EXHIBIT 10.2
AMENDED AND RESTATED
REVOLVING CREDIT NOTE
$20,000,000 March 5, 2003
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 by that certain First Amendment to Fourth Amended and Restated Revolving
Credit and Security Agreement dated February 4, 2002 and that certain Second
Amendment to Fourth Amended and Restated Revolving Credit Security Agreement
dated the date hereof and as may be further amended, supplemented or modified
from time to time, collectively 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 XXXXXX 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"), PNC BANK,
NATIONAL ASSOCIATION as lead arranger and administrative agent for the Lenders
(in such capacity, the "Agent"), and FLEET CAPITAL CORPORATION as documentation
agent (in such capacity as "Documentation 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 PNC BANK, NATIONAL ASSOCIATION ("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 TWENTY MILLION DOLLARS ($20,000,000),
or such lesser sum which then represents the aggregate unpaid principal balance
of Xxxxxx's Commitment Percentage of the Revolving 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
Revolving 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, the 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
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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 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
Xxxxxx, 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
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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 Xxxxxx.
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, XXXXXX 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
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 additional amended and restated revolving
credit notes executed the date hereof and delivered in connection with and
pursuant to the terms of the Credit Agreement amend and restate, but do not
extinguish the obligations evidenced by those certain amended and restated
revolving credit notes issued by Makers in favor of Lenders in the aggregate
principal amount of $35,000,000 each dated February 4, 2002.
[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
----------------------------------------------------
X. Xxxxxxxxx Xxxxxxxx, Sr. Vice President, Treasurer
RADNOR CHEMICAL CORPORATION
By: /s/ X. Xxxxxxxxx Xxxxxxxx
----------------------------------------------------
X. Xxxxxxxxx Xxxxxxxx, 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
----------------------------------------------------
X. Xxxxxxxxx Xxxxxxxx, Sr. Vice President, Treasurer
RADNOR HOLDINGS CORPORATION
By: /s/ X. Xxxxxxxxx Xxxxxxxx
----------------------------------------------------
X. Xxxxxxxxx Xxxxxxxx, Sr. Vice President, Treasurer
RADNOR DELAWARE II, INC.
By: /s/ X. Xxxxxxxxx Xxxxxxxx
----------------------------------------------------
X. Xxxxxxxxx Xxxxxxxx, Sr. Vice President, Treasurer
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STYROCHEM DELAWARE, INC.
By: /s/ X. Xxxxxxxxx Xxxxxxxx
----------------------------------------------------
X. Xxxxxxxxx Xxxxxxxx, 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
----------------------------------------------------
X. Xxxxxxxxx Xxxxxxxx, Sr. Vice President, Treasurer
STYROCHEM GP, L.L.C.
By: Radnor Chemical Corporation, its Sole Member
By: /s/ X. Xxxxxxxxx Xxxxxxxx
----------------------------------------------------
X. Xxxxxxxxx Xxxxxxxx, Sr. Vice President, Treasurer
STYROCHEM LP, L.L.C.
By: Radnor Chemical Corporation, its Sole Member
By: /s/ X. Xxxxxxxxx Xxxxxxxx
----------------------------------------------------
X. Xxxxxxxxx Xxxxxxxx, Sr. Vice President, Treasurer
WINCUP GP, L.L.C.
By: WinCup Holdings, Inc. its Sole Member
By: /s/ X. Xxxxxxxxx Xxxxxxxx
----------------------------------------------------
X. Xxxxxxxxx Xxxxxxxx, Sr. Vice President, Treasurer
WINCUP LP, L.L.C.
By: WinCup Holdings, Inc. its Sole Member
By: /s/ X. Xxxxxxxxx Xxxxxxxx
----------------------------------------------------
X. Xxxxxxxxx Xxxxxxxx, Sr. Vice President, Treasurer
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