exv10w5



 





EXHIBIT 10.5




FIRST AMENDED AND RESTATED PROMISSORY NOTE 




	 	 	 	 	 
	$3,250,000.00

	 	Dated:
	 	April 19, 2006
	 

	 	Maturity Date:
	 	July 31, 2008
	 

	 	 	 	Indianapolis, Indiana






     FOR VALUE RECEIVED, Heritage-Crystal Clean, LLC (“Borrower”), hereby promises to pay
to the order of Donald Brinckman (“Lender”) the principal sum of Three Million Two Hundred
Fifty Thousand United States Dollars ($3,250,000.00) 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. The principal amount of this First Amended and Restated Promissory
Note includes the Advances heretofore evidenced by that certain Promissory Note Dated December 15,
2004 made by Borrower to the order of the Lender in the stated amount of $3,250,000.00 (the
“Existing Note”) and to the extent such Advances are included in this Note, this Note (i)
merely re-evidences the Advances heretofore evidenced by the Existing Note and (ii) is given in
substitution for and not as payment of the Existing Note.



     1. Interest. Interest for each and every Advance shall accrue from the date of this
Note to and including July 31, 2007 at a per annum rate equal to the rate of interest announced
from time to time by National City Bank of Indiana as its “Prime Rate”, plus Two and one-half
Percent (2.5%). Thereafter, from August 1, 2007, interest for each and every Advance shall accrue
at a per annum rate equal to the rate of interest announced from time to time by National City Bank
of Indiana as its “Prime Rate”, plus One-half Percent (0.5%). 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 hereunder, together with any and all accrued and unpaid
interest, must be repaid by July 31, 2008 unless sooner demanded by Lender pursuant to Section 9 of
this Note.



     3. Prepayment. Advances may be prepaid 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, 2008.



     5. Covenant. Borrower covenants and agrees that while this note is in effect, Borrower
shall not, without the prior written consent of Lender at any time have a principal balance
outstanding under this note, including all unpaid Advances and all accrued but unpaid interest, in
excess of Three Million Two Hundred Fifty Thousand Dollars ($3,250,000.00).



     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 dissolves, becomes insolvent, has a
receiver appointed for any part of its property, makes an assignment for the benefit of creditors,
or any proceeding is commenced either by Borrower, or against Borrower under any Bankruptcy or
insolvency laws, or a material adverse change occurs in Borrower’s financial condition.




     7. Effect of an Event of Default. If any Event of Default shall occur, all commitments
and obligations of Lender under this note will immediately terminate (including any obligation to
make further Advances or disbursements), and, at Lender’s option, the indebtedness immediately will
become 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.


Lender may hire or pay someone else to collect this Note if Borrower does not pay. Borrower will
also pay that amount to Lender, which amount shall be reasonable. This includes, subject to any
limits under applicable law, Lender’s reasonable attorney’s fees and Lender’s reasonable legal
expenses whether or not there is a lawsuit, including reasonable attorney’s fees and legal expenses
for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction)
appeals, and anticipated post-judgment collection services.




     8. General Provisions. Lender may delay or forgo enforcing any of his rights or
remedies under this Note without losing them. Borrower, to the extent allowed by law, waives
presentment, demand for payment, protest and notice of dishonor.



     9. Lender’s Right to Advance Maturity Date. Lender, upon 30 days advance written
notice delivered to Borrower at 2250 Point Blvd., Suite 250, Elgin, IL, may advance the Maturity
Date of this Note to a date certain selected by Lender but in no event shall the Maturity Date be
earlier than July 31, 2007.



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



 









 





     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