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Exhibit
10.39
CONTINUING AGREEMENT OF
GUARANTY AND SURETYSHIP
This Continuing Agreement of
Guaranty and Suretyship (this “ Guaranty ”),
dated as of this 30th day of June, 2004, is jointly and severally
given by each of the UNDERSIGNED and each of the other
Persons which become Guarantors hereunder from time to time (each a
“ Guarantor ” and collectively the “
Guarantors ”) in favor of PNC BANK, NATIONAL
ASSOCIATION , as paying agent for the Lenders (the “
Paying Agent ”), in connection with that certain
Credit Agreement, dated as of the date hereof, by and among, CONSOL
Energy Inc., a Delaware corporation (the “ Borrower
”), the Guarantors now or hereafter party thereto, Citibank
North America, Inc. and PNC Bank, National Association in their
capacity as co-administrative agents, LaSalle Bank National
Association, Société Générale, New York Branch
and SunTrust Bank, each in its capacity as a co-documentation
agent, and the Lenders now or hereafter party thereto (the “
Lenders ”) (as amended, restated, modified, or
supplemented from time to time hereafter, the “ Credit
Agreement ”). Capitalized terms not otherwise defined
herein shall have the respective meanings ascribed to them by the
Credit Agreement and the rules of construction set forth in
Section 1.2 [Construction] of the Credit Agreement shall apply
to this Guaranty.
1. Guarantied
Obligations . To induce the Paying Agent and the Lenders to
make loans and grant other financial accommodations to the Borrower
under the Credit Agreement, each Guarantor hereby jointly and
severally unconditionally, and irrevocably, guaranties to the
Paying Agent and each Lender, and becomes surety, as though it was
a primary obligor for, the full and punctual payment and
performance when due (whether on demand, at stated maturity, by
acceleration, or otherwise and including any amounts which would
become due but for the operation of an automatic stay under the
federal bankruptcy code of the United States or any similar laws of
any country or jurisdiction) of: (i) the payment and
performance of all Obligations, including, without limiting the
generality of the foregoing, all obligations, liabilities, and
indebtedness from time to time of the Borrower or any other
Guarantor to the Paying Agent or any of the Lenders under or in
connection with the Credit Agreement or any other Loan Document or
any Specified Swap Agreement, whether for principal, interest,
fees, indemnities, expenses, or otherwise, and all refinancings or
refundings thereof, whether such obligations, liabilities, or
indebtedness are direct or indirect, secured or unsecured, joint or
several, absolute or contingent, due or to become due, whether for
payment or performance, now existing or hereafter arising (and
including obligations, liabilities, and indebtedness arising or
accruing after the commencement of any bankruptcy, insolvency,
reorganization, or similar proceeding with respect to any of the
Loan Parties or that would have arisen or accrued but for the
commencement of such proceeding (including without limitation,
interest after default), even if the claim for such obligation,
liability or indebtedness is not enforceable or allowable in such
proceeding, and including all Obligations, liabilities, and
indebtedness arising from any extensions of credit under or in
connection with the Loan Documents or any Specified Swap Agreement
from time to time, regardless of whether any such extensions of
credit are in excess of the amount committed under or contemplated
by the Loan Documents or any Specified Swap Agreement or are made
in circumstances in which any condition to extension of credit is
not satisfied), (ii) any obligation or liability of any of the
Loan Parties arising out of overdrafts on
deposits or other accounts or out of
electronic funds (whether by wire transfer or through automated
clearing houses or otherwise) or out of the return unpaid of, or
other failure of the Paying Agent or any Lender to receive final
payment for, any check, item, instrument, payment order or other
deposit or credit to a deposit or other account, or out of the
Paying Agent’s or any Lender’s non-receipt of or
inability to collect funds or otherwise not being made whole in
connection with depository or other similar arrangements, and
(iii) any amendments, extensions, renewals and increases of or
to any of the foregoing (all of the foregoing obligations,
liabilities and indebtedness are referred to herein collectively as
the “ Guarantied Obligations ” and each as a
“ Guarantied Obligation ”). Without limitation
of the foregoing, any of the Guarantied Obligations shall be and
remain Guarantied Obligations entitled to the benefit of this
Guaranty if the Paying Agent or any of the Lenders (or any one or
more assignees or transferees thereof) from time to time assign or
otherwise transfer all or any portion of their respective rights
and obligations under the Loan Documents, or any other Guarantied
Obligations, to any other Person as provided by the Loan Documents
or by the Specified Swap Agreements. In furtherance of the
foregoing, each Guarantor jointly and severally agrees as
follows:
2. Guaranty . Each
Guarantor hereby promises to pay and perform all such Guarantied
Obligations when due and payable immediately upon demand of the
Paying Agent and the Lenders or any one or more of them. All
payments made hereunder shall be made by each Guarantor in
immediately available funds in U.S. Dollars and shall be made
without setoff, counterclaim, withholding, or other deduction of
any nature.
3. Obligations
Absolute . The obligations of the Guarantors hereunder shall
not be discharged or impaired or otherwise diminished by any
failure, default, omission, or delay, willful or otherwise, by any
Lender, the Paying Agent, or the Borrower or any other obligor on
any of the Guarantied Obligations, or by any other act or thing or
omission or delay to do any other act or thing which may or might
in any manner or to any extent vary the risk of any Guarantor or
would otherwise operate as a discharge of any Guarantor as a matter
of law or equity, except for, and to the extent of, payment and
performance of the Guaranteed Obligations. Each of the Guarantors
agrees that the Guarantied Obligations will be paid and performed
strictly in accordance with the terms of the Loan Documents and the
Specified Swap Agreements. Without limiting the generality of the
foregoing, each Guarantor hereby consents to, at any time and from
time to time, and the joint and several obligations of each
Guarantor hereunder shall not be diminished, terminated, or
otherwise similarly affected by any of the following:
(a) Any lack of genuineness,
legality, validity, enforceability or allowability (in a
bankruptcy, insolvency, reorganization or similar proceeding, or
otherwise), or any avoidance or subordination, in whole or in part,
of any Loan Document or any of the Guarantied Obligations and
regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of the Guarantied
Obligations, any of the terms of the Loan Documents or Specified
Swap Agreements, or any rights of the Paying Agent or the Lenders
or any other Person with respect thereto;
(b) Any increase, decrease,
or change in the amount, nature, type or purpose of any of, or any
release, surrender, exchange, compromise or settlement of the
Guarantied Obligations (whether or not contemplated by the Loan
Documents or Specified Swap Agreements as
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presently constituted); any change in
the time, manner, method, or place of payment or performance of, or
in any other term of, any of the Guarantied Obligations; any
execution or delivery of any additional Loan Documents or Specified
Swap Agreements; or any amendment, modification or supplement to,
or refinancing or refunding of, any Loan Document or any of the
Guarantied Obligations;
(c) Any failure to assert any
breach of or default under any Loan Document or any of the
Guarantied Obligations; any extensions of credit in excess of the
amount committed under or contemplated by the Loan Documents or
Specified Swap Agreements, or in circumstances in which any
condition to such extensions of credit has not been satisfied; any
other exercise or non-exercise, or any other failure, omission,
breach, default, delay, or wrongful action in connection with any
exercise or non-exercise, of any right or remedy against the
Borrower or any other Person under or in connection with any Loan
Document or any of the Guarantied Obligations; any refusal of
payment or performance of any of the Guarantied Obligations,
whether or not with any reservation of rights against any
Guarantor; or any application of collections (including but not
limited to collections resulting from realization upon any direct
or indirect security for the Guarantied Obligations) to other
obligations, if any, not entitled to the benefits of this Guaranty,
in preference to Guarantied Obligations entitled to the benefits of
this Guaranty, or if any collections are applied to Guarantied
Obligations, any application to particular Guarantied
Obligations;
(d) Any taking, exchange,
amendment, modification, waiver, supplement, termination,
subordination, compromise, release, surrender, loss, or impairment
of, or any failure to protect, perfect, or preserve the value of,
or any enforcement of, realization upon, or exercise of rights, or
remedies under or in connection with, or any failure, omission,
breach, default, delay, or wrongful action by the Paying Agent or
the Lenders, or any of them, or any other Person in connection with
the enforcement of, realization upon, or exercise of rights or
remedies under or in connection with, or, any other action or
inaction by any of the Paying Agent or the Lenders, or any of them,
or any other Person in respect of, any direct or indirect security
for any of the Guarantied Obligations. As used in this Guaranty,
“direct or indirect security” for the Guarantied
Obligations, and similar phrases, includes any collateral security,
guaranty, suretyship, letter of credit, capital maintenance
agreement, put option, subordination agreement, or other right or
arrangement of any nature providing direct or indirect assurance of
payment or performance of any of the Guarantied Obligations, made
by or on behalf of any Person;
(e) Any merger,
consolidation, liquidation, dissolution, winding-up, charter
revocation, or forfeiture, or other change in, restructuring or
termination of the corporate structure or existence of, the
Borrower or any other Person; any bankruptcy, insolvency,
reorganization or similar proceeding with respect to the Borrower
or any other Person; or any action taken or election made by the
Paying Agent or the Lenders, or any of them (including but not
limited to any election under Section 1111(b)(2) of the United
States Bankruptcy Code), the Borrower, or any other Person in
connection with any such proceeding;
(f) Any defense, setoff, or
counterclaim which may at any time be available to or be asserted
by the Borrower or any other Person with respect to any Loan
Document or any of the Guarantied Obligations, other than, and to
the extent of, payment and performance of the
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Guaranteed Obligations; or any discharge
by operation of law or release of the Borrower or any other Person
from the performance or observance of any Loan Document or any of
the Guarantied Obligations; and
(g) Any other event or
circumstance, whether similar or dissimilar to the foregoing, and
whether known or unknown, which might otherwise constitute a
defense available to, or limit the liability of, any Guarantor, a
guarantor or a surety, excepting only full, strict, and
indefeasible payment and performance of the Guarantied Obligations
in full.
Each Guarantor acknowledges,
consents, and agrees that new Guarantors may join in this Guaranty
pursuant to Section 11.18 of the Credit Agreement and each
Guarantor affirms that its obligations shall continue hereunder
undiminished.
4. Waivers, etc. Each
of the Guarantors hereby waives any defense to (other than, and to
the extent of, the defense of prior payment of the Guaranteed
Obligations) or limitation on its obligations under this Guaranty
arising out of or based on any event or circumstance referred to in
Section 3 hereof. Without limitation and to the fullest extent
permitted by applicable law, each Guarantor waives each of the
following:
(a) Except as may be
expressly contemplated by the Credit Agreement or other Loan
Documents or Specified Swap Agreements, all notices, disclosures
and demand of any nature which otherwise might be required from
time to time to preserve intact any rights against any Guarantor,
including the following: any notice of any event or circumstance
described in Section 3 hereof; any notice required by any law,
regulation or order now or hereafter in effect in any jurisdiction;
any notice of nonpayment, nonperformance, dishonor, or protest
under any Loan Document or any of the Guarantied Obligations; any
notice of the incurrence of any Guarantied Obligation; any notice
of any default or any failure on the part of the Borrower or any
other Person to comply with any Loan Document or any of the
Guarantied Obligations or any direct or indirect security for any
of the Guarantied Obligations; and any notice of any information
pertaining to the business, operations, condition (financial or
otherwise) or prospects of the Borrower or any other
Person;
(b) Any right to any
marshalling of assets, to the filing of any claim against the
Borrower or any other Person in the event of any bankruptcy,
insolvency, reorganization or similar proceeding, or to the
exercise against the Borrower or any other Person of any other
right or remedy under or in connection with any Loan Document or
any of the Guarantied Obligations or any direct or indirect
security for any of the Guarantied Obligations; any requirement of
promptness or diligence on the part of the Paying Agent or the
Lenders, or any of them, or any other Person; any requirement to
exhaust any remedies under or in connection with, or to mitigate
the damages resulting from default under, any Loan Document or any
of the Guarantied Obligations or any direct or indirect security
for any of the Guarantied Obligations; any benefit of any statute
of limitations; and any requirement of acceptance of this Guaranty
or any other Loan Document or Specified Swap Agreement, and any
requirement that any Guarantor receive notice of any such
acceptance;
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(c) Any defense or other
right arising by reason of any law now or hereafter in effect in
any jurisdiction pertaining to election of remedies (including but
not limited to anti-deficiency laws, “one action” laws
or the like), or by reason of any election of remedies or other
action or inaction by the Paying Agent or the Lenders, or any of
them (including but not limited to commencement or completion of
any judicial proceeding or nonjudicial sale or other action in
respect of collateral security for any of the Guarantied
Obligations), which results in denial or impairment of the right of
the Paying Agent or the Lenders, or any of them, to seek a
deficiency against the Borrower or any other Person or which
otherwise discharges or impairs any of the Guarantied Obligations;
and
(d) Any and all defenses it
may now or hereafter have based on principles of suretyship,
impairment of collateral, or the like.
5. Reinstatement .
This Guaranty is a continuing obligation of the Guarantors and
shall remain in full force and effect notwithstanding that no
Guarantied Obligations may be outstanding from time to time and
notwithstanding any other event or circumstance. Upon termination
of all Commitments, the expiration of all Letters of Credit and
Specified Swap Agreements, the payment in full of all Guaranteed
Obligations, the termination of the Credit Agreement and provided
that none of the other obligations referred to in
Section 1(ii) are then in default, this Guaranty shall
terminate; provided, however, that this Guaranty shall continue to
be effective or be reinstated, as the case may be, any time any
payment of any of the Guarantied Obligations is rescinded,
recouped, avoided, or must otherwise be returned or released by any
Lender or the Paying Agent upon or during the insolvency,
bankruptcy, or reorganization of, or any similar proceeding
affecting, the Borrower or for any other reason whatsoever, all as
though such payment had not been made and was due and
owing.
6. Subrogation . Each
Guarantor waives and agrees that it will not exercise any rights
against the Borrower or any other Guarantor arising in connection
with, or any Collateral securing, the Guarantied Obligations
(including rights of subrogation, contribution, and the like) until
the Guarantied Obligations have been paid in full, and all
Commitments have been terminated and all Letters of Credit and
Specified Swap Agreements have expired. If any amount shall be paid
to any Guarantor by or on behalf of the Borrower or any other
Guarantor by virtue of any right of subrogation, contribution, or
the like, such amount shall be deemed to have been paid to such
Guarantor for the benefit of, and shall be held in trust for the
benefit of, the Paying Agent and the Lenders and shall forthwith be
paid to the Paying Agent to be credited and applied upon the
Guarantied Obligations, whether matured or unmatured, in accordance
with the terms of the Credit Agreement.
7. No Stay . Without
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