REIMBURSEMENT AGREEMENT
THIS
REIMBURSEMENT AGREEMENT dated as of April 19, 2006 (the “Agreement”),
is
entered by and between SUNRISE COAL, LLC, a Indiana limited liability company
(“Sunrise
Coal”),
and
HALLADOR PETROLEUM COMPANY, a Colorado corporation (“Hallador
Petroleum”).
RECITALS
A. Sunrise
Coal, as borrower, and OLD NATIONAL BANK, as lender (“Bank”),
have
entered into a Credit Agreement, dated as of the date hereof (the “Credit
Agreement”),
which
provides for, among other things, certain loans (“Loans”) to be made by Bank to
Sunrise Coal. To induce Bank to enter into the Credit Agreement and provide
the
Loans to Sunrise Coal, Hallador Petroleum has agreed to provide a Continuing
Guaranty in favor of Bank in the form of Exhibit “A” attached hereto (the
“Guaranty”).
B. To
induce
Hallador Petroleum to execute and deliver the Guaranty to Bank, Sunrise Coal
has
agreed to reimburse Hallador Petroleum for any amounts paid, or damages or
losses incurred, by Hallador Petroleum under or in connection with the Guaranty,
pursuant to the terms and conditions set forth in this Agreement.
NOW,
THEREFORE, to induce Hallador Petroleum to execute and deliver the Guaranty
to
Bank and in consideration of the foregoing recitals which by this reference
are
incorporated herein and the mutual covenants contained herein, the parties
hereto, each intending to be legally bound hereby, covenant and agree as
follows:
| Section 1. |
CERTAIN
DEFINITIONS.
|
As
used
herein, the following respective terms shall have the following respective
meanings (terms defined in the plural to include the singular and vice versa):
“Applicable
Law”
means
any law, provision of statute, rule, regulation, or order of a Governmental
Authority applicable to a Person, and all orders and decrees of all courts
and
arbitrators in proceedings or actions in which the Person in question is
a
party.
“Authorized
Officer”
means,
with respect to any Person, its chief executive officer, chief financial
officer, chief accounting officer, any vice president, or
treasurer.
“Base
Rate”
means,
as determined by Hallador Petroleum on a daily basis, the variable rate of
interest per annum most recently announced by Xxxxx Fargo Bank, as its “Prime
Rate” or “Reference Rate,” as the case may be, whether or not such announced
rate is the best rate available from such financial institution.
“Business
Day”
means
any day on which commercial banks are not authorized or required to close
in
Denver, Colorado.
“Default”
means
an Event of Default or any other event which with the giving of notice or
lapse
of time, or both, would become an Event of Default.
“Event
of Default”
shall
have the meaning assigned to such term in Section 7
hereof.
“GAAP”
means
United States generally accepted accounting principles consistently applied
(except for accounting changes in response to FASB releases, or other
authoritative pronouncements).
“Governmental
Authority”
means
any federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, or any court, or any arbitrator
or
arbitration board whose rulings are judicially recognized as lawful and binding,
in each case whether of the United States or foreign.
“hereunder”,
“herein”,
“hereof”
and
the
like mean and refer to this Agreement as a whole and not merely to the specific
section, paragraph or clause in which the respective word appears.
“Loan
Documents”
means
the Credit Agreement and all promissory notes, security agreements, mortgages,
pledge agreements, indemnities, and other agreements, instruments, and documents
executed and/or delivered by Sunrise Coal or any other Person with respect
to,
or in connection with, the Loans.
“Lien”
means
any mortgage, pledge, security interest, encumbrance, lien or charge of any
kind
whatsoever (including any conditional sale or other title retention agreement,
any lease in the nature thereof, and the filing of or the agreement to give
any
financing statement under the Uniform Commercial Code of any
jurisdiction).
“Obligations”
means
the reimbursement obligations of Sunrise Coal under Section 3.A
hereof
and all other monetary obligations of Sunrise Coal to Hallador Petroleum
hereunder, including, without limitation, Sunrise Coal’s obligations set forth
in Section 8.D
hereof.
“person”
or
“Person”
means
any natural person, corporation, division of a corporation, partnership,
trust,
joint venture, association, company, limited liability company, estate,
unincorporated organization or government or any agency or political subdivision
thereof.
“Principal
Office”
means
the principal office of Hallador Petroleum presently located at 0000 Xxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000.
| Section 2. |
GUARANTY.
|
Hallador
Petroleum agrees, on the terms and subject to the conditions set forth in
this
Agreement, to execute and deliver to Bank the Guaranty.
| Section 3. |
REIMBURSEMENT;
FEES; ETC.
|
A. Obligation.
Sunrise
Coal is obligated, and hereby unconditionally agrees, to reimburse Hallador
Petroleum on demand for any amounts paid, and all damages, expenses, and
losses
incurred, by Hallador Petroleum (or its successors and assigns) under or
in
connection with the Guaranty. The payment obligations of Sunrise Coal hereunder
shall be unconditional and irrevocable, and shall be paid strictly in accordance
with the terms hereof under all circumstances, including, without limitation,
the following circumstances:
(i) any
lack
of validity or enforceability of the Loan Documents or the Guaranty or any
other
agreement or instrument relating to the Guaranty (collectively, the
“Related
Documents”);
(ii) any
amendment or waiver of, or any consent to departure from, all or any of the
Related Documents;
(iii) the
existence of any claim, set-off, defense or other right which Sunrise Coal
may
have at any time against Bank or any transferee or assignee of the Loans
or the
Loan Documents (or any persons or entities for whom Bank or any such transferee
or assignee may be acting), Hallador Petroleum, or any other person or entity,
whether in connection herewith, the transactions contemplated herein or in
the
Related Documents, or any unrelated transaction; or
(iv) any
other
circumstance or happening whatsoever whether or not similar to any of the
foregoing, except as a result of Hallador Petroleum’s own gross negligence or
willful misconduct.
B. Interest.
Sunrise
Coal hereby agrees to pay interest (computed on the basis of a year of 360
days
and actual days elapsed) on the amount of any Obligation arising as the result
of any payment under or in connection with the Guaranty, in respect of each
day
during the period from the date of such payment by Hallador Petroleum until
the
date the same shall be reimbursed in full to Hallador Petroleum, at a rate
per
annum for each day during such period equal to the Base Rate plus 2% for
such
day, such interest to be payable on demand. None of the terms and provisions
contained in this Agreement, or in other documents or instruments related
hereto, shall ever be construed to create a contract for the use, forbearance
or
detention of money requiring payment of interest at a rate in excess of the
maximum interest permitted to be charged by applicable laws or regulation
governing the Obligations (“Usury
Laws”).
Borrower shall never be required to pay interest under this Agreement in
excess
of the maximum interest that may be lawfully charged under such Usury Laws,
as
made applicable by the final judgment of a court of competent jurisdiction,
and
the provisions of this Section shall control over all other provisions hereof
and of any other instrument executed in connection herewith or executed to
secure the indebtedness evidenced hereby, which may be in apparent conflict
with
this Section. If Hallador Petroleum collects monies which are deemed to
constitute interest which would otherwise increase the effective interest
rate
on this Agreement to a rate in excess of that permitted to be charged by
such
Usury Laws, all such sums deemed to constitute interest in excess of the
maximum
rate shall, at the option of Hallador Petroleum, either be credited to the
payment of principal or returned to Sunrise Coal.
C. Payments.
All
payments by Sunrise Coal to Hallador Petroleum under this Agreement shall
be
made to Hallador Petroleum at the Principal Office in immediately available
funds on or prior to 12:00 noon Mountain time on the due date thereof (any
payment made after such time being deemed made on the next succeeding Business
Day).
D. Commercial
Practices.
Sunrise
Coal agrees that neither Hallador Petroleum nor any of its officers, directors,
employees, agents, or attorneys shall be liable or responsible for, and the
obligations of Sunrise Coal to Hallador Petroleum hereunder shall not in
any
manner be affected by: (i) the use which may be made of the Guaranty or the
respective proceeds thereof by Bank or any other Person; or (ii) any other
circumstances whatsoever in making or failing to make payment under the
Guaranty. In furtherance and not in limitation of the foregoing, Hallador
Petroleum may accept documents or notices in connection with requested payments
under the Guaranty that appear on their face to be in order without
responsibility for further investigation.
| Section 4. |
REPRESENTATIONS
AND WARRANTIES.
|
Sunrise
Coal represents and warrants to Hallador Petroleum that:
A. Existence
and Power.
Sunrise
Coal has been duly organized and is validly existing under the laws of Indiana
and is in good standing as a foreign corporation in all jurisdictions where
the
nature of its properties or business so requires it. Sunrise Coal has the
limited liability company power to own its properties and carry on its business
as now being conducted, to execute, deliver and perform its obligations under
this Agreement and other documents contemplated hereby to which it is a
party.
B. Authority
and No Violation.
The
execution, delivery and performance of this Agreement (a) have been duly
authorized by all necessary limited liability company action on the part
of
Sunrise Coal, (b) will not violate any provision of any Applicable Law, any
order of any court or other Governmental Authority applicable to Sunrise
Coal or
any of its properties or assets, (c) will not violate any provision of the
Articles of Organization or Operating Agreement of Sunrise Coal or, of any
indenture, any agreement for borrowed money, any bond, note or other similar
instrument or any other agreement to which Sunrise Coal is a party or by
which
Sunrise Coal or any of its properties or assets are bound, and (d) will not
result in the creation or imposition of any Lien, charge or encumbrance of
any
nature whatsoever upon any property or assets of Sunrise Coal other than
pursuant to this Agreement.
C. Governmental
Approval.
(a) No
action, consent or approval of, or registration or filing with, or any other
action by, any Governmental Authority is required in connection with the
execution, delivery and performance by Sunrise Coal of this Agreement except
for
consents, approvals, filings and registrations which have been obtained or
made
and remain in full force and effect, or which are not yet required to be
obtained or made but which will be obtained or made and will be in full force
and effect when and to the extent required.
(b) All
necessary consents and approvals by Governmental Authorities and other Persons
in connection with the transactions contemplated under this Agreement, or
otherwise referred to herein, have been obtained and remain and will remain
in
effect.
D. Financial
Statements.
The
unaudited financial statements of Sunrise Coal at December 31, 2005, each
in the
form previously delivered to Hallador Petroleum, fairly present in all material
respects the financial condition and the results of operations of Sunrise
Coal
at the date or for the period indicated.
E. No
Material Adverse Change.
Except
as previously disclosed in writing to Hallador Petroleum, since December
31,
2005, there has been no material adverse change in the business, assets,
property, condition (financial or otherwise), or results of operations of
Sunrise Coal.
F. Litigation;
Compliance with Laws.
(a) Except
as
previously disclosed in writing to Hallador Petroleum, there are no actions,
lawsuits or other proceedings pending (including, but not limited to, matters
relating to environmental liability), or, to the knowledge of Sunrise Coal,
threatened, against or affecting Sunrise Coal or any of its properties, by
or
before any Governmental Authority, arbitration panel, or arbitrator, which
could
reasonably be expected to have a material adverse effect on the business,
assets, property, condition (financial or otherwise), prospects or results
of
operations of Sunrise Coal or which seeks to restrain, prevent, impose
materially adverse conditions upon, hinder or delay any of the transactions
contemplated hereby.
(b) The
transactions contemplated hereby will not violate any Applicable
Law.
G. Federal
Reserve Regulations.
No part
of the proceeds of any extension of credit under this Agreement will be used,
directly or indirectly, and whether immediately, incidentally or ultimately
for
any purpose violative of or inconsistent with any of the provisions of any
regulations of the Board of Governors of the Federal Reserve System, including,
without limitation, Regulations T, U and X thereto.
H. Investment
Company Act.
Sunrise
Coal is not, and will not during the term of this Agreement be, (x) an
“investment company,” within the meaning of the Investment Company Act of 1940,
as amended or (y) subject to regulation under the Public Utility Holding
Company Act of 2005, the Federal Power Act or any foreign, federal or local
statute or regulation limiting its ability to incur indebtedness for money
borrowed as contemplated hereby.
I. Enforceability.
This
Agreement constitutes the legal, valid and enforceable obligation of Sunrise
Coal (subject, as to enforcement, to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement
of
creditors’ rights generally and to general principles of equity).
| Section 5. |
CONDITIONS
PRECEDENT.
|
The
obligation of Hallador Petroleum to execute and deliver the Guaranty to Bank
is
subject to the following conditions precedent:
A. Sunrise
Coal shall have executed and delivered to Hallador Petroleum this Agreement
and
any other agreement, document, or instrument requested by Hallador
Petroleum.
B. The
representations and warranties set forth in Section 4
hereof
shall be true and correct in all material respects.
C. No
Default or Event of Default shall have occurred and be continuing or will
result
from the execution and delivery of the Guaranty.
| Section 6. |
COVENANTS
OF SUNRISE COAL.
|
From
the
date hereof and so long as the Guaranty shall be outstanding and until the
payment in full of all of the Obligations, Sunrise Coal hereby agrees as
follows:
A. Financial
Statements and Reports.
(a) As
soon
as is practicable, but in any event within 90 days after the end of each
fiscal
year, Sunrise Coal will furnish or cause to be furnished to Hallador Petroleum
the audited balance sheet of Sunrise Coal as at the end of, and the related
statements of income, shareholders’ equity and cash flow for, such year, and the
corresponding figures as at the end of, and for, the preceding fiscal year,
accompanied by an opinion of Xxxxxxx Xxxxxxxxx LLP or EKS & H, which report
and opinion shall be prepared in accordance with generally accepted auditing
standards relating to reporting and which report and opinion shall (i) be
unqualified as to going concern and scope of audit and shall state that such
financial statements fairly present the financial condition of Sunrise Coal
as
at the dates indicated and the results of operations and cash flows for the
periods indicated, and (ii) contain no material exceptions or
qualifications except for qualifications relating to accounting changes (with
which such independent public accountants concur) in response to FASB releases
or other authoritative pronouncements;
(b) As
soon
as is practicable, but in any event within 30 days after the end of each
of the
first three fiscal quarters of each of its fiscal years, Sunrise Coal will
furnish or cause to be furnished to Hallador Petroleum the unaudited balance
sheet of Sunrise Coal as at the end of, and the related unaudited statements
of
income, shareholders’ equity and cash flow for, such quarter, and for the period
from the beginning of the then current fiscal year to the end of such fiscal
quarter and, the corresponding figures as at the end of, and for, the
corresponding period in the preceding fiscal year, together with a certificate
signed by an Authorized Officer of Sunrise Coal, on behalf of Sunrise Coal,
to
the effect that such financial statements, while not examined by independent
public accountants, reflect, in his or her opinion and in the opinion of
Sunrise
Coal, all adjustments necessary to present fairly in all material respects
the
financial position of Sunrise Coal as at the end of the fiscal quarter and
the
results of its operations for the quarter then ended in conformity with GAAP
consistently applied, subject only to year-end adjustments and to the absence
of
footnote disclosure; and
(c) From
time
to time, Sunrise Coal will furnish or cause to be furnished to Hallador
Petroleum such additional information regarding the financial condition or
business of Sunrise Coal as Hallador Petroleum may reasonably
request.
B. Existence,
Properties, etc.
Sunrise
Coal will do or cause to be done all things necessary to preserve, renew
and
keep in full force and effect its limited liability company existence, rights,
licenses, permits and franchises, and comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, any
Governmental Authority.
C. Books
and Records.
Sunrise
Coal will maintain or cause to be maintained at all times books and records
of
its financial operations which are true and correct in all material respects
and
provide Hallador Petroleum and its representatives reasonable access to such
books and records during regular business hours in order that Hallador Petroleum
may make such audits and examinations and make abstracts from such books,
accounts, records and other papers and may discuss the affairs, finances
and
accounts with, and be advised as to the same by, officers and independent
accountants, all as Hallador Petroleum may deem appropriate for the purpose
of
verifying the accuracy of the various reports delivered by Sunrise Coal to
Hallador Petroleum pursuant to this Agreement or for otherwise ascertaining
compliance with this Agreement.
| Section 7. |
EVENTS
OF DEFAULT.
|
In
case
of the happening and during the continuance of any of the following events
(herein called “Events of Default”):
A. Sunrise
Coal shall fail to pay when due any Obligation or any other amount payable
to
Hallador Petroleum under this Agreement;
B. Sunrise
Coal shall fail to observe or perform any other covenant, condition or agreement
to be observed or performed pursuant to the terms of this Agreement, and
such
default shall continue unremedied for ten (10) consecutive days after Sunrise
Coal receives written notice of such occurrence from Hallador
Petroleum;
C. Sunrise
Coal shall generally not pay its debts as they become due or shall admit
in
writing its inability to pay its debts, or shall make a general assignment
for
the benefit of creditors; or Sunrise Coal shall commence any case, proceeding
or
other action seeking to have an order for relief entered on its behalf as
debtor
or to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, liquidation, dissolution or composition of it or
its
debts under any law relating to bankruptcy, insolvency, reorganization or
relief
of debtors or seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its property
or
shall file an answer or other pleading in any such case, proceeding or other
action admitting the material allegations of any petition, complaint or similar
pleading filed against it or consenting to the relief sought therein; or
Sunrise
Coal shall take any action to authorize any of the foregoing; or
D. Without
the application or consent of Sunrise Coal, any involuntary case, proceeding
or
other action against Sunrise Coal shall be commenced seeking to have an order
for relief entered against it as debtor or to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors, or seeking
appointment of a receiver, trustee, custodian or other similar official for
it
or for all or any substantial part of its property, and such case, proceeding
or
other action (i) results in the entry of any order for relief against it or
(ii) shall remain undismissed for a period of thirty (30)
days;
then,
in
every such event and at any time thereafter during the continuance of such
event, Hallador Petroleum may, by notice to Sunrise Coal, declare an Event
of
Default (except with respect to the occurrence of an Event of Default under
Section 7.C
or
Section 7.D
hereof,
as to which no notice or declaration need be given) and (a) terminate the
obligation of Hallador Petroleum to execute and deliver the Guaranty to Bank
(if
the same has not yet been executed and delivered) or (b) declare all
amounts owing hereunder to be due and payable, or both, whereupon such
obligation shall terminate, or all such amounts shall become due and payable,
or
both; provided,
however,
that
upon the occurrence of an Event of Default specified in Section 7.C
or
Section 7.D,
such
obligation shall terminate and all such amounts shall become immediately
due and
owing in each case automatically, without any action on the part of Hallador
Petroleum and without any notice, protest, presentment or demand, all of
which
are hereby expressly waived by Sunrise Coal.
| Section 8. |
MISCELLANEOUS.
|
A. Notices.
Except
when otherwise required by law, any notice which a party is required or may
desire to give the other under or in connection with this Agreement shall
be in
writing and may be sent by personal delivery or by mail (either (i) by United
States registered or certified mail, return receipt requested, postage prepaid,
or (ii) by Federal Express or similar generally recognized overnight carrier
regularly providing proof of delivery), addressed as provided below in this
Section
8.A.
Any
notice so given by mail shall be deemed to have been given as of the date
of
delivery (whether accepted or refused) established by U.S. Post Office return
receipt or the overnight carrier’s proof of delivery, as the case may be. Any
such notice not so given shall be deemed given upon receipt of the same by
the
party to whom the same is to be given.
(a) If
to
Hallador Petroleum, at:
0000
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxxxxx 00000
Attn:
Xxxxxx Xxxxxx
(b) If
to
Sunrise Coal, at:
0000
X.
Xxxxx Xxxx 00
Xxxxx
Xxxxx, Xxxxxxx 00000
Attention:
Xxxxx Xxxxxxxx
B. Survival
of Covenants.
All
covenants, agreements, representations and warranties made herein and in
the
certificates delivered pursuant hereto shall survive the execution and delivery
of the Guaranty by Hallador Petroleum and shall continue in full force and
effect so long as the Guaranty is outstanding and until the Obligations and
all
other obligations of Sunrise Coal hereunder shall have been paid and performed
in full. Whenever in this Agreement any of the parties hereto is referred
to,
such reference shall, subject to the last sentence of this Section 8.B,
be
deemed to include the successors and assigns of such party, and all covenants,
promises and agreements by or on behalf of Sunrise Coal which are contained
in
this Agreement shall inure to the benefit of the successors and assigns of
Hallador Petroleum. Sunrise Coal may not transfer its rights or obligations
under this Agreement without the prior written consent of Hallador
Petroleum.
C. Expenses.
Each
party agrees to pay its own expenses incurred in connection with the preparation
and administration of this Agreement (whether or not the transactions hereby
contemplated shall be consummated). Sunrise Coal agrees to pay all out-of-pocket
expenses incurred by Hallador Petroleum in connection with enforcement of
the
rights of Hallador Petroleum in connection with this Agreement, including,
but
not limited to, the fees and disbursements of counsel to Hallador
Petroleum.
D. Indemnification.
Sunrise
Coal hereby indemnifies and holds harmless Hallador Petroleum from and against
any and all claims and damages, losses, liabilities, costs and expenses which
Hallador Petroleum may incur (or which may be claimed against Hallador Petroleum
by any Person whatsoever) by reason of or in connection with the execution
and
delivery or transfer of, or payment or failure to pay under, the Guaranty;
provided that Sunrise Coal shall not be required to indemnify Hallador Petroleum
for any claims, damages, losses, liabilities, costs or expenses to the extent,
but only to the extent, caused by the willful misconduct or gross negligence
of
Hallador Petroleum as determined by a final order issued by a court of competent
jurisdiction.
E. No
Waiver.
Neither
any failure nor any delay on the part of Hallador Petroleum in exercising
any
right, power or privilege hereunder, nor any course of dealing with respect
to
any of the same, shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise or the exercise
of any other right, power or privilege. The remedies herein provided are
cumulative, and not exclusive of any remedies provided by Applicable
Law.
F. Modification,
Amendment, Waiver, etc.
No
modification, amendment or waiver of any provision of this Agreement, and
no
consent to any departure by Sunrise Coal herefrom, shall be effective unless
the
same shall be in writing and signed by Hallador Petroleum and then such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given. No notice to or demand on Sunrise Coal shall entitle Sunrise
Coal to any other or further notice or demand in the same, similar or other
circumstances.
G. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
constitute an original, but when taken together shall constitute but one
agreement and any of the parties hereto may execute this Agreement by signing
any such counterpart.
H. Accounting
Terms and Principles.
Except
as otherwise expressly stated or defined herein, all computations required
hereunder shall be made by the application of, and each accounting term used
herein shall have the meaning given to it under, United States generally
accepted accounting principles applied on a basis consistent with that used
in
the preparation of the audited financial statements referred to in Section 4.D
hereof.
I. Headings.
The
table of contents and the section and subsection headings used herein have
been
inserted for convenience of reference only and do not constitute matters
to be
considered in interpreting this Agreement.
J. Governing
Law; Jurisdiction; Waiver of Jury Trial, Etc.
(a) This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Colorado.
(b) Sunrise
Coal hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any Colorado State court or
federal court of the United States of America sitting in Denver, Colorado, and
any appellate court from any thereof, in any action or proceeding arising
out of
or relating to this Agreement, or for recognition or enforcement of any
judgment, and Sunrise Coal hereby irrevocably and unconditionally agrees
that
all claims in respect of any such action or proceeding may be heard and
determined in any such Colorado State or, to the extent permitted by law,
in
such federal court. Sunrise Coal agrees that a final judgment in any such
action
or proceeding shall be conclusive and may be enforced in other jurisdictions
by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that any party may otherwise have to bring
any
action or proceeding relating to this Agreement in the courts of any
jurisdiction.
(c) Sunrise
Coal irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection that it may now or hereafter
have
to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement in any Colorado State or federal court. Sunrise
Coal
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding
in any
such court.
(d) WAIVER
OF RIGHT TO JURY TRIAL.
SUNRISE COAL HEREBY WAIVES TRIAL BY JURY, AND SUNRISE COAL HEREBY WAIVES
RIGHTS
OF SETOFF AND THE RIGHT TO IMPOSE COUNTERCLAIMS, IN ANY LITIGATION IN ANY
COURT
WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THIS AGREEMENT, THE
TRANSACTIONS CONTEMPLATED THEREBY OR THE ACTIONS OF HALLADOR PETROLEUM IN
THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF, OR ANY OTHER
CLAIM OR DISPUTE HOWSOEVER ARISING, BETWEEN HALLADOR PETROLEUM AND SUNRISE
COAL,
AND SUNRISE COAL CONFIRMS THAT THE FOREGOING WAIVERS ARE INFORMED AND IT
HAS
RECEIVED THE ADVICE OF COUNSEL WITH REGARD TO THE FOREGOING
WAIVERS.
[Signatures
on next page]
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the
date first above written.
SUNRISE COAL, LLC,
an Indiana limited liability company
By:
/s/ XXXXX XXXXXXXX
Print Name: Xxxxx Xxxxxxxx
Title: Member
HALLADOR PETROLEUM COMPANY,
a Colorado corporation
By: /S/XXXXXX
X. XXXXXX
Print
Name: Xxxxxx X. Xxxxxx
Title:
President, CEO and CFO
EXHIBIT
“A”
FORM
OF
GUARANTY
(see
attached copy)
