Exhibit 10.22
AMENDED AND RESTATED
REVOLVING CREDIT NOTE
$15,000,000 February 4, 2002
This Amended and Restated Revolving Credit Note is executed and
delivered under and pursuant to the terms of that certain Fourth Amended and
Restated Revolving Credit and Security Agreement dated as December 26, 2001 (as
amended, supplemented or modified from time to time, the "Credit Agreement") by
and among RADNOR HOLDINGS CORPORATION, WINCUP HOLDINGS, INC., RADNOR CHEMICAL
CORPORATION, STYROCHEM U.S., LTD., RADNOR DELAWARE II, INC., WINCUP TEXAS,
LTD., STYROCHEM DELAWARE, INC., STYROCHEM GP, L.L.C., STYROCHEM LP, L.L.C.,
WINCUP GP, L.L.C. AND WINCUP LP, L.L.C. (each, a "Maker" and jointly and
severally, the "Makers"), the financial institutions named therein and the
financial institutions which hereafter become a party thereto (collectively,
the "Lenders") and PNC BANK, NATIONAL ASSOCIATION as agent for the Lenders (in
such capacity, the "Agent"). Capitalized terms not otherwise defined herein
shall have the meanings ascribed thereto in the Credit Agreement.
FOR VALUE RECEIVED, the undersigned Makers, jointly and severally,
hereby promise to pay to the order of FLEET CAPITAL CORPORATION ("Lender"), at
the offices of Agent, in such coin or currency of the United States which shall
be legal tender in payment of all debts and dues, public and private, at the
time of payment, the principal sum of FIFTEEN MILLION DOLLARS ($15,000,000), or
such lesser sum which then represents the aggregate unpaid principal balance of
Lender's Commitment Percentage of the Advances, together with interest from and
after the date hereof on the unpaid principal balance outstanding at the
applicable per annum rate(s) set forth in the Credit Agreement. The actual
amount due and owing from time to time hereunder shall be evidenced by Agent's
records of receipts and disbursements with respect to the Advances, which shall
be prima facie evidence of the unpaid balance thereof.
This Amended and Restated Revolving Credit Note ("Note") is the Note
referred to in, and is issued pursuant to, Credit Agreement, and is subject to
all the terms and conditions of and entitled to all of the benefits and security
of the Credit Agreement. All capitalized terms used herein, unless otherwise
specifically defined in this Note, shall have the meanings ascribed to them in
the Credit Agreement.
Interest shall accrue at the rates set forth (including, if applicable,
a default rate), and shall be computed in the manner provided, in Article III of
the Credit Agreement. In no event whatsoever shall interest and other charges
charged hereunder exceed the highest rate permissible under law. In the event
interest and other charges as computed hereunder would otherwise exceed the
highest rate permitted under law, such excess amount shall be first applied to
any unpaid principal balance owed by Makers, and if the then remaining excess
amount is greater than the previously unpaid principal balance, Lender shall
promptly refund such excess amount to Makers and the provisions hereof shall be
deemed amended to provide for such
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permissible rate.
Interest shall be charged and payable on the outstanding balance
hereunder at the applicable rate provided in the Credit Agreement
notwithstanding and even following the occurrence of any Event of Default,
acceleration, judgment, bankruptcy or reorganization proceedings or any other
event or occurrence.
The principal amount of this Note, and also the accrued interest
thereon, shall be due and payable in the amounts, on the dates and in the manner
set forth in the Credit Agreement.
This Note shall evidence the unconditional obligation of Makers to
repay to Lender the outstanding balance of Revolving Advances made to Makers by
Lender, with interest thereon and all fees, costs and expenses in connection
therewith.
Reference is made to the Credit Agreement for provisions concerning
prepayment and acceleration of the outstanding balance of the obligations of
each Maker under this Note. This Note is secured by and shall have the benefits
of the Collateral described in the Credit Agreement.
Upon the occurrence of an Event of Default, Lender shall have all of
the rights and remedies set forth in Article 11 of the Credit Agreement. The
rights and options of Lender under this Note shall be enforced by Agent under
the terms and conditions hereof and of the Credit Agreement.
Time is of the essence in the performance of this Note. To the fullest
extent permitted by applicable law, each Maker, for itself and its legal
representatives, successors and assigns, expressly waives presentment, demand,
protest, notice of dishonor, notice of non-payment, notice of maturity, notice
of protest, presentment for the purpose of accelerating maturity, diligence in
collection, and the benefit of any exemption or insolvency laws.
No delay or failure on the part of Agent or Lender in the exercise of
any right or remedy hereunder shall operate as a waiver thereof, nor as an
acquiescence in any default, nor shall any single or partial exercise by Agent
or Lender of any right or remedy preclude any other right or remedy. Agent, at
its option, may enforce its rights against any collateral securing this Note
without enforcing its rights against any Maker or any Borrower, any guarantor of
the indebtedness evidenced hereby or any other property of any Maker or any
Borrower. Makers agree that, without releasing or impairing Makers' liability
hereunder, Agent may at any time release, surrender, substitute or exchange any
collateral securing this Note and may at any time release any party primarily or
secondarily liable for the indebtedness evidenced by this Note.
This Note shall be construed and governed by the laws of the
Commonwealth of Pennsylvania without reference to its conflicts of laws rules.
The provisions of this Note are severable and the invalidity or unenforceability
of any provision shall not alter or impair the remaining provisions of this
Note. No modification hereof shall be binding or enforceable against Lender
unless approved in writing by Lender.
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EACH MAKER HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING UNDER THIS NOTE OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH, OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF MAKER, LENDER AND/OR AGENT OR ANY OF THEM WITH RESPECT TO THIS NOTE
OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR
TORT OR OTHERWISE AND EACH MAKER HEREBY CONSENTS THAT ANY SUCH CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND
THAT MAKER, AGENT AND/OR LENDER MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH MAKER TO
THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
Any judicial proceeding brought by or against any Maker with respect to
this Note or any related agreement may be brought in any court of competent
jurisdiction located in the Commonwealth of Pennsylvania, and, by execution and
delivery of this Note, each Maker accepts for itself and in connection with its
properties, generally and unconditionally, the non-exclusive jurisdiction of the
aforesaid courts, and irrevocably agrees to be bound by any judgment rendered
thereby in connection with this Note. Each Maker hereby waives personal service
of any and all process upon it and consents that all such service of process may
be made upon it in the manner provided for in Section 15.1 of the Credit
Agreement. Each Maker waives any objection to jurisdiction and venue of any
action instituted hereunder and shall not assert any defense based on lack of
jurisdiction or venue or based upon forum non conveniens. Any judicial
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proceeding by any Maker against Agent or Lender involving, directly or
indirectly, any matter or claim in any way arising out of, related to or
connected with this Note or any related agreement, shall be brought only in a
federal or state court located in the County of Philadelphia, Commonwealth of
Pennsylvania.
This Note together with other promissory note executed the date hereof
and delivered in connection with the Commitment Transfer Supplement under and
pursuant to the terms of the Credit Agreement amend and restate, but do not
extinguish the obligations evidenced by that certain Amended, Restated and
Consolidated Revolving Credit Note issued by Makers in favor of PNC Bank,
National Association in the original principal amount of $35,000,000 pursuant to
the terms of that certain Credit Agreement dated December 26, 2001.
[Signatures begin on next page]
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IN WITNESS WHEREOF, Makers, intending to be legally bound, have caused
this Note to be duly executed and delivered on the date first above written.
WINCUP HOLDINGS, INC.
By: /s/ X. Xxxxxxxxx Xxxxxxxx, Sr.
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X. Xxxxxxxxx Hastings, Sr. Vice President, Treasurer
RADNOR CHEMICAL CORPORATION
By: /s/ X. Xxxxxxxxx Xxxxxxxx, Sr.
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X. Xxxxxxxxx Hastings, Sr. Vice President, Treasurer
STYROCHEM U.S., LTD.
By: StyroChem GP, LLC, its General Partner
By: Radnor Chemical Corporation, its Sole Member
By: /s/ X. Xxxxxxxxx Xxxxxxxx, Sr.
-------------------------------------------
X. Xxxxxxxxx Hastings, Sr. Vice President, Treasurer
RADNOR HOLDINGS CORPORATION
By: /s/ X. Xxxxxxxxx Xxxxxxxx, Sr.
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X. Xxxxxxxxx Hastings, Sr. Vice President, Treasurer
RADNOR DELAWARE II, INC.
By: /s/ X. Xxxxxxxxx Xxxxxxxx, Sr.
-------------------------------------------
X. Xxxxxxxxx Hastings, Sr. Vice President, Treasurer
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STYROCHEM DELAWARE, INC.
By: /s/ X. Xxxxxxxxx Xxxxxxxx, Sr.
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X. Xxxxxxxxx Hastings, Sr. Vice President, Treasurer
WINCUP TEXAS, LTD.
By: WinCup GP, LLC, its General Partner
By: WinCup Holdings, Inc., its Sole Member
By: /s/ X. Xxxxxxxxx Xxxxxxxx, Sr.
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X. Xxxxxxxxx Hastings, Sr. Vice President, Treasurer
STYROCHEM GP, L.L.C.
By: Radnor Chemical Corporation, its Sole Member
By: /s/ X. Xxxxxxxxx Xxxxxxxx, Sr.
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X. Xxxxxxxxx Hastings, Sr. Vice President, Treasurer
STYROCHEM LP, L.L.C.
By: Radnor Chemical Corporation, its Sole Member
By: /s/ X. Xxxxxxxxx Xxxxxxxx, Sr.
-------------------------------------------
X. Xxxxxxxxx Hastings, Sr. Vice President, Treasurer
WINCUP GP, L.L.C.
By: WinCup Holdings, Inc. its Sole Member
By: /s/ X. Xxxxxxxxx Xxxxxxxx, Sr.
-------------------------------------------
X. Xxxxxxxxx Hastings, Sr. Vice President, Treasurer
WINCUP LP, L.L.C.
By: WinCup Holdings, Inc. its Sole Member
By: /s/ X. Xxxxxxxxx Xxxxxxxx, Sr.
-------------------------------------------
X. Xxxxxxxxx Hastings, Sr. Vice President, Treasurer
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