exv10w38



 





Exhibit 10.38




AMENDMENT NO. 3 TO AMENDED AND RESTATED CREDIT AGREEMENT




               This AMENDMENT NO. 3 TO AMENDED AND RESTATED CREDIT AGREEMENT (this
“Agreement”), dated as of December 27, 2007, is made between
HERITAGE-CRYSTAL CLEAN, LLC, an Indiana limited liability company (the
“Borrower”) and BANK OF AMERICA, N.A. (the “Lender”).
Undefined capitalized terms used herein shall have the meanings ascribed to
such terms in the Credit Agreement referenced below.



W I T N E S S E T H:




               WHEREAS, the Borrower and the Lender have entered into that certain
Amended and Restated Credit Agreement dated as of October 27, 2005 (as
amended, supplemented or otherwise modified from time to time, the
“Credit Agreement”), pursuant to which, among other things, the
Lender has agreed to provide, subject to the terms and conditions contained
therein, certain financial accommodations to the Borrower; and



               WHEREAS, the Borrower has requested that the Lender amend the Credit
Agreement and, subject to the terms and conditions of this Agreement, the
Lender hereby agrees to amend the Credit Agreement;



               NOW, THEREFORE, in consideration of the foregoing premises, the terms
and conditions stated herein and other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by the Borrower and the
Lender, such parties hereby agree as follows:



               1. Amendments to Credit Agreement. Subject to the satisfaction
of the conditions precedent set forth in Section 2 of this
Agreement, the Credit Agreement is hereby amended as follows:



               (a) The definition of “Maturity Date” set forth in Section 1.01
of the Credit Agreement is hereby amended to delete the reference to the
date “June 30, 2008” set forth therein and to replace such date with the
date “December 31, 2010.”



               (b) Section 6.12(d) of the Credit Agreement is hereby amended to amend
and restate such section in its entirety as follows:




          (d) Capital Expenditures. In any fiscal year, not
make expenditures or accrue obligations (including, without
limitation, expenditures made and obligations accrued with
respect to capital leases but excluding expenditures made and
obligations accrued as consideration for Permitted
Acquisitions), with respect to fixed assets in an amount
exceeding the corresponding amount set forth below opposite such
fiscal year.



	 	 	 	 	 
	Fiscal Year	 	Amount	 
	Fiscal Year 2005
	 	$	4,350,000	 
	Fiscal Year 2006
	 	$	4,500,000	 
	Fiscal Year 2007
	 	$	9,500,000	 
	Fiscal Year 2008 and thereafter
	 	$	5,000,000	 






 









 





               2. Effectiveness of this Agreement; Conditions Precedent. The
provisions of Section 1 of this Agreement shall be deemed to have
become effective as of the date first written above (the “Effective
Date”), but such effectiveness shall be expressly conditioned upon the
Lender’s receipt of the following:



               (a) executed counterparts of this Agreement executed by the Borrower and
the Lender;



               (b) a certificate executed by the Secretary or Assistant Secretary of
Borrower certifying the resolutions adopted by the Board of Members of
Borrower authorizing or ratifying the execution, delivery and performance of
this Agreement and the performance of the Credit Agreement as amended hereby;
and



               (c) payment in full from the Borrower, in immediately available funds,
of an amendment fee payable to the Lender in an amount equal to $62,500 (the
“Amendment Fee”).



               3. Representations, Warranties and Covenants.



               (a) The Borrower hereby represents and warrants that this Agreement and
the Credit Agreement as amended hereby constitute legal, valid and binding
obligations of the Borrower enforceable against the Borrower in accordance
with its terms.



               (b) The Borrower hereby represents and warrants that its execution,
delivery and performance of this Agreement has been duly authorized, does not
violate any provision of its limited liability company agreement, will not
violate any law, regulation, court order or writ applicable to it, and will
not require the approval or consent of any governmental agency, or of any
other third party under the terms of any contract or agreement to which it is
bound.



               (c) The Borrower hereby represents and warrants that, upon giving effect
to the provisions of this Agreement, (i) no Default or Event of Default shall
have occurred, (ii) all of the representations and warranties of the Borrower
contained in the Credit Agreement and each other Loan Document to which it is
a party (other than representations and warranties which, in accordance with
their express terms, are made only as of an earlier specified date) are, and
will be, true and correct as of the date of the Borrower’s execution and
delivery hereof or thereof in all material respects as though made on and as
of such date, and (iii) each of the schedules attached to the Security
Agreement is true and correct as of the date hereof, and all supplements to
such schedules have been delivered in accordance with the terms of the
Security Agreement.



               (d) The Borrower hereby agrees to pay the Amendment Fee to the Lender
upon the Borrower’s execution and delivery hereof.



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               4. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS.



               5. Lender’s Expenses. The Borrower hereby agrees to
promptly reimburse the Lender for all of the reasonable out-of-pocket
expenses, including, without limitation, attorneys’ and paralegals’ fees, it
has heretofore or hereafter incurred or incurs in connection with the
preparation, negotiation and execution of this Agreement and the other
documents, agreements and instruments contemplated hereby.



               6. Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original and all of which together
shall constitute one and the same agreement among the parties.



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               IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and year first above written.



	 	 	 	 	 
	 	HERITAGE-CRYSTAL CLEAN, LLC,

as borrower

 	 
	 	By:  	/s/ Joseph Chalhoub
 	 
	 	Name:  	Joseph Chalhoub 	 
	 	Title:  	President and CEO 	 
	 
	 	BANK OF AMERICA, N.A.,

as lender

 	 
	 	By:  	/s/ Richard D. Hill, Jr.
 	 
	 	Name:  	Richard D. Hill, Jr. 	 
	 	Title:  	Managing Director