exv10w4



 





EXHIBIT 10.4




PROMISSORY NOTE 




	 	 	 	 	 
	$1,750,000

	 	Dated:
	 	December 15, 2004
	 

	 	Maturity Date:
	 	July 31, 2007
	 

	 	 	 	Indianapolis, Indiana







     FOR VALUE RECEIVED, Heritage-Crystal Clean, LLC (“Borrower”), hereby promises to pay
to the order of Bruckmann, Rosser, Sherrill & Co II, L.P. (“Lender”) the principal sum of
One Million, Seven Hundred and Fifty Thousand United States Dollars ($1,750,000) or so much thereof
which is advanced (each individually, an “Advance”) to Borrower and is outstanding as
evidenced by the records of Lender, together with accrued interest on the unpaid principal balance
at the rate of interest and in the manner set forth herein.



     1. Interest. Interest for each Advance shall accrue at a per annum rate equal to the
rate of interest announced from time to time by National City Bank as its “Prime Rate”, plus Two
and one-half Percent (2.5%). The books and records of Lender shall be conclusive and binding on
Borrower, absent manifest error, for the purpose of determining the rate of interest for any
particular Advance. Interest for any Advance shall be calculated on the basis of a Three Hundred
Sixty (360) day year and paid for actual days elapsed,



     2. Maturity. All Advances, together with any and all accrued and unpaid interest, must
be repaid by July 31, 2007.



     3. Prepayment. Advances may be repaid by Borrower at any time without penalty.



     4. Required Payments. Accrued interest on each Advance shall be due and payable on the
first (1st) day of each calendar month during the term of this note. A final
installment, representing the entire unpaid principal balance of this note and all accrued and
unpaid interest thereon, shall be due and payable on July 31, 2007



     5. Covenants. Borrower covenants and agrees that while this note is in effect,
Borrower shall not, without the prior written consent of Lender:



          (a) Off Balance Sheet Liabilities. Incur any Off Balance Sheet Liabilities in excess
of One Hundred Thousand Dollars ($100,000.00). For purposes of this note, “Off Balance Sheet
Liabilities” of Borrower shall mean (i) any repurchase obligation or liability of Borrower with
respect to accounts or notes receivable sold by Borrower, (ii) any liability under any sale or
leaseback transactions which do not create a liability on the consolidated balance sheet of
Borrower, (iii) any liability under any financing lease or so-called “synthetic” lease transaction,
or (iv) any other obligations arising with respect to any other transaction which is the functional
equivalent of or takes the place of borrowing but which does not constitute a liability on the
consolidated balance sheet of Borrower, excluding leases that are not capitalized leases.




 









 








          (b) Maximum Outstanding Balance. At any time have a principal balance outstanding
under this note, including all unpaid-Advances and all accrued but unpaid interest, in excess of
One Million, Seven Hundred and Fifty Thousand United States Dollars ($1,750,000).




          (c) BRS Purchase Agreement and Interereditor Agreement. Breach or violate the terms
and provisions of: (i) the Purchase Agreement dated as of February 24, 2004 between Borrower,
BRS-HCC Investment Co., Inc. and Lender; or (ii) the Intercreditor Agreement dated as of February
24, 2004 among Borrower, Lender and the other “Noteholders” identified therein.




     6. Default. Each of the following shall constitute an event of default (“Event of
Default”) under this note:



          (a) Payment Default. Borrower fails to make any payment when due under this note.




          (b) Other Defaults. Borrower fails to comply with or to perform any other term,
obligation, covenant or condition contained in this note.




          (c) Insolvency Event. The occurrence of an “Insolvency Event” as defined in the
Intercreditor Agreement.




     7. Effect of an Event of Default. If any Event of Default shall occur, all commitments
and obligations of Lender under this note and the Intercreditor Agreement will immediately
terminate (including any obligation to make further Advances or disbursements), and, at Lender’s
option, all indebtedness (whether for principal, interest or otherwise, including without
limitation interest accruing after such Event of Default) under this note shall become immediately
due and payable, all without notice of any kind to Borrower. In addition, Lender shall have all of
the rights and remedies available at law, in equity or otherwise. Except as may be prohibited by
applicable law, all of Lender’s rights and remedies shall be cumulative and may be exercised singly
or concurrently. Election by Lender to pursue any remedy shall not exclude pursuit of any other
remedy, and an election to make expenditures or to take action to perform an obligation of Borrower
shall not effect Lender’s right to declare an Event of Default and to exercise its rights and
remedies. All Advances shall be repaid under all circumstances without relief from any Indiana or
other valuation and appraisement laws.



     8. Choice of Law. This Note shall in all respect be governed by and construed in
accordance with the laws of the State of Indiana without regard to conflicts of law principles.



     9. Enforcement Costs. Borrower shall reimburse Lender for all costs and expenses
incurred by Lender in the enforcement of the obligations of Borrower under this note, and such
costs and expenses shall constitute indebtedness under this note until paid.



     10. Prior Note Superceded and Canceled. This note supercedes that certain note
between Lender and Borrower, in the amount of principal sum of One Million, Seven Hundred and Fifty
Thousand United States Dollars ($1,750,000) dated February 24, 2004 (the “Old Note”), which Old
Note is hereby cancelled and all principal and interest outstanding under the Old Note shall be
deemed to be outstanding under this note.



 









 





     In witness whereof, Maker has executed and delivered this note as of the day and year first
above written.



	 	 	 	 	 
	 	Heritage-Crystal Clean LLC

 	 
	 	By:  	/s/  Greg Ray
	 	 	Greg Ray 	 
	 	 	Vice President

Business Management