2011-12-29_PERMIT FILE - C1981012A (7)

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Exhibit 34 Right of Entry AGREEMENT This Agreement is made this � day of �_ 2011, by and between New Elk Coal Company LLC, located at 122 West First Street, Trinidad, Colorado (hereinafter referred to as "NECC ") and Pacesetter Energy Leasing, LLC, a Texas limited liability company whose address is 2001 Timber Creek Road, Flower Mound, Texas 75028 ( "Pacesetter Energy "). WHEREAS, NECC is the owner and operator of a coal mine located at 12250 Highway 12, Weston, Colorado 81091. WHEREAS, Pacesetter Energy owns the surface estate and/or the right to grant easements throughout the surface estate of property located in Township 37 South, Range 68 West, Las Animas County, Colorado, as depicted on the attached map and shaded light brown (east of the area referenced on the map as NECC Wash Plant Parcel "A ") and is hereinafter referred to as the "Property." WHEREAS, NECC is interested in purchasing the Property for purposes of NECC's mining operations. WHEREAS, NECC wishes to enter the Property for purpose of obtaining data regarding vegetation, soils and other baseline information relative to the Property as may be required to obtain permit approval from the Colorado Division of Reclamation, Mining and Safety ( "DRMS' ). WHEREAS, Pacesetter Energy is willing to grant NECC and its authorized representatives access to the Property for such purposes upon all of the terms and conditions as set forth herein. NOW THEREFORE, in acknowledgment of the above statements and in consideration of the agreements set forth below, the parties agree as follows: 1. Permission to Enter. Pacesetter Energy hereby acknowledges that NECC, its officers, employees, agents, contractors, and all other persons authorized by NECC, are hereby authorized to enter and use the Property for the purposes described above and in Paragraph 2 below. 2. Purpose of Enter. By this Agreement and in consideration of the mutual promises herein, Pacesetter Energy authorizes NECC, or persons acting on its behalf (collectively referred to as "NbCC "), the right of entry onto the Property to conduct pre - permit environmental testing of vegetation, soils and other baseline information concerning the Property as may be required by DRMS ( "environmental surveying "). For purposes of these activities, NECC shall utilize light equipment and tools specifically designed for environmental surveying. The environmental surveying to be performed by NECC shall be completed within 45 days from the date of NECC's initial entry onto the Property. 3. Conditions to Entry. NECC's entry upon the Property pursuant to this Agreement is subject to each of the following; conditions: