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DEFINITIONS
“COMPANY” - Whayne Supply Company, Whayne- The Cat Rental Store, Cecil I. Walker Machinery Co. (“Walker” and/or “Walker
Express”), Boyd Mining LLC, the provider and/or lessor of the parts, services or equipment described on the Agreement
“Customer” - The lessee of the Equipment and/or the purchaser, of the parts and/or services described on the Agreement
“Equipment” - The machinery or equipment described on the Agreement.

TERMS AND CONDITIONS FOR RENTAL

1. TERMS OF RENTAL AGREEMENT. Subject to the terms of this agreement COMPANY leases the Equipment
to the Customer, and Customer leases the Equipment from COMPANY, on a continuous basis, for the
period (the “TERM”) commencing with the delivery of the Equipment to Customer and terminating at the
end of the later of
(a) the Guaranteed Minimum Term set form on the Agreement or
(b) the return of the Equipment to COMPANY as hereafter provided..

2. RENTAL CHARGES. Customer agrees to pay COMPANY rental for the Equipment and other applicable
charges at COMPANY’s posted rental rates and/or schedules as in effect on the date the Term commences
and as set forth on the Agreement. Rental rates shall be based on a 10-hour day, 50 hour week and 200
hour 4 week period. All Equipment utilized by the Customer for DOUBLE SHIFT USE (15 hours per day) will
be charged at 1 ½ times the appropriate daily, weekly or 4 week rental rate. Equipment utilized by the
Customer for TRIPLE SHIFT USE (24 hours per day) will be charged at 2 times the appropriate daily, weekly
or 4 week rate. COMPANY shall have the right to determine overtime use from time to time during the
TERM and/or following the return of the Equipment.

3. TERMS OF PAYMENT. Customer agrees to pay, in advance in a lump sum, the entire rental charge for the
Equipment for the Guaranteed Minimum Term upon delivery of the Equipment. Customer agrees to pay
all charges for the purchase of parts and/or supplies immediately upon receipt of the items purchased, to
pay for overtime use upon being invoiced therefor, and to pay for service work at COMPANY’s posted
service rates, immediately upon completion of work. All payments due under this Agreement which are
not paid within 15 days after the due date shall bear a late or delinquency charge of 1.5% per month or
fraction thereof, computed from the due date to the date of payment, compounded monthly. Payments,
when made, shall apply first to accrued late or delinquency charges, and the remainder shall apply to the
balance due hereunder.

4. INSPECTION OF EQUIPMENT TOWING DEVICES. Customer acknowledges and agrees that

(a) it has the responsibility to inspect, that it has inspected the Equipment and has determined that the
Equipment is suitable for Customer’s intended use;
(b) it understands the proper use of the Equipment; and
(c) it has been furnished and is familiar with all written instructions and manuals concerning the
Equipment. Customer acknowledges and agrees that it is Customer’s responsibility to inspect any towing
 devices to be utilized in connection with the Equipment, including but not limited to, all hitches and safety
chains, prior to leaving COMPANY’s premises. Customer further acknowledges and agrees to inspect the
Equipment and any towing devices periodically during the Term and to maintain the Equipment and all
towing devices in safe and proper operating condition. COMPANY shall not be liable for any damage to
Customer’s vehicle used to tow or otherwise transport the Equipment.

5. FUEL. Customer acknowledges that COMPANY has delivered the Equipment to Customer with fuel tanks
filled to 100%. Customer agrees to return the Equipment at the expiration of the Term with the fuel tanks
filled to 100% or to pay COMPANY a refueling charge at COMPANY’s posted refueling rate per gallon.

6. LOCATION OF EQUIPMENT; TITLE AND IDENTIFICATION. Customer agrees to keep the Equipment at the
location set forth on the Agreement and not to remove the Equipment to any other location without
COMPANY’s prior written consent. Title to the Equipment shall at all times remain in COMPANY. If
COMPANY so requests, Customer shall attach and maintain on the Equipment a conspicuous plate or
marker indicating COMPANY’s ownership of the Equipment. COMPANY shall have the right to inspect the
Equipment, wherever same shall be located, from time to time.

7. USE AND OPERATION OF EQUIPMENT; MAINTENANCE DURING LEASE TERM. Customer will cause the
Equipment to be operated in accordance with the manufacturer’s or supplier’s instructions or manuals
and any special instructions delivered to Customer by COMPANY at the time the Equipment is leased or
thereafter by competent, duly qualified and trained personnel and in a safe and careful manner and in
compliance with all applicable laws and regulations and the insurance policies required to be maintained
hereunder. Customer shall be responsible for all operating expenses incurred in the operation of the
Equipment and for obtaining, and maintaining in full force and effect, and shall obtain and maintain in full
force and effect all licenses, permits and other governmental approvals required for the lawful operation
of the Equipment. Customer shall operate the Equipment only for lawful purposes and in a lawful manner.
Customer will, at its expense, maintain the Equipment in good repair, condition and working order.
Customer will not alter or add to the Equipment without COMPANY’s prior written consent and, if
COMPANY consents to such additions and alterations. Customer will remove them at the Term if
COMPANY so instructs. In the absence of such instruction, all attachments, alterations or accessories shall
become part of the Equipment and shall be the sole property of COMPANY, at no cost to COMPANY.

8. DAMAGE TO EQUIPMENT; REPAIRS. Customer shall be responsible to COMPANY for all damage to the
Equipment during the Term, regardless of the cause of damage and agrees to pay for loss of or repairs of
damage to the Equipment occurring during the Term of this Agreement, whether such repairs are
performed by COMPANY or by third parties as COMPANY shall elect. Customer shall immediately notify
COMPANY in the event of any damage or accident to and/or loss, theft or disappearance of the
Equipment or any part thereof. Accrued rental charges shall not be applied against the cost of repair of
damages to the Equipment or against reimbursement for loss regarding the Equipment. Equipment
damaged beyond reasonable repair, as determined by COMPANY in its sole discretion, shall be paid for by
Customer at the Fair Market Value for the Equipment when leased. As used herein, “Fair Market Value”
means the value of the Equipment as determined by an appraiser elected by COMPANY. Customer
acknowledges that repair and replacement of tires are not included in the rental rate and agrees to pay
for the repair or replacement of any tires returned to COMPANY in a damaged condition, reasonable wear
 and tear excepted, regardless of the cause of the damage.

9. MALFUNCTIONING EQUIPMENT. Customer agrees to test the Equipment prior to placing it in service, to
notify COMPANY immediately of any condition impairing the safe or effective operation or mechanical
condition of the Equipment, and to refrain from using, or to discontinue using the Equipment until such
condition is corrected.

10. TIME OF EQUIPMENT RETURN; CONDITION OF RETURN. Customer agrees to return the Equipment upon
the expiration of the Term of this Agreement, in a clean condition and in the same working condition as
when leased, reasonable wear and tear excepted. Customer agrees to return the Equipment during
COMPANY’s regular business hours and acknowledges that the Term of this Agreement shall not end
(unless sooner terminated by COMPANY) until the written acceptance of the Equipment by an authorized
COMPANY employee at COMPANY’s place of business. Time is of the essence in the performance and the
Customer’s duties under this agreement. Any extension of this Agreement must be mutually agreed upon
prior to the expiration of this Agreement. In the event the Equipment is not returned during COMPANY’s
regular business hours. Customer agrees to pay for any damage to or loss of the Equipment occurring
between the time of return and the beginning of COMPANY’s next business day. Customer also agrees to
pay a reasonable cleaning charge for Equipment returned dirty.

11. DISCLAIMER OF WARRANTIES. COMPANY MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR

IMPLIED, WHATSOEVER, AS TO THE EQUIPMENT LEASED OR THE PARTS OR SERVICES PURCHASED
HEREUNDER AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF FITNESS FOR ANY PARTICULAR
PURPOSE AND/OR MERCHANTABILITY. CUSTOMER CONFIRMS THAT IT HAS MADE (OR WILL MAKE) THE
SELECTION OF EACH ITEM OF EQUIPMENT ON THE BASIS OF ITS OWN JUDGEMENT AND EXPRESSLY
DISCLAIMS RELIANCE UPON ANY STATEMENTS, REPRESENTATIONS OR WARRANTIES MADE BY COMPANY.
COMPANY SHALL NOT BE LIABLE TO CUSTOMER FOR (1) ANY MATTER RELATING TO THE ORDERING,
MANUFACTURE, PURCHASE, DELIVERY. ASSEMBLY, INSTALLATION, TESTING, OPERATION OR SERVICING
OF THE EQUIPMENT; (2) FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE OF ANY KIND CAUSED BY THE
EQUIPMENT; (3) FOR ANY LOSS OR DAMAGE WHATSOEVER WHICH IS INCURRED AS A RESULT OF DELAY,
OR FAILURE TO FURNISH EQUIPMENT REGARDLESS OF THE CAUSE; (4) FOR ANY DAMAGES BY REASON OF
FAILURE OF THE EQUIPMENT TO OPERATE OR OF FAULTY OPERATION OF THE EQUIPMENT OR SYSTEM;
OR (5) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSSES RESULTING FROM THE
INSTALLATION, OPERATION OR USE OF THE EQUIPMENT OR ANY PRODUCTS OR MATERIALS FURNISHED
BY COMPANY. CUSTOMER HEREBY AGREES THAT IT WILL COMPLY WITH ANY CONDITIONS SET FORTH IN,
OR APPLICABLE TO, ANY APPLICABLE MANUFACTURER’S WARRANTY AND WILL NOT TAKE ANY ACTION OR
PROVIDE ANY SERVICE UPON THE EQUIPMENT WHICH WOULD VOID OR REDUCE THE REMEDIES
AVAILABLE TO COMPANY AND CUSTOMER UNDER SUCH WARRANTY. CUSTOMER AGREES THAT ITS SOLE
RIGHT TO ASSERT ANY CLAIMS FOR BREACH OF ANY WARRANTY IN RESPECT TO THE EQUIPMENT WILL BE
THE RIGHT TO HAVE COMPANY ASSERT ON CUSTOMER’S BEHALF ANY RIGHTS WHICH MAY BE AVAILABLE
TO COMPANY UNDER SUCH WARRANTIES OR AGREEMENTS.

12. INDEMNITY AND HOLD HARMLESS AGREEMENT. Customer agrees to indemnify and hold COMPANY
harmless from and against any and all costs, expenses, damages, liabilities and claims arising from or
pertaining to the manufacture, assembly, installation, ownership, use, possession and operation of the
 Equipment, including, without limitation latent and other defects, whether or not discoverable by
Customer or any other person, any expense, liability or loss directly or indirectly related to or arising out
of any injury to any person or tangible or intangible property, whether arising from negligence or under
any theory of strict or absolute liability or any other cause, or claim for patent or copyright infridgement,
together with all legal fees and expenses reasonably incurred by COMPANY in connection with any liability
asserted against it, whether groundless or otherwise. The agreements and indemnities contained in this
Section shall survive the expiration or earlier termination of this Agreement.

13. ACCIDENTAL DAMAGE WAIVER

For each item of Equipment for which Lessee accepts Lessor’s Accidental Damage Waiver by initialing the
appropriate space on the front of this Lease and paying the indicated fee, the following provisions shall
apply:

Lessor agrees to waive its right to recover from Lessee amounts for any loss or damage to such item of
Equipment (excluding supply items) to the extent that such amounts exceed, per occurrence, an amount
equal to the lesser of (a) Lessor’s published tour-week rental rate for such item of Equipment as of the
date of this Lease, and (b) (l) in the case of equipment with an insurable value of less than $125,000,
$1,500; (ii) in the case of equipment with an insurable value between $125,000 and $250,000, $2,500;
and (iii) in all other cases, $5,000; provided, that Lessor does not agree to waive any rights it may have to
recover from Lessee amounts for any damage to or loss of the Equipment to the extent arising from or in
any way relating to (i) use of operation of equipment without Lessor’s permission or in violation of this
Lease; (ii) loss or damage to tires, tubes and/or tools caused by vandalism or malicious mischief, unless
such loss or damage is coincident with other waived loss or damage; (iii) loss or damage caused by the
gross negligence, recklessness, willful misconduct or dishonesty of the Lessee or the Lessee’s employees;
wrongful conversion by any persons to whom the Equipment is entrusted by Lessee; or disappearance,
theft or conversion of the Equipment NOT documented by Lessee’s filing with applicable public
authorities of a formal, written, sworn statement reporting the theft or conversion within 48 hours after
Lessee knows or has reason to know of the disappearance, theft or conversion; (iv) loss or damage to the
Equipment caused by war, nuclear radiation or radioactive contamination; (v) loss or damage to the
Equipment caused by any chemical or gaseous contamination; (vi) failure to perform and pay for all
normal periodic service, adjustments and lubrication; or (vii) boom damage from overloading a boom. If
Lessee accepts the foregoing Accidental Damage Waiver, Lessee must pay the waiver fee stated on the
front of this Lease; any provision hereof to the contrary notwithstanding, the Accidental Damage Waiver
shall not apply with respect to any loss or damage occurring at a time when any payment of the waiver
fee remains unpaid more than 90 days after its invoice date. The Accidental Damage Waiver is not
available on supply items or highway vehicles.

14. CUSTOMER’S POLICIES OF INSURANCE. Customer agrees to maintain in effect workers’ compensation,
employer’s liability, and public liability insurance in coverages and amounts satisfactory to COMPANY.
COMPANY makes no certification to Customer concerning the Equipment’s compliance with consensus
standards or other occupational or health safety standards applicable to employers or employees or to
their use of the Equipment. Unless Customer has accepted COMPANY’s RENTAL PROTECTION COVERAGE
by initialing the appropriate space on the Agreement and paying the indicated coverage fee, Customer
also shall, at Customer’s cost, keep the Equipment insured against all risks and perils normally covered
 under “all risk” policies, including but not limited to loss or damage by theft, vandalism, malicious
mischief, fire, windstorm and explosion, and with an extended coverage endorsement covering all such
other risks and perils in an amount satisfactory to COMPANY in which COMPANY is named as an
additional insured, as its interest may appear, and shall furnish proof of such coverage satisfactory to
COMPANY. If Customer fails to obtain such insurance, COMPANY, at its option, may declare Customer in
default. If Customer requests COMPANY to do so in writing, COMPANY may obtain insurance on the
Equipment and the premiums paid shall be collectible from Customer as additional rent. Whether
insurance is carried or not, Customer is fully responsible for the damage to or loss of the Equipment to the
extent set forth in this Agreement. All insurance policies acquired by Customer pursuant to this section, or
acquired by COMPANY pursuant to this section, shall contain clauses whereby the insurer waives the
benefit of all rights of subrogation which it might otherwise possess. If Customer has failed to obtain
insurance coverage, or to obtain adequate insurance coverage (including inadequacy by reason of
deductible clauses), in breach of its obligations under this section, Customer will be deemed to have
waived any right to assert any claim or offset against COMPANY as a result of damage to or loss of use of
the Equipment which would have been a covered loss under the insurance required hereby.

15. COLLECTION COSTS. Customer agrees to pay all reasonable attorney’s fees, court costs and other costs
and expenses incurred by COMPANY involved in the collection of rental charges or enforcement of
COMPANY’s rights under this Agreement, whether or not suit is commenced.

16. DEFAULT AND REMEDIES. If (i) Customer shall fail to pay any amount owing hereunder when due; (ii)
Customer shall fail to perform or observe any other covenant, agreement, or condition hereunder, (iii) any
representation or warranty made by Customer herein or in any document or certificate furnished
COMPANY in connection herewith shall prove to be incorrect at any time; or (iv) Customer shall become
insolvent or make an assignment for the benefit of creditors or consent to the appointment of a trustee or
receiver, or a trustee or receiver shall be appointed for Customer or for a substantial part of its property
or for the Equipment, or reorganization, arrangement, insolvency, dissolution, or liquidation proceedings
shall be instituted by or against Customer (each of the foregoing being herein called an “Event of
Default”), then COMPANY may declare this Agreement to be in default and may do one or more of the
following with respect to any or all of the Equipment as COMPANY in its sole discretion may elect, to the
extent permitted by, and subject to compliance with any mandatory requirements of applicable law then
in effect; demand that Customer, and Customer shall at its expense upon such demand, return the
Equipment promptly to COMPANY in the manner and condition required as if the Equipment were being
returned at the expiration of its term of lease hereunder, or COMPANY, at its option, may enter upon the
premises where the Equipment is located and take possession of and remove the same by summary
proceedings or otherwise, all without liability to Customer for damage to property or otherwise.
COMPANY may exercise any other right or remedy which may be available to it under applicable law or
proceed by appropriate court action to enforce the terms hereof or to recover damages for the breach
hereof or to rescind this Agreement. In addition, Customer shall be liable for all unpaid rent and other
amounts due hereunder before or during the exercise of any of the foregoing remedies and for all legal
fees, taxes, governmental charges and other costs and expenses incurred by reason of the occurrence of
any Event of Default or the exercise of COMPANY’s remedies with respect thereto.
17. PROHIBITION ON ASSIGNMENT, SUBLETTING, AND ENCUMBRANCES. Customer may not sublet, loan or
permit third parties to use the Equipment without COMPANY’s prior written consent.
Customer shall not grant, convey, pledge or permit any mortgages, liens, security interests, claims or
other encumbrances in, to or against the Equipment. Should any such lien, mortgage, security interest,
pledge or other encumbrance be asserted against the Equipment, Customer agrees to immediately notify
COMPANY in writing thereof, and take all necessary steps to protect the Equipment against and to release
immediately such mortgage, lien, security interest, claim, or encumbrance at Customer’s expense.
This Agreement may not be assigned or transferred by Customer without COMPANY’s prior written
consent.

18. NO AGENCY; LEASE NOT A SALE. Customer acknowledges that it is not, and shall not be deemed to be,
the agent or partner of or joint venture with, COMPANY for any purpose whatsoever. Customer further
acknowledges and agrees that it has no right to purchase the Equipment or to credit any part of the
rentals paid hereunder against the purchase of the Equipment.

19. MODIFICATION. Neither this Agreement nor any Supplement can be modified or amended except by
written agreement signed and currently dated by both signatories hereto.

20. COUNTERPARTS. the parties may execute this Agreement and any Supplement in any number of
counterparts. All such counterparts of this Agreement constitute an Agreement. All such counterparts of a
Supplement constitute one Supplement. Each Counterpart is an original instrument.

21. ATTORNEY’S FEES. If COMPANY commences any action to enforce or define any right or obligation of
Customer under this Agreement, the Customer shall pay to COMPANY all reasonable attorney’s fees and
all other legal expenses (including for expert and other witnesses) for preparation, negotiation, filing,
maintenance, defense, settlement, and appeal of litigation paid or incurred by COMPANY.

22. SEVERABILITY. If any term, provision, covenant or condition of this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of the provision shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.

23. CHOICE OF LAW. The rights and liabilities of the parties under this Agreement and each Supplement shall
be interpreted, enforced, and governed in all respects by the laws of the State of Kentucky excluding
choice of law principles. Customer hereby consents and subjects itself to the jurisdiction of every local,
state, and federal court within Jefferson County, Kentucky agrees that except as otherwise required by
law, Customer shall never file or maintain any action or proceeding in connection with this Agreement or
any Supplement in any court outside Jefferson County, Kentucky, waives personal service of any and all
process in connection therewith, and consents to the service of such process upon Customer in the
manner provided in this Agreement for giving notice.

24. ENTIRE AGREEMENT. THIS AGREEMENT IS THE ENTIRE AGREEMENT BETWEEN THE PARTIES RELATING TO
THE SUBJECT MATTER OF EACH TRANSACTION EMBRACED THERBY. ALL AGREEMENTS, REPRESENTATION,
PROMISES, INDUCEMENTS, STATEMENTS AND UNDERSTANDINGS, PRIOR TO AND CONTEMPORANEOUS
WITH THIS AGREEMENT AND PRIOR TO AND CONTEMPORANEOUS WITH EACH SUPPLEMENT, WRITTEN
AND ORAL, BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER OF EACH SUCH
TRANSACTION, IF ANY, ARE AND EACH IS SUPERSEDED BY THIS AGREEMENT AND BY EACH SUPPLEMENT
AS IT IS EXECUTED.

Click here for TERMS AND CONDITIONS OF SALES AND SERVICE

Rev. 9/2016