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Case 1:20-bk-12043 Doc 303-1 Filed 08/28/20 Entered 08/28/20 11:03:45 Desc
<br /> Exhibit 1 A-1 and A-2 Page 34 of 38
<br /> may have the right of subrogation or reimbursement against Lessee. For example, if Lessor elects to foreclose, by
<br /> nonjudicial sale, any deed of trust or mortgage securing any indebtedness of Lessee to Lessor, causing Guarantor to lose
<br /> any such rights or create defenses to enforcement of this Guaranty, Guarantor gives up any such potential defenses by
<br /> agreeing to these waivers. Guarantor also expressly waives any defense or benefit that may be derived from any "one
<br /> form of action" rule or anti-deficiency statute it would otherwise have under the laws of any state. Upon demand,
<br /> Guarantor agrees to pay and perform the Obligations regardless of any existing or future offset or claim which may be
<br /> asserted by Guarantor. This Guaranty and Guarantor's payment obligations hereunder shall continue to be effective or be
<br /> reinstated, as the case may be, if at any time payment of any of the Obligations is rescinded or must otherwise be
<br /> restored or returned by Lessor, all as though such payment had not been made. Lessor's good faith determination as to
<br /> whether a payment must be restored or returned shall be binding on Guarantor. Until the payment and performance of all
<br /> Obligations due or to be performed by Lessee, Guarantor shall have no right of subrogation against Lessee, and waives
<br /> any right to enforce any remedy which Lessor now has or hereafter may have against Lessee, and waives any benefit of,
<br /> and any right to participate in, any security now or hereafter held by Lessor. Guarantor waives all presentments,
<br /> demands for performance, notices of nonperformance, protests, notices of dishonor, and notices of acceptance of this
<br /> Guaranty.
<br /> 4. Guarantor represents and warrants to Lessor that:
<br /> (a) (1) Guarantor has the form of business organization indicated under Guarantor's signature. (2) The execution,
<br /> delivery and performance hereof: (x) have been duly authorized by all necessary action consistent with Guarantor's form
<br /> of organization; (y) do not require the approval of any trustee or holder of any obligations of Guarantor except such as
<br /> have been duly obtained; and (z) do not contravene any law, governmental rule, regulation or order now binding on
<br /> Guarantor, or the organizational documents of Guarantor, or contravene the provisions of, or constitute a default under, or
<br /> result in the creation of any lien or encumbrance upon the property of Guarantor under, any material agreement,
<br /> indenture, or other instrument to which Guarantor is a party or by which it or its property is bound. (3) The financial
<br /> statements of Guarantor (copies of which have been furnished to Lessor) have been prepared in accordance with
<br /> generally accepted accounting principles consistently applied ("GAAP"), and fairly present Guarantor's financial condition
<br /> and the results of its operations as of the date of and for the period covered by such statements, and since the date of
<br /> such statements there has been no material adverse change in such conditions or operations. No information contained
<br /> in any Lease Document (as defined in the Lease), financial statements, or written statement furnished by or on behalf of
<br /> Guarantor under any Lease Document(as defined in the Lease), or to induce Lessor to execute the Lease Documents(as
<br /> defined in the Lease), contains any untrue statement of a material fact or omits to state a material fact necessary to make
<br /> the statements contained herein or therein not misleading in light of the circumstances under which they were made.
<br /> (b) This Guaranty constitutes the legal, valid and binding obligation of Guarantor, enforceable against Guarantor
<br /> in accordance with the terms hereof, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium
<br /> or similar laws affecting the enforcement of creditors' rights generally, and by applicable laws (including any applicable
<br /> common law and equity) and judicial decisions which may affect the remedies provided herein.
<br /> (c) There are no pending actions or proceedings to which Guarantor is a party, and there are no other pending or
<br /> threatened actions or proceedings of which Guarantor has knowledge, before any count, arbitrator or administrative
<br /> agency, which, either individually or in the aggregate, would have a Material Adverse Effect. As used herein, "Material
<br /> Adverse Effect" shall mean (1) a materially adverse effect on the business, condition (financial or otherwise), operations,
<br /> performance or properties of Guarantor, or (2) a material impairment of the ability of Guarantor to perform its obligations
<br /> under or to remain in compliance with this Guaranty or of Lessor's rights and remedies under this Guaranty. Further,
<br /> Guarantor is not in default under any financial or other material agreement which, either individually or in the aggregate,
<br /> would have a Material Adverse Effect.
<br /> (d) Guarantor acknowledges and agrees that it will enjoy a substantial economic benefit by virtue of the extension
<br /> of credit by Lessor to Lessee pursuant to the Lease Documents.
<br /> (e) the following is a list of each entity and each individual that directly or indirectly owns 5% or more of
<br /> Guarantor: Royal Energy Resources, Inc., William Tuorto, Brian Hughs, Rhino Resource Partners Holdings.
<br /> 5. Guarantor covenants and agrees as follows: (a) Guarantor will furnish Lessor with (1) Guarantor's balance sheet,
<br /> statement of income and statement of retained earnings, prepared in accordance with GAAP, certified by a recognized
<br /> firm of certified public accountants, within one hundred twenty (120) days of the close of each fiscal year of Guarantor, (2)
<br /> Guarantor's quarterly financial report certified by the chief financial officer of Guarantor, within sixty (60) days of the close
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<br /> AJM 3090981 v.1 5/19/2016 9:38 AM:DOMESTIC ENTITY
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