EXHIBIT 10.12
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Significant Subsidiary GUARANTY
From
CONSOLIDATION COAL SALES COMPANY,
CONSOL PENNSYLVANIA COAL COMPANY,
CONSOL SALES COMPANY,
EIGHTY-FOUR MINING COMPANY,
FAIRMONT SUPPLY COMPANY,
HELVETIA COAL COMPANY,
ISLAND CREEK COAL COMPANY,
KEYSTONE COAL MINING CORPORATION,
LAUREL RUN MINING COMPANY,
▇▇▇▇▇▇▇ COAL COMPANY,
NEW CENTURY HOLDINGS, INC.,
NINEVEH COAL COMPANY,
ROCHESTER & PITTSBURGH COAL COMPANY
To
THE FIRST NATIONAL BANK OF CHICAGO
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SIGNIFICANT SUBSIDIARY GUARANTY
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1. Guaranty of Payment. FOR VALUE RECEIVED, and in consideration of any
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loan or other financial accommodation heretofore or hereafter at any time made
or granted to CONSOLIDATION COAL COMPANY, a Delaware corporation (herein called
the "Debtor") by THE FIRST NATIONAL BANK OF CHICAGO, individually (herein, in
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such capacity, together with its successors and assigns, called "Bank"), each of
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the undersigned, hereby unconditionally guarantees the full and prompt payment
when due, whether by acceleration or otherwise, and at all times thereafter, of
all obligations of the Debtor to the Bank, howsoever created, arising or
evidenced, whether direct or indirect, primary or secondary, absolute or
contingent, joint or several, or now or hereafter existing, or due or to become
due (all such obligations, together with any extensions or renewals thereof,
being hereinafter collectively called the "Liabilities"), under and in
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connection with that certain Senior Revolving Loan Agreement, dated as of
December 23, 1993 (herein, as the same may be amended from time to time, called
the "Loan Agreement"), between the Debtor and the Bank and each of the
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undersigned further agrees to pay all reasonable expenses (including attorneys'
fees and legal expenses) paid or incurred by the Bank in endeavoring to collect
the Liabilities, or any part thereof, and in enforcing this guaranty.
2. Acceleration of the Time of Payment of Amount Payable Under Guaranty.
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Each of the undersigned agrees that, in the event of the dissolution or
insolvency of the Debtor or such undersigned, or the inability or failure of the
Debtor or such undersigned to pay debts as they become due, or an assignment by
the Debtor or such undersigned for the benefit of creditors, or the commencement
of any case or proceeding in respect of the Debtor or such undersigned under any
bankruptcy, insolvency or similar laws, and, if such case or proceeding is not
commenced by the Debtor or such undersigned, such case or proceeding shall be
consented to or acquiesced in by the Debtor or such undersigned, or shall result
in the entry of an order for relief or shall remain for 60 days undismissed, and
if such event shall occur at a time when any of the Liabilities may not then be
due and payable, such undersigned will pay to the Bank forthwith the full amount
which would be payable hereunder by such undersigned if all Liabilities were
then due and payable.
3. Right of Setoff in Deposits and Other Property. The Bank shall have a
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right of set off against (and may, without demand or notice of any kind, at any
time and from time to time when any amount shall be due and payable by such
undersigned hereunder, set off, appropriate and apply toward the payment of such
amount, in such order of application as the Bank may elect) any and all
balances, credits, deposits (general or special, time or demand, provisional or
final), accounts or moneys of or in the name of such undersigned now or
hereafter with the Bank.
4. Continuing Guaranty. This guaranty shall in all respects be a
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continuing, absolute and unconditional guaranty, and shall remain in full force
and effect (notwithstanding, without limitation, the dissolution of any of the
undersigned or that at any time or from time to time all Liabilities may have
been paid in full), until all Liabilities (including any extensions or renewals
of any thereof) and all interest thereon and all expenses (including attorneys'
fees and legal expenses) reasonably paid or incurred by the Bank in endeavoring
to collect the Liabilities and in enforcing this guaranty shall have been
finally paid in full and all other obligations of each of the undersigned under
this guaranty shall have been satisfied.
5. Rescission or Return of Payment on Liabilities. Each of the
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undersigned further agrees that, if at any time all or any part of any payment
theretofore applied by the Bank to any of the Liabilities is or must be
rescinded or returned by the Bank for any reason whatsoever (including,
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without limitation, the insolvency, bankruptcy or reorganization of the Debtor),
such Liabilities shall, for the purposes of this guaranty, to the extent that
such payment is or must be rescinded or returned, be deemed to have continued in
existence, notwithstanding such application by the Bank, and this guaranty shall
continue to be effective or be reinstated, as the case may be, as to such
Liabilities, all as though such application by the Bank had not been made.
6. Bank Permitted to Take Certain Actions. The Bank may, from time to
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time, at its sole discretion and without notice to the undersigned (or any of
them), take any or all of the following actions without impairing the obligation
of the undersigned under this guaranty: (a) retain or obtain a lien upon or a
security interest in any property to secure any of the Liabilities or any
obligation hereunder, (b) retain or obtain the primary or secondary obligation
of any obligor or obligors, in addition to the undersigned, with respect to any
of the Liabilities, (c) extend or renew for one or more periods (whether or not
longer than the original period), alter or exchange any OF the Liabilities, or
release or compromise any obligation of any of the undersigned hereunder or any
obligation of any nature of any other obligor with respect to any of the
Liabilities, (d) release or fail to perfect its lien upon or security interest
in, or impair, surrender, release or permit any substitution or exchange for,
all or any part of any property securing any of the Liabilities or any
obligation hereunder, or extend or renew for one or more periods (whether or not
longer than the original period) or release, compromise, alter or exchange any
obligations of any nature of any obligor with respect to any such property, and
(e) resort to the undersigned (or any of them) for payment of any of the
Liabilities, whether or not the Bank (i) shall have resorted to any property
securing any of the Liabilities or any obligation hereunder or (ii) shall have
proceeded against any other of the undersigned or any other obligor primarily or
secondarily obligated with respect to any of the Liabilities (all of the actions
referred to in preceding clauses (i) and (ii) being hereby expressly waived by
the undersigned).
7. Application of Payments. Any amounts received by the Bank from
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whatsoever source on account of the Liabilities may be applied by the Bank,
toward the payment of such of the Liabilities, and in such order of application,
as the Bank may from time to time elect.
8. Waiver of Subrogation. Each of the undersigned hereby waives any
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claim or other right which such of the undersigned may now have or hereafter
acquire against the Debtor or any other obligor primarily or secondarily
obligated with respect to any of the Liabilities that arises from the existence
or performance of the obligations of such of the undersigned under this
guaranty, including, without limitation, any right of indemnification or any
right of subrogation or other right to participate in any claim or remedy of the
Bank against the Debtor or any property securing any of the Liabilities, which
the Bank now has or hereafter acquires, whether or not such claim, right or
remedy arises in equity or under contract, statute or common law. The
provisions of this paragraph are for the express benefit of the Debtor and each
other obligor primarily or secondarily obligated with respect to any of the
Liabilities as well as the Bank and may be enforced independently by the Debtor
and each such other obligor.
9. Waiver of Notice and Other Matters. Each of the undersigned hereby
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expressly waives: (a) notice of the acceptance by the Bank of this guaranty, (b)
notice of the existence or creation or non-payment of all or any of the
Liabilities, (c) presentment, demand, notice of dishonor, protest, and all other
notices whatsoever, and (d) all diligence in collection or protection of or
realization upon the Liabilities or any thereof, any obligation hereunder, or
any security for or guaranty of any of the foregoing.
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10. Additional Liabilities of the Debtor Authorized. The creation or
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existence, with or without notice to the undersigned, from time to time of
Liabilities in excess of the amount to which the right of recovery under this
guaranty is limited shall not in any way affect or impair the rights of the Bank
and the obligations of the undersigned under this guaranty.
11. Assignment of Liabilities. The Bank may, from time to time to the
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extent permitted under the Loan Agreement, without notice to the undersigned (or
any of them), assign or transfer any or all of the Liabilities or any interest
therein; and, notwithstanding any such assignment or transfer or any subsequent
assignment or transfer thereof, such Liabilities shall be and remain Liabilities
for the purposes of this guaranty, and each and every immediate and successive
assignee or transferee of any of the Liabilities or of any interest therein
shall, to the extent of the interest of such assignee or transferee in the
Liabilities, be entitled to the benefits of this guaranty to the same extent as
if such assignee or transferee were the Bank.
12. Waiver and Modifications. No delay on the part of the Bank in the
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exercise of any right or remedy shall operate as a waiver thereof, and no single
or partial exercise by the Bank of any right or remedy shall preclude other or
further exercise thereof or the exercise of any other right or remedy; nor shall
any modification or waiver of any of the provisions of this guaranty be binding
upon the Bank except as expressly set forth in a writing duly signed and
delivered on behalf of the Bank.
13. Obligations Under Guaranty. No action of the Bank permitted hereunder
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shall in any way affect or impair the rights of the Bank and the obligations of
the undersigned under this guaranty. For the purposes of this guaranty,
Liabilities shall include all obligations of the Debtor to the Bank under and in
connection with the Loan Agreement, notwithstanding any right or power of the
Debtor or anyone else to assert any claim or defense as to the invalidity or
unenforceability of any such obligation, and no such claim or defense shall
affect or impair the obligations of the undersigned hereunder. The obligations
of the undersigned under this guaranty shall be absolute and unconditional
irrespective of any circumstance whatsoever which might constitute a legal or
equitable discharge or defense of the undersigned (or any of them). Each of the
undersigned hereby acknowledges that there are no conditions to the
effectiveness of this guaranty.
14. Information Concerning Debtor. Each of the undersigned hereby
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warrants and represents to the Bank that such undersigned now has and will
continue to have independent means of obtaining information concerning the
affairs, financial condition and business of the Debtor. The Bank shall have no
duty or responsibility to provide the undersigned (or any of them) with any
credit or other information concerning the affairs, financial condition or
business of the Debtor which may come into the Bank's possession.
15. Senior Indebtedness. Each of the undersigned hereby further warrants
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and represents that the obligations of such undersigned under this Guaranty and
under each other Loan Document constitutes indebtedness senior to any
subordinated indebtedness of such undersigned.
16. Certain Representations. The undersigned hereby further warrant and
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represent to the Bank that (a) the execution and delivery of this guaranty, and
the performance by each of the undersigned of its obligations hereunder, are
within the corporate right, power, authority and capacity of such undersigned
and have been duly authorized by all necessary corporate action on the part of
such undersigned, and (b) this guaranty has been duly executed and delivered on
behalf of each of the undersigned and is the legal, valid and binding obligation
of such undersigned, enforceable in accordance with its terms, the making and
performance of which do not and will not contravene or conflict with the charter
or by-laws of such undersigned or
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violate or constitute a default under any law, any presently existing
requirement or restriction imposed by judicial, arbitral or any governmental
instrumentality or any agreement, instrument or indenture by which such
undersigned is bound.
17. Liabilities Limited. Anything else in this guaranty notwithstanding,
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each of the undersigned shall be liable under this guaranty only for the maximum
amount of such liability that can be hereby incurred without rendering this
guaranty, as it relates to such undersigned, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer, and not for any
greater amount.
18. Successors. This guaranty shall be binding upon the undersigned, and
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upon the successors and assigns of the undersigned; and all references herein to
the Debtor and to such of the undersigned, respectively, shall be deemed to
include any successor or successors, whether immediate or remote, to the Debtor
or such undersigned. The term "undersigned" as used herein shall mean all
parties executing this guaranty and each of them, and all such parties shall be
jointly and severally obligated hereunder.
19. Law; Severability. THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE
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WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. Wherever possible each
provision of this guaranty shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this guaranty
shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
guaranty.
20. Captions. Section captions used in this guaranty are for convenience
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only, and shall not affect the construction of this guaranty.
21. Waiver of Jury Trial. THE UNDERSIGNED HEREBY EXPRESSLY WAIVE ANY
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RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS UNDER THIS GUARANTY OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR
AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION
HEREWITH, AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A
COURT AND NOT BEFORE A JURY.
22. Consent to Jurisdiction and Service of Process. Each of the
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undersigned agrees that any judicial proceedings brought against such
undersigned with respect to this guaranty may be brought in any state or federal
court of competent jurisdiction in the State of New York and by the execution
and delivery of this guaranty, each of the undersigned accepts the nonexclusive
jurisdiction of the aforesaid courts. Service of process may be made by any
means authorized by federal law or the law of New York, as the case may be. A
copy of any such process so served shall be mailed by registered mail to such
undersigned at its address set forth opposite its name on the signature page
hereto or at such other address as may be designated by such undersigned in a
notice to the Bank. Nothing herein shall limit the right of the Bank to bring
proceedings against any of the undersigned in the courts of any other
jurisdiction.
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SIGNED AND DELIVERED as of this 13th day of November, 1998.
CONSOLIDATION COAL SALES COMPANY
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
By:--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice
President & Treasurer of
CONSOL Inc, Attorney-in-Fact
CONSOL PENNSYLVANIA COAL COMPANY
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
By:--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice
President & Treasurer of
CONSOL Inc, Attorney-in-Fact
CONSOL SALES COMPANY
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
By:--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice
President & Treasurer of
CONSOL Inc, Attorney-in-Fact
EIGHTY-FOUR MINING COMPANY
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
By:--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice
President & Treasurer of
CONSOL Inc, Attorney-in-Fact
FAIRMONT SUPPLY COMPANY
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
By:--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice
President & Treasurer of
CONSOL Inc, Attorney-in-Fact
HELVETIA COAL COMPANY
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
By:--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice
President & Treasurer of
CONSOL Inc, Attorney-in-Fact
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ISLAND CREEK COAL COMPANY
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
By:--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice
President & Treasurer of
CONSOL Inc, Attorney-in-Fact
KEYSTONE COAL MINING CORPORATION
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
By:--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice
President & Treasurer of
CONSOL Inc, Attorney-in-Fact
LAUREL RUN MINING COMPANY
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
By:--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice
President & Treasurer of
CONSOL Inc, Attorney-in-Fact
▇▇▇▇▇▇▇ COAL COMPANY
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
By:--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice
President & Treasurer of
CONSOL Inc, Attorney-in-Fact
NEW CENTURY HOLDINGS, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
By:--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice
President & Treasurer of
CONSOL Inc, Attorney-in-Fact
NINEVEH COAL COMPANY
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
By:--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice
President & Treasurer of
CONSOL Inc, Attorney-in-Fact
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ROCHESTER & PITTSBURGH COAL COMPANY
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
By:--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice
President & Treasurer of
CONSOL Inc, Attorney-in-Fact
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SCHEDULE TO EXHIBIT 10.12
In addition, to Exhibit 10.12, Consolidation Coal Company executed a
Significant Subsidiary Guaranty with each of the following banks, all of which
are substantially identical to Exhibit 10.12 in all material respects:
The First Union National Bank
Bank of America National Trust and Savings Association