returns and reports and dehver cop1es to u& You a!jree lo keep and make available to us all tax returns and reports for taxes pa1d by you 4 Secuntv lntpmt Mlsa1ng we are the owner of the EqUipment and you have the nght to use i e Equipment unl:ler the telll'ls of the Lease If a Schedule 1s deemed to be a secured transaclion and not 11 lease. you (a) 9rant us a 111ten1st 1n the Eqt11pment (and all proceeds) to i&cure all of your obhg11t1ons under the Lease and any other obilgaiiOJIS, wh1ch you may have, to us or any or our affiliates, and (b) authorlle us to me fonanc1ng statements nam1n9 you as debtor Upon exerc1se or any Purchase Op11on Pnce, we Will release Oll' seounty 1nteres1 111 the Equ1pment prOVIded you have remitted the Purchase Opl1cn Pnce to us and no event of defaull hes occurred and 1s conllnUJng You agree to keep the Equ1pment free ami dear of liens and encumbrances, excepl those 1n our favor, and promptly nollfy us 1f a hen or encumbrance IS placed or threatened agamst the EqUipment You Irrevocably authonze us, at any 11me, to (a) lnierl or correct 1nformat1on en the Schedules, 1nciUdln11 your correct legal name, senal numbers and Equ1prnent descnpllons, (b) submd not1ces and prOQfs of loss for any reqLPrel:lmsurance, and (c) endoru your name on remittances for msunmce and EqUipment sale or lease proceeds MamtentJ'uy and You agree to (a} 5 USE THE QUIPMENT NL OR AGRICUL URAL, BUSINESS OR COMMERCIAL PURPOSES AND NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES, (b) not move the Equipment to another counly or stale w1thout not 1n us wlthm 30 l:la s. c o erate and ma1nta1n the }lH· OCI MLA 02,2005 EqUipment 11 accordance w1th all (1) laws, ordmances and regulatiOns, (2) manuals and other mstruct10ns ISSUed by the manufacturer(&) and suppller(ll}, and (3) lllSunmce policy terms and requR'ements. (d) perfOtm (al your own expense) all mamtenance and repa1n; nece&&ary to keep the Equ1pment 111 as good a condition as when de•vered to you, reasonable wear excepted, (e) not mstall any aCCEIIIsory or deVIce on the Equipment wh1ch effects the value, useful life or the ong1nai1Y Intended funct1on or use of the Equ1pment m any way, unle&& 11 can be removed Without damag1ng the Equrpmenl, (f) alow us and our agent(s) to lllSpect the EqUipment and all of your records related to Its use. ma111tenance and 111 sny reasonable t1ma, tg) keep any metenng devJOO Installed 011 the Equ1pment connected and 10 good working condition at all limes. (h) affix and ma1nta111. m a prornment place on the Equipment. any labels, plates or other mark11195 we may provide to you, ami [I) not p11mut the EqUipment to be used by, or to be 111 the posuss10n of, anyone other than you or your employees 6 lnsufflnC!!. You agree, at your cosl. to (a) keep the agamst all nsks of phySicel damage for no less than 1\s Termmat1on Value (as such term 1s defined 1n Set:t1on 8 betow), nammg us (and our &uccaS$01$ and ass19J1s) as sole loss payee, lind (b) ma1ntam public llab1lrty msurance. covenng personal InJUry and property damage for nolless then $1,000,000 per as additional occurrence, nam1ng us (and our successors and 1nsured An Insurance must be wrth compames and pobe<es acceptable to us Your obligation to 1nsure the Equ1pment cont1nues unt• you return the Eqwpment to us and we accept II. Each 1nsurance policy must proVII:Ie that (A) our mterest m the poliCY Will not be 1nval1daled by any act. omiSSion, breach or neglect of anyone other than us, and (B) the msurer w1U g1ve us at least 30 days· pnor wntten notJce before any cancellation of, or matenal change to the ' Unless you provide us w1th eVIdence of the requ1red ln&ul'llflce coverages, we may purchase msurance, at your expense, to protect our 1n1eres1s 1n the EqUipment ThiS 1nsurance may not (1) protect your mterests, or (2) pay any cla1m that you make or any darn !halls made aga1nst you 111 connection w1th the EqUipmenl You may later cancel any msll'ance purchued by us, but only after proVldrng us wrth eVIdence that you have oblaiOBd lhe 1115\Jrance reqwred by the Lease The cost of the IIISurance may be more then the cost of msur;mce you may be able to obla1n on your own 7 Loss or Damage. Un111 the Equipment IS returned to us 111 sa11sfactory cond1bon, you are responsible for all nsk of loss and damaQe, toss, theft, destruction or seiZUre of lhe Equipment (an "Evvnt or Los&") You must promptly notify us of any Event or Loss If the Equipment can be repa1red or replaced, you agree to promptly rel)lJcr or replace the Equrpment, 1111 your cost, and the terms of the Lease Will conllnue to apply If the Equipment cannot be repaired or replaced, you to pay us, w1thm 10 days of lhe Evenl or Loss. 1ts Terrn1nabon Value as ofthe day before such Event of Lo&s occurred Upon reoe1pt of the Termmallon Value, we Will tral16fer to you (or the msurance c:ompany) all of our nght, IItie and mtere$lln such 1tem(s) of EQUipment (each an "Item") AS-IS, WHERE·IS, WITHOUT ANY WARRANTY AS TO CONDITION OR VALUE All Insurance proceeds must be paid d1rectly to us, and we may apply any excess msurance proceeds to any other amounts you owe us or any of our affd1ates 8 Early Termmallon If you request, and we agree to, a tenmnat1on of a Schedule before the exp1rat1on of 1ts Lea$e Term, you agree lo (a) l:lehver lhe EqUipment to us at the t1me and pl1109 we choose, and (b) 1f the net proceeds we rece1ve from any sale, lease or other d1spos•t1on of the Equipment (after dedudmg all of our costs and expenfes) IS than the Temnnat100 Value remit to us the difference The "Termma11cn Value• of any Item or Eqlllpmani shall be th11 greater of Fa1r Market Value or Net Book Value as of the dale of deterrrnnat1011 or any early termination. loss or default "F111r Market Value• or "FMV" 1s (1) the value that would be obta1ned 111 an arm's length sale of that Item between an Informed and w1111ng seUer under no compulsion to sell (but With no l:leduct1on for sh1pp1ng costs), and an Informed and w1lllng buyer. as es11maled by us. plus (Z) th11 e11bmated cost to repa1r and refurbish the Item so thet 1t ISm satisfactory condibon, as descnbed 111 Sect1on 9 "Net Bock Value· for any Item IS the sum of (1) all Lease Payments and any other amounts then due and payable to us, plus (2) the present value of an remam1ng Lease Payments and other amounts, diSCOUnted at the Internal of Return or 1f a rate 1s. 501 forth rn the applicable Schedule, such discount rate '(the Discount Rate ), plus (3) the amount of our tndlrect costa of ong1na11ng and admm1stenng the applicable Schedule, plus (4) the present value of the Purchase Optton .!!.. there 1s no Purchase Option Pnce, Page 1of2 (EX. A- LEASE) EX. A - CONTRACTS; (l'i!.ge ? ot: 41) ------·-··------------------- ······---------------------------------------------------------------------··· we d1st:ou1ted at the Rate "Internal Rate of vsmg standard finance lechn1ques with the EqUipment Cost, Lease Payments, Lease Term 9nd Purchase 0p11on Pnce (or res1dual value assumpbon) as the vanables 9 Botum EgUJDmDnL If a Sche(lUie IS lernanaled lor any reason and you do nol (a) retum the Equipment to us, (b) exercase any Purchase Optton, or {c) eKSrcase any Renewal Opt1on, you agree to remtt to us, un111 such bma as the Equtpmenl ts retumed to us 1n accordance with the provts1ons of thts Section. lease payments each month equal to lhe hlghur of (t) the monthly fa1r market rental wlue of the Equtpment, as determtned by us tn our sola d1scret•on, or (u) the monthly Lease Payment set forth tn the Schedule (or the monthly lease payment equMIIent tf th11 lease Payments are olher than monthly {e g , for annual lease Payments, the monthly lease payment equiValent would be calculated by dlvtdlng the armuaiLease Payment by 12)) All Equ1pment must be retumed to the place destgllaled by us, at your expense and tn sallsfaCiory condtllon, along wtth aU use, and repatr records Equ1pment ts tn satisfactory condtbon tf 11 IS 111 as good a condtbon as when the Equtpment was de,vered to you, re8$onable wear excepted, and conforms to the standards of any Equspment Return Provisions tncorporllled tnto the Lease 10 R!!!Jill. You wtll be m default tf (a) you fa11 to remst to us any lease Payment or other payment when due. {b) you breach any other prov1s1on of the Lease and such default continues for 10 day&, (c) you remove any Equtpment from the Uruted Slates, (d) a pebbon IS Hied by or agamst you or any guarantor under any bankruptcy or tnsolvency (e) a default occurs under any other agJVement between you (or any of your affiliates) and us (or 90)' of our affiliates), {I) you or any guarantor mergn wtth or consoltdates tnlo another entJI)', sells substanbally aU 1ts assets. dtssotves or termtnates tis eXIstence, or (If an sndtvtdual) dl8&, or (g) you fatl to rnatntasn the msurance reqwad by S8ctton 6 Tsme IS of the essence Ul1($er the Lease 11 Bemedln H a default occurs. we may do one or more of the rollowmg (a) reqUire you to retum the Equ1pment tn the manner oulltned 1n Seclton 9, or take posseSSJon of the Equ1pment. {b) recover from you, AS liQUIDATED DAMAGES FOR LOSS OF BARGAIN AND NOT AS A PENAl.TY (t) If the Equtpment IS so returned, the sum of (1) all Lease Payments and any other amounb then due and payable to us, plus (2) the present value of all remam1ng Lease Payments and other amounts. dtscounted at the Discount Rate, plus (3) the unamorttzed amount of our md•rect costs of ongtnatmg and admm1stenng the apphcable Schedule (the •oefault Amount"), or (n) tf the EqUipmerot 1s not lill 111tumed. the Terrmnallon Value as of the date of such default. (c) lease or sell the EqUipment or any port1on thereof at a publte or pnvate sa111 and apply the n11t proceeds we rece1ve from any sale, lease or other dtSpoSIUon of the Equspment (after deducttng all of our costs and expanses) to the Default Amount, With you rematntng !table for any deficiency, (d) declare any other agreement$ between you and us (or 90y of our !Imitates) Ill default, (e) termtnate any of your nghb (but none or your obl1gallons) under any Lease and any other agreement between you and us (or any of our affiliates), (f) charge you for the expenses tncurred 1n connocbon w1th the enforcement of our remedl(!s mcludlng, wrttloulltm11abon. repossesston, repatr and colleclton costs. attorneys' fees and court (g) exerCISe any other remedy avatlable at law or tn equtty, and (h) take on your behalf (at your expense) any act10n reqUired by the Lease whtch you fa1l to take These remedies are cumulative, ara tn addtlton to any other remedtes proVtcled by law. and may be concurrenUy or separately Any fatlure or delay by us to eKeretse any nghl shall not operate as a wa1ver of any other nghl or Mure nght 12 e!JsJipnmont. You will not n6l{ln, pledge or otherwtse transfer any of your niillts or tnlerests tn the Lease or any Equtpmentwlthout our pnor wntten consent My as&tgnment w1thout our consent Will be vo1d The Lease shall be btnd1ng upon any $1/Ccessor or peiT!IItted asSignee We may ass1gn the Lease or our mlerest m the Equ1pment at any ttme Wllllout nobce to you lind Without your consent We may proVIde mformat1on 11bout you to any prospective assJgnee or partiCipant You agree not to assart agatnst our any datms, offsets or defenseli whtch you may hll\/8 agamst u& You are for all st Date OCI MtA 0212005 or any person, tn •any manner related ttle or the thereof. 1nelud1ng Its 1-!lle. condtllon or possesston agree to defend and tndemmfy us, and us harmless. agatnst au Clatms, although we reserve the nghtto control the defense and to select or approve defense counsel You wtU prornpUy nobly us or all Cla1ms made Your habtltty under thiS S8ct10n sa notttmrted to the amounb of tnsurance reqUired under the Lease This tndemmty continues beyond the termmabon of a Schedule, for acts or omt&Sions, whtch occurred dunnp the Lease Term 14epresen!atlons and Waqantles You represent and warrant to us. as o lha dale of Master Agreement lind of each Schedule, ancl covenant to us so long as the Lease t& m effect. that (a) you not cnange your name WllhOIJI gtvsng us at least 30 days' pnor wnnen nobce, (b) each document you s1gn and deltver to us ts duly authonzed, executed and dekvered by you, and IS your valtd, legal ami blnd1ng agreement, enforceable tn accordancll wtth tts terms, (c) executiOn, del•very and performance by you or any Lease does not and Will not (1) VIOlate 111ny applicable law, (2) breach any order of court or other governmental agency, or of any undertaiYng you are a party to or by wh1ch you or any of your properties are bound, (d) you w111 comply w1th an appiiCBble laws. ordtnancos and regulabons, (e) an tnformabon you have gtven to us 1s true, accurate and complete, and (f) 111nce the date of tl1e mosl recent nnanaal mformalton gtven to us. no matenal adverse change tn your bus1ness. assets, or prospects has occurred You Will promptly deliver to u& 11uch financtal statements. reports and olher tnformallon as we may request Unless you are an indiVIdual, you also represent and warrant to us that (a) you are and wtll rema1n duly organtzed. validly exlliling and 1n good slandtng under the laws of your 1unsd1clton of organ!labon, (b) you are qualtfied to do busmen un!ler the laws of all other JUnsdlcbons where quahlicatton IS requ1rad or atl11188ble, (c) you not change your )Unsd1c11on of organ..:auon or organtzatlon type without at least 30 days' prsor wrrttan nobce to us, end (d) tha execution, oehvery and performance by you of the Lease Will nol breadt any provtston of your orgamzabonal documents 15 Govermng law; Vgn111, EACH LEASE Will BE GOVERNED BY, AND CONST UED IN ACCORDANCE WITH THE LAWS OF IOWA, WHERE THIS MASTER AGREEMENT IS ACCEPTED AND ENTERED INTO, except for tiS conHtct of laws prOVIStons You trrevocably submd to the non-exclu&tva JUnsdtcbon and venue of rederal and &late courts located 1n Des Motnes, Iowa and will not clatm 1t '' an 1nconven18nl forum for legal acllon YOU AND WE IRREVOCABLY WAIVE ANY RIGHT YOU AND WE MAY HAVE TO A JURY TRIAL. 16 M!JC1fllaneoc)s WE HAVE NOT MADE, AND 00 NOT MAKE, ANY REPRESENTATi N OR WARRANTY. EXPRESS OR IMPUEO, AS TO THE EQUIPMENT'S MERCHANTABIUTV, FITNESS FOR A PARTICULAR PURPOSE, SUITABIUTY, OR OTHERWISE WE ARE NOT LIABLE FOR CONSEQUENTIAl OR SPECIAL DAMAGES You acknowledge thai no suppher or dealer of the Equl!)ment ts an agent of ours. or authonzed to act for or bind us You agree not to w1tllhold any amount you owe us 1f you bel1eve you have a cla1m aga1nst us, or any Equtpment suppllllr(s) or manufacturer(s), but to pursue that claim Independently Any clam you have agatnsl us must be macSe wllhtn two years after tha event that caused 11 All notiCes must be 1n wnttng and wtll be del!med g•ven 5 days aner ma•tng to the cntunded reapcent at tts address tndiCBted above, unless chan9ed by a notiCe gwen m acx:ordance wrth thts Sectton Each Lease supersedes and replaces all pnor understandmgs and commumc:altOns (oral orwnnen) concemmg the subjuct matteJ thereof No part of any Lease can be amended, wa1ved or term1nated except by a wnllng stgned by both you and us ArroJ part olthts Master Agreurnent may be Signed 1n separate counterparts that, together, w111 conslrtute one document If a court finds any part of thts Master Agreement to be snvahd or unenforceable. the remainder of thts Master Agreement wtll rematn 111 eff!ilcl You penni! us to monttor and record telephOne conversations between you and us All of our nghts uncler !i!Sch Lea5e shall rema10 1n effect after the exp1r<d1on of the Lease Term or lllrmsnabOil of the Schetlule 500 LANERD WEST UNION, OH 45693 Tttle Page2 ofZ Date RECEIVED THROUGH US MAIL APR 1 2 2010 DEERE GREDIT, lNG. f/41 J. u App 101104539 (!?age 8 of 41) JOHN DEERE CREDIT Co-Lessee Addendum By s1gmng below, each of lhe llere1nbelow (euch, a 'Co-l.enee") acknowledges and agrees lhat (1) the Lessee llld1cated on the above referenced Master lease Agreement (lhe 'Master Agreement") and EACH CO-LESSEE SHALL BE JOINTLY AND SEVERALLY LIABLE FOR AHY AND ALL OF THE OBLIGATIONS set lorlh m the M11$ler Agreement and each Lease Schedule entered mto from lime to lime lhere11nder 1ncllld1ng. but not hiTIIIed to, the punctual payment of any penod1c payments or any other amounts which may become due and payable under the terms of the Master Agreement, whether or not said Co-Lessee &lgm; each Schedule or receiVes a copy thereof, and (2) 1t has rece1ved a complete copy or the Master Agreemerll and understand$ the tenm; thereof 111 the event (a) any Co-Lessee falls to remit to the Lessor 1nd1cated above any Lea&e Payment or other payment when due, (b) any Co-Lesseu brellches 11ny olher prOVISion of the Master Agreement or any Lease Schedule and such default cont10ues for 10 days, (c) any Co-Lessee removes any Equipment (as such term 1s more fully desenbed m the applicable Lease Schedule) from the U111ted States. (d) a petrt1on IS filed by or aga1nst any Co-Lessee or any guarantor undar any bankruptcy or law, (e) a default occur& under any other agreement between any CO-Lessee (or any of Co-Lessee's affiliates) and Le&aor (or any of Lessor's affiliates), (f) or any Co-Lessee or any g11arantor merges Wllh or consolidates mto another unllty, sells subl>tantiBlly aU 1ts assets, diSsolves or term•nates 1ts existence, or (If an dl8s. or (9) any Co-Lessee falls to ma1ntam the Insurance requ1red by Seellon 6 of the Master Agraement, Lessor ll'llJY pursue any and all of the nghts end remedieS ava1lable to Lenor under the tenns of the Master Agreement d1redly agaulSt any one or more of tile Co-Lessees Nothing contaNleO 1n \hi$ Addendum shall requ1re Lessor to first seek or exhaust any remedy aga1nst any one CO-Lessee pnor to pursuing any remedy agamst any other Co-Lessee(s) caprtaiiZedterms not defined 1n lh1s Addendum shall have the mean1ng prOVIded to them 1n the Master Agreement By Date + J/tai?o RECEIVED THROUGH US MAIL OCI MLA CO-LESSEE AOP'SNDUM 02/2005 P&Qe 1 of I APR 1 2 2010 DEERE CREDIT, INC. App 10804539 (Fags l of 41) ------------------·--------------------------------·--------------------------------------------------------- Lease Schedule CREDIT i.OOO Lease Schedule No. Master Lease Agreement No. Lessee: (Name& Mdn,.•J Leas or: 0068401 CLAYTON RAILROAD CONSTRUCTION, LLC 500 LANE RO, WEST UNION, OH 45693 DEERE CREDIT, INC. 6400 NW 8611 ST, PO BOX 6600, JOHNSTON, lA 50131.0000 LEASE TERM Date Date t Of Payments Lone Payment SIIIHIUseTax Total Lease Payment Purchase Option Pnee 0311812010 0311812012 24 $1,&24 46 $187 01 $2,011 47 $2&,356 80 Renewal Term Start Date Renewal Term End Date I Of Payments RENEWAl. TERM Ranawul Loaso Pay mont Amount Sales/UIJe Tax Total Renewal Lene Purchase Option Due oate 1•' Payment Due Date Discount Rate Advan.:e Lease Payment 18 0311812010 Internal Rate of Return 1111nus 2 percent (2%) DocumentaUon Fae $000 Sec:urtty Deposit $000 Lease Term Start Lease Term End PAYMENT TERMS Billing Pertod Pnce PAYMENT DUE AT SIGNING ln'egular Payments £a Monthly Total Due At Signing 0 Quartetty 0 Semi·Annual OAnnual 0 Irregular ••$2,011 47 $2,011.47 ''Advanoo Lease Payment the ftn;t (1) ancllast [0) Lease Payment(s) 'Ma&ter Agreement' shall mean the above referenced Master Lease Agreement 'Schedule" =;hall mean thiS Lease Schedule "Lease• shall mean thiS Schedule and the Master Agreement All of the terms and conditions set forth m the Master Agreement and any amendment. addendum, schedule or a!tachment thereto or hereto lnc:ludmg, but not lumted lo, the Mamtenanoo Addendum are hereby mcorporated and made a part of 1111$ Schedule bem Pavmen!& You agree to remd the Lease Payments (and applicable sales, use end properlY taxes) on the dates noted abow and au other amounts wnen due to OEERE CREDIT, INC , P o Box 4450, carol Stream, IL 60197-4450 Hourly Charg911. You certify thatlhe hour meter reading on each Item or Eqwpment IS accurate as of the date you s1gn tills SChedule If you use any Eqwpment dunng the Le;n;e Term for more !han the Hourly Limit lndJCatltd above for that •tem, you WJII pay to us WJthm 10 days of the Lease Tenn End Date (or any eerher lenmnat1on of the Lease) an amount equal to the Excess Hour Charge for that Item for eacn hOur 1n excess of the Hourly L•mll If 1t1e Lease IS termmated, cancelled or extendild for any reason, lhe Hourly Llllllt will be pror11t11d by us 111 our sole di&CfelJOn Pt,![chase Option. You may purchase the Equ1pment on the Lease Term End Date (or the Renewal Term End Date) for the applicable Purchase Opllon Pnce (plus applicable Taxes 1nclud1ng elll1mated property taxes), provided (1) you are not 1n default, (2) we reC8IV8 wnllen not1ce of your mtent to purchase the Equ1pmentet least days before lhe Leillill Term End Date (or the Renewal Term End Dale), and (3) we rece1ve the Purchase Opbon Pnce and any other amounts you owe us on or before the Lease Term End Dale (or the Rsnewal Term End Date) Upon receiJ)t of the Purchase Opt1on Pnce, we transfer to you Bll of our nght. lllle and 1nterest Ul 5Uch ltem(s) of EQUipment AS·IS, VIIHERE·IS, WITHOUT ANY WARRANTY AS TO CONDITION OR VALUE Renewal nrm IF A RENEWAL TERM IS PROVIDED FOR ABOVE, THE LEASE TERM SHALL RENEW AUTOMATICALLY FOR THE RENEWAL TERM UNLESS (1) YOU NOTIFY US AT LEAST SIXTY (601 DAYS BEFORE THE LEASE TERM END DATE THAT YOU DO NOT INTEND TO RENEW THE LEASE AND YOU RETURN ALL OF THE EQUIPMENT ON OR BEFORE THE LEASE TERM END DATE, QB (2) YOU EXERCISE THE PURCHASE OPTION You agree to rem11 to us eo DC1 MLS OL (NI STDT) 11120114 the Renewal Leese Payments JJ1CIIcaled abOVII (plua applicable taxes and other amounts) when due and payable each B1nmg Penod, even If we do not send you e biU or an 10Vo1ce Representations and Warranties You represent and warrant to us, as or lhe daJe you thts Schedule, that (1) the Eqwpment was seleded by you. (2) tne !Oqu1pment (mcludlng all manufacturer manuals and lll$1nJdJOOs) luis been deiiVell!d ID, and exammed by, you, 13) the safe operation and the proper of the Equrpment were explalll8d to you, (4) yo1.1 rece•wd lhlt wntten warranty applicable to lhe Eqlllpment and understand tnat your nghts under the wnnen Vl!lrfEIDty may be •llllted, (5) the IS uncond11Jonany and Irrevocably accepled by you as bmg IJUrtable for lis 1ntandltd usa, (6) the Equipment IS 10 good cond1t1on and repa1r (operatmg and othei'Wise), (7) lhe Equipment shall be used only for The purpose ll1CIIcated herem, (8) except as diSclosed to us, netlher you nor any person related to you has an eqwty 10terest•n the E(IUlllment on the Lease Term Start Date, and (9) an ll1formabon proVIded to II$ by you 15 true and correct You acknowledge and 11gree that (1) we dtd not seled, manufacture or supply any of the Eq111pment, (2) we acqwe!l the Equipment at your <kect1on, (3) you selected the $Uppher of The Equ1pment, (4) you are entrtled to an manufacturer warrant•es ('Warranty Right&") and we ass1gn aU Warranty Rights to you, to the extent ass.gnable, (5) you may request an acwrale and complete statement of the Warranty R1ghts, 111clud•ng any d•sclavners and llm•tallons. directly from tne manufacturer, and (6) you ass1gn to us au your nghts (but none of your obbgallons) under al purchase orders, purchase agreements or Similar di)(;Uments relallng to the EqUipment You wa1ve all nghts and remedies conlerrell upon a lessee under ArtiCle 2A of the Urn form CommerCial COde Lease Payments may be based on tho assumpbon tllat we Will be entitled to certa111 tax benefits as the owner of the EqUipment If you take or fall to take any act1011 that results 1n a loss of such tax benefits, you will pay us, on demand the amount we calculate as The value of sudllost tax benefits Page 1 ot2 RECEIVED THROUGH US MAIL APR 1 2 2010 DEERE CREDIT, INC. App 10904639 (Page 2 of 41) - - - · - - - · - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ------------ ------------------------ --·--------- ------------------ -------------------------------- Lease Schedule - Equipment List Equipment 10247 HWY 59. WHARTON, TX, 77483 OUTSIDE c1ly limits [J WHARTON COUNTY BY SIGNING THIS SCHEDUlE, YOU AGREI: TO ALL Of THE TERMS AND CONDITIONS OF nilS SCHEDULE AND THE MASTER AGREEMENT. ni\11..1\\II'IU CONSTRUCTION, LLC 500LANERD weST UNION, OH 45S93 By Date By Title RECEIVED THROUGH US MAIL OCI MLS OL (N1 STOTJ 1112004 Pago 2 o1Z APR 1 2 2010 DEERE CREDIT, INC. App t0904638 (Page 3 of 41) --------- ----- --------------------------------- --------------------- ---------- -------- ------- JOHN DEERE CREDIT - -- --- --------- Return Provisions Master Lease Agreement No. 0068401 CLAYTON RAILROAD CONSTRUCTION, LLC 500 LANE RD. , WEST UNION, OH 45693 DEERECRE 640D NW 8601 ST Lessor: lA 50131-6600 The follOWing Equ1pment Rettl"n ProVISIOns are hereby mcorporated mto and made a part of lhat celtaln John Deere Mnter Lena Agreement datecl n of the 18 day of Milrdl. 2010 (the 'Master Agreement"), and entered mto between Deere Credit, Inc, as Lessor ("us", "We" or "our"), and ClAYTON RAILROAD CONSTRUCTION, LLC, as Lessee ("You• or "your"") Pur$uant to Section 9 of the Master Lease Agraement, all Equ1pmant must be returned to us 1n satisfactory cond1t1on Unsata;factory cond11lon shall 10ctude any cond1t10n descnbed 111 Sections 1 through 4 below ("ExcessiVe Wear and Tear") 1. Meshamcal Compulet systerna or safety and ertli$Sion control equ1pment not 1n proper wooong order Mechamcal components that are m1551ng, broken or unsafe or that do not operate normally, other lllall normalt1.11e-up$, giVen 11111 age of the equipment Wear on power tra•n assembly that excaeds manufacturer's then QJrrent standards for normal wear and tllar Any a.- fillers not w1thm manufiidurer's specifications Any giiUIJii!S or fluid 1nd1cators that are damaged or do not functiOn, the electneal system falls to operate properly, the battery falls to hold a charge or any hsme&SeS thai are not bed down and kept secured, dry and clean Any p11111ps, motors, valves or cylinders not m good operabng c;ondlbon or that fall to meet manufacturer's rated or hydrauliC system exceeds manufacturer's then-current contammant standards (as shown by oil &ample analySIS) Eq111pmen1 not aeNtced according to the manufacturer's operetmg manual Any lubncanl, water or NC seal klaks A B C 0 E F G B c §!!!!!.!! 4 A B 5. A Dents larger than 2 1nches 1n d1ameter ExcessMI number of denlll or scratches Any scratch 8" or longer that reaches the metal sk1n Any ch1p the SIZe of a quarter or larger or mutbple small chips Within one square foot Substandard pamt repa1rs, 5Uch as peehng, or m1smatched shades that evidence poor condition m companson wllh ongmal pamt and require repa1ntmg at 11 cost m excess of B C 0 E G H 1 3. 21!1Qr. All wartanty and PIP work must be compleled pnor to the Term1nat10n Date of the lease Schedule relatmg to the Equ1pment B The Equipment must be cleaned pnorto 1111 return 6. Hour Meter For each 1tem of Equipment returned with a broken or miSsmg hour meter, you shal accept an InVOICe from u:s and rem1tto us an amount equal to $1,000 You agree that the hour meter Included With the Eqwpment IS COflciUSIV8 of the number ot hour& of Equipment use 7. $200 F Equ1pment no1 operated or ma1nta10ed rn accordance w1th the manufacturer's spealicallons or 1f component&, luels or lluld&, on or 10 conned1on With the Equ1pmentthal do not meet manufacturer's standards were used Any other damage that m the aggregate costs $250 or more to repa1r or th8t make5 the Equ1pment unlawful or unsafe to operate A S!1!!!2!· 2. Unclean condrt10n of operator Holes, tears, or bums on !he d11sh, noor cover$, -ts, headliners, upholsclery or mtllnor Rust hOles 1n the bocly metal or a rust spot that covers more than a 4-mch square area Any glass that mU$1 be replaced due to craCks or miSSing glass and any Windshield damages greater than $50 1n amount All frame damage and substandarcl frame repair$ Any bres or tracks that (a) have broken side wans or exe8$S1ve cuts or damages. or (b) have tasa than 50% of the ongrnat useful life remamng, or (c) are not of the &arne SIZe, type grade or equiValent quality manufacturer as were ongmally ncluded on the Equipment Eness fnvolces for Wear And Igar Upon any of the Equipment, we &hall, 111 our sokl diSCretion, determine the eXI$Ience of any Excessrve Wear and Tear In the event any 1tam of Equipment 111 returned to us with ExcessiVe Wear and Tear. you &hall, at our sole e1ther (1) accept an InVOice from us and rem1tto us the coat of repamng or replaong the affected component(&) which we determ1ne necessary to return the Equ1prnent to ds requ•red cond11ion, and/or (11) accept an mvotce from us and rem11 to us an amount equal to our est1mate of (1) the cost of new bres or tradls II tha t1res or truc:ks are damaged due to broken 11rde wall& or excemve wts or damage , or (2) the cost of new !Ires or tracks by the difference between (A) our esbmatll of the pwcentage of the useful hfe of the lire& and tracks then remlllmng, and (8) fifty percent (50%) For ex11mple, r1 you return Equipment With t1res having 20% of thelf useful life remammg, you would rem1t to us an amount equal to 30% of the cost of new t1res ([50% 20%) mulbplled by the cost of new hres) Your fa11ure to remit the reqwred payment to us w1th10 ten (10) days of clemand shall constitute a default by you under the terms of the Lease Platfonn A Heavy 1ntenor aoll or strong odors, such as manure. that cannot be removed by general cleamng DEERE REDIT, INC. 6400 NW 86'" ST, PO BOX 6000 JOHNSTON, lA 50131-6600 500LANERD WEST UNION, OH 45693 By By ..:tMSRMCAOAMS JR. O'MIER Date TillS RECEIVED THROUGH US MAIL DCI EQUIPMENT RETURN PROVISIONS 0212005 Page 1of1 APR 1 2 2010 DEERE CREDIT, IND. App 10904539 (Page 4 of 41) ------------------------------------------------------------------------------------------------------------o--------- ,... 0') (;) II JOHN DEERE CREDIT Master Lease Agreement No. 00&8401 CapitaliZed terms shall have the meamngs set forth 1n the above referenced Master Lease Agreement Lessee hereby represents end warrants that (1) all of the Equ1pment more fully descnbed m the above referenced Lease Schedule was selected by Lessee, (2) aU of the Equipment and the Operetor's Manuals have been delivered to, and rece1ved by, Lessee, (3) All of the Equipment h<JS been mspected by Lessee and 1s 10 good workmg order, (4) all of the Equipment 1s unconditionally and Irrevocably accepted by Lessee for all purposes under the Lease, (5) the safe operatton and the proper serv1cmg of the Equtpment have been explained to Lessee, {6) lessee receiVed the manufacturer's wrmen warranty apphcable to the Equipment and Lessee understands that 1ts nghts are subject to the hmltabons outlmed theretn, (7) No Event of Default has occurred and IS conbnutng, and (8) no matenal adverse change m the financial or bustness cond1t1on of Lessee has occurred stnce the date of the last financial statement submttted to Lessor by lessee Stgned by Lessee's duly authonzed representative on the date shown below 50DLANERD WEST UNION, OH 45693 By Date By Tttle RECEIVED THROUGH US MAIL APR 1 2 2010 OCI DEUVERY & ACKNOWLEDGMENT 111200. Page1 af 1 App 10904539 DEERE INC. (Page 5 of: 41) <:) m ,.... .... DJoHNDEERE CREDIT 0068401 lessee: (,.,.,Md,...l Lessor: As Lessor and Owner of the equipment, Deere Credit, Inc. Is responsible for filing and paying property tax to the appropriate taxing authority Lessee should not report this equipment on their property tax mum. Lessor wtll btll Lessee for property taxes upon recetpt of an assessment from the taxtng authonty Lessee Will Lessor for P.rOP.ertv taxes upon recetpt of an tnvotce from John Deere Credtt Please refer to sectton 3 of the Master Lease Agreement for further tnformatton The equtpment ltsted on the attached Master Lease Schedule - Equtpment Ltsttng wtll be reported to the follOWing taxtng Junsdictton(s} 0 10247 HWY69 Check here tf OUTSIDE City bmtts Street Address TX WHARTON WHARTON CIIY • CoUll)' BELOW: 0 Check here If OUTSIDE crty hm1ts Street Addle$$ State D Check here If Sales/Use Tax Exempt Ztp County Check here tf Property Equ1pment Usage: The understgned (the "Lessee") acknowledges that they venfied the equtpment locatton listed understands that the Lessor w111 file and pay property taxes and that the Lessee tS reqwred to reimburse Lessor upon receipt of an mvo!C6 for taxes Fatlure to reimburse Lessor for property taxes shall conslttute an Event of Default as desert bed 600LANERO By Date WEST UNION. OH 45693 RECEIVED THROUGH US MAIL APR 1 2 2010 OCt PROPERTY TAX ACKNOWlEDGMENT 1112004 DEERE CREDIT, INC. PaiJ'I1 <>f1 App 10904539 (Page 3 of 11) • Application 10: 10577S75 Version 2 JOHN DEERE CREDIT FIXED RATE CONTRACT AGfC&CE Business or Commercial Use 1 LOAN CONTRACT • SECURITY AGREEMENT Contract Begin Dale. 12120f.!UQ7 UMBER . I below, PHYSICAL DAMAGE INSURANCE REQUIRED: If you elect Physical Damage does not Include liability insurance coverage for bodily Injury or property damage 'caused to others.U I IN3URANC:t DlSCI-08URI!S: tNIJ' obltv1 .. Keoplabl, 10 us. Ph"f'UI II' "-'II not bt prov16MJ urtl'e-n you ailf" &llht rtgr.J prtiQI,Im is llld.c.IIEd : .: • I ... n PHY J.\1\tf.S :100 I( I P 0 MC,\0,\Mli SK Mil 011 1. Parties. This Loan Contract-Security Agreement ('Contract") is entered into between ihe Deere & Company ("we•, "us" or "our''} and the ·' oorrower(s) indicated above ("you• or "your"). II more than one borrower Is each borrower shari be jointly and severalty liable lor ali of lhe under this Contract · I 2. Loan. You hereby for a loan in the Amount Financed shown below, which, if accepted by us, the loan will be (a) subject to the terms end conditions set forth in this Contract, and (b) used to finance the balance due on the purchase from the Seller of the equipment and/or service!! described below (the "Equipment"). All attachments and accessories itemized on this Contract and all replacements. parts and repairs to Equ•pment shall form part of the Equipment : . . 3. ln•tallment In addition to any down payment. you agree to pay us the Total or Payments by remitting each of the Installment 1 Payments on or before the due dates indicated. This Contract is not accepted by us until we sign it, even if you have made a payment to us. ! You agree to remit to us the Installment Payments and au other when due and eacll Billing Period, even if we do not send a bill or an invoice. YOUR PAYMENT OBLIGATIONS ARE ABSOLUTE AND UNCONDITIONAL, AND ARE NOT SUBJECT TO CANCELLATION, REDUCTION OR SETOFF FOR ANY REASON WHATSOEVER. For ally scheduled payment which is not received by its date, you agree to p<Jy us interest on the unpaid amount at a rate of 20% per annum on that scheduled payment. but in no event more than maximum lawful rate, from the due dale until paid. Restrictive endorsements on checks you send to us Wlll not change or reduce your to us. We will not lose any rights If we accept late or partial payments or delay enforcing your right& under this Contract. If 1.1 check or electrohlc payment authorization you give us is dishonored upon 11rst presentment, you agree to pay us a fee of $25.00, or the maximum amount permitted by law. whichever is les10. lnstallmenl Payments and other paymenls, including proceeds of insurance or any sale ol the Equipment, may be ·j applied, at our discretion and in spite of any instructions you may provide, to any obligation you may have to us or any of our II the total of all payments made by you exceeds lhe total of 1.111 amounts due under this Contract by less than $25.00, we may retain such excess. .. JJ ·; EOVIP!o!ENT JlO Skill Slrcr l,oodor SlS,4flO.IJII I'ALI.F:T I'OI!K SI,OpjJ.IJil 12/21/2007 ,.,...tT,•• s.ru.......,Nor. IOS7767S e.... DOC3015 ,...,....,Dooo Augusl, 2006 AgricullursAgricu/lural "P....,,,..,,o· 10577675 111111111111111 v.. 2 lmlllllllllllllllllllllllllllll ... =...;. m : : ,. .. DEERE&c (EX. C- 7541) (Page 4 or ll) I QTY, I I MFR ! ' rRADE.fl'l"and' :ASH DOWN P. ' ·t AMOUllf PROCUCT ID NO. SO.I"l , TOTIIL fRAOE·III: CASH DOWN PAYM!NT: TOTAL TAAOE·Itl PLUS llOWII· Doc- III.<OUNT OF EACH a Thl:ll SI'IDwn bttow' n Fmanco Ch1t91, Tall) of Pa,man11 anO Tttll PtiCI lfe Hilmlltl oas.ct upon tlw atll.llfiPtjon 1na1 p.irmonh •• be rn.Ht on N oa.,...._.,. DUe dille> KCOrc:ll"'g IO V!t intllllmenl tQMdUit 1tl• K(Uil Fil\enat Cfwrljl•, 'T;tco1f of .,dl fglal,.... Pnca fN1 dtPfncti\9UJIOtttha " " ' orl3• peymen1ortcf.taullld 20. 3007 Tne flfst Installment Peyment Due Dale is Jenuary 20, 2008 a/lfJ eBch successivv Instalment Payment is due on tne Slllrnil day of the Month lhemafler. (the "8i/Jing Period"}, un111ss DlhetWise provided below; NUMBER OF P"YI.IENT$ SI),IIO R!iNTAL APPUED. : C... IE FINANCE CHARCf BEGINS i' ro' inoiO<Im""• ITEMIZATIONQFAMQUN(FINANCED SALES TAX {Pood to c;o., Ag....:la•) ; CIISH h To•) DVI! DAlf •Scl.IMI TOTAL D0W1i PAYiol!;riT (Sum ol Trodo·IR' Co,. Ooooa Pay.,.nl) .z Ul'lP/olO PAYMENT I) SZT,IIi)l),fiU (The O• CASM PRICE 1tYO!.t" Kall.tll Wllh INSURANCE P8td IO lnsWaJ\CII CQn'PW"IU) the t'1'0\tf'll af uwcM i!IAppk:ab,.)l lo you FINANCE CHARGE !llo•odonl,.&) Tnt aollar iirnounl Ute ANNUALQ'Ht-11'. yea11r ra,_) PERCENTAGE RATE (The Ol y01.1r & 7) 1"ha ID'-" P"Ct or '(OIM p!.lf"tM$1 tJn Cledot, ..ic.Jud1ng \he- TOI&I Poymonl ol $UOO 00 5U.Illl SI:W.UO Pe 12,1"1 I 1 "'•Ott Will c;o•t you lOTAL Of PAYMENTS U.40U I ' 7J lnt lmo""" glid atler you Mv1 madw . . Qf lhe IMI•nrnent P,avmtrut •• Uh1td\lled TOl"\. SAl6 PAICE tl•nes1, '· 4A. fJ. " . ' :t:_ OFFICIAL FEES (Poid oo Puor,c Oll'ocloi>l MICUNT fiNANCeD !UnU 3. 0, OA. ' Sl4,!1JJ(I.00 Duwn SJ,Ilfl-1.40 ' St7,7;.MQ ·j SJII,14(tAU I 4. Prepayment. You may prepay your obligations under this Contract in full at any time by paying the unpail;l principal balance, any earned ard unpaid finance charges (calculated using (a) the Date Finance Charge Begins. regardless of when we execute this Contract. and (b) the actuarial method or such other method as may be required by ·any applicable law), and any other amounts th$n due and payable {the "Account Balance"). The unpaid principal balance includes any origination lee · . ; 5. Interest; Missing Information. You grant us a securily Interest in the Equipment (and all proceeds thereof) to secure all of your • or assignees and you agree that ariy obligations under this Contract and any other obligations which you may have to us or any of our security interest you previously granted to us or our affiliates shall also secure yo1.1r obHgallons under this Contract. Upon receipt of all amouuts due and to become due U(lder this Contract, we will release our security interest in the Equipment provided no event of default hn occurred and is continuing. You agree to keep the Equipment free and clear of all liens and encumbrances, except those in our favor. and promptly nolily Js il a lien or encumbrance is placed Of threatened against the Equipment. You irrevocably authorize us, at any time. to (a) insert or correct on this Contract. including your correct legal name. serial numbers and Equipment descriptions: (b) submit notices and proofs of i9ss for any required msurance; (c) endorse your name on remittances for insur01nce and Equipment sale or lease proceeds; and (d) file a linancmg slatement{s) which describes either the Equipment or all equipment currently or in the future financed by us. ·; : 6. Equipment Maintenance, Operation and Use. You agree to (a) USE THE EQUIPMENT ONLY FOR AGRICULTURAL, BUSINESS OR 1 COMMERCIAL PURPOSES AND NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES; (b) of)erate and maintain the Equipment irl accordance with all (1) applicable laws. ordinances and regulations, (2} manuals and other instructions issued by the manufacturer(s) and ·i supplier(s). afld (3) insurance policy terms and requirements: (c) perform (al your expense) all maintenance and repairs necessary to keep th!" Equipment in as good a condition as when delivered to you. reasonable wear (d) allow us and our agent(s) to inspect the Equipment and all of your records relAted to its use, maintenance and repair, at any reasonable time; and (e) not permit the Equipment to be used by, or''to be in the possession or, anyone other than you or your employees. . 1 .I ' .iJ o.o., August. 2006 I J ,. (Page 5 of 11) 1 . . You agree. at your cost. to maintain all-risk coverage with respect tc the Equipment for no less than its. full value, naming us (and our successor and assigns) as sole loss payee. You may choose who provides that insural)ce, but that insurance mu* be with companies and policies acceptable to us. Your obligation to 1nsure the Equipment continues until all your other obligations under this j Contract are satisfied Each insur01nce policy must provide that (1) our interest in the policy will not be invalidated by any act, omission. breach or neglect of anyone other lhan us; (2) the insurer will give us at least 30 days' prior written notice before any cancellation of. non-renewal of. material change to. the policy; and (3) such coverage shall be primary over any insurance purchased by us (or our subsidiaries). ·JI :1---------11 .! ,I I J •i Unletls you provide us with evidence of the required Insurance coverage's, we may, but are not required to, purchase insurance, at your expe,nse, to protect our Interests in the Equipment and charge you an insurance fee on which we may make a profit. 'ThiS insurance me/:hot (1) protect your interests; or (2) pay any claim that you make or any claim that is madG against you in connection with the Equipment Yoqmay later cancel any insurance purchased by us. but only alter providing us with evidence that you have obtained the Insurance required by thit"fontract. TH!'= COST OF THE INSURANCE MAY BE MORE THAN THE COST OF THE INSURANCE YOU MAY BE ABLE TO OBTAIN ON Y · R OWN. THE COVERAGES OF THAT INSURANCE MAY BE DIFFERENT FROM THE COVERAGES OF INSURANCE YOU MAY BE ABLE, ,0 OBTAIN ON YOUR OWN. You agree to pay us the cost of any Insurance plus a $150 tnsurance placement and service fee. You will pay that: amount to us or we may, at our sole discretion, add that cost to the Account Balance and increase the required Installment Pa)l!!lents l (I i accordingly. If a default occurs, you authorize us to cancel the Insurance on the Equipment and apply any returned premiums to the . J :") ! (b) if we if the cost of the insurance was included in \he Amount Financed. thai insurance will terminate (a) if your debt to us is release our security interest in the Equipment. (c) if a default occurs and we cancel the insurance, {d) if the Equipment is reposiessed, (e) If ltJe Floater Policy under which you purchased that insurance terminates, or (f) on the due date ol the final scheduled Installment 8. Loss or Damage. Until all of your obligations under this Contract are satisfied, you are responsible for all risk of toss and damage. loss. theft. destruction or seizure of the (an "Event of Loss"). You must promptly notify us of any Event of Loss If the Equ1pment can be or replaced, you agree to promptly repair or replace the Equipment. at your cost. and the tenns of this Contract will continue to apply. If the i EqUipment cannot be repaired or replaced, you agree to immediately pay us the Account Balance. Upon receipt of the Account Balance, we j.Yill release our security interest in the Equipment. All insurance proceeds must be paid directly to us. and we may apply any excess insurance . proceeds to any other amounts you owe us or any of our affiliates. . I ·i 9. Default. You will be in default if: (a) you fail to remit to us any Installment Payment or-other payment wheri due; (b) you breach any other provision of this Contract; (c) you remove any Equipment from the United Slates; (d) a petition is filed by or against you or any guarantor under any bankruptcy, attachment. e)(ecution or insolvency law or you or any such guarantor make an assignment for the benefit of creditors; (e) a'! default occurs uni:Jer any other agreement between you (or any of your affiliates) and us (or any of our affiliates); (I) you or any guarantor merges with or consolidales into another entity, sells substantially all its assets. dissolves or terminates its existence. or (if an individual) dies or becomes incompetent; (g) you fall to maintain the insurance required by this Contract; or (h) if for any reason, we deem the debt or the Equipment to insec:ure. Time Is of the essence under this Contract. . be ·i 10. Ramadies. If a default occurs, we may do one or more of the following: (a) recover from you, AS LIQUIDATED DAMAGES FOR LOSS OF BARGAIN AND NOT AS A PENALTY. the Account Balance as ot the date of such default, withoUl presentment or' demand; (b) declare any oiher agreements between you and us in default; (c) terminate any of your rights (but none of your obligations) under this Contract and any other j agreement between you and us (or any of our affiliates); (d) reqwe you to deliver the Equipment to us in the manner outlined below. or take .i possession of the Equipment; (e) lease or sell the Equipment or any portion thereof a\ a public or private.sale; (f) apply the net proceeds we receive from any sale, lease or other disposition olthe Equipment (after deducting all of our costs and expenses) to your obligations under this ·) Contract, with you remaining liable for any deficiency; (g) require you to reimburse and indemnify us for ali lo5ses. claims, damages and expenses of any kind or nature whatsoever incurred in connection with the Equipment or this Contract and/or the enforcement of our remedies hereunder including, without limitation, repossession, repair and collection costs, awards, attorneys' fees and court and bankruptcy and costs; (11) exercise any other remedy available at law or in equity. and (i) take on your bel\alf (at your expense) any action required by thiS Contract which you fall to take. These remedies are cumulative, are in addition to any other remedies provided for by law. and may be exercised concurrenlly or separately. Any failure or delay by us to exercise any right shall no\ operate as a waiver of any other right or future right. In no event will the costs and expenses referred to in this section be more than those allowed by law. . 1 ., If a default occurs, aU Equipment must be delivered to the place designated by us, at your expense and in satisfactory condition, along with ali use, maintenance and repair records. Equipment Is in satisfactory condition if it is in as good a condition. as when the Equipment was delivered to you, reasonable wear excepted, as determined by us in our sole discretion. ' . 1. I i :i 1 :j J ,, I .: 'i 11. As8ignment. You will not assign, pledge or otherwtse transfer any of your nghts or interests in this Contract or any Equipment without ouii prior written consent. Any assignment without our consent will be void. We may assign \his Contract or our interest in the Equipment at any time without notice to yov and without your consent. We may provide information about you to any prospective assignee or participant. You agree not to assert againsl our assignee any claims, offsets or defenses which you may have against us. .) :r ., ; •I :1 ·I 'I l 1 ;, 12/2112007 DOC3015 ,.• .._.. Dolo. August. &euoomtf>4 10577675 Eq._..Tyoe Appho;oo.aniO. 10577675 Vo•Sion ..... ..,.. 2 20013 lllllllllllllllllllllllllllllliiiiiiiiiUllllllllllllllllllllltll i Page 3 of 5 ;; I I 1 l j .! l i t .! .. , I {l?age 6 of 11) 1·2. and You represent, warrant and coveo;mt to us so long as this Contract is In effect, that (a) you will not change your name without giving us at least 30 days' prior written notice; (b) each document you sign and deliver to us is duly authorized, ·! executed and delivered by you, and is your valid, legal lind binding agreement, enforceable in accordance with ils terms; (c) the execution, • delivery and performance by you of Lhis Contract does not (and will not) violate any applicable law or breach any order of court or other · governmental agency. or of any undertaking you are a party to or by which you or any of your properties are bound; (d) you will comply with all applicable laws, ordinances and regulations; (e) upon execution of this Contract, the Seller shall have good and marketable title to any trade·i,n equipment free and of all liens and encumbrances whatsoever, (f) all information you have given to us Is Irue. accurate complete; (g) since the date of the most recent financial information given to us, no material 01dverse change in your business, assets. or prop.pects hilS : occurred; (h) you Will promptly detlver to us such financial statements, repons and other information a& we may request; (i) lhe l:quipment was selected by you; 0) the Equipment (including all manufacturer manuals and ·Instructions} has been delivered to, and examlnediy, you; (k) the' :o11fe operation and the proper servicing of the Equipment were explained to you; {I) you received the written warranty appli<:abl '!to the Equip'!lent and understand that your rights under the written warranty may be limited: (m) the Equipment is unconditionally and lrrevocabl accepted by you as being suitable for its intended use; (n) the Equipment is. in good condition and repair (operating and otherwise); (o) the shall bei all used only for the purpose indicated herein, win remain in your possession and will not be sold, rented or leased; and (p) you assessed on the Equipment. · 'i tJ .; .l 1I l' Unless you are an individual, you also represent. warrant and covenant to us that: (a) you 11re and will remain duly organized. AAildly exisling·:and in good standing untler the laws of your jurisdiction of organization; (b) you are quanned to do business·under the laws of ali ot.Ur jurisdictions where qualification is required or advisable; (c) you will not change your jurisdiction of org11nization or organization type withoutdh least 30 days' prior writ1en notice to us; and (d) the execution, delivery 11nd performance by you of this .Contract will not hre11ch any provision · organization!! I documents. If you are an individual, you agree not to move your residence to a different county or state withoul at least 30 days' prior written notice to us.j ., 13. Governing Law; Jurisdiction; Venue. THIS CONTRACT WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE; LAWS OF IOWA, WHERE THIS CONTRACT IS ACCEPTED AND ENTERED INTO, except for its connie! of laws proviSions. You irrevocably 1 submit to the non-exclusive jurisdiction and venue of federal and state courts located in Des Moines. iowa and will not claim il is an inconven!ent forum for legal action. YOU AND WE IRREVOCABLY WAIVE ANY RIGHT YOU AND WE MAY HAVE TO A JURY TRIAL. However, you i acknowledge that any state raw compulsory mediation requirements will apply to this agreement or the Equipment only if you are a resident of the State of Iowa. 14. Miscellaneous. WE HAVE NOT MADE, AND DO NOT MAKE, ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS'! TO THE EQUIPMENl'S MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, OR OTHERWISE. WE ARE NOT I LIABLE FOR CONSEQUENTIAL OR SPECIAL DAMAGES. You acknowledge that the Seller of the Equipment is not an agent of ours. or authorized to act for or bind us. You agree not to withhold any amount you owe us if you believe you have a claim against us, the Seller or any manufacturer(s) of the Equipment,' but to pursue that claim independenUy. Any daim you have against us must be made within two years after the event that caused it. All notices must be in writing and will be deemed given 5 days after mailing to the intended recipient at its address ; unless changed by a notice given in accordance with this Section. This Contract supersedes and replaces all prior : indicated No part of this Contract can be amended, or understandings and communications (oral or written) concerning the subject matter terminated except by a writing signed by both you and us. This Contract may be signed in separate counterparts that. together, will constitute one document. A paper or facsimile transmission copy of your signature or an eleclronic signature shall constitute an original signature under' applicable law for all purposes. If a court !inds any part of this Contract to be lnvafid or unenforceable, the remainder of this Contract will remain in 1 effect. You pem1it us to monitor and record telephone conversations between you and us. AU of our rights shall remain in effect after the expiration or termination of this Contract. · · i' You and we intend io comply with all applicable laws. In no event will we charge or collect any amounts in excess of those allowed by applicable law. In the event any amount in excess of that allowed by law is charged or recovered. any such charge will be deemed limited by the amount legally allowed and any amount received by us in excess of that legally allowed will be applied by us to the payment of amounts legally auowEid under this Contract, or refunded to you. l THE TERMS OF THIS CONTRACT SHOULD BE READ CAREFUl.L Y BEFORE SIGNING BECAUSE ONLY THESE:' WRIITEN TERMS ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES MAY BE LEGALLY ENFORCED. BY SIGNING THIS CONTRACT, YOU AGREE TO THE TERMS ON ALL PAGES. THIS CONTRACT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BElWEEN YOU AND US, EXCEPT AS MAY LATER AGREE IN WRITING TO MODIFY IT. r WE •!' I agree that I have received a completely filled in copy of this Agreement. ,, i 12121/2007 OOC3015 RtnRn c.,., August, 2006 Mor. 10577675 Agricunure Agricvltural 10577675 V t r - - r 2 TJPt AP!>IcnontO Page4 of 5 1111111111111 i I 11 tz.-za-o') (01\TI: SIGNIODJ i :i :1 i l I .I u I)· 12/21/2007 OOC3015 10577675 equ.pmontTI'f'O. AgrocullureAgri<:ulltlfal ...............,.. 10577675 ""''""''"'"'"'· 2 m 1\ll\11 U\11 IIIII 1\11\ lUll lml 1 ,; :I Ill\ 111M \Ill <n Jo ;: afil!d) (Page l of 11) -------------------- -- ------------------ -------- ------------------------------------------- -------------------------------------------------------··a:r Application 10: JOHN DEERE CREDIT 10741&'J39 Version 5 FIXED RATE CONTRACT AG/C&CE Business or Commercial Use LOAN CONTRACT -SECURITY AGREEMENT Contract Begin Date: OJIJM009 'AI'JD ADDRI!SS CAHALl. BROS INC SO CAIIALL BROTIIXRS LANE GKOKGII"TTWN, 0114SIZI I I PHYSICAL DAMAGE INSURANCE REQUIRED: If you elect Physical Damage Insurance below, such Insurance does not Include liability insurance coverage for bodily Injury or property damage caused to others. OISCLD.UUI: You...., obllhjnpOfly ln....,.,.l!wo ony 1,.111 Nllt - - I O U L Pllpicll ..... ondiMI't-"'lllndloiiO\l, ""'"'*"' ..,._ tNOnaO•-- llytlgning - · ond...,..ltpay!Mpr.lllilrn. j$igllllllhilkll) X I JAMES R MCAI>.\l\1S SR SOOLANI! RD TOTAl PREMIUU TiiiWINMOHTHS Lllloll you llgnll 1M ll RUIOE&IN ADAMS, 011 I PEOF IIUIINEIIII AGREES TO I(.EEI'QOODSIH ADAI\IS, 011 1. Parties. This Loan Contract-security Agreement iContract") Is enlered into between tl'le Deere & Company ("we", "us• or •our") and the borrower(s) Indicated above (''you" or "your"). If more than ona borrower Is Indicated, each borrower shall be jointly and severally liable for all of the obligations under this Contract. 2. Loan. You hereby apply for a loan In the Amount Financed shown below. which. if accepted by us. the loan wiD be (a) subject lo the terms and conditions set forth In this Contract, and (b) used to finance the balance due on the purchase from the Seller of the equipment and/or services described below (the "Equipmenr). All attachments and accessories itemized on this Contract and all replacements, parts and repairs to the Equipment shall form part of the Equipment. 3. Installment Payments. In addition to any down payment, you agree to pay us the Tolal of Payments by remitting each of the Installment Payments on or before the due dates indicated. This Contract is not accepted by us untn we sign it, even if you have made a payment to us. You agree to remit to us the Installment Payments and all other amounts when due and payable each BiDing Period, even if we do not send you a bill or an invoice. YOUR PAYMENT OBLIGATIONS ARE ABSOLUTe AND UNCONDITIONAL, AND ARE NOT SUBJECT TO CAN CELLATJON, REDUCTION OR SETOFF FOR ANY REASON WHATSOEVER. For any scheduled payment which Is not received by ita due date, you agree to pay us interest on the unpaid amount at a rate of 20% per annum on that scheduled payment, but in no event more than the maximum lawful rate, from the due date unlil paid. Restrictive endorsements on checks you send to us will not change or reduce your obligations to us. We will not lose any rights if we accept late or partial payments or delay enforcing your rights under tl'lis Contract If a check or electronic payment authorization you give us is dishonored upon first presentment, you agree to pay us a fee of $25.00, or the maximum amount permitted by law, whichever is less. lmJtallment Payments and other payments, including proceeds of Insurance or any sale of the Equipment, may be applied, at our discretion and in spite of any instructions you may provide, to any obligation you may have to us or any of our affiliates. If the total of all payments made by you exceeds the total of all amounts due under this Contract by less than $25.00. we may retain such excess. 'pLJ QTY, I I fiE.WI USED I MfR. I MODEl. I EQUIPMENT OE8CRIPTIOtl SODXPF Compa\'1 10ll<8valor I S5Z.OOO.OO CTJJZ Com pact Tr11tk Loader I $411.500.00 RC78 Rotary Cutlor I 5'1,000.00 PAJOAu;er WD INEWIJDf I ft1150D."Z70J.I!I· SOD E.XCAVATOR WITII 18" & ADAI'Tt:R I I 11,500.00 A»QUNT PROtlUCT 10 1'10. I I NEW I JD I ;m I PROOIJCT Ill NO. TOJnTBI298lO • CTJJl COMPACT TRACK WADER I I NEW I Jl) I RC78 I PIIOOUCTIDNO. TORC78XIIOOIO· RC78 KOl'AKV CUT1'ER I I NEW 1 Jj) I PAlO I PROOUCTIDNO. T09AJO.,i00665· PAJOWITII9"&12"AUGERS ii301ZOOB 81111omontNIIr. 10742689 DOC3015 AgriwltureAgricultural llppiCIIIoniO: 10742689 11m Vo,.lonN..,.IIor. 5 Mll l l (EX. E- 7542) (Page 2 of 11) ---- ------------------------------------------------------------------------------------------------ ...;. TRAQl!=IN egd PASH DOWN PAYMENT I OlY. I I Ml'll. MIOI,IHl(J') PIIOQUCT 10 NO. r.n lOTAI. TIIAO£.IH: 50.00 CASH DOWN P"YMENT: $10.000.00 50.00 RENTAL APPUW: $10,000.00 - po,_ The.,..u... .--•oFtnonooCI!atVo, Tl>llltiP.,...__Tolli8oiel'flc:o.,. . -.......,_. lhen&umplionlllltpoynwntowl bemadoon t h o - IN"-'r.A, duo 1181o ..-..,1011\0 1-tftOCIItdUie. T11o 1011111 F - lind Tolll- Prtoo trwt •11'1 MpeftdlnV IIJIGI1 ... Htty Gfll!W IlliTE FINANCe CHARGE lllilliNS: Jon.,oyiD, :lllfl NUMBER OF p,..ntEme 0.00 C1-SH PRICII llUl! DATE .wouNT OF EACH ... .... The first lmstalln'Hint P11yme11t Due Date Is Mall:h 1, 2009 anrJ each /mtallment Psyment Is dua on the same day of the Month lh8188tter, (lhe 'Billing Period'), 1111/fJU olhi!IWise provided below; $11(),000.00 $10,000.00 PAYMENT $!,6!r7.79 60 UNPAID BAlANCE OF CASH PRICE Man:b I, 3009 $90,000,00 fiM--IoyDiot.......,lwiiiWI) 4 $0.00 51!10.00 $ll.OO ORIGIN.\T10N FEES OffiQAI. FEE& (...OS 10 P1m1io .WOUIIT FINANCeD (Uneo 3, 4, 411, 0 a 6.\ pr Appl<oble )) Tho"""""" 01 cn<l- , _ 10 you. FINANCECHARG (-onunoe) Tho-o........CU!tctMiwtllootlyov. TOTAl. OFPAYMiiNTB IIJnoot & 7! T h o - yowwilhav*poid o11ery,..havo rnad. .loiU..t-Poymonl.l oo ICIIOCiuiOd. ' $11,7115.40 ANNUAL PERCENTAGE RATE (Tile 0001 ol yOW I:IOdliOI 0 yHity ...., 1i1N.e PRICe (Linoo1, 4, 411, 0, lAIII Appllcoblo), ll 7) Tho lololpn.. oiii'IUI po.orn,. on crodM,Inclutllng VII Toll! 0own 120.1100.00. 1'17"""""' $111,867,40 4. Prepaym•nt. You may prepay your obligations under this Contrac:t In full at any time by p11yin9 the unpaid princ:ip11l balance, any eamed and unpaid finance charges (calculated using (a) the Date Finance Charge Begins, regardless of when we execute this Contract, and (b) the actuarial method or such other method as may be required by any applicable law), and any other amounts then due and payable (the "Account Balance"). The unpaid principal balance InCludes any origination fee. &. Security Interest; Mi&aing lnfonnatlon. You grant us a security Interest In the Equipment (and all proceeds thereof) to sewre all of your obligations under this Contract and any other obligations which you may have to us or any of our or assignees and you agree that any security interest you previously granted to us or our affiliates shall also secure your obligations under this Contract. Upon receipt or all amounts due and to become due under this Contract, we will release our security interest in the Equipment provided no event of default has occurred and is continuing. You agree to keep the Equipment free aild clear of all liens and encumbrances, except those in our favor, and promptly notify us If a lien or encumbrance is placed or threatened against the Equipment. You irrevocably authorize us, at any lime, to (a) insert or correct Information on this Contract, Including your correct legal name, serial numbers and Equipment descriptions; (b) submit notices and proofs of loss for any required insurance; (c) endorse your name on remittances for insurance and Equipment sale or lease proceeds; and (d) file a financing statement( a) which describes either Jhe Equipment or all equipment currently or in the future financed by us. 6. Equipment Maint&nance, Operation and Uae. You agree to (a) USE THE EQUIPMENT ONLY FOR AGRICULTURAL, BUSINESS OR COMMERCIAL PURPOSES AND NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES; (b) operate and maintain the Equipment in accordance with ell (1) applicable laws, ordinances and regulations, (2) manual& and other instructions issued by the manufacturer(&) and supptlerts), and (3) Insurance policy terms and requirements; (c) perform (at your expense) aU maintenance and repairs necessary to keep the Equipment in as good a condition as when delivered to you, reasonable wear excepted; (d) allow us and our agent(s) to inspect lhe Equipment end all of your records related to its use, maintenance and repair, at any reasonable time; and (e) not permit the Equipment to be used by, or to be in the possession of, anyone other than you or your employees. 113012009 OOC3015 A•""'"" Dolt: AUgust, 2006 a.--. 10742689 ..,.,...llontD: Agriculture Agriculture! 10742689 11111111111111111 Page 2 of 5 5 1111 (Pilge 3 of 11) ··-·-----·----------------- ·------------------------------ --------------------- ------------------------------------------------------------- ------------------ --- ------·-·-------:ar------·-·-----------· 7.1naurance. You agree, at your cost, to maintain aiJ.risk insurance coverage with respect to tha Equipment for no less than Its full replacelnt!nt value, naming us (and our successor and assigns) as sole loss payee. You may choose who providcs that insurance, but that insurance mu§\ be with companies and policies acceptable to us. Your obligation to insure the Equipment continues until all your other Obligations under this aJ Contract are satisfied. Each insurance policy must provide that (1) our interest in the policy will not be invalidated by any act. omlsilon, breach or neglect of anyone other than us; (2) the insurer will give us at least 30 days' prior written notice berore any cancellation of, non-renewal of, or material change to, the policy; and (3) such coverage shall be primary over any insurance purchased by us (or our subsidiaries). Unless you provide us with evidence of the required Insurance coverage's, we may, but are not required to, purchase insurance, at your expense. to protect our interests in the Equipment and charge you an insurance fee on which we may make a profit. This insurance may not (1) protect your interests; or (2) pay any clalm that you make or any daim that Is made against you in connectiOn with the Equipment You may later cancel any insurance purchased by us, but only al\er providing us with evidence that you have obtained the Insurance required by this Contract. THE COST OF THE INSURANCE MAY BE MORE THAN THE COST OF THE INSURANCE YOU MAY BE ABLE TO OBTAIN ON YOUR OWN. THE COVERAGES OF THAT INSURANCE MAY BE DIFFERENT FROM THE COVERAGES OF INSURANCE YOU MAY BE ABLE TO OBTAIN ON YOUR OWN. You agree to pay us the cost of any insurance plus a $150 insurance placement and service fee. You will immediately pay that amount to us or we may, at our sole discretion, add that cost to the Account Balance and Increase the required Installment Payments accordingly. If a default occurs, you authorize us to cancel the Insurance on the Equipment and apply any returned premiums to the Account Balance. If the cost of the insurance was included in the Amount Financed, that insurance will terminate (a) If your debt to us Is discharged, (b) If we release our security interest in the Equipment, (c) if a default occurs and we cancel the insurance, (d) If the Equipment Is repossessed, (e) If the Aoater Policy under which you purchased that insurance terminates, or (f) on the due date of the final scheduled Installment Payment. 8. or Damage. Until all of your obUgatlons under this Contract are satisfied, you are rcsponslble for all risk of loss and damage, loss, theft, destruction or seizure of the Equipment (an "Event of Loss"). You must promptly notify us of any Event of loss. If the Equipment can be repaired or replaced, you agree to promptly repair or replace the Equipment, at your cost, and the terms of this Contract will continue to· apply. If the Equipment cannot be repaired or replaced, you agree to Immediately pay us the Account Balance. Upon receipt of the Account Balance, we wm release our security Interest in the Equipment. All insurance proceeds must be paid directly to us, and we may apply any excess insurance proceeds to any other amounts you owe us or any or our affiliates. 9. Default. You will be in default if: (a) you faft to remit to us any lnstaament Payment or other payment when due; (b) you breach any other provision ol this Contract; (c) you remove any Equipment from the United Slates; (d) a petition Is filed by or against you or any guarantor under any bankruptcy, attachment, execution or insolvency law or you or any such guarantor make an assignment for the benefit of creditors; (e) a default occurs under any other agreement between you (or any of your affdiates) and us (or any of our affiliates); (f) you or any guarantor merges with or consolidates Into another entity, sells substantially an its assets, dissolVes or terminates ihl existence. or (if an Individual) dies or becomes incompetent; (g) you fall to maintain the lnsurarn::e required by this Contract; or (h) if for any reason, we deem the debt or the Equipment to be insecure. Time is of the essence under this Contract. 10. Remodiea. If a default occurs, we may do one or more of the following: (a) recover from you, AS LIQUIDATED DAMAGES FOR LOSS OF BARGAIN AND NOT AS A PENALTY, the Account Balance as of the date of such default, without preserrtment or demand; (b) declare any other agreements between you and us In default; (c) terminate of your rights (but none or your obligations) under this Contract and any other agreement between you and us (or any of our affiliates); (d) requite you to denver the Equipment to us in the manner outlined below, or take possession of the Equipment; (e) lease or sell the Equipment or any portion thereof at a public or private sale; (f) apply the net proceeds we receive from any sale, lease or other disposition of the Equipment (after deducting an of our costs and expenses) to your obligations under this Contract, with you remaining liable for any deficiency; (g) require you to reimburse and indemnify us for all losses, claims, damages and expenses of any kind or nature whatsoever Incurred in connection with the Equipment or this Contract andfor the enforcement of our remedies hereunder Including, without Hmitation, repossession, repair and collection costs, damage awards, attorneys' fees and court and bankruptcy fees and costs; (h) exercise any other remedy available at law or In equity; and (i) take on your behalf (at your expense) any action required by this Contract Which you fail to take. These remedies are cumulative. are in addition to any other remedies provided for by law, and may be exercised concurrently or separately. Any failure or delay by us to exercise any right shall not operate as a waiver of any other right or future right. In no event will the cosls and expenses referred to In this section be more than those allowed by law. If a default ocwrs, all Equipment must be delivered to the place designated by us, at your expense and in satisfactory condition, along with all use, maintenance and repair records. Equipment is in satisfactory condition If it is in as good a condition as when the Equipment was delivered to you, reasonable wear excepted, as detennined by us in our sole discretion. 11. Assignment. You will not assign, pledge or otherwise transfer any of your rights or interests in this Contract or any Equipment without our prior written consent. Any assignment without our consent will be void, we may assign this Contract or our Interest In the Equipment at any time without notice to you and without your consent. We may provide information about you to any prospective assignee or participant. You agree not to assert against our assignee any claims, offsets or defenses which you may have against us. DOC3015 1/30/2009 - - . 10742889 10742689 Page3 of5 __,N-. 5 111 (Page 4 or ll.) ----------------------------------------·-···---------------------------------------·-- ----------------------------------------------------------------------------- --------------------------------------- ----- -------------------------------------------------------- 0 12. Reprnentationa and Warranties. You repressnt, warrant and covenant to us so long as this Contract is In effect, that: (a) you will nor' change your name without giving us at least 30 days' prior written noli<:e; (b) each document you sign and deliver to us is duly authorized, executed and delivered by you, and Is your valid, legal and binding agreement, enforceable in accordance with its tenns; (c) the execution, •• delivery and performance by you of this Contract does not (and will not) violate any applicable law or breach any order of court or other governmental agency, or of any undertaking you are a party to or by which you Of any of your properties are bound; (d) you will comply with all applicable laws. ordlnuncee and regulations; (e) upon execution of this Contract, the Seller shall have good and marketable tiUe to any trade·ln equipment free and clear of all liens and encumbrances whatsoever, (f) an information you have given to us is true, accurate and complete; (g) since the date or the most recent financial information given to us, no material adverse change in your business, assets, or prospects has occurred; (h) you wUI promptly deliver to us such financial statements, reports and other information as we may request; (i) the Equipment was selected by you; 0) the Equipment (includln9 an manufacturer manuals and inslnlctions) has bean delivered to, and examined by, you; (k) the safe operation and the proper servicing of Ole Equipment were explained to you; (I) you received the written warranly applicable to the Equipment and understand that your rights under the written warranty may be limited; (m) the Equipment is unconditionally and irrevocably acc;epted by you as being suitable for Its intended use; (n) the Equipment Is in good condition and repair (operating and otherwise); (o) the Equipment shall be used only for the purpose indicated herein, will remain In your possession and will not be sold, rented or leased; and (p) you will pay an taxes assessed on the Equipment. Unless you are an individual, you also represent. wMrant and covenant to us that: (a) you are and wUI remain duly organized, validly existing and In good standing under the laws of your jurisdiction of organization; (b) you are qualified to do business under the laws of all other jurisdictions where qualifiCation Is required or advisable; (c) you will not change your jurisdiction of organization or organization type without atleast30 days' prior written notice to us; and (d) the execution, delivery and perfonnance by you of this Contract will not bre<Jch any provision of your organizational documents. If you are an individual, you agree not to move your residence to a different county or state without at least 30 days' prior written notice to us. 13, Governing Law; Jurisdiction; Venue. THIS CONTRACT WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF IOWA, WHERE THIS CONTRACT IS ACCEPTED AND ENTERED INTO, except for Its conflict of laws provisions. You Irrevocably submit to the non-exclusive Jurisdiction and venue of federal and state courts located In Des Moines, Iowa and will not claim It is an Inconvenient forum for legal action. YOU AND WE IRREVOCABLY WAIVE ANY RIGHT YOU AND WE MAY HAVE TO A JURY TRIAL. However, you acknowledge that any Iowa state law compulsory mediation requirements will apply to this agreement or the Equipment only if you are a resident of the State or Iowa. 14. Miscellaneous. WE HAVE NOT MADE, AND DO NOT MAKE, ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE EQUIPMENT'S MERCHANTABIUTY, FITNESS FOR A PARTICULAR PURPOSE, SUITABIUTY, OR OTHERWISE. WE ARE NOT LIABLE FOR CONSEQUENTIAL OR SPECIAL DAMAGES. You acknowledge that the Seller of the Equipment is not an agent of ours, or authorized to act for or bind us. You agree not to withhold any amount you owe us if you believe you have a claim against us, the Seller or any manufacturer(s) of the Equipment, but to pursue that claim lndependenUy. Any claim you have against us must be made within two years aftor the event that caused il All notices must be in writing enel will be deemed given 5 days after mailing to the intended recipient at its address indicated above, unless changed by e notice given in accordance with this Section. This Contract supersedes and replaces aU prior understandings and communications (oral or written) concerning the subject matter thereof. No part of this Contract can be amended, waived or terminated except by a writing signed by both you and us. This Contract may be signed in separate counterparts that, together, will constitute one document. A paper or facsimile transmission copy of your signature or an electronic signature shall constitute an original signature under applicable law for all purposes. If a court finds any part of this Contract to be invalid or unenforceable, the remainder of this Contract will remain in effect. You permit us to monitor and record telephone conversations between you and us. All of our rights shall remain in effect after the expiration or tennlnation of thls Contract. You and we Intend to comply with all applicable laws. In no event will we charge or collect any amount11ln excess of those allowed by applicable law. In the event any amount in excess or that allowed by law is charged or recovered, any such charge will be deemed limited by the amount legally allowed end any amount received by us in excess of that legally allowed will be applied by us to the payment of amounts allowed under this Contract, or refunded to you. THE TERMS OF THIS CONTRACT SHOULD BE READ CAREFULLY BEFORE SIGNING BECAUSE ONLY THESE WRITTEN TERMS ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES MAY BE LEGALLY ENFORCED. BY SIGNING THIS CONTRACT, YOU AGREE TO THE TERMS ON ALL PAGES. THIS CONTRACT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BElWEEN YOU AND US, EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT. I agree that I have received a completely filled In copy of this Agreement. 1/3012009 e....- Type: Agricultural 10742689 VonlonN-. 5 - - . 10742689 DOC3015 R'""""" Doc.: August. 20G6 lUI Page 4 of5 I (Page 5 o:f 11) ----------------------- --------------------------- ·m·---·----·-·····-----------··---·-·········-····-----······---·--···----··-m--------···--------··---·---·--------··--·/·--·3-----··-----·-,.---·-·- n•U••••nm·-··-------· UWld!V\. JAMES R MCADAMS SR . 1/3012009 C)' DATEAGREEMENTSIGNED: _- eo-Nbr. 10742689 OOC3015 Accepted By: DEERE & COMPANY (Lender) (DATESIGNED) s. By: :-J{Zc':IV.l"''ASQ131-66f)0 c v.-....-. 5 N (AV1HOiliZED SIGHATIIRE) AgriculturaAgricutlui'BI 10742689 CP Q ... Q _ I .-3 D-0 f Page 5of5 1111 (l?a.ge 1 of 18) I . . JOHN DEERE WJ CREDIT -- -------- -- -- ----;·-------------- AUG 1 6 ZUIO Application .10: 10956544 Vers1on Number: 4 10 DEI!:AE &co. FIXED RATE CONTRACT AG/C&CE Business or Commercial Use I LOAN CONTRACT- SECURITY AGREEMENT I Contract Begin Dale: 08105120101 llfAlER NUMBER CAHALL BROS INC 50 CAHALL 8ROTHERS LANE GEORGETOWN, OH 4&121 -I . 05.0185 I PHONE NUMIIER I JAMES R MCADAMS SR I 50DLANERD WEST UNION, OH 4S6!13·9440 BORROWER RESIOfS IN (County/State) BORROWER'S SOC. SEC. NUMBER ---·1541 I: &ORROWER'S PHONE NO. 937-$49-2952 l lYPEOF BUSINESS BORROWER AGREES TO KEEP GOODS IN (Counlyl&"'e) ADAMS,OH ADAMS/OH 1. Parties. This Loan Contract-Security Agreement f'Contract'1 is entered into Deere & Company ("we", "us" or "our") and the borrower(s) indicated above iyou• or "your"). If more than one borrower is indiCated, each borrower shall be jointly and severally tiable for all of the obligations under this Contract. 2. Loan. You hereby apply for a loan in the Amount Financed shown below, which, if accepted by us, the loan will be (a) subject to the terms and conditions set forth in this Contract, and (b) to finance the balance due on the purchase from the Seller of the equipment and/or services desalbed below (the "Equipment"). All attachments and accessorias ilemizad on this Contract and all replacements, parts and repairs to the Equipment shall form part of the 3. Installment Payments. In addition to any down payment, you agree to pay U5 the Amount Financed, together with finance charges from the Date Finance Charge Begins, at the Annual Percentage Rate, by remitting each of the-Installment Payments on or before the due dates indicated. Any amounts to this Contract will be applied firs1 tq any late charges, any charges for dishonored checks and any other fees or costs due under this agreement, then to finance charges, fOmputed on the date the payment Is received and the remainder to the Amount Financed. You agree that your payments will be as of the date of receipt If received by 11:00 a.m. Central Time Monday through Friday (otherwise next business day); but if payment Is not accompanied by the payment stub, is not in the envelope we provided, Includes other items such as other checks, staples or paper dips, or is not received at that location, credit may be delayed up to fiVe days. This Contract Is not accepted by us until we sign it, even if you have made a payment to us. You agree to remit to us the Installment Payments and all other amounts when due and payable each Billing Period, even if we do not send you a biD or an invoice. YOUR PAYMENT OBUGATIONS ARE ABSOLUTE AND UNCONDITIONAL, AND ARE NOT SUBJECT TO CANCELLATION, REDUCTION OR SETOFF FOR ANY REASON WHATSOEVER. For any scheduled payment which is not received by its due date, you agree to pay us interest on the unpaid amount rate of 20% per annum on that scheduled payment, but in no event more than the maximum lawful rate, from the due date until paidt Restrictive endorsements on checks you send to us will not change or reduce your obligations to us. We will not lose any rights if we accept late or partial payments or delay enforcing our rights under this Contract. if a check or electronic payment authorization you glye us is dishonored upon first presentment, you agree to pay us a fee of $25.00, or the maximum amount by law, whichever is less. Installment Payments and other payments, including proceeds of insurance or any sale of the Equipment, may be applied, our discretion and In spite of any Instructions you may provide, to any obligation you may have to us or any of our affiliates. If theltotal of an payments made by you exceeds the total of all amounts due under this Contract b}' less than $25.00, we retain such ' EQUleMENI.euBC.I:J.6SEQ OTY. l 1 I NEW/ USEO NEW I I MFR. I MODEL JD I 322 r I I EQUIPMENT DESCRIPTION CT322 Track Loader I 1 iWOUNT $44,000.00 PROOUCTIO NO. T0322TB1G9040 I DOC8015 Revision Date: JIJOO 200!1 l'HIS CONTRACT ARE CONTAINED ON MORE THAN ONE PAGE SG111emM Nbr. 10956544 10955544 Eqloipment Type: Version Nunbei: 4 Page 1 of 5 (F;.ge 3 of 18) j\' ------------------------------------------------------------- -.-----------------------·- --------------------------- -·--------------------------------------------------------------· ---------------------------------------------------------"" I IBNJ.E-W aarl. Cl!Stt QQWlll ee.rM.Ef:I.I I QTY. l. I MFR MODEL I "' ,, \ I CASH 00'11/H PAYMENT: • ThiJ f«St lnsta"ment Payment Due Dlllllis September 5, 2010 and each sueeesstve fnstaflmem Payment is durJ on the sam11 day oft/18 Monlh thllf!ISftflr, (lhiJ "SJ/Iin9 Porfod·). un/e$$ othelwlse provided below: SltJ,DOD.OO RENTAl. APPLIED: $0.00 TOTAl. TRADE-IN PLUS i DATE fiNNICE CHARGE BEGINS! Augult 5, :1010 $10.000.00 TI1B alllOIKlls as Financa Chalfl8, Total r1 Pll)'nlentsn Total Sale Price are ealimates based upon the """"""lorllhat payll19llo will be mllOe on U.. scheduled paymoot due date a«ordino to. the ""lelmenlsd>edule. The eotual Finance Charge, TOial ol ond Tatal Sola Price mey •lilY aoj!lendlng uPOn u.. early or 1818 payment of l<hodui<Miinstalmenls. r. l[fMIZdll!.ltl. Qf! AMOJJtiLEJNeJ:IflE/2 SALES TAX (Paid lo Gov1. Agenc:ieo) DUE DATE PAYMENTS AMOUNT OF EACH PAYMENT 60 $643.65 September 6, 2010 NUM8EROF 0) so.oo TOTAl. TRADE-IN: I AMOIJNT PRODIJCT 10 NO. DESCRIPTION OF TRAOE·IN (Frcm Purchllse Oo;ller) $0.00 I CASH PRICE T8X) 1 $44,000.00 TOTAl. OClWN PA)'MENT (SIIll o1 Trodo-ln & Cash Down Pa)'!Mnl) I UNPAO BALANCE OF CASH PRICE fT"" """"'"' to yuur ecc0<1111 wilh us) INSURANCE (Phy,iQol Damage Poid to Insurance Companleo) 2 $10,000.00 3 $34,000.00 ORIGINATION FEES I OFFICIAl. FEES (Paid to Publi<: Officials) 4A AMOUNT FINANCt;D (Llno!o 3, 4A, 5 & SA (II Appkai)lo)) The amount d ttGdlt provi<led to you. CHARGE (Basad on lilt 5) TI1B dollar""'"""'' ihw CAI<il will cool )'011, TOTAl. Of PAYMENTS (Unes 6 & 7) Tho ecnount you will ha•a paid 111180' you nave made all paymonl•• $cllodulad. ANNUAL RATE (The_. o1 yo..- cradit • a yetrty rate) TOTAl. SALE PRICE (Lines 1, 4. <lA. 5, 5A (U & 7) The lola! price r1 y<lur pud1ase on aedit, '11cludino tha Talal Dawn Paymeol of $1 D,!Xl\).00. $0.00 $175.00 5 $12.00 6 $34,187.00 7 $4,432.00 8 $38,619.00 4.90% $48,619.00 4. Prepayment. You may prepay your obligations under this Contract in full at time by paying the unpaid principal balance and any earned and unpaid fmance charges. The unpaid principal balance any origination fee. 5. Security Interest; Missing Information. You grant us a security interest in the Equipment (and all proceeds thereof) to secure all of your obligations under this Contract and any other obligations which you may\ have to us or any or our affiliates or assignees, now or in the future and you agree that any security interest you previously granted to us or our affiliates shall also secure your obligations under this Contract. Upon receipt of all amounts due and to become due under:this Contract, we will release our security interest in the Equipment provided no event of default has occurred and Is continuing. Yo1,1 agree to keep the Equipment free and clear of all liens and encumbrances, except those in our favor, and promptly notify us if a or encumbrance Is placed or threatened against the Equipment. You irrevocably authorize us, at any lime, to (a) Insert or correctlnfprmation on this Contract, including your correct legal name, serial numbers and Equipment descriptions; (b) submit notices and of loss for any required Insurance; (c) endorse your name on remittances for insurance and Equipment sale or lease proceeds; and ld) file a financing statement(s) which describes either the Equipment or all equipment currently or in the Mure financed by us. You authorize anyone in possession of information regarding the location, maintenance, operation and condition of the .Equipment to provide all of that Information to us upon l our request. 1 l 6. Equipment Maintenance, Operation and U5e. You agree to (a) USE THE !EQUIPMENT ONLY FOR AGRICULTURAL, BUSINESS OR COMMERCIAL PURPOSES AND NOT FOR PERSONAL, FAJVIILY OR HOUSEHOLD PURPOSES; (b) operate and maintain the Equipment in accordance with all (1) applicable laws, ordinances and regulations, (2) manuals and other instructions issued by the manufacturer(s) and suppller(s), and (3) insurance policy terms requirements; (c) perform (at your expense) all maintenance and repairs necessary to keep the Equipment in as good a condition as when delivered to you, reasonable wear I excepted; (d) allow us and our agent(s) to Inspect the Equipment and all of your· records related to Its use, maintenance and repair, at any reasonable time; and (e) not permit the Equipment to be used by, or to be the possession of, anyone other than you or your employees. ! THE TERMS OF THIS CONTRACT ARE CONTAINED: ON MORE THAN ONE PAGE 81312010 DOC8015 ReviGion Pate: June 2001'1 SaPioment Nbr. 10956544 Appncauon 10; 10956544 Equipmrmt Type: Ver$ion Ntmber. 4 . AgricultUral Customer lnllials: Page2 of5 (Page 5 of 18) --------------------------------------------------------· -- ------ ------------ ------------ ----- ------ -- --- ------------------ --- -- --------- ------------ ll'l exercised concurrently or separately. Any failure or delay by us to exercise any; right shaft not operate as a waiver of any other rlghtror future right. In no event will the costs and expenses referred to in thl$ section more than those allowed by law. ll'l I N be If we determine that you are in default, all Equipment must be delivered to the p)ace designated by us, at your expense and !n satisfactory condition, along with all use, maintenance and repair records. Equipment is in satisfactory condition if It hi In as good a condition as when the Equipment was delivered to you, reasonable wear excepted, as by us In our sole discretion. 11. Assignment You will not assign, pledge or otherwise transfer any of your Jghts or Interests In this Contract or any Equipment without our prior written consent Any assignment without our consent will be void. We may assign this Contract or our interest In the Equipment at any time without notice to you and without your consent. We may provide Information about you to any prospective assignee or participant. You agree not to assert against our assignee any daii'Tl$, offsets or defenses which you may have against us. I 12. Representations and Warranties. You represent, warrant and covenant to us so long as this Contract is In effect, that: (a) you will not change your name without giving us at least 30 days' prior written notice'; (b) each document you sign and deliver to us is duly authorized, executed and delivered by you, and is your vaUd, legal and binding agreement, enforceable In accordance with its terms; (c) the execution, delivery and performance by you of this Contract does not (arid wUI not} violate any applicable law or breach any order of court or other governmental agency, or of any undertaking you are a party to or by which you or any of your properties are bound; (d) you wiiJ comply with all applicable laws, ordinances and regulations; '(e) upon execution of this Contract, the Seller shall ·have good and marketable title to any trade-In equipment free and dear or·allllqns and encumbrances whatsoever, (f) all Information you have given to us is true. accurate and complete; (g) since the date of the mpst recent financial information given to us, no material adverse change in your business, assets, or prospects has occurred; (h) you will promptly deliver to us :such financial statements, reports and other information as we may request; (i) the Equipment was selecte'd by you; OJ the Equipment (including all manufacturer manuals and instructions) has been delivered to, and examined by, you; (k) operation and the proper servicing of the Equipment were explained to you; (I) you received the written warranty applicable to the Equipment and understand that your rights under the written warranty may be limited: (m) the Equipment is unconditionally .and irrevocably accepted by you as being suitable for its intended use; (n) the Equipment is in good condition and repair (operating otherwise}; (o) the Equipment shall be used only for the purpose Indicated herein, will remain In your possession and will not be sold, rented or leased; and (p) you will pay all taxes assessed on the Equipment. 1 Unless you are an Individual, you also represent, wamml and covenant to us that; (a) you are and will remain duly organized, validly existing and in good standing under the laws of your jurisdiction of (b) you are qualified to do business under the laws of aU other jurisdictions where qualification is required or advisable; (C)·you will change your jurisdiction of organization or organization type without at least 30 days' prior written notice to us; and (d) the pecution, delivery and performance by you of this Contract will not breach any provision of your organizational documents. · ! If you are an individual, you agree not to move your residence to a different county or state without at least 30 days' prior written notice to us. I 13, Governing Law; Jurisdiction; Venue. THIS CONTRACT WILL BE GOVJRNEO BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF IOWA, WHERE THIS CONTRACT IS ACCEPTED AND,ENTERED INTO, except for its conflict of laws provisions. You irrevocably submit to the non-exclusive jurisdiction and venue of federal and state courts located in Des Moines. Iowa and will not claim il is an inconvenient forum for legal action. YOU AND WE Y WAlVE ANY RIGHT YOU AND WE MAY HAVE TO A JURY TRIAL However, you acknowledge that any Iowa sta\e law compulsory mediation requirements will apply to this agreement or the Equipment only if you are a resident of the State of Iowa. 14. Miscellaneous. WE HAVE NOT MADE, AND DO NOT MAKE, ANY OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE EQUIPMEN:r'S MERCHANTABILITY, FITNESS FOR PURPOSE, SUITABILITY, OR OTHERWISE. WE ARE NOT UABLE FOR CONSEQUENTIAL OR SPECIAL pAMAGES. You acknowledge that the Sellar of the Equipment is not an agent of ours, or authorized to act for or bind us. You not to withhold any amount you owe us if you believe you have a daim against us, the Seller or any manufacturer(s) of lhe Equipment, but to pursue that daim Independently. Any claim you have against us must be rnade within two years after the event that All notices must be In writing and will be deemed given 5 days after mailing to the Intended recipient at Its address indicated abov'e, unless changed by a notice given in accordance with this Section. This Contract supersedes and replaces ali prior understandings and communications {oral or written) concerning the subject matter thereof. No part of this Contrad cen be amended, waived or terminated except by a writing signed by both you and us. This Contract may be signed in separate counterparts that, together, will constitute one document. A paper or facsimile transmission THE TERMS OF THIS CONTRACT ARE CONTAINEDjON MORE THAN ONE PAGE 8/312010 Soltlemll'll Nbt: I 01156544 OOC8015 AppllcGiloniD: eqwpnont Typo; Agriculture Agricultural CU$10mer Vtrtion NllllW. 4 Revision Date: June 2009 t IIIIIIIIIIIIIINIIIIIIIIII!Ill Page 4 of5 (l'age 7 of 18) ------------------------.----------------------------------------------------------------------------. ------------------------------------------------------------------------------ ... "" copy of your signature or an electronic signature shall constitute an original signature under applicable law for all purposes. If a cou!N finds any part of this Contract to be Invalid or unenforceable, the remainder of Contract wm remain In effect. You pennit us to I.JI monitor and record telephone conversations between you and us. You agree by providing us any telephone number, mobile phone number, we and any debt collector we retain can contact you usirt9 that number, Including caDs using an automatic dialing and announcing device and prerecorded calls. All of our rights shall remain in effect after the expiration or termination of thls Contract. : You and we Intend to comply with all applicable laws. In no event will we chargk or collect any amounts in excess of those allowed by applicable law. in the event any amount In excess of that allowed by law is or recovered, any such charge will be deemed Hmited by th$ amount legally allowed and any amount received by us in excess of that legally allowed wDI be applied by us to the payment of amounts legally allowed under this Contract, or refunded to you. ' THE TERMS OF THIS CONTRACT SHOULD BE READ CARE FULL SIGNING BECAUSE ONLY THESE WRITTEN TERMS ARE ENFORCEABLE. NO OTHER TERMS OR Olp\L PROMISES MAY BE LEGALLY ENFORCED. BY SIGNING THIS CONTRACT, YOU AGREE TO THE TERMS ON ALL PAGES. THIS CONTRACT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND US, EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT. I agree that I have received a completely filled In copy of this Agreement • OATE MCADAMS SR l SIGNED: 8' -5-(C) Accepted By: Deere & Company (Lender) . j 6400 NW 86th Street, Johnston, lA 50131·6600 ' (Oale Signed) . THE TERMS OF THIS CONTRACT ARE CONTAINED ON MORE THAN ONE PAGE Equipment l'yp<l; AgriC\lltural 8e1Uomen1 Nbr: ,01151:1544 DOC8015 Vorslon Numbet: 4 • Applcalion 10: 10958544 Cu:IIQOitr lrltlal$: Revision Oate: June 2009 PageS of5 ,. ot' (Page 1 lQ) ------------------------------------------------------------------------------------------ II .. Applcation 10: 10745776 VGNion 6 JOHN DEERE CREDIT FIXED RATE CONTRACT c&F Business or commercial use RETAIL INSTALLMENT CONTRACT- SECURITY AGREEMENT PHYSICAL DAMAGE INSURANCE REQUIRED: If you elect Physical Damage lnsuranc:e below, such insurance does not include llabiJity Insurance coverage for bodily Injury or property damage caused to others. aKLOallll!a .,.._1'111*11 IJYIIP'II bla, Dlnogt........ P'It' ........... (190 .. MDIIJ,I TOI'ALPAaiiUM IIIIII ... P"''iilm II inlllollllel- ll AJWofS.OJI ;;;;;;:: rwe-. 1, Perlles. This Relaillmtalfment Ccntract rConlmc:l") is entered Into botwoon the seller "Us" or "ouf') Wid lhe buyer(&) irnlcatcd above If more Chan one buyer is lndicatod, each buyer shall be jointly and severally liable for ell of lhe obllgatione under this Contract. C'YW' or "youl"). z. Loan. Having been quoted both a cash sale price and a time sale price for tfle equipment and/or &efVioeS described below (the "Equlpmenf). you have elected to purc:hase the EqUipment from us for that time &ale price under the terms set forth In this Contract All attachmen1S and 8QCCISSorle$ iterraed on this Contract and 811 replacements, parts and repan to the Equipment shall form part of the Equipment 3.. Cnslallment Payments. In addition to any down payment, you agree to pay us the Total of Payments by remitting each of the lns1811ment Payments on or before the due dates Indicated. Thl8 Contract Is not acoepted by usl.l'rtll we sign It, even If you have made a payment to us. You agree to rvm1t to us the Installment Payments and ell Glher amounts when due and payable each Billing Period, uven if we do nat send you a bill or an Invoice. YOUR PAYMENT OBLIGATIONS ARE ABSOUJTE AND UNCONDmONAL, AND ARE NOT SUBJECT TO CANCELLATION. REDUCTION OR SETOFf FOR ANY REASON WHA'ISOEVER. For any Bdleduled payment which is not received by lis due date, you agree to pay usln1Brest on the unpaid amount at a rate d 20% per annum. on that sdlem.led payment, but in no evvnt more tNn the lawful rate, from the due data until paid. Re&trictive endorsements on c:heclcs you &end to us will not c:flange or redUce your obUgalions to us. We will not lose under this COn1l'act If a check or eleclnlnk; payment authoridtlon -.v right& If we accept lat8 or partial payman1B or delay enforQng your you give us is dishoncnd upon first presentment, you agree to pay us a fee of $25.00, or the maxi111.1m amount pennittBd by law, wtrieheYer Is less. lnWI!Iment Payments and other paymenta, including proceeds of insurance or any &ale of 1he may be applied, at our ciac:rutioo and In spite of any lnaiNctlons you may provide, to any obligation you may have to us or any a&l>iiJl$ of thi& Contract or any aftiliatee of the astignee. If the tolal of all payments made by you exceeds the total of all amounts dUe under this Ccin1ract by less than $25.00, we may retain Gud1 excess. . QTY. leW W'R USED I NIW I'RCJilU(:T 10 NO. JD JIOSJWIIolol 1--.. 3l0 $111,$1.00 T03toUIIOIV7 -Nr. THE TERMS OF ntiS CONTRACT ARE CONTAINED ON MORE THAN I 2/9I2CI09 OOC4004 _..... P* August. :zoos ... -. . ···-····-···· tCTII/ii!ST7fJ FE 8 1 Zl_Qft9_Page 1 of --6 IIDIIDIIDIIIIIIIDIIIIIIIIIIIIIIWlUI .......... ............ ·- oR.iC EIVE D ·········-·-··-···---- sl (EX. I - 8040) (Page 3 of 10) .-'---' ---- ---------------------------------- r,!i , -u.l I QTY. ..=R f MODEL 1111 I tJESt'RlP'TlOH a' 'JIWlE.IN (Fml AMOUNr® PRCDUCT 1D NO• TOTAL 'fRAiliS.IIt ----·-a-ve. MH:r.o•, QIITEI'INAICECIWQ!!BI!GINS: ....,_,,,_ n. IUCOIIM 1"*"'-'l, . . , . . , cM 'EiA'I'lv FWiod?. "Milich 10, 2(101111dfl«h on,_ _,.dqdlle Mclnth ondTCIW....,_ SAl£$ ptrNided betlw; SD.Oe CASH llOWI PAYIII!Ht. sz.mM ST,SOO.OO !Mil6lHPW8 CASIIIXMN: SIO,OlU& TOIIIOI.,.,.,....III6T* -PI!Ctn . . so.oo . .) CMHPRIIZ(-,Ta) NIMIIERa' PAYIWIT8 00 NIIJU(t a' e¥:)1 DUEW.liO PAYIIENT Mudl10, JG09 1 & C.. cu.n ...,...,., TOfAI.DCWIPATIIEKI $a1,395.DO 2 Ollltl!N'>llCN Ifill SIII,02!1.65 I UN'MJIWAI«ZQf CMHPRIIZ !_lilt lmllldOICIIIII to '1111 _ . ..... .._, $7l,.l65.35 $.100.00 su.oo omaN. FEEB (PIIolto N*Cllll:i*l 411 0 so.oo AMOUNT FINANCED (tNt & ._ <111. e. O) n...-111,_,._._ I 571,6'77.).5 FINANCe CHARQK(- 111\.N 8) TM--NcnatwG""")QI. TOTAL OF Po\YMaiTIJ (\.Nf8 & 1111t-'11111d-lllid 7) 7 SU,!l61A5 ' tNN\/AL PERs;NJAGE RAT! IJ.lll y<»:GWID a lilt a-.-- TOTAI.SALEPRICI! (.,_ t, 41.. 4IJ. &. & 7) f'¥*11 Gl J10.11211.eo. on twTalll Down S»,B74.45 4. Prepayment. You may prepay your obligations under this Contract in full at any time by paying 'lhe unpaid prindpal balance, any earned and unpaid finance d'larges (calculated using (a) the Oato Finance Charge Begin&, regarcl868 af when we execute 1hls Contract, and (b) the actuanal method or suc;h other me1hod aa may be required by any applicable law), and any other amounts then duo and payable (1he •Account Balanc:ej. The unpaid pr!ndpal balance includes any origination fee. f. s.cwtty lnf8rat; Mlsalng lnlbrmatlon. You grant us 0 eecurity' lntBt'eGt In the Equipment (Wid all proceeds thereof) to sec:ure all of YOUT obligations under 1hla Contract and any other obllgatigns whic:h you may have to us or any asalgnee ot this Contract or any alliUata of 'lhat assiQTlee and you agree em any &eQUity Interest you previously granted to us or any assignee of this Contnlet or any atfiUete of that assignee 8h8ll also &8Qlft ywr obligations under this Contract Upon rec:elpt of all amounts due and to become due under this Contract, we wHI release our 88CUrity Interest In 1he Equipment proyided no event of defaUlt has oa;u1T8d and iS continuing. You 19ee to keep the Equipment free and dear of all lien& and ti'ICllrnbrancea, except 1hoGe In our favor, and promptly notify us if allan or errcurmrance Ia placed or threatened against 'lhe Equipment. You lrTvvocably auV'Iorizo us, at any time, to (a) Insert or coned lnfonnaliQf1 on 'lhls Contract. lndud!ng your correct legal name, sertal nul'l'lbens and Equipment descriptions; (b) submit notices and proof$ of losv for eny required ltltMance; (c) endorse your name on rem1Uanee5 for insurance and Equipment sale or lease proceeds; and (d) file a financing etatemtlnt(s) which desCribe& either 'lhe EqUipment or ell equipment currently or In 1he future flmn:ed by us. f. Equipment Malntllilance. Operation and Use. YOU agree to (a) USE THE EQUIPMENT ONLY FOR AGRICULTURAL, BUSINESS OR COMMERCIAL PURPOSES AND NOT FOR PERSONAL. FAMILY OR HOUSEHOLD PURPOSES; (b) operate and maintain the Equipment In accordance wilh all (1) applicable laws, ordinances and regulations, (2) manuals and other Jnstruc:tlons issued by the manufaclurer(s) a'ld suppUer(e), and (3) lrn;urance policy tenrs and requlRiments: (c) pertorm (at yoUr expense) all maintBnalce and repairs necessary to kaep !he Equipment In • good a condition as when dellverod to you, reasonable wear exceptud; (d) allow us and our agent($) to Inspect tho Equipment and all of your records related to its use, maintenance and repair, at f1l'f'l reasonable time; and (e) not permit the Equipment to be used by, or to be In 1he po611e8Sion of, anyone other than you or your employees. THE TERMS OF THIS CONTRACT ARE CONTAINED ON MORE THAN ONE PAGE IOOC4004 :zJ8I2009 - - - 10745778 ,..,..,..,c Conltnlcllon&I'O!Wtryeomm.tdal 107<15178 vnon-. 6 IUIIIIEJIIJIIJmiiDIIIIIIII (Page 5 of lO) . 7. In aura nee. You agree, at your cost, to maintain all-rl8k. in&uranee coverage wl1h respect to the Equipment for no less 1han its full value, naming us (and our &UCCeSGOr and assllJI&) as sole loss payee. You may cho06G who provides that insurance, but that be with c:ompanles and policloa acceptable to us. Your obligation to Insure !he Equipment continues until all your other obligations under this cOntract are &ahfied. Ea:tt inSUrance policy must provldo that (1) otl' interest In the P*Y will not be invalidated by 8IT'/ act. omls$ion, breadl or neglect of anyone olher than us; (2) the insurer will give us at least 30 days' prior written notice before any cancellation of, norHOnewal of, or material change to, lhe polk:y; and (3) eudl coverage shaD be primasy over wry InsuranCe purchaSed by us (or our subsldaries). Unless you provide us with svidence of the requlretl inSurance c:overage'&, we may, but are not required to, purdlase Insurance, at your expense, This lnswance may not (I) proteet your Interests; or (2) pay 8fr1 claim that you make or any claim that is made again8t you in connection wi1h the Equipment You may later cancel any lnsur'ar1ce purthased by us, but only aftar provhing us with evidence that you have oblalned the Insurance requirect by this Contract THE COST OF THE INSURANCE MAY BE MORE THAN THE COST OF THE INSURANCE YOU MAY BE ABLE TO OBTAIN ON YOUR OWN. THE to protect our Interests In the Equipment and charge you an Insurance fee on whidt we may make a profit COVERAGES OF THAT INSURANCE MAY BE CIFFERENT FROM THE COVERAGES OF INSURANCE YOU MAY BE ABLE TO OBTAIN ON YOUR OWN. You..,., to pay us the cost of any lnuance plus a $150 Insurance plaCement and service fee. You will lmmed!atel)' pay that amount to us or we may, at our sGie discretion, add that cost to the Account BalarK:e and Increase the required Installment Payments eccordln!W. If a default ocan, you authclrize us to cancel lhe Insurance on the Equipment and apply any returned premiums to the Acoount Balance. If the eost of the Insurance was induded In the Amount Financed, that Insurance will terminatB (a) if your debt to us iS discharged, (b) if we release our eeaufly iniBJest In the Equipment, (c) If a defauft occun; and we cmcel the imunlnc:e, (d) If the 18 repcesessed, (e) if the Aoater Policy under which you purchased lhat teminates, or (f) on the due date of the final schedUled lnstaDment Payment. 8. Loa• or Damage. Until ell of your obligalioTI8 under this Con1red are satisfied. you are responsible for all rlslc or loss and damage,loss, theft, dearuction or seizure of the Equipment (an "Event of los$"). You must promp11y notify us of any Event of Loss. If the Equipment can bo repaiJed or replaced, you agree to promptly repair or replace the Equipment, at your cost, and the terms of this Contract will cantlnue to apply. If the Equipment cannot be repaired or replaced, you agree to lmmedi8181y pay us the .Acc:cu'lt Blhnce. Upon rec:eipt or the Account Balanc:e, we Will release our soc:urity tnterest In the Equipment All insurance proceeds rrust be paid directly to us, and we may apply any excess insunii'IG8 proceeds to any other amounts you owe us or eny assignee of this Contract or any affiliate of that assignee. 9. Oetault You Will bo In default if: (a) you faD to renittous any Installment Payment or olherpaymentwhen due; (b)you breach any OCher pnMsion of 1hls Contract; (c) you remove any Equipment from the united States; (d) a petition ia liled by or you or wry guarantor under any banJwptcy, attachment, exec:IUtion or Insolvency law or you or any such {11Jaran1or make an astlgnment for the benefit af credl1oni; {e) a default oc::c:\lf8 under arry other agreement betWeen you (or 8f'l of your afliliatw) end us (or wry 8S$1gnee of 1hl& Contra::t or fll'/ aflliate of that asslgnn.); (f) you or any guarantor merges with or consolidates into another entity, sell$ all its dissolves or tenninates Its or (rf an indivicilel) dies or becomes incompetent; (g) you faD to maintain the Insurance fVCJJITed by this Contract; or (h) If for any reason, we deem the debt or 1he Equipment to be insecure. nme is of the esaence under thiS Contract 10. RemedJeS. If a default OCQSTS, we may do onct or more of the foUowing: (a) recover from you, AS UQUIOATEO DAMAGES FOR LOSS OF BARGAIN AND NOT AS A PENALTY, the Account Balance as Of the elate of such default, without presentment or demand; {b) declare my othor egraementa between you and us ln default; (c) tDmllnate any of your rights (bUt none of your obligations} under this Con1r8ct and art other agreement between you and us (or any agnee of this OT any affiliate ofthalasslgnee.); (d) you to deliver the ECJJipment to us In the outlkled below, or take pos&es$ion of the Equipment (e) lease or sell the Equipment or any portion thereof at a public or private sale; (f) apply the net proceeds we rec:elve from any sale, tease or other cbpdon of the Equipment (after deducting al1 of our c:oam and expenses) to yoor obligations under this Con1ract, wi1tl you remaining liable deficiency; (g) require you to reimburse and indemnifY ua for all losses, claims, damage$ and expem;o& of any lcind or nature wflafsoever IncUrred In connec:tion with the Equipment ar INs Contract and/or the enfon:ement of our remedies hereunder Including, wilhollt limitation, repossession, repair and collecllon eo&IS, damage awards, attorneys' foe& and court and bankn.lptcy fees end c:o&t9; (h) exerchoe any other remedy available at law or in equity; and (i) take on your behalf (at your expense) any action required by thiv Contrllct whicll you fall to take. These rvmeclee are cumulatiVt, are in addition to wry olher remediO$ provided for by law, and may be exen:l$ed concwrently or seprntaly. Any fullure or delay b)' us to extm:ise any right Shall not operate as a waiVer of if'Y other right or future rlgrt. In no event wiD the costs and expenses referred to In this section be more than those allowed by laW. If a default occur&, all Equipment mJSt be dufivered to the place designated by us, at your expense anct in eatiafactoly condition, along wilh all use, maintenance and repair records. EqtJipment lsln satisfactory condition if it hlln as good a condition as when the EqUipment was delivered to you, reasonable wear excepfad, • detamlned by us in our sole clecretlon. 11. Anlgnment. You wiD not assign, pledge or otherwise tr&nll'er any of your rights or internt:eln this Contract or any Equipment without otl' prior written c:onsent. Any assignment wilhout our ccnsent will be void. We may assign 1hls contract or our irltenM in ltle Equipment at any time without notice to you ood without your consent We may provide lnfonnalion about you to any protlpi!Ctive assignee or participant. You agree nat to assert &Qelnst our 8$$ignee any claims, offsets or defenses which you may have BQ81nst us. THE TERMS OF THIS CONTRACT ARE CONTAINED ON MORE THAN ONE PAGE IDOC4004 2AW009 GolllmnNtr. 1rs1415778 ConetN:11on & FOIWby 10745778 ""*"-= e Page3of51 IUim&IIIIIIIIDIIUR -- ...... ·-···· ······· ...•.. ······· ....................___________________ ----·····-·········---·--·-··· ... ····· .. .. . ········ ····-- -··- - ... --· ... . (Page 7 of 10) . .. --.------- (1) 12. and Wammtlft. You represent, warrant covenant to us so long as this Cr:mtract is in effuc\ that (a) you Will not ctJJtnse your name without giving us at least 30 days' prior written notice; (b) eactt doct1ment you &I"' and dellver to us Is duly authorized, oxecute<lpl&\d delivered by y01.1, and Is your valid, legal and binding agreement. enforceable in accordance with Its terms; (c) 1he execution, delivery and performance by you of1hls Contrac::t does not (m1d will not) 'Violate any taw or breach 8IPf order of court or o1htH' govemment81egoncy, or of any undertaking yvu ere a party to or by which you or eny of yoiJJ' propetties are bound; (d) you Will comply with all applicable lfts, ordnances and rugulallons; (e) upon exec:ution of 1hiS eomr.:t, we shall nave good and marketable title to any trade-in equipment frH Md clear of all 6ens and encumbrances whatsoever, (f) all information you have glven to us Ia rue, accurate and complete; (g) since tae dale of the most recent flnMclallnforrnation sjven to us, no material adVerse change in your business, assets. or prospec:ts has occurred; (h) you v.tll promptly deliver to us such financial statemerrts, repol'ts and other Information as we may request; 0) 1he ECJSipment was seledBd by you; (j) the Equipment ("Including all mar1ufacturer manuals end insiru<;tions) has been delivered to, and examned by, you; (k) 1he safe ttte proper servicing of 1he Equipment were explained to you; (I) you receiVed ti'te wri1tBn wwrunt)' applicable to ttte Equipment and understand that your rtgh1s under the written wananty may be (m) the Equipment is uncondltlcnally and irrevocably accepted by yoU as being suitable for Its Intended we; (n) 1he Equipment Is In good condition end repair (operating end 01ti01Wise); (o) 1he Equipment shall be used only for ti'te purpose Indicated herein, will remain In your possession and will not be sold, rented or teased; and {p) you wlD pay all taxes a&$8$88d on 1ho EQUipment unte&s you are an lndMdual, you also represent, warrant and covenant to us1hat: (a) you are end wiD remain cUy organized, validly existing 6Wid In good standing under the laws of your jUrisdiction of organization; (b) you are qualified to do buSiness under 1he laws of all other juri&dictions where quf.ilficalion Is required or advisable; (c) you will not dlange your jurisdiction of organization or Of88'lllation type wilhout at laas130 dltys' priar written notice to us; and (d) the exeastlon, deliVery and performance by you of this Contract will not breach any provision of your organizational documents. If you are an indvidual. you agree not to move your residenc::e to a ditferont GOUnty or state without at least 30 days' prior written notice tD us. 1:S. GovemJng Law; Jurlsdlc:IIOn; Venue. THIS CONTRACT WILL BE GOVERNED BV, AND CONSTRUED IN ACCORDANCE WITH. THE LAWS OF THE STATE OF THE SELLER'S PLACf Of BUSINESS, WHERE THIS CONTRACT I& ACCEPTED AND ENTERED INTO, except for Its conflict of lav.s provisil:ms. You irrevocably submit to the jurisdiction and venue of federal end state Coutts located In De& Moines, Iowa and will not clatm it Is an inconvenient forum for legal action. YOU AND WE IRREVOCABLY WAIVE ANY RIGHT YOU AND WE MAY HAVE TO A JURY TRIAL 14. Ml8ca1Jaheoua. WE HAVE NOT MADE, AND DO NOT MAKE, Afff REPRESENTATION OR WARRANTY, EXPRESS OR IMPUED, A8 TO TtiE EQUIPMENT"8 MERCHANTABIUlY, FITNESS FOR A PARllCULAR PURPOSE. SUITABIUTY, OR OTtieRWISE. WE ARE NOT UABLE FOR CONSEQUENTIAL OR SPECIAL DAMAGES. You agree not to withhold fillY amount you owe uslfyou believe you have a dalm against us, or manufacttlrer(s) of the Equipment, but to pull!Ue that daim independen11y. Any claim you have against us must be made within two yeans after the event 'that caused it All noticee I'JIUit beln writing and will be deemed given 5 days aftDr ma1Ung1D the intended recipient at 11.5 adchlss indi<:ated above, unle$& changed by a notice sjven In a:cordance with lhis Section. This Contract supereecles and repla:es all prior understandings and communications (Oilll or written) concerning 1he subject matter 1hereof. No pst of this Contract can be amended, waived or terminated except writing signed by both you and ua. This Contract may be signed In separBIB counterparts that, together, wiD constitute one document A paper or facsimile transmlaslon copy of your signature or an eledronlc signature shall comlitute en oririnal signature under applicable law for all puJ'POII8S. If a court finds -.y pelt of this Connct to be invalid or unenforceable, ttte remainder of Ilia Con1mct wiD remain in elfoct. You perrrit us to monitor and record conversations between you and us. All of our rights shall remain in effect after the expiration or tenn!nation of 1hls Contract. You end we intend to comply with Iilii appliCable Jaws. In no evttnt v.iD we charge or collect fliT'/ amounts In excess of those allowed by appUcable law. In the event any amount In excess of that allowed by law is charged or recovered. any such c;taarge wiD be deemed lirritad by the amount legally allowed and any amount received by us In exceA of tttat legally allowed will be applied by us to the payment of amounts legally allowed under this Contract. or rvfunded to you. THE TERMS Of THIS CONTRACT ARE CONTAINED ON MORE THAN ONE PAGE ( D0C4004 2l9r.2009 - - - 10745718 ,.._.,Ill 107-46718 _ _, 8 tmDBIIIIIIIIIIIIIIIImD I (Page 9 of 10) .....____ THE TERMS OF THIS CONTRACT SHOULD BE READ CAREFULLY BEFORE SIGNING BECAUSE ONLY THESe:;J WRITTEN TERMS ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES MAY BE LEGALLY ENFORCED. BY SIGNING THIS CONTRACT, YOU AGREE TO THE TERMS ON AU. PAGES. THIS CONTRACT IS THE COMPLETE AND EXCWSIVE STATEMENT OF THE AGREEMENT BElWEEN YOU AND US, EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT. e./12 DATE AGREEMENT SIGNED: l(l f LESUE EQUIPMENT CO. ASSIGNMENT. For value received, Seller hereby sells, assigns and Qlherwlse transfefS to John Deere Construction & Fores1ry CorJ1)any reeere"), 11s BUCCeS8CfS and assip, under the terms and ecndition$ of the applicable Anance Agreement now in effect betWeen Seller end Deere, all of SeDer's right. tille end interest In and to (1) this RotaillnstaiJment Contact. (2) all rights and remedes hereunder, (3) all lnstallmtl'\1 Payments and other amoums due and to becOmu due hereunder, (4) all Insurance proceedS and other proceuds. and (5) all Equipment subjec:t henrto. This instrument is not an assignment of any Seller's obllgallons to the buyer of the Equipment. Seller authorlzas Deere, its succesao111 and - . . . . . . . ,.. ._. . . . . ._.. . .1'' . Date: , 4J.l, Dealer: '-a r c By: H Q . ..-.. THE TERMS OF THIS CONTRACT AR£ CONTAINED ON MORE THAN ONE PAGE IDOC4004 2JIW009 107-ernJ 10745776 8 lllmiiiiiiiDIIIIIDJIIIIJIIIllll Page5of51 (l?age 1 or ll) ···--·-···R-E·S-E-1\/ES· ··········-·-·····-·····----- lvl4 • Application 10: 108263011 .. Version Number: g.v, 3 0 2009 SEP DJOHNDEERE CREDIT ·········-··-·-·· .. .. ..... -···-·····-······-·····-······ FIXED RATE CONTRACT JOHN DEERE CONSTRUCTION C&F Business or Commercial Use & FORESTRY CO. LOAN CONTRACT· SECURITY AGREEMENT Cont111cC Begin Date: 0912612009 SELLER'S NAMEANDADQRgss LESUE EQUIPMENT CO. I I CHIWCOTH!. OH 45601 ' t NAME ANI:' PHYSICAL ADDRESS CLAYTON RAILROAD CONSTRUCTION, LLC I tiOOLANERD WEST UNION, OH 458SMUO BORROYteR RESIDES TAX 10 llUMBER "-"""3016 I BORROY.ER'S PHONe NO. PHONE NUMe!OR I 'TYPe OF BUSINESS Umlttd Lhblllty company BORROYIER AGReai TO KEEPG000$1N (CclunlyiSIIIa) ADAMS,OH ADAMS,OH NANEAND TITLE 01' SIGNING OFACER JAMS II MCACWII$ • "'--cconl C0=8QBRQW£FrS !\lAME ANO PHYSICAL AQORfSS I SOCHNIERO WEST UNION. OH soc. sec. NVMBER -·"·IM1 I TYPE OF BUSIIES8 1. Parties. This Loan Contract-Security Agreement ("Contract") is entered Into between John Deere Constn.lction & Forestry Company \We", "us" or "our") and the borrower(s) indicated above ("you• or "your"). If more than one borrower Is indicated, each borrower shall be jointly and severally liable for al of the obligations under this Contract 2. Loan. You heJeby apply for a loan in the Amount Financed shown below, which, If accepted by us, the loan will be (a) subject to the terms and concitions set forth in this Contract, and (b) used to finance the balance due on the purchase from the Seller of the equipment and/or services described below (the "Equipmenr). All attachments and accessories ltemi;o;ed on this COntract and all replacemen1s, parts and repairs to the Equipment shall form part of the Equipment 3. Installment Payments. In adc.fition to any down payment, you agree to pay us the Amount Financed, together with finance charges from the Date Finance Charge Begins, at the Annual Percentage Rate, by remitting each of the Installment Payments on or before the due dates indicated. Any amounts applied to this Contrad will be applied first to any late charges, any charges for dishonored checks and any other fees or costs due under this agreement. then to finance charges, computed on the date the payment Is received and the remainder to the Amount Financed. You agree that your payments will be applied as of the c.fate of receipt if received by 11 :oo a.m. Central Time Monday through Friday (otherwise next business day); but If payment is not accompanied by the payment stub, is not in the envelope we pJovided, Includes other items such as other checkS, staples or paper clips, or Is not received at that location, credit may be delayed up to five days. This Contract Is not accepted by us until we sign it, even if you have made a payment to us. You agree to remit to us the Installment Payments and aU other amoun1s when due and payable each BlUing Period, even if we do not send you a blll or an invoice. YOUR PAYMENT OBUGAnONS ARE ABSOLUTE AND UNCONDinONAL, AND ARE NOT SUBJECT TO CANCELLAllON, REDUCTION OR SETOFF FOR ANY REASON WHATSOEVER. For any scheduled payment which Is not received by its due date, you agree to pay us interest on the unpaid amount at a rate of 20% per annum on that scheduled payment, but ln no event more than the maximum lawful rate, from the due date until paid. Restrictive endorsements on checks you send to us Will not change or reduce your obligations to us. We wm not lose any rights if we accept late or partial payments or delay enforcing our rights under this Contract If e check or electronic payment authorization you give us is dishonored upon filllt presentment, you agree to pay us a fee of $25.00, or the maximum amount permitted by law, whichever is less. tnstaftment Payments and other payments, Including proceeds of insurance or any sale of the Equipment, may be applied, at our discretion and In spite of any instructions you may provide, to any obligation you may have to us or any of our alfdiates. If the total of all payments made by you exceeds the total of all amounts due under this Contract by less than $25.00, we may retain such excess. THE TERMS OF THIS CO 9128fl009 DOC8015 Sdl•...-1 Nbl: 10826301 "PPPiootian ID; 10826301 Page 1 ofS Revisloo Date: Juoo 2009 m1 WI 11m I (EX. K- 3159) (Page 3 or ll) Nll'N USED OTY. , USED I I MODEl. I JD EllUI'MENT DESCRlPllON I SSOJ S50J LT Crawler Doar $101.000.-tlP I 120C 120C EXCAVATOR $15,000.00 AMOUNT PRODUCT 10 NO. lUS&OJX141082 USED 1 I JD PRODUCT 10 NO. FF120CX03G5l'2 1 Q,gtt QQI:ift OTY. I I MFR. MOOEL I OESCRIPTlON OF TRHJ&IN {l'fom Puodoalll O<derl PRClCUCT 10 NO. AMOUNT TOTAL 'TRAOE-IN: CASH OOYII PAYMENT: $0.00 $0.00 RENT AI. APPI.EO: $28,000.00 TOT"L m...o&IN PLUS CASHOO'MI: The amourdl5hooon bebw IS Finance Chllge, TOial unll Td:ll Sale Prlcll.,. Mdmala IINOII """"lho ......,clan 11181 pa)'JI'IOnlo""l ... .-an lllllscl>odulod ..-ymontdueeoaordi111IO lhe - · - scl>odule, The ..:llal Chalve, Tclat ct Paytnlnta, - TOIIOI S.lo DATE ANANCECHARGE BEGINS: lleptulb• 26,- Tlr6 tii'Jllnlltall!lffflt P4ym&lll Due Dalll/11 416. 2009 and aactr IMfliJ/m8nt Payment Is due OIIIIWI S81119 day of the Afonlh lhe191JIIer. (tile "B/1/ng I'W1ocf1, Ullillss ln:M!Vl TION OF ANIOI SAl-ESTAX (PakHD GeM. Agonoin) NUM&EROF PAYMENTS AMOUNT OF EACH 4&8 s-.uuo $28,000.00 DV&DioTE fCASH PRICE PAYMEIIII' 1 T•) [TOTAL 00'111111 PAYMENT &C.oll Down PG,mentl $0.00 $196,000.00 $28,000.00 ::1 $181,000.00 INSURANCI:: (PIIy>ioal D1m1111t Pilei 10 IIIIUrance 4 $0.00 ORlGil'l"llOH FEE$ 4A $300.00 OFAQAL s $1%.00 amouot ol credi piO'Jidod 111 )'011. ' $1118,312.00 CHARI.>i: (EI/IMd an_l.lnt_,lll dollar amount eM etodl Wll CDo1 )'011. 2 UNPAID BAL»>CE OF CASH PRICE (llle amount cr....S 1o J0111 account whh us) Odober ZS, :zoot 7 $29,760.40 8 $198,062.40 i..... IDPIII>IIC Ollldals) OTAL OFP...YMENTS tL._II& 7)Tt..amounl)CIOI'MI ...,, poUj ahr ,.... havei'Nide ol pa1f"'"''aa odloduiR ANNUAL (Ttt. CDo1 Of J0111 RATE 11$ a 8.22% )'Moly nlll!) TOTM.SALE PRICE IL.io1H 1. 4, •A. 5, $A(n t!:tt.IOial priCe ct yow pVrchale on or S2B.ooo.oo. :.'., lho Tolal eo..n $228,082.40 4. Prepayment You may prepay your obligations under this Contract in full at any time by paying the unpaid principal balance and any earned and unpaid finance charges. The unpaid principal balance Includes any origination fee. 5. security Interest; MISsing Information. You grant us a security interest In the Equipment (and all proceeds thereof) to secure all of your obHgatlons under this Contract and any other obligations which you may have to us or any of our affiliates or assignees, now or In the future and you agree that any security interest you previously granted to us or our affiliates $hal also secure your obllgatioms under this Contract. Upon receipt of all amounts due and to become due under this Contract, we wid release our security Interest In the Equipment provided no event of default has occurred and Is continuing. You agree to keep the Equipment free and clear of all liens and enoumbrances, except those in our favor, and promptly notify us if a lien or encumbrance is placed or threatened against the Equipment You irrevocably authorize us, at any time, to (a) insert or correct information on this Contract, including your correct legal name, aerial numbeiS and Equipment descriptions; (b) submit notices and proofs of loss for any required Insurance; (c) endorse your name on remittances for Insurance and Equipment sale or lease proceeds; and (d) me a financing statement(s) which describes either the Equipment or an equipment currently or in the future financed by us. You irrevocably authorize anyone in possession of information regarding the location, maintenance, operation and condition of the Equlpmentto provide all of that Information to us upon our request 6. Equipment Malntenam:e, Operation and Use. You agree to (a) USE THE EQUIPMENT ONLY FOR AGRICULTURAL, BUSINESS OR COMMERCIAL PURPOSES AND NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES; (b) operate and THE TERMS OF THIS CONTRACT ARE CONTAJNED ON MORE THAN ONE PAGE 912812009 OOC8015 s.lknwntNiir. 10826301 ID: 10826301 Equipmem Type: ConWucllon & ForMty Nurrt>o•; 9 Rvvl$bn Dala:June 2009 ,.., I. c"""""' lnltiale:C · . ·') Page 2or5 (PagQ 4 o:f ll) ------------------------------------ -------------------··---------------------------------------------------------- ---------------------- -------------------------------------------------------------------------------,j,---- maintain the Eql.ipment in accordance with an (1) applicable laws, ordinances and regulations, (2) manuals and other Instructions 'V'I issued by the manufacturer(&) and suppller{s), and (3) insurance policy terms and requirements; (c) perform (at your expen&e) all maintenance and repairs necessary to keep the Equipment in as good a condition as when delivered to you, reasonable wear excepted; (d) allow us and our agent(&) to Inspect the Equipment and an of your records related to Its use, maintenance and repair, at any reasonable tlme; and (e) not permit the Equipment to be used t:Tf, or to be in the possession of, anyone other than you or your employees. 7. Insurance. You agree, at your cost, to maintain all-risk Insurance coverage with respect to the Equipment for no less than its tun replacement value, naming us (and our suoceasor and assigns) as sole loss payee. You may ch00$8 who provides that insl.l'ance, but that Insurance must be with companies and policies acoeptable to us. Your obligation to insure the Equipment continues until all your other obligations under this Contract are satisfied. Each insurance policy must provide that (1) our Interest in the poUcy will not be Invalidated by any act, omission, breach or neglect of anyone other than u&; (2) the Insurer will give us at least 30 days' prior written notice before any cancellation of, non-renewal of, or material change to, the policy; and (3) such coverage shall be primary over any insurance purchased by us (or our affiliates). Unless you provide us with evidence of the required insurance coverage's, we may, but are not required to, purchase Insurance, at your expense, to protect our Interests in the Equipment and charge you an insurance fee on which we may make a profit This insurance may not (1) protect your Interests; or (2) pay any claim that you make or any claim that Is made against you in connection with the Equlpment. You may later cancel any insurance purchased by us, but only after providing us with evidence that you have obtained the Insurance requlrad by this Contract THE COST OF THE INSURANCE MAY BE MORE THAN THE COST OF THE INSURANCE YOU MAY BE ABLE TO OBTAIN ON YOUR OWN. THE COVERAGES OF THAT INSURANCE MAY BE DIFFERENT FROM THE COVERAGES OF INSURANCE YOU MAY BE ABLE TO OBTAIN ON YOUR OWN. You agree to pay us the cost of any Insurance plus a $150 in&urance placement and service fee. You will immediatelY pay that amount to us or we may, at our sole discretion, add that cost to the Acx:ount Balance and Increase the required Installment Payments accordingly. If a default occurs, you authorize us to cancel the Insurance on the Equipment and apply any returned premiums to the Ac<:ount Balance. If the cost of the insurance was Inducted In the Amount Financed, that insurance wiU terminate (a) if your debt to us is discharged, (b) if we release our security interest in the Equipment, (c) If a default occurs and we cancel the Insurance, (d) if the Equipment Is repossessed, (e) if the Floater Policy under which you purchased that insurance terminates, or (f) on the due date of the final &eheduled l.malment Payment. 8. Lou or Damage. Until all of your obligations under this Contract are satisfied, you are for all risk Of loss and damage, loss, theft, destruction or seizure of the Equlpment (an "Event of Loss"). You must promptlY notift us of any Event of Loss. If the Equipment can be repaired or replaced, you agree to promptlY repair or replace the Equipment, at your cost, and the terms of this Contract will continue to apply. If the Equipment cannot be repaired or replaced, you agree to immediately pay us the Account Balence. Upon receipt ofthe Account Balance, we release our security interest In the Equipment All insurance proceeds must be paid directly to us, and we may apply any excess insurance proceeds to any other amounts you owe us or any of our affiliates. &. Default. We may determine you to be In default if: (a) you ran to remit to us any Installment Payment or other payment when due; (b) you breach any ottter provision of this Contract; (c) you remove any Equipment from the United States; (d) a petition Is filed by or against you or any guarantor under any bankruptcy, attachment, execution or insolvency law or you or any such guarantor make an assignment for the benefit of creditors; (e) a default occurs under any other agreement between you (or any of your affiliates) and us (or any of our affiliates); (f) you or any guarantor merges with or consolidates Into another entity, sells substantiaUy all It$ assets, dissolves or terminates its existence, or (if an Individual) dies or becomes incompetent; (g) you fail to maintain the insurance required by this Contract; or (h) if for any reason, we deem the debt or the Equipment to be Insecure. Time is Of the essence under thi8 Contract. 10. Remedies. If we determine that you are in default, we may do one or more of the following: (a) recover from you, AS LIQUIDATED DAMAGES FOR LOSS OF BARGAIN AND NOT AS A PENALTY, the Account Balance as Of the date ofaueh default, without presentment or demand; (b) declare any other agreements between you and win default; (c) terminate any of your rights (but none of your obligations) under this Contract and any other agreement between you and us (or any of our affiliates); (d) require you to deliver the Equipment to us in the manner outlined below, or take possession of the Equipment; (e) lease or sell the Equipment or any portion thereof at a public or private sale; (f) apply the net proceeds we receive from any sale, lease or other disposition of the THE TERMS OF THIS CONTRACT ARE CONTAINED ON MORE THAN ONE PAGE 912812009 $alllelrootnt Ntr: 1082G30 1 DOC8015 Revision Dalo: June 2009 10826301 Page 3 of5 (Pag,. 5 of 11) ----------------------------------------------------------------------------------------·-·------ -------- - ----- ------ --· ---- -- -- - -- - ---- -- -------- -- -- -- ------ ---- Equipment (after deducting all of our costs and ex!)enses) to your obUgatlons under this COntract, with you liable for any deficiency; (g) require you to reimburse and indemnify us for all losses, claims, damages and expenses of any kind or nature «O whatsoever incurred In connection with the Equipment or this Contract and/or the enforcement of our remedies hereunder Including, without limitation, repossession, repair and collection costs, damage awards, attorneys' fees and court and bankruptcy fees and costs; (h) exercise any other remedy available at law or in equity; and (I) take on your behalf (at your expense) any action required by this Contract which you fall to take. These remedies are cumulative, 11re in addition to any other remedies provided for by law, and may be exerchled concurrenUy or separately. Aey failure or delay by us to exercise any right shall not operate as a waiver of any other right or future righlln no event will the costs and expenses refeJJed to in this section be more than those allowed by law. If we determine that you are In default, al Equipment must be delivered to the place designated by us, at your expense and in satisfactory condition, along with all use, maintenance and repair records. Equipment is in satisfactory condition if it 1$ in at good a condition as When the Equipment was delivered to you, reasonable wear excepted, 815 determined by us in our sole discretion. 11. Assignment. You will not assign, pledge or otherwise transfer any of your righ1s or interests in this Contract or any Equipment without our prior written consent Arty assignment without our consent will be void. We may assign this Contract or our interest In the Equipment at any time without notice to you and without your consent. We may provide information about you to any prospective assignee or participant You agree not to assert against our assignee any claims, offsets or defenses which you may have against us. 12. Representations and Warranties. You represent, warrant and covenant to us so long as this Contract is in effect, that (a) you will not change your name without giving us at least 30 days' prior written notice; (b) each document you sign and deliver to us is duly authorized, executed and delivered by you, and Is your valid, legal and binding agreement, enforceable in accordance wi1h its terms; (c) the execution, delivery and performance by you of this Contract does not (and will not) violate any applicable law or breach any order of court or other governmental agency, or of any undertaking you are a party to or by which you or any of your properties are bound; (d) you will comply with all applicable laws, ordinances and regulations; (e) upon execution of this Contract, the Seller ehall have good and marketable title to any trade-in equipment free and clear of an liens and encumbrances whatsoever, (f) all information you have given to us Is true, accurate and complete; (g) since the date of the most recent financial information given to us, no material adverse change in your buSiness, assets, or prospects has occurred; (h) you \IIIli promptly deliver to us such financial statements, reports and other information as we may request; (I} the Equipment was selected by you; 0) the Equipment (including all manufacturer manuals and instructions) has been defivered to, and examined by, you; (k) the safe operation and the proper servicing of the Equipment were explained to you; (I) you received the written warranty applicable to the Equipment and undenotand that your rights under the wrttten warranty may be limited; (m) the Equipment is unconditionally and irrevocably accepted by you as being suitable for its intended use; (n) the Equipment is In good condition and repair (operating and otherwise); (o) the Equipment shall be used only for the purpose indicated herein, will remain in your possession and will not be sold, rented or leased; and (p) you wiU pay all taxes assessed on the Equipment. Unless you are an individual, you also represent, warrant and covenant to us that: (a) you are will remain duly organized, validly existing and In good standing under the laws of your jurisdiction of organization; (b) you are qualified to do business under the taws of all other jurisdictions where qualification Is required or adVIsable; (c) you wm not change your jurisdiction of organization or organization type without at least 30 days' prior written to us; and (d) the execution, delivery and performance by you of this Contract wiU not breach any provision of your organizational documents. If you are an individual, you agree not to move your residence to a different county or state wi1hout at least 30 days' prior wrttten notice to us. 13. Governing Law; Jurisdiction; Venue. THIS CONTRACT WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF IOWA. WHERE THIS CONTRACT IS ACCEPTED AND ENTERED INTO, except for its conflict of laws provisions. You irrevocably submit to the nofMlxduslve jurisdiction and venue offederal and state courts located in Des Moines, Iowa and will not claim it is an inconvenient forum for legal action. YOU AND WE IRREVOCABLY WPJVE ANY RIGHT YOU AND WE MAY HAVE TO A JURY TRIAL. However, you acknowledge that any Iowa state law compulsory mediation requiremen\liJ will apply to this agreement or the Equipment only if you are a resident of the State of Iowa. 14. Miscellaneous. WE HAVE NOT MADE, AND DO NOT MAKE, ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPUED, AS TO THE EQUIPMENTS MERCHANTABIUTY, FITNESS FOR A PARTICULAR PURPOSE, SUITABIUTY, OR OTHERWISE. WE ARE NOT UABLE FOR CONSEQUENllAL OR SPECIAL DAMAGES. You acknowledge that the Seiler of the Equipment is not an agent of ours, or authorized to act for or bind us. You agree not to withhold any amount you owe us If you believe THE TERMS OF THIS CONTRACT ARE CONTAINED ON MORE THAN NE PAGE 912812009 DOC8015 10826301 RI!Yisbn Dele: Juno 2009 Applcalion 10: 10826301 Page 4of5 (Page 6 of 11) . -------- ------- -------- -- -------- ------------ -- --------- ---- ---- ------ ----- --- -- -- ·-\ ---· --- ------ ------ ---- ---------- --------- - -- - --- ---- - - ------------------ ---- --- --- ------- --- -- -- --- you have a claim against us, the Seller or any manufacturer(&) of the Equipment, but to pursue that claim independently. lvly claini;J' you have against us must be made within two years after the event that caused il All notices must be In writing and witl be deemeh .. 1 given 5 days after mailing to the intended recipient at ita address Indicated above, unless changed by a notice giVen in accordancer, ) with this Section. This Contract supersedes and replaces all prior understandings and communlcetlons (oral or written) concerning the subject matter thereof. No part of this Contract can be amended, waived or terminated except by a writing signed by both you and us. This Contract may be signed In separate counterparts that, together, wm constitute one document. A paper or facsimile transmission copy of your signature or an electroniC signature shall constitute an original signature under applicable for all purposes. If a court finds any part of this Contract to be lnvand or unenforceable, the remainder ofthl$ Contract remain in effect. You permit us to monnor and record telephone conversations between. you and us. You agree that by providing us any telephone number, Including a mobile phone number, we and any debt collector we retain can contact you using that number, including calls using an automatic dialing and announcing device and prerecorded calls. All of our rights shall remain in effect after the expiration or termination of this Contract. You and we ,Intend to comply with all applicable laws. In no event will we charge or collect any amounts in excess of those allowed by applicable law. In the event any amount in excess of that allowed by law is charged or recovered, any such charge will be deemed limited by the amount legally allowed and any amount received by us in excess of that legally allowed wiD be applied by us to the payment of amounts legally allowad under this Contract, or refunded to you. lliE TERMS OF THIS CONlRACT SHOUl.O BE READ CAREFULLY BEFORE SIGNING BECAUSE ONLY THESE WRilTEN TERMS ARE ENFORCEABLE. NO OlliER TERMS OR ORAL PROMISES MAY BE LEGALLY ENFORCED. BY SIGNING THIS CONTRACT, YOU AGREE TO lliE TERMS ON ALL PAGES. nilS CONTRACT IS THE COMPLETE AND EXCWSIVE STATEMENT OF lliE AGREEMENT BElWEEN YOU AND US, EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT. I agree that I have received a completely filled in copy of this Agreement. CLAYTON RAILROAD CONSTRUCTION,LLC r::-Jc- _L f:tl<1 9/2 } / JP.MES R MCADAMS, PI'G$1den! / DATE AGREEMENT SIGIED: _ _ Accepted By: John Deere Constnlctlon & Forestry /. / Company (Lender) t1:f MDO NW 88th Street. Johnston, lA 50131-6800 (Dale Signed) By: JAMES R MCADAMS SR, lndll'iduall'; THE TERMS OF THIS CONTRACT ARE CONTAINED ON MORE THAN ONE PAG Se1hmlon!Nbr: 101126301 Application 10: 10826301 DOC8015 Revl&km Oate: June 2009 Page sor s ------ ----- (Page 1 of 8) ---------;-·------------------ n.::. , . . JOHN DEERE 'li!!iJI CREDIT t:. &::. u ----------------- ----------------"'- MAY 2 0 2010 Application 10· 1oe261o( Versson Number. 1n , FIXED RATE'CONTRACT JOHN DEERE CONSTRUCTII.JIV 6 FORESTRY CO c&F Bussne&e or CommerCial Use LOAN CONTRACT ·SECURITY AGREEMENT COntract Segln Dlite 0511812010 ''SNAMEANC .ADDRESS I .lAMES R MCADAMS SR SOOLANERD WEST UNION, BORROV'&RRESICESIN BORRO\o\ER'S soc sse NUMSER --..·1541 I BORROVIER'S PHONE NO 9374111-2952 I 'TYPE OF BUSINESS BORROvet oiiGREeJTOMEEP GOOOSIN AOAMS,OH AOAMS,OH 1. Parties. Thse Loan Contract-Security Agreement ("Contract'? Is entered into betvveen John Ceere Construcbon & Forestry Company {"we", "us" or "our") and the borrower(s) indicated above ("you" or "your'?. If more ttuin one borrower ss Indicated, each borrower shall be JOIntly and 11everally l1able for all of the obligation& under this Contract 2. Loan. You hereby apply for a loan In the Amount Fsnenoed shown below, whtch, rf accepted 17( us, the loen Will be (a) subject to the terms and conditions set forth In this Contract, and (b) used to finance the balance due on the purchese from the Seller of the equspment and/or serv1ces descnbed below (the "Equipment") All attachments and ecoeS$Ones 1tem12.:ed on thiS Contract and ell replacement., parts and repa1rs to the Equipment shall form part of the Equipment 3. Installment Payments. In addition to any down payment, you agree to pay us the Amount Financed, together With finance charges from the Date Finance Charge Begms, at the Annual Percentage RatE), by remitting each of the Installment Payments on or before the due dates Indicated. Ally amounts applied to this Contract Will be applied first to any late charges, any charges for dishonored checks and any other fees or costa due under this agree then to finance charges, computed on the date the payment is receiVed and the remasnder to the Amount Financed You agree that your payments will be applied 88 of the date of recetpt If received by 11·00 a.m. Central Time Monday through Friday (otherwise next business day); but rf payment is not accompanied by the payment &tub, 18 not tn the envelope we prOVIded, Includes olher Items such as other checks, staples or paper dips, or IS not received at that locabon, credit may be delayed up to five days Thl& Contract I& not accepted by us until we 11gn It, even if you have medea payment to us You agree to remit to us the Installment Payments and an other amounts when due and payable each Bilting Penod, even If we do not send you a bill or an tnvoace. YOUR PAYMENT OBUGAllONS ARE ABSOLUTE AND UNCONDITIONAL, AND ARE NOT SUBJECT TO CANCELLAllON, REDUCTION OR SETOFF FOR ANY REASON WHATSOEVER. For any scheduled payment which Is not received by rts due date, you agree to pay us Interest on the amount at a rate of 20",{, per ennum on that scheduled payment. but in no event more than the maximum lawful rate, from the due date until paid Restrictive endorsements on checks you send to us will not change or reduce your obhgallomt to us. We will not IO&e any rlghtlJ If we accept late or partial payments or delay enforang our nghts under this Contract. If a check or electronic payment authorization you gr;e us is diSI'IOnored upon firSt presentment, you agree to pay us a fee of $25.00, or the max1mum amount permitted by law, whichever as less Installment Payments and other payments, lncludsng proceeds of Insurance or any sale of the EqUipment, may be applied, at our discretion and 1n spite of any mstTuctlons you may provide, to any obligation you may have to us or any of our affilaates. If the total Of ail payments made by you exceeds the total of all amounts due under this Contract by less than $25 00, we may retain such excess QTY 1 t=l MFR I Mooa. I USED JD I 350 l &UK I EOUIPMSNT OESCRIPTlotl J $220,500.00 624KXDW 4WO Loader I I SSOCLC EJIAvator I $180,000.00 AMOUNT PROOI.ICT 10 NO m&00ll80GG28 1 USED J JO l THE TERMS OF THJS CO 51111/2010 OOC8015 CT ARE CONTAINED ON MORE THAN ONE PAG 10926709 Appllcallon 10 t0926709 Page 1 ors 'Revision Dele. June 2009 (EX. M - 8806) (Page 2 of .. 8) - --- ------- -- - ----- - ----- ----- ----- ---- - - ---- -- - ----- ---- --- - - ,. PROOUCTIDNO I 1 PROOUCT 10 NO I t PRODUCT ID NO I 1 PRODUCT ID NO I 1 PROI)UC'I' ID NO I ---- ---- - ---- -o;,:,- ·-·· ·- .... - U$8) I 555 I WC CRWlR LOADJ:R I m.ooe;qo SKT I 80ol2 I Sltyltall: 11042 Forllllft I $80,000.00 JD I I 4SOJ I 450.1 LT C1awlef Doller I $72.600.00 &ODXFF Compad Extavator I JD UJISSCX008842 USED I 1GOOSSI57 us en I T04SO.IXU1020 USED I .IU I GOUI FFII&Otlmo&57 11IJIJP6:m. mltl OTY --- - -- - Q:Qit.lll el!Mta: J r.tooa MI'R I I'ROOIJCT 10 NO OF TIWI6-IN (From Pwl:heaeOider) AMOUNT $0.00 CASH OO'MI $0.00 REHrAL N'PtJEI)- $193,000.00 TOTI.L TRAI*INPUJS CASHDCI'M4 TM DMl> liii:(;;!Nli' 11-. be!DW• Fillrrl» Chlrve, Tollll l>ao8dupon111o 18, illllO The Ollt 11161lfltmoot PajoTllllnl OW OaiB Is June 11 ZOID ltlld NCh 5UCCessNV 11181Blllnent Pll,.,.,r IB dUe on 1t1e dlly of 1m Month t111e "81111"11 Perb17. unlfm otl1arwbll ptOVtJtld bebY: PI*.,...,_ ..yn.ntdue- 1nciTallll Slllo 1D ll1e _._ldoodllie TM IIQiuol FiNnc;e Qwgoo, T..alol l"'IYmmntt.llncl Tacal $U gpanlhe OF. T,.,_ l'fOTAl.llOYM PAYt.ENT (!Mil of TfliCio.ln & C8SII Dovon Pa,rnenll .June 18, 2010 2 $193,000.00 3 $517,318.10 .... • $0.00 OUEOIITE $12,818.St ... $0.00 $710,318.&0 ORIGINATION FEES AMOUNT OF liloCH PAYMENT 1 utiPAIO 8ALANCE OF CASH PRice (TM •on;>Unl credited ID yOUT account 'Mill Ul) I (Piij'soial DM1ago Pllld 1D NUMBER OF PAYMeml PRICE Oncllldlnil T.. ) FEES {Paid ID f'llbll; Olliaell) ANNUAL Pa<CeiTAGE RATE (The cost d your aedll • • rate) SALE PRICE (UIIS 1 4 4A. 6. SA Ill Appkabl<t) & 7) _ . p..,. of yow PUICI\IIM on credl. Uldudq ll1e TOIIIII»MM Poyrnent oi$19-J 000 00 $517.630.50 T ANANCE onl..lnoi_IIJ frh. clclaramounllhe ctedt ...l 0051 you $12..00 fl (\.Ill* 3. 4. o4A. 5 & 5o'. - o f cftldl pvvldediD you OTALOF PAYMENTS u - u 7)TilelllJIOIIftlyouWI hiN• pDid .. -ulool noo.oo 5 $87,9$6.22 . I 1 ' . $605,581.72 UO% $798,588.TZ 4. Prepayment You may prepay your obllgallons under thi$ Contract In full at any time t7f paying the unpaid prinCipal balance and any earned and unpaid finance chargee. The unpad prlndpal balance mcludes any orlgmatJon fee. 5. Security Interest: Missing Information. You grant us a secunty mterest 1n the Equipment (and all proceeds thereof) to secure all of your obligations under th1a Contract and any other obligations which you may have to us or any of our affiliates or aSSignees, now or In the future and you agree that any secunty Interest you prevtousty granted to us or our affiliates shall also secure your obligations under thiS Contract. Upon receipt of all amounts due and to become due under this Contract, we WJII release our security Interest In the Equtpment provided no event of default has occurred and Is contlnumg You agree to keep the Equipment free and clear of all Hens and encumbrances, except those In our favor, and promp11y notify us If a lien or encumbrance is placed or threatened agamst the Equipment You trravocably authonze us, at any time, to (a) Insert or oorrect mformabon on this Contract, including your oorrectlegal name, serial numbers and Equipment descnplions; (b) submit nobces and proofs of loss fo1 any required Insurance; (c) endorse your name on ramit1anees for 1nsuranc:e and Eqwpment sale or lease proceeds, and (d) file a finanang statement(s) which describes e1ther 511812010 DOC8015 10926109 Revision Dale: June 2009 10 10926709 Page 2 of5 . ---- ---- (Page 3 of 8) -- -- ------- - -- ----------------------------------·------------------------------------------ -------------------------------------------------------------------------------- ------------------------------ ------------------·· the Equipment or all equpment currenUy or m the future financed by us You trrevocably authonz:e anyone tn poss8S81on of ..,.. Information regarding the location, mamtenance, operation and condition of the Equ1pment to provide all of that mfonnatton to us our request 8. Equipment Maintenance, Operation and Use. You agree to (a) USE THE EQUIPMENT ONLY FOR AGRICULTURAL. BUSINESS OR COMMERCIAL PURPOSES AND NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES; (b) operate and maintain the Equlpmentm accordance with all (1) applicable laws, ordinances and regulations, (2) manuals and other Instructions Issued by the manufacturer(a) and supplier(a), and (3) insurance policy terms and requlremen1S, (c) perform (at your expense) all maintenance and repa1ra necessary to keep the Equipment In as good a condition as when delivered to you, reasonable wear excepted. (d) allow us and our agent(s) to Inspect the Eqwprnent and all of your records related to Its use, maintenance and repair, at any reasonable time; and (e) not permit the Equ1pment to be used by, or to be 1n the po$Snslon of, anyone other than you or your employees 7. Insurance. You agree, at your cost, to ma1ntatn alkisk msurance coverage wrth respect to the Equipment for no less than t1B full replacement value, naming us (and our successor and ass1gns) n sole loss payee. You may choose who provides that insurance, but that insurance must be With comparoes and pohaes acceptable to us Your obligation to iooure the Equipment con1lnues until all your other obligations under thiS Contract are satisflect Each 1naurance policy mu&t provide that (1) our interest in the policy Will not be us at least 30 days' pnor written Invalidated by any act, omission, breach or neglect of anyone other than us, (2) the 1nsurer Will notrce before any canceDatlon of, non-renewal of, or metana! change to, the policy, and (3) such coverage shall be pnmary over any Insurance purchased by us (or our affiliates). Unless you provide us with evidence of the requtred 1nsurance coverage's, we may, but are not requsred to, purChase tnsurance, at your expense, to protect our tnterests tn the Equipment and charge you an msurance fee on which we may make a profit ThiS insurance may not (1) protect your mterests, or (2) pay any claim that you make or any claim that Is made against you 1n connection with the Equipment You may later cancel any Insurance purchased by U&, but only after providing us with evidence that you have obtained the msurance requtred bV thts Contract THE COST OF THE INSURANCE MAY BE MORE THAN THE COST OF THE INSURANCE YOU MAY BE ABLE TO OBTAIN ON YOUR OWN. THE COVERAGES OF THAT INSURANCE MAY BE DJFFERENT FROM THE COVERAGES OF INSURANCE YOU MAY BE ABLE TO OBTAIN ON YOUR OWN. You agree to pay us the cost of any insurance plus a $150 1nsurance placement and service fee You wiD immedately pay that amount to us or we may, at our sole discretion, add that coat to the Account Balance and sncrease the reqUired Installment Payments accordingly If a default occurs, you authorize us to cancel the insurance on the Equipment and apply any returned prem1ums to the Account Balance. If the cost or the 1nsurance was Included m the Amount Financed, that Insurance W1U terminate (a) If your debt to us is discharged, (b) 1f we release our security interest 1n ttle Equipment, (c) If a default occurs and we cancel the insurance, (d) if the Equipment is repossessed, (e) If the Aoater Policy under which you purchased that tnsurance terminates, or (f) on the due date of the final scheduled Installment Payment 8. Loss or Damage. Unbl all of your obligations under this Contract are satisfied, you are responsible for aU risk of IO$S and damage, loss, theft, destruction or seiZure of the EqUipment (an "Event of Loss"). You must promptly notify us of any Event of LO$s if the Equipment can be repaired or replaced, you agree to promptly repa1r or replace the Equipment, at your cost. and the terms of this Contract will con11nue to apply. If the Equipment cannot be repa1red or replaced, you agree to immediately pay us the Account Balance Upon receipt of the Account Balance, we Wtll release our seamty Interest in the Equ1pment All Insurance proceeds must be pa1d dlreclly to us, and we may apply any exc88$ insurance proceeds to any other amounts you owe us or any of our affiDates. 9. Default. We may determine you to be in default It (a) you fml to remit to us any lnstanment Payment or other payment when due, (b) you breach any other provision of this Contract, (c) you remove any Equipment from the Umted States; (d) a petition is filed by or aga1nst you or any guarantor under any bankruptcy, attachment, execution or insolvency Jaw or you or any such guarantor make an assagnment for the benefit of credrlOI'$; (e) a default occurs under any other agreement between you (or any of your affiliates) and us (or any of our affiliates); (f) you or any guarantor merges oMth or consolidates mto another entity, sell$ substantiaUy all its assets, dissolves or term1nates t1B eXIstence, or (if an individual) d1es or becomes incompetent; (g) you fail to malntam the Insurance required by thiS Contract, or (h) 1f for any reason, we deem ttle debt or the Equipment to be insecure Time is of the essence under thiS Contract 10. Remedies. If we determine that you are In default, we may do one or more of the followmg: (a) recover from you, AS THE TERMS OF THIS CON RACT ARE CON AINEO ON MORE THAN ONE PAGE 511812010 OOC8015 Revision Dato. June 2009 Selll•menl Nllr 10926709 10926709 Page 3of5 (llilge 4 or B) ------------ ---- - - ---- -- --------- --- -- -------------- -- ------- ----- -------- ..... LIQUIDATED DAMAGES FOR LOSS OF BARGAIN AND NOT AS A PENALTY, the Account Balance as of the date of such default,ot Without presentment or demand, (b) declare any other agreements between you and us 10 default; (c) terminate any of your nghts (eut none of your obligations) under this Contract and any other agreement between you and us (or any of our affiliates), (d) requ1re yoGib deliver the Equipment to us m the manner outlmed below, or take possession of the Equpment; (e) lease or sell the Equ1pment or any portion thereof at a public or pnvate sale, (f) apply the net proceeds we receive from any sale, lease or other dispositiOn of the Equipment (after deducting all of our costs and expenses) to your obligations under this Contract, With you remaining liable for any deficiency, (g) require you to and indemnify us for all losses, cla1ms, damages and expenses of any land or nature wfla1Boever Incurred in connection with the Equipment or thiS Contract and/or the enforcement of our remedies hereunder Including, Without limitation, repos88S81on, repalr and coUeciJon costa, damage awards, attorneys' fees and court and banlauptc:y fees and oosts; (h) exerciae any other remedy available at law or ln equ1ty, and(!) take on your behalf (at your expense) any action required by ttus Contract wh1ch you to take. These remedies are cumulatiVe, are in addition to any other remed1es provided for by law, and may be exerased concurrently or separately Any failure or delay by us to exerCise any right shall not operate as a waiver of any other nght or future right In no event Will the costs and expenses referred to 1n this section be more than those allowed by law. If we determine that you are mdefault, all EqUipment must be delivered to the place designated by us, at your expense and In satisfactory condition, along with all use, maintenance and repa1r records. Equipment IS in satisfactory if Jt is in as good a condltion as when the Equipment was delivered to you, reasonable wear excepted, as determined by us In our sole dJs01eton 11. Assignment. You WID not ass1gn, pledge or othervnse transfer any of your ngh1B or interests In thiS Contract or any Equipment Without our prior wriUen consent Any assignment Without our Will be void We may assign this Contract or our mterest In the Equ1pment at any time wrthout notice to you and without your consent We may provide Information about you to any prospective assignee or participant You agree not to assert against our IJ&&Ignee any claims, offsets or defenses which you may have agaJnst us 12. Representations and Warranties. You represent, warrant and covenant to us so lon9 as this Contract is 1n effect, that. (a) you will not change your name Without g1V1ng us at least 30 days• pnor wntten notice; (b) each document you sign and deliver to us i8 duly authonzed, executed and delivered by you, and is your valrd, legal and binding agreement, enforceable in accordance With its terms; (c) the execution, delivery and performance by you of this Contract does not (and will not) violate any applicable law or breach any order of court or other governmental agency, or of any undertaking you are a party to or by which you or any of your properties are bound, (d) you will comply with allapphcable laws, ordinances and regulations; (e) upon execution of this Contract, the Seller shall have good and marlcetable btle to any trade·m eqUipment freG and clear of all liens and encumbrances whatsoever, (f) all mformabon you have to us Is true, accurate and complete, (g) since the date of the most recent finanaal information given to us, no material adverse change 1n your busmess, assets. or prospects has occurred; (h) you WJII prompty deliver to us such finanCial statements, reports and other mformaton as we may request; (1) the EqUipment was selected by you, (J) the Equipment (mcludmg all manufacturer manuals and mstruC'bons) has been delivered to, and examined by, you, (k) the safe operation and the proper seiVIang of the Equ1pment were explained to you, (I) you received the wntten warranty applicable to the Equipment and understand that your rights under the wntten wananty may be limited, (m) the Equapment 1s unconditionally and Irrevocably accepted b'f you as being suitable for It& Intended use; (n) the Eqwpment 1s in good condition and repair (operating and otherWise), (o) the Equ1pment shaD be used only for the purpose mdicated herein, will remam in your poues&ion and will not be sold, rented or leased; and (p) you Will pay all taxes assessed on 1he Equipment Unless you are an individual, you also represent, warrant and covenant to us that (a) you are and WJII remain duly organiZed, vahclly exJSbng and in good standing under the laws of your JUnsdlctlon of orgamzaton; (b) you are qualified to do business under the laws of all other junsdctJons where qualification Is required or advisable, (c) you will not change your junsdJc:bon of or organJZatlon type 'Mthout at least 30 d8)'8' pnor written notice to us, and (d) lhe execution, delivery and performance by you of th1s Contract will not breach any proVISIOn of your organizational documents. If you are an individual, you agree not to move your residence to a different county or state Without at least 30 days' pnor written notice to us 13. Governing Law; Jurlsdletlon; Venue. THIS CONTRACT WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF IOWA, WHERE THIS CONlRACT IS ACCEPTED AND ENTERED INTO, except for Its conflict of laws provisions You IJJevocably submit to the non-exclusive junsdlction and venue offederal and state courts located 1n Des Moines, Iowa and will not cla1m it is an inconvement forum for legal action. YOU AND WE IRREVOCABLY WAJVE ANY RIGHT YOU AND WE THE TERMS OF THIS CONTRACT ARE CONTAINED ON MORE THAN ONE PAGE 511812010 OOC8015 ROVISIOil Dale. June 2009 Se!ljementNbr 1092&709 AppiJca1Jon ID 10926709 ewm-1n111a11.. (!.'age 5 of 8) --- - -- -- ------------- ---- --------- ------------------- -- - - ·--------- ---- --- ------------ ---------- ---- ------- ------------------- ------- MAY HAVE TO A JURY TRIAL However, you acknowledge that any Iowa state law compulsory medratlon requirements Will this agreement or the EqUipment only rf you are a res1dent of the State of Iowa ----- c.o 14. Mlsc:ellaneous. WE HAVE NOT MADE, AND DO NOT MAKE, ANY REPRESENTAnON OR WARRANTY, EXPRESS OR IMPUED, AS TO THE EQUIPMENrs MERCHANTABILITY, RTNESS FOR A PARnCULAR PURPOSE, SUITABIUTY, OR OTHERWISE. WE ARE NOT UABLE FOR CONSEQUENnAl. OR SPECIAL DAMAGES. You acknowledge that the Seller of the Equipment ts not an agent of ours, or authorized to act for or bind us You agree not to withhold any amount you owe ua If you believe you have a claim against us, the Seller or any manufacturer(&) of lhe EqUipment, but to pursue that da1m Independently Any daim you have against us must be made within two yeal'$ after the event that caused ll All notices must be in wnbng and Will be deemed given 5 days after malting to the Intended reapient at Its address indicated above, unless changed by a notice grven in accordance with this Section. Tb1s Contrachupen;edes and replaces all pnor understandings and commumcabons (oral or wntten) concerning the subject matter thereof. No part of this Contract can be amended, warved or terminated except by a writmg $1gned by both you and us This Contract may be SJgned 1n separate counterparts that, together, will conabtute one document A paper or facsrmrle transmi&slon copy of your signature or an elec!Jonrc signature shall c:onsbtute an orrgmal signature under applicable Jaw for all purposes. If a court findi any part of this Con1ract to be invalid or unenforceable, the remainder of this Contract will remain in effect You permit us to monrtor and record telephone conversations between you and 1$. You agree that by providing us any telephone number, 1ndudtng a mobile phone number, we and any debt collector we retam can contact you usrng that number, Including calls USing an automatic dialing and announang dev1ce and prerecorded calls All of our rights shall rema1n in effect after the expiration or term1nat1on of th1s Contract You and we 1ntendto comply With all applicable 18\W In no eventwrll we charge or collect any amounts in excess of those aDowad by applicable Jaw In the event any amount 1n exce55 of that allowed by law Is charged or recovered, any such charge wrll be deemed limited by the amount legally allowed and any amount received by us 1n excess of that legally allowed will be applied by us to the payment of amounts legally allowed under this Contract, or refunded to you THE TERMS OF THIS CONTRACT SHOULD BE READ CAREFUUY BEFORE SIGNING BECAUSE ONLY THESE WRilTEN TERMS ARE ENFORCEABLE. NO OntER TERMS OR ORAL PROMISES MAY BE LEGALLY CONlRACT IS ENFORCED. BY SIGNING THIS CONTRACT, YOU AGREE TO THE TERMS ON ALL PAGES. THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND US, EXCEPT AS WE MAY LATER AGREE IN WRinNG TO MODIFY IT. nns I agree that I have received a completely filled in copy of this Agreement. 01\11: AGREEMENT ..... _ _ __ Accepted By. John Deere Construction & Forestry Company (Lender) 6401 NW 81th Street, Johnston, lA 60131-8800 (AUTllORIZB> SIGNA1lJRf) THE TERMS OF THIS CONTRACT ARE CONTAINED ON MORE THAN 511812010 DOC8015 Revision Dato.June 2009 . S.llle"**INI>: 10026709 ApplcdMIID 10926709 Conslrueboto & ForestJy Comma v.....,., Nurrber .. ....... Page SofS 09/1 0/2012 12:13:09 PM Page 1 McAdams proposal Compound Period .. .... ... : Monthly Nominal Annual Rate .. .. : 6.000% CASH FLOW DATA Event 1 Loan 2 Payment 3 Payment Amount Date 09/20/2012 10/12/2012 11/12/2012 Number Period End Date 864,902.60 150,000.00 21,843.88 1 1 36 Monthly 10/12/2015 AMORTIZATION SCHEDULE- Normal Amortization Payment Interest Principal Loan 09/20/2012 1 10/12/2012 2 11/12/2012 3 12/12/2012 2012 Totals 150,000.00 21,843.88 21,843.88 193,687.76 3,127.67 3,590.15 3,498.88 10,216.90 146,872.13 18,253.73 18,345.00 183,470.86 4 01/12/2013 5 02/12/2013 6 03/12/2013 7 04/12/2013 8 05/12/2013 9 06/12/2013 10 07/12/2013 11 08/12/2013 12 09/12/2013 13 10/12/2013 14 11/12/2013 15 12/12/2013 2013 Totals 21,843.88 21,843.88 21,843.88 21,843.88 21,843.88 21,843.88 21,843.88 21,843.88 21,843.88 21,843.88 21,843.88 21,843.88 262,126.56 3,407.16 3,314.98 3,222.33 3,129.22 3,035.65 2,941.61 2,647.10 2,752.11 2,656.65 2,560.72 2,464.30 2,367.40 34,699.23 18,436.72 18,528.90 18,621.55 18,714.66 18,808.23 18,902.27 18,996.78 19,091.77 19,187.23 19,283.16 19,379.58 19,476.48 227,427.33 662,995.02 644,466.12 625,844.57 607,129.91 588,321.68 569,419.41 550,422.63 531,330.86 512,143.63 492,860.47 473,480.89 454,004.41 16 01/12/2014 17 02/12/2014 18 03/12/2014 19 04/12/2014 20 05/12/2014 21 06/12/2014 22 07/12/2014 23 08/12/2014 24 09/12/2014 25 10/12/2014 26 11/12/2014 27 12/12/2014 2014 Totals 21,843.88 21,843.88 21,843.88 21,843.88 21,843.88 21,843.88 21,843.88 21,843.88 21,843.88 21,843.88 21,843.88 21,843.88 262,126.56 2,270.02 2,172.15 2,073.79 1,974.94 1,875.60 1,775.76 1,675.42 1,574.57 1,473.23 1,371.37 1,269.01 1,166.14 20,672.00 19,573.86 19,671.73 19,770.09 19,868.94 19,968.28 20,068.12 20,168.46 20,269.31 20,370.65 20,472.51 20,574.87 20,677.74 241,454.56 434,430.55 414,758.82 394,988.73 375,119.79 355,151.51 335,083.39 314,914.93 294,645.62 274,274.97 253,802.46 233,227.59 212,549.85 Date Balance 864,902.60 718,030.47 699,776.74 681,431.74 EXHIBITS 09/10/2012 12:13:09 PM Page 2 McAdams proposal Payment Interest Principal Balance 28 01/12/2015 29 02/12/2015 30 03/12/2015 31 04/12/2015 32 05/12/2015 33 06/12/2015 34 07/12/2015 35 08/12/2015 36 09/12/2015 37 10/12/2015 2015 Totals 21,843.88 21,843.88 21,843.88 21,843.88 21,843.88 21,843.88 21,843.88 21,843.88 21,843.88 21,843.88 218,438.80 1,062.75 958.84 854.42 749.47 644.00 538.00 431.47 324.41 216.81 108.78 5,888.95 20,781.13 20,885.04 20,989.46 21,094.41 21,199.88 21,305.88 21,412.41 21,519.47 21,627.07 21,735.10 212,549.85 191,768.72 170,883.68 149,894.22 128,799.81 107,599.93 86,294.05 64,881.64 43,362.17 21,735.10 0.00 Grand Totals 936,379.68 71,477.08 864,902.60 Date 09/1 0/2012 12:13:09 PM Page 3 McAdams proposal Last interest amount increased by 0.10 due to rounding.

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