Registration of Securities (General Form) — Form 10 Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: 10-12G Registration of Securities (General Form) HTML 1.79M
2: EX-2.1 Plan of Acquisition, Reorganization, Arrangement, HTML 85K
Liquidation or Succession
19: EX-2.10 Plan of Acquisition, Reorganization, Arrangement, HTML 109K
Liquidation or Succession
3: EX-2.2 Plan of Acquisition, Reorganization, Arrangement, HTML 49K
Liquidation or Succession
4: EX-2.3 Plan of Acquisition, Reorganization, Arrangement, HTML 50K
Liquidation or Succession
5: EX-2.4 Plan of Acquisition, Reorganization, Arrangement, HTML 50K
Liquidation or Succession
6: EX-2.5 Plan of Acquisition, Reorganization, Arrangement, HTML 44K
Liquidation or Succession
7: EX-2.6 Plan of Acquisition, Reorganization, Arrangement, HTML 211K
Liquidation or Succession
8: EX-2.7 Plan of Acquisition, Reorganization, Arrangement, HTML 215K
Liquidation or Succession
9: EX-2.8 Plan of Acquisition, Reorganization, Arrangement, HTML 282K
Liquidation or Succession
10: EX-2.8.1 Plan of Acquisition, Reorganization, Arrangement, HTML 37K
Liquidation or Succession
11: EX-2.8.2 Plan of Acquisition, Reorganization, Arrangement, HTML 39K
Liquidation or Succession
12: EX-2.8.3 Plan of Acquisition, Reorganization, Arrangement, HTML 29K
Liquidation or Succession
13: EX-2.8.4 Plan of Acquisition, Reorganization, Arrangement, HTML 45K
Liquidation or Succession
14: EX-2.8.5 Plan of Acquisition, Reorganization, Arrangement, HTML 54K
Liquidation or Succession
15: EX-2.8.5A Plan of Acquisition, Reorganization, Arrangement, HTML 21K
Liquidation or Succession
16: EX-2.8.6 Plan of Acquisition, Reorganization, Arrangement, HTML 24K
Liquidation or Succession
17: EX-2.8.7 Plan of Acquisition, Reorganization, Arrangement, HTML 180K
Liquidation or Succession
18: EX-2.9 Plan of Acquisition, Reorganization, Arrangement, HTML 112K
Liquidation or Succession
20: EX-3.1.1 Articles of Incorporation/Organization or By-Laws HTML 47K
21: EX-3.1.2 Articles of Incorporation/Organization or By-Laws HTML 44K
22: EX-3.1.3 Articles of Incorporation/Organization or By-Laws HTML 71K
23: EX-3.2 Articles of Incorporation/Organization or By-Laws HTML 112K
24: EX-4.1 Instrument Defining the Rights of Security Holders HTML 18K
33: EX-4.10 Instrument Defining the Rights of Security Holders HTML 41K
34: EX-4.10.1 Instrument Defining the Rights of Security Holders HTML 25K
35: EX-4.11 Instrument Defining the Rights of Security Holders HTML 40K
36: EX-4.11.1 Instrument Defining the Rights of Security Holders HTML 26K
37: EX-4.11.2 Instrument Defining the Rights of Security Holders HTML 28K
38: EX-4.11.3 Instrument Defining the Rights of Security Holders HTML 27K
39: EX-4.11.4 Instrument Defining the Rights of Security Holders HTML 27K
40: EX-4.12 Instrument Defining the Rights of Security Holders HTML 358K
41: EX-4.13 Instrument Defining the Rights of Security Holders HTML 166K
42: EX-4.14 Instrument Defining the Rights of Security Holders HTML 93K
43: EX-4.15 Instrument Defining the Rights of Security Holders HTML 48K
44: EX-4.16 Instrument Defining the Rights of Security Holders HTML 84K
25: EX-4.2 Instrument Defining the Rights of Security Holders HTML 18K
26: EX-4.3 Instrument Defining the Rights of Security Holders HTML 18K
27: EX-4.4 Instrument Defining the Rights of Security Holders HTML 225K
28: EX-4.5 Instrument Defining the Rights of Security Holders HTML 80K
29: EX-4.6 Instrument Defining the Rights of Security Holders HTML 125K
30: EX-4.7 Instrument Defining the Rights of Security Holders HTML 104K
31: EX-4.8 Instrument Defining the Rights of Security Holders HTML 165K
32: EX-4.9 Instrument Defining the Rights of Security Holders HTML 73K
45: EX-10.1 Material Contract HTML 86K
58: EX-10.10 Material Contract HTML 76K
59: EX-10.11 Material Contract HTML 30K
60: EX-10.12 Material Contract HTML 22K
61: EX-10.13 Material Contract HTML 37K
62: EX-10.14 Material Contract HTML 39K
46: EX-10.2 Material Contract HTML 83K
47: EX-10.3 Material Contract HTML 166K
48: EX-10.4 Material Contract HTML 49K
49: EX-10.5 Material Contract HTML 65K
50: EX-10.5.1 Material Contract HTML 146K
51: EX-10.6 Material Contract HTML 69K
52: EX-10.7 Material Contract HTML 295K
53: EX-10.7.1 Material Contract HTML 82K
54: EX-10.7.2 Material Contract HTML 118K
55: EX-10.7.3 Material Contract HTML 56K
56: EX-10.8 Material Contract HTML 110K
57: EX-10.9 Material Contract HTML 44K
63: EX-16.1 Letter re: Change in Certifying Accountant HTML 25K
64: EX-21.1 Subsidiaries of the Registrant HTML 20K
THIS FIRST AMENDMENT (the “Amendment”), dated December 29, 2006, is entered into by and
between PURE EARTH, INC., a Delaware corporation (“Pure Earth”) and its wholly owned subsidiaries,
SOUTH JERSEY DEVELOPMENT, INC., a Pennsylvania corporation (“South Jersey”), AMERICAN
TRANSPORTATION & DISPOSAL SYSTEMS, LTD., a Delaware corporation (“American”), and JUDA
CONSTRUCTION, LTD., a New York corporation (“Juda”), (collectively, the “Borrower”), and WELLS
FARGO BANK, NATIONAL ASSOCIATION (the “Lender”), acting through its Wells Fargo Business Credit
operating division.
RECITALS
The Borrower and the Lender are parties to a Credit and Security Agreement dated October 24,2006 (as amended from time to time, the “Credit Agreement”). Capitalized terms used in these
recitals have the meanings given to them in the Credit Agreement unless otherwise specified.
The Borrower has requested that certain amendments be made to the Credit Agreement, which the
Lender is willing to make pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements
herein contained, it is agreed as follows:
1. The definition of “Eligible Accounts” set forth in Section 1.1 of the Credit Agreement
shall be deleted in its entirety and replaced with the following:
“’Eligible Accounts’ means all unpaid Accounts of the Borrower arising from the sale or lease
of goods or the performance of services, net of any credits, but excluding any such Accounts having
any of the following characteristics:
(i) That portion of Accounts unpaid 90 days or more after the invoice date;
(ii) That portion of Accounts related to goods or services with respect to which the
Borrower has received notice of a claim or dispute, which are subject to a claim of set-off
or a contra account (to the extent of such claim of set-off or contra account), or which
reflect a reasonable reserve for warranty claims or returns;
(iii) That portion of Accounts not yet earned by the final delivery of goods or
rendition of services, as applicable, by the Borrower to the customer, including progress
billings, and that portion of Accounts for which an invoice has not been sent to the
applicable account debtor;
(iv) Accounts constituting (i) proceeds of copyrightable material unless such
copyrightable material shall have been registered with the United States Copyright Office,
or (ii) proceeds of patentable inventions unless such patentable inventions have been
registered with the United States Patent and Trademark Office;
(v) Accounts owed by any unit of government, whether foreign or domestic (provided,
however, that there shall be included in Eligible Accounts that portion of Accounts owed by
such units of government for which the Borrower has provided evidence satisfactory to the
Lender that (A) the Lender has a first priority perfected security interest and (B) such
Accounts may be enforced by the Lender directly against such unit of government under all
applicable laws);
(vi) Accounts denominated in any currency other than United States dollars;
(vii) Accounts owed by an account debtor located outside the United States which are
not (A) backed by a bank letter of credit naming the Lender as beneficiary or assigned to
the Lender, in the Lender’s possession or control, and with respect to which a control
agreement concerning the letter-of-credit rights is in effect, and acceptable to the Lender
in all respects, in its sole discretion, or (B) covered by a foreign receivables insurance
policy acceptable to the Lender in its sole discretion;
(viii) Accounts owed by an account debtor that is insolvent, the subject of bankruptcy
proceedings or has gone out of business;
(ix) Accounts owed by an Owner, Subsidiary, Affiliate, Officer or employee of the
Borrower;
(x) Accounts not subject to a duly perfected security interest in the Lender’s favor or
which are subject to any Lien in favor of any Person other than the Lender;
(xi) That portion of Accounts that has been restructured, extended, amended or
modified;
(xii) That portion of Accounts that constitutes advertising, finance charges, service
charges or sales or excise taxes;
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(xiii) Accounts owed by an account debtor, regardless of whether otherwise eligible, to
the extent that the aggregate balance of such Accounts exceeds 25% of the
aggregate amount of all Accounts (with ineligibility under this subsection limited to
such excess), except:
(1) Accounts owed to the Borrower by Civetta Cousins, to the extent that the aggregate
balance of such Accounts exceeds 35% of the aggregate amount of all Accounts (with
ineligibility under this subsection limited to such excess);
(2) Until the earlier of (A) December 1, 2007, or (B) termination of payment bond 8204
40 51 issued by Federal Insurance Company, or (C) completion of work by the Borrower for The
Laquila Group on the Rego Park Mall, Accounts owed to the Borrower by The Laquila Group with
respect to the Rego Park Mall, to the extent that the aggregate balance of such Accounts
exceeds the lesser of 50% of the aggregate amount of all Accounts or $2,500,000 (with
ineligibility under this subsection limited to such excess). All other Accounts owed to the
Borrower by The Laquila Group shall be deemed ineligible to the extent that the aggregate
balance of such Accounts exceeds 25% of the aggregate amount of all Accounts or are
otherwise ineligible;
(xiv) Accounts owed by an account debtor, regardless of whether otherwise eligible, if
twenty-five percent (25%) or more of the total amount of Accounts due from such debtor is
ineligible under clauses (i), (ii), or (x) above; and
(xv) Accounts, or portions thereof, otherwise deemed ineligible by the Lender in its sole
reasonable discretion.”
2. Section 6.2(b) of the Credit Agreement shall be amended as follows:
“(b) Capital Expenditures. The Borrower will not incur or contract to incur unfinanced
Capital Expenditures of more than $725,000 for the fiscal year ending December 31, 2006 and
$300,000 in the aggregate during any subsequent fiscal year.”
3. Section 6.6 of the Credit Agreement shall be amended to add subsection (e) as follows:
“(e) The Administrative Borrower may advance up to $300,000, in the aggregate, during each
calendar year, to its subsidiaries Terrasyn Environmental Corp., Environmental Venture Partners
LLC, Bio Methods, LLC and Geo Methods, LLC. So long as no Default exists, any funds transferred to
the Lender from Terrasyn Environmental Corp., Environmental Venture Partners LLC, Bio Methods, LLC
and Geo Methods, LLC may be re-advanced to those entities by the Administrative Borrower and will
not be used in calculating the foregoing $300,000 annual intercompany advance.”
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4. Consent to Acquisition. The Lender consents to the Borrower’s acquisition of
Terrasyn Environmental Corp., Environmental Venture Partners LLC, Bio Methods, LLC and Geo Methods,
LLC (collectively, the “Acquired Entities”) on the following conditions:
(a) The Lender shall have a first perfected lien upon and security interest in all assets of
the Acquired Entities evidenced by a security agreement acceptable to the Lender; and
(b) The Acquired Entities shall guarantee the Indebtedness, unconditionally, evidenced by a
guarantee acceptable to the Lender.
5. Exhibit B of the Credit Agreement shall be deleted and replaced with Exhibit B attached
hereto.
6. Exhibit C of the Credit Agreement shall be amended to include the following:
“Leased Properties
36 Sheffield Street, Waterbury, Connecticut (initial term ends 2/28/09 with two (2) five year
renewal options)”
7. Schedule 5.1 of the Credit Agreement shall be deleted in its entirety and replaced with
Schedule 5.1 attached hereto.
8. Schedule 5.5 of the Credit Agreement shall be amended to reflect the addition of the
following subsidiaries:
“Terrasyn Environmental Corp. (100% owned subsidiary of Pure Earth, Inc.)
Environmental Venture Partners LLC (100% owned subsidiary of Pure Earth, Inc.)
Bio Methods, LLC (100% owned subsidiary of Pure Earth, Inc.)
Geo Methods, LLC (100% owned subsidiary of Pure Earth, Inc.)”
9. Schedule 6.4 of the Credit Agreement shall be deleted in its entirety and replaced with
Schedule 6.4 attached hereto
10. No Other Changes. Except as explicitly amended by this Amendment, all of the terms
and conditions of the Credit Agreement shall remain in full force and effect and shall apply to any
advance or letter of credit thereunder.
11. Amendment Fee. On November 30, 2006, Borrower paid to the Lender a fully earned,
non-refundable fee in the amount of $7,500 in consideration of the Lender’s execution and delivery
of this Amendment.
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12. Conditions Precedent. This Amendment shall be effective when the Lender shall have
received an executed original hereof, together with each of the following, each in substance and
form acceptable to the Lender in its sole discretion:
(a) A Certificate of the Secretary of the Borrower certifying as to (i) the resolutions of the
board of directors of the Borrower approving the execution and delivery of this Amendment, (ii) the
fact that the articles of incorporation and bylaws of the Borrower, which were certified and
delivered to the Lender pursuant to the Certificate of Authority of the Borrower’s secretary or
assistant secretary dated October 24, 2006 continue in full force and effect and have not been
amended or otherwise modified except as set forth in the Certificate to be delivered, and
(iii) certifying that the officers and agents of the Borrower who have been certified to the
Lender, pursuant to the Certificate of Authority of the Borrower’s secretary or assistant secretary
dated October 24, 2006, as being authorized to sign and to act on behalf of the Borrower continue
to be so authorized or setting forth the sample signatures of each of the officers and agents of
the Borrower authorized to execute and deliver this Amendment and all other documents, agreements
and certificates on behalf of the Borrower.
(b) Payment of the fee described in Paragraph 7.
(c) Such other matters as the Lender may require.
13. Representations and Warranties. The Borrower hereby represents and warrants to the
Lender as follows:
(a) The Borrower has all requisite power and authority to execute this Amendment and any other
agreements or instruments required hereunder and to perform all of its obligations hereunder, and
this Amendment and all such other agreements and instruments has been duly executed and delivered
by the Borrower and constitute the legal, valid and binding obligation of the Borrower, enforceable
in accordance with its terms.
(b) The execution, delivery and performance by the Borrower of this Amendment and any other
agreements or instruments required hereunder have been duly authorized by all necessary corporate
action and do not (i) require any authorization, consent or approval by any governmental
department, commission, board, bureau, agency or instrumentality, domestic or foreign, (ii) violate
any provision of any law, rule or regulation or of any order, writ, injunction or decree presently
in effect, having applicability to the Borrower, or the articles of incorporation or by-laws of the
Borrower, or (iii) result in a breach of or constitute a default under any indenture or loan or
credit agreement or any other agreement, lease or instrument to which the Borrower is a party or by
which it or its properties may be bound or affected.
(c) All of the representations and warranties contained in Article V of the Credit Agreement
are correct on and as of the date hereof as though made on and as of such date, except to the
extent that such representations and warranties relate solely to an earlier date.
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14. References. All references in the Credit Agreement to “this Agreement” shall be
deemed to refer to the Credit Agreement as amended hereby; and any and all references in the
Security Documents to the Credit Agreement shall be deemed to refer to the Credit Agreement as
amended hereby.
15. No Waiver. The execution of this Amendment and the acceptance of all other
agreements and instruments related hereto shall not be deemed to be a waiver of any Default or
Event of Default under the Credit Agreement or a waiver of any breach, default or event of default
under any Security Document or other document held by the Lender, whether or not known to the
Lender and whether or not existing on the date of this Amendment.
16. Release. The Borrower hereby absolutely and unconditionally releases and forever
discharges the Lender, and any and all participants, parent corporations, subsidiary corporations,
affiliated corporations, insurers, indemnitors, successors and assigns thereof, together with all
of the present and former directors, officers, agents and employees of any of the foregoing, from
any and all claims, demands or causes of action of any kind, nature or description, whether arising
in law or equity or upon contract or tort or under any state or federal law or otherwise, which the
Borrower has had, now has or has made claim to have against any such person for or by reason of any
act, omission, matter, cause or thing whatsoever arising from the beginning of time to and
including the date of this Amendment, whether such claims, demands and causes of action are matured
or unmatured or known or unknown.
17. Costs and Expenses. The Borrower hereby reaffirms its agreement under the Credit
Agreement to pay or reimburse the Lender on demand for all costs and expenses incurred by the
Lender in connection with the Loan Documents, including without limitation all reasonable fees and
disbursements of legal counsel. Without limiting the generality of the foregoing, the Borrower
specifically agrees to pay all fees and disbursements of counsel to the Lender for the services
performed by such counsel in connection with the preparation of this Amendment and the documents
and instruments incidental hereto. The Borrower hereby agrees that the Lender may, at any time or
from time to time in its sole discretion and without further authorization by the Borrower, make a
loan to the Borrower under the Credit Agreement, or apply the proceeds of any loan, for the purpose
of paying any such fees, disbursements, costs and expenses and the fee required under Paragraph 7
of this Amendment.
18. Miscellaneous. This Amendment may be executed in any number of counterparts, each
of which when so executed and delivered shall be deemed an original and all of which counterparts,
taken together, shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the
date first above written.
In accordance with our Credit and Security Agreement dated as
of []
(as amended
from time to time, the “Credit Agreement”), attached are the financial statements of PURE EARTH,
INC., a Delaware corporation and its subsidiaries, SOUTH JERSEY DEVELOPMENT, INC., a Pennsylvania
corporation, AMERICAN TRANSPORTATION & DISPOSAL SYSTEMS, LTD., a Delaware corporation, and JUDA
CONSTRUCTION, LTD., a New York corporation (collectively, the “Borrower”) as of and for
,
200_____
(the “Reporting Date”) and the year-to-date period then ended (the
“Current Financials”). All terms used in this certificate have the meanings given in the Credit
Agreement.
I certify that the Current Financials have been prepared in accordance with GAAP, subject to
year-end audit adjustments, and fairly present the Borrower’s financial condition as of the date
thereof.
I further hereby certify as follows: Events of Default. (Check one):
•
o The undersigned does not have knowledge of the occurrence of a Default or Event of
Default under the Credit Agreement except as previously reported in writing to the
Lender.
•
o The undersigned has knowledge of the occurrence of a Default or Event of Default
under the Credit Agreement not previously reported in writing to the Lender and
attached hereto is a statement of the facts with respect to thereto. The Borrower
acknowledges that pursuant to Section 2.6(d) of the Credit Agreement, the Lender may
impose the Default Rate at any time during the resulting Default Period.
•
Material Adverse Change in Litigation Matters of the Borrower. I further
hereby certify as follows (check one):
•
o The undersigned has no knowledge of any material adverse change to the litigation
exposure of the Borrower or any of its Affiliates.
•
o The undersigned has knowledge of material adverse changes to the litigation exposure
of the Borrower or any of its Affiliates not previously
disclosed in Schedule 5.7. Attached to this Certificate is a statement of the facts
with respect thereto.
Financial Covenants. I further hereby certify as follows (check and complete each of
the following):
1. Minimum Tangible Net Worth. Pursuant to Section 6.2(a) of the Credit Agreement, as of the
Reporting Date, the Borrower’s Tangible Net Worth was $, which o satisfies o does not
satisfy the requirement that such amount be not less than $2,500,000 on the Reporting Date.
2. Capital Expenditures. Pursuant to Section 6.2(b) of the Credit Agreement, for the
year-to-date period ending on the Reporting Date, the Borrower has expended or contracted to expend
during the year ended [,
200_____,_] for unfinanced Capital Expenditures,
$ in the aggregate, which o satisfies o does not satisfy the requirement that such
unfinanced expenditures not exceed $725,000 in the aggregate during the fiscal year ending December31, 2006 and $300,000 in the aggregate during any subsequent fiscal year.
3. Salaries. As of the Reporting Date, the Borrower has not paid excessive or unreasonable
salaries, bonuses, commissions, consultant fees or other compensation, and as a consequence o is o
is not in compliance with Section 6.8 of the Credit Agreement.
4. Advances to Affiliates. As of the Reporting Date, outstanding advances to Terrasyn
Environmental Corp. and Environmental Venture Partners LLC (the “Acquired Entities”) o do o do not
$300,000 may be owed by Terrasyn Environmental Corp. and Environmental Venture Partners LLC to the
Administrative Borrower at any time. For the year-to-date period ended
_____, 200_____,
the Administrative Borrower has advanced to the Acquired Entities $ in the aggregate and
has received $ in the aggregate from the Acquired Entities.
Attached hereto are all relevant facts in reasonable detail to evidence, and the computations
of the financial covenants referred to above. These computations were made in accordance with
GAAP.
PURE EARTH, INC.
By:
Its Chief Financial Officer
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Schedule 5.1 to Credit and Security Agreement
TRADE NAMES, CHIEF EXECUTIVE OFFICE, PRINCIPAL PLACE OF BUSINESS, AND LOCATIONS OF COLLATERAL TRADE NAMES
•
Pure Earth, Inc. was formerly known as Info Investors, Inc. Its name was changed on
January 17, 2006.
•
South Jersey Development, Inc. has operated only under its corporate name since
inception.
•
Juda Construction, Ltd. has operated only under its corporate name since inception.
•
American Transportation & Disposal Systems, Ltd. has operated only under its corporate
name since inception. It did, however, change its name to Pure Earth of New York, Inc. on
April 24, 2006, and changed it back to American Transportation & Disposal Systems, Ltd. on
September 1, 2006.
•
None of the borrowers has otherwise operated under any other trade name.
CHIEF EXECUTIVE OFFICE/PRINCIPAL PLACE OF BUSINESS
Pure Earth, Inc. Chief Executive Office and Principal Place of Business:
Juda Construction, Ltd. owns a crushing unit located at 95-05 Fairview (95th
Street), North Bergen, NJ07047, which is operated by South Jersey Development, Inc. All
other Juda equipment is stored at 400 Tiffany Street, Bronx, NY.
•
South Jersey Development, Inc.’s equipment is located at 95-05 Fairview (95th
Street), North Bergen, NJ07047.
S-5.1-2
Schedule 5.2 to Credit and Security Agreement
CAPITALIZATION OF PURE EARTH, INC. AND ORGANIZATIONAL CHART
No. of shares (after
Type of
exercise of all rights
Percent interest on
Holder
Rights/Stock
to acquire shares)
a fully diluted basis
Public Company
Common Stock
15,207,889
100
%
Attach organizational chart showing the ownership structure of all Subsidiaries of the Borrower.
Schedule 6.4 to Credit and Security Agreement
Permitted Indebtedness and Guaranties INDEBTEDNESS
Principal
Amount
(as of
Maturity
Monthly
Creditor
8/31/06)
Date
Payment
Collateral
Orix Financial Services
$
208,019.95
9/1/08
$
9,314.00
2- 2006 Kenworths
Hitachi
$
30,780.00
7/5/07
$
3,078.00
Kawasaki Loader
Key Equipment
$
39,820.35
7/6/07
$
3,770.00
2004 Kenworth
DCS
$
42,540.20
5/9/08
$
2,153.40
2001 Kenworth
GE Commercial
$
20,158.04
12/20/06
$
6,806.47
2- 2003 Kenworths
GE Commercial
$
4,067.54
12/20/06
$
1,376.26
2004 Flowboys
GE Transportation Finance
$
21,337.20
3/2/07
$
3,127.10
2- 2004 Flowboys
Pacar Financial
$
50,357.35
9/1/07
$
4,397.35
2005 Kenworth
Pinnacle – All Points
$
500,660.01
4/15/09
$
18,240.00
1987 Cat. Exc.; 1994 Hitachi Exc.; and other equipment
All other obligations above are obligations of Juda.
All indebtedness of Borrowers relating to Permitted Liens as of the date of this Agreement is
Permitted Indebtedness hereunder, whether or not listed above.
