Exhibit 10.59
FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT
AGREEMENT
THIS FIRST AMENDMENT , dated as of
October 24, 2008 (this “Amendment”), to AMENDED
AND RESTATED CREDIT AGREEMENT, dated as of June 27, 2007 (the
“ Credit Agreement ”; capitalized terms used but
not defined herein shall have the meanings given them in the Credit
Agreement) is made by and among CONSOL Energy Inc. (the “
Borrower ”), on behalf of the Loan Parties, the
Required Lenders, PNC Bank, National Association and Citicorp North
America, Inc., as co-administrative agents and PNC Bank, National
Association, as paying agent (the “ Paying Agent
”).
WITNESSETH
WHEREAS, pursuant to
Section 6.1.8.2 of the Credit Agreement, none of the Loan
Parties is permitted to purchase any margin stock with proceeds of
the Loans; and
WHEREAS, the Borrower, on behalf of
the Loan Parties, desires to, and the Required Lenders and the
Paying Agent have agreed to, amend Section 6.1.8.2 to allow
any Loan Party to purchase any margin stock with proceeds of the
Loans, so long as such purchase does not violate or conflict with
the regulations of the Board of Governors of the Federal Reserve
System.
NOW, THEREFORE, the parties hereto,
in consideration of the mutual covenants and agreements herein
contained and intending to be legally bound hereby, covenant and
agree as follows:
1. Amendment to Credit
Agreement . Section 6.1.8.2 [Margin Stock] of the Credit
Agreement is hereby amended and restated in its entirety as
follows:
“None of the Loan Parties
engages or intends to engage principally, or as one of its
important activities, in the business of extending credit for the
purpose, immediately, incidentally or ultimately, of purchasing or
carrying margin stock (within the meaning of Regulation U). No part
of the proceeds of any Loan has been or will be used for any
purpose which entails a violation of or which is inconsistent with
the provisions of the regulations of the Board of Governors of the
Federal Reserve System, and the Borrower shall assist the Lenders,
as reasonably requested by the Paying Agent, with the
Lenders’ compliance with Regulation U as such compliance
relates to the Borrower and the Loans, including by providing the
Paying Agent with all documents, forms and certificates reasonably
requested by the Paying Agent in relation thereto, including
delivering to the Paying Agent a Federal Reserve Form U-1 with
Parts I and II completed, in form and substance reasonably
satisfactory to the Paying Agent, concurrently with the first
request for a Loan after October 15, 2008, and thereafter
providing any amendments thereto as may be required by
Law.”
2. Condition Precedent . The
effectiveness of this Amendment is expressly conditioned upon
satisfaction of the conditions set forth in items (a) and
(b) below being satisfied to the satisfaction of the Paying
Agent:
(a) The Paying Agent shall have
received from the Borrower, each Loan Party, and the Required
Lenders an executed original of this Amendment in form and
substance satisfactory to the Paying Agent.
(b) The Loan Parties shall have
delivered a completed and fully executed Federal Reserve Form U-1
[Statement of Purpose for an Extension of Credit Secured by Margin
Stock] confirming that the Loans will not be used, in whole or in
part, to purchase or carry margin stock except as permitted under
Regulation U.
3. Incorporation into
Agreements . The terms, provisions, representations, warranties
and covenants set forth herein shall be incorporated into the
Credit Agreement by this reference. All terms, provisions,
representations, warranties and covenants set forth herein shall be
a part of the Credit Agreement as if originally contained
therein.
4. Full Force and Effect .
Except as expressly modified by this Amendment, all of the terms,
conditions, representations, warranties and covenants contained in
the Loan Documents shall continue in full force and effect,
including without limitation, all liens and security interests
granted pursuant to the Loan Documents.
5. Counterparts . This
Amendment may be executed by different parties hereto in any number
of separate counterparts, each of which, when so executed and
delivered shall be an original and all such counterparts shall
together constitute one and the same instrument.
6. Severability . If any term
of this Amendment or any application thereof shall be held to be
invalid, illegal or unenforceable, the validity of other terms of
this Amendment or any other application of such term shall in no
way be affected thereby.
7. Entire Agreement . This
Amendment sets forth the entire agreement and understanding of the
parties with respect to the amendment to the Credit Agreement
contemplated hereby and supersedes all prior understandings and
agreements, whether written or oral, between the parties hereto
relating to such amendment. No representation, promise, inducement
or statement of intention has been made by any party that is not
embodied in this Amendment, and no party shall be bound by or
liable for any alleged representation, promise, inducement or
statement of intention not set forth herein.
8. Governing Law . This
Amendment shall be construed and enforced in accordance with, and
the rights of the parties shall be governed by, the internal laws
of the Commonwealth of Pennsylvania applicable to contracts made
and to be performed in said Commonwealth.
[SIGNATURES APPEAR ON FOLLOWING
PAGES]
2
[SIGNATURE PAGE TO FIRST
AMENDMENT
TO AMENDED AND RESTATED CREDIT
AGREEMENT]
IN WITNESS WHEREOF, the parties
hereto, by their officers thereunto duly authorized, have executed
this First Amendment to Amended and Restated Credit Agreement as of
the day and year first above written with the intention that it
constitutes a sealed instrument.
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BORROWER:
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CONSOL ENERGY INC. , on behalf of each of
the Loan Parties
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By:
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Name:
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John
M. Reilly
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Title:
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Vice
President and Treasurer
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[SIGNATURE PAGE TO FIRST
AMENDMENT
TO AMENDED AND RESTATED CREDIT
AGREEMENT]
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LENDER:
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CITICORP NORTH AMERICA, INC.
,
individually and as
Co-Administrative Agent
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By:
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Name:
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Raymond
G. Dunning
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Title:
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Vice
President
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[SIGNATURE PAGE TO FIRST
AMENDMENT
TO AMENDED AND RESTATED CREDIT
AGREEMENT]
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LENDER:
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PNC BANK, NATIONAL ASSOCIATION
,
individually, as Co-Administrative Agent and
as
Paying Agent
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By:
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Name:
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Richard
C. Munsick
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Title:
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Senior
Vice President
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[SIGNATURE PAGE TO FIRST
AMENDMENT
TO AMENDED AND RESTATED CREDIT
AGREEMENT]
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LENDER:
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THE
BANK OF NOVA SCOTIA
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By:
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Name:
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Thane
Rattew
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Title:
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Managing
Director
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[SIGNATURE PAGE TO FIRST
AMENDMENT
TO AMENDED AND RESTATED CREDIT
AGREEMENT]