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Quarter ending December 31, 2008, the Applicable Margins shall be determined as if Level IIwere applicable. Thereafter, the margins shall be subject to increase or decrease uponreceipt by Agent pursuant to **Section 10.1.4**of the financial statements and correspondingCompliance Certificate for the last Fiscal Quarter, which change shall be effective on thefirst day of the calendar month following receipt. If, by the first day of a month, anyfinancial statements and Compliance Certificate due in the preceding month have not beenreceived, then the margins shall be determined as if Level IV were applicable, from such dayuntil the first day of the calendar month following actual receipt.”“ Borrowing Base: on any date of determination, an amount equal to the lesser of:     (a) the aggregate amount of Revolver Commitments, minus the LCObligations; and     (b) the difference of:(i) the sum of     (A) (1) 90% of the Net Amount of Eligible Major Accounts and (2)85% of the Net Amount of Eligible Other Accounts; *provided*, that eachsuch percentage shall be reduced by .1% for each .1 percentage pointthat the Dilution Percent exceeds 2.5%, plus     (B) 85% of the sum of (1) Eligible Petroleum Inventory and (2)Eligible Petroleum Inventory in Transit; plus      (C) 80% of the DOE Contract Value, such advance rate to bereduced by 5% per week beginning January 2, 2009, with such areduction continuing on each Friday thereafter until February 1,2009. Upon the earlier to occur of (i) February 1, 2009, and (ii)termination or modification of the Crack Spread Hedge Agreementresulting in the Company or Holdings receiving not less than$25,000,000 or any Obligor receiving subordinated debt or a capitalcontribution of not less than $25,000,000, the advance rate underthis subsection (b)(i)(C) shall be reduced to 0.0%; plus     (D) 100% of Eligible Cash, plus     (E) 95% of Eligible Investments, plus     (F) 100% of the amount available to be drawn by the Agent on theSupporting Letter of Credit; plus     (G) 100% of Paid but Unexpired Letters of Credit; minus(ii) the Availability Reserve;*provided*, that no Accounts or Petroleum Product acquired in an Acquisition consummated byany Obligor after the Closing Date shall be included in any calculation of the BorrowingBase until completion of all field exams, appraisals, audits and other evaluation ofCollateral in a manner and with results acceptable to Agent.”
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          (b) Addition of Certain Definitions to Section 1.1 of the Loan Agreement. Thefollowing definitions are hereby added to Section 1.1 of the Loan Agreement in proper alphabeticalorder as follows:“ DOE Contract Value: On any date of determination, the decrease, if any, in thecost of the exchange oil plus premium barrels, determined on a Marked-to-Market Basis as setforth in **Schedule 1.2**of the Loan Agreement, under those certain Department of Energy OilExchange Agreements (DE-FE 93008, DE-FE 92300, DE-FE 93003, DE-FE 93006 and DE-FE 93010)(collectively “DOE Contracts”) between the date of each such DOE Contract and thedate of determination.”          (c) Reduction of Revolver Commitment. Schedule 1.1 of the Loan Agreement is herebymodified by deleting “$400,000,000” and replacing it with “$300,000,000”; provided that if theRevolver Commitment is fully syndicated (with Bank of America’s hold, in its capacity as a Lender,at no more than $50,000,000), the Revolver Commitment may be increased above $300,000,000 to amaximum of $400,000,000 if Agent receives commitments from new or existing Lenders to increase theRevolver Commitment. All Lenders must be reasonably acceptable to Agent.          (d) Amendment of Section 8.1 of the Loan Agreement. Section 8.1 of the Loan Agreementis hereby amended and restated in its entirety as follows:“ **8.1****Borrowing Base Certificates****.**The Borrowers shall deliver to the Agent (a) ifno Low Availability Period is in effect, then on or before the 15th day of each month, aBorrowing Base Certificate as of the end of the previous month, or (b) if a Low AvailabilityPeriod is in effect, then on each Tuesday of each week for the period ending Friday of theimmediately prior week, a Borrowing Base Certificate as of the end of such prior week,together with such additional Borrowing Base Certificates as and when requested by the Agentin writing. Together with each such Borrowing Base Certificate, the Borrowers shall deliver:(1) a schedule of the Borrowers’ Accounts created, credits given, cash collected, and otheradjustments to Accounts since the last such schedule; (2) an aging of the Borrower’sAccounts, together with a reconciliation to the corresponding Borrowing Base and to theBorrowers’ general ledger; (3) an aging of the Borrowers’ accounts payable; (4) a detailedcalculation and description of Eligible Petroleum Inventory, DOE Contract Value, EligibleCash and Eligible Investments, Eligible In-Transit Petroleum Inventory, First PurchaserLiens, and Paid but Unexpired Letters of Credit; (5) a schedule in reasonable detail settingforth the additions and reductions in the Borrowers’ accounts receivable since delivery ofthe previous Borrowing Base Certificate with a reconciliation to the corresponding accountsreceivable aging; and (6) Inventory reports by category, together with reconciliation to thecorresponding Borrowing Base and to the Borrowers’ general ledger. Upon request of theAgent, the Borrowers shall deliver: (A) inventory reports by location; (B) copies ofinvoices in connection with the Borrowers’ Accounts, customer statements, credit memos,remittance advices and reports, deposit slips, shipping and delivery documents in connectionwith the Borrowers’ Accounts and for Inventory and Equipment acquired by the Borrowers,purchase orders, and invoices; (C) a statement of the balance of each intercompany Account,if any; (D) such other reports as to the Collateral as the Agent shall reasonably requestfrom time to time; and (E) with the delivery of each of the foregoing, a certificate of theBorrower Agent executed by an officer thereof certifying as to the accuracy and completenessof the foregoing. If the Borrowers’ records or reports of the Collateral are prepared by anaccounting service or other agent, the Borrowers hereby authorize such service or agent todeliver such records, reports, and related documents to the Agent, for distribution to theLenders.”          (e) Amendment of Section 10.1.6 of the Loan Agreement. Section 10.1.6(b) of the Loan
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Agreement is hereby amended and restated in its entirety as follows:“ (b) Holdings and each Subsidiary will permit any representatives designated by Agent orany Lender to visit and inspect the financial records and the properties of such Personduring regular business hours upon reasonable prior notice and as often as reasonablyrequested and to make extracts from and copies of such financial records, and permit anyrepresentatives designated by Agent or any Lender to discuss the affairs, finances andcondition of such Person with the officers thereof and independent accountants therefor;*provided,*that Holdings and each Subsidiary will reimburse Agent for all reasonable charges,costs and expenses of Agent in connection with up to four examinations per Loan Year of anyObligor’s books and records or any other financial or Collateral matters as Agent deemsappropriate, including, without limitation, Agent’s standard charges of Agent’s outsideappraisal group for any and all appraisals conducted by or on behalf of Agent.”     3. Acknowledgment of the Obligors. The Company and Holdings, as Obligors, herebyacknowledge and agree that, to the best of their knowledge: (a) none of the Obligors has anydefense, offset, or counterclaim with respect to the payment of any sum owed to the Lenders or theAgent under the Loan Documents, or with respect to the performance or observance of any warranty orcovenant contained in the Loan Agreement or any of the other Loan Documents; and (b) the Lendersand the Agent have performed all obligations and duties owed to the Obligors through the date ofthis Amendment.     4. Consent and Reaffirmation of Holdings Guaranty. Holdings hereby consents to theforegoing amendment and acknowledges and agrees that nothing herein shall in any way limit ordiminish any of the obligations of Holdings under the Holdings Guaranty, such Holdings Guarantybeing hereby ratified and affirmed.     5. Representations and Warranties of the Obligors. The Company and Holdings, asObligors, represent and warrant to the Lenders and the Agent that:          (a) Compliance with Loan Agreement. On the date hereof, no Default or Event of Defaulthas occurred and is continuing;          (b) Representations and Warranties. On the date hereof, and after giving effect tothis Amendment, the representations and warranties of each Obligor in the Loan Documents are trueand correct in all material respects (except to the extent that such representations and warrantiesspecifically refer to an earlier date, in which case they are true and correct in all materialrespects as of such earlier date);          (c) Power and Authority. Each Obligor is duly authorized to execute, deliver andperform this Amendment. The execution, delivery and performance of this Amendment and the LoanAgreement, as amended hereby, have been duly authorized by all necessary action, and do not (a)require any consent or approval of the Term Loan Agent, other than those already obtained; (b)contravene the Organic Documents of any Obligor; (c) violate or cause a default under anyApplicable Law or Material Contract; or (d) result in or require the imposition of any Lien (otherthan Permitted Encumbrances) on any Property of any Obligor; and          (d) Enforceability. This Amendment and the Loan Agreement, as amended hereby, arelegal, valid and binding obligations of each Obligor, enforceable in accordance with its terms,except as enforceability may be limited by bankruptcy, insolvency or similar laws affecting theenforcement of creditors’ rights generally.
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     6. Effectiveness of this Amendment. The amendment of the Loan Agreement will becomeeffective (the “First Amendment Effective Date”) as of the date of this Amendment upon thereceipt by the Agent of this Amendment duly executed by the Agent, the Lenders, the Company, andHoldings.     7. Effect on Loan Agreement. Except as specifically amended hereby, the terms andprovisions of the Loan Agreement and the other Loan Documents are, in all other respects, ratifiedand confirmed and remain in full force and effect. No reference to this Amendment need be made inany notice, writing, or other communication relating to the Loan Agreement and the other LoanDocuments, any such reference to the Loan Agreement and the other Loan Documents to be deemed areference thereto as respectively amended by this Amendment. All references to the Loan Agreementand the other Loan Documents in any document, instrument, or agreement executed in connection withthe Loan Agreement and the other Loan Documents will be deemed to refer to the Loan Agreement andthe other Loan Documents as respectively amended hereby.     8. Fees and Expenses. The Company hereby agrees to pay all reasonable out-of-pocketexpenses incurred by the Agent in connection with the preparation, negotiation, and consummation ofthis Amendment, and all other documents related hereto, including without limitation, thereasonable fees and expenses of the Lenders’ counsel.     9. Successors. This Amendment will be binding upon and inure to the benefit of theCompany, Holdings, the Lenders, the Agent, and their respective successors and assigns, *provided*,*however*, that no interest herein may be assigned by the Company, Holdings, or any other Obligorwithout the prior written consent of the Agent and each Lender.     10. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEWYORK, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW PRINCIPLES OTHER THAN SECTION 5-1401 AND 5-1402OF THE NEW YORK GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK (BUT GIVING EFFECT TO FEDERAL LAWSRELATING TO NATIONAL BANKS).     11. Consent to Forum; Arbitration. EACH OF THE COMPANY AND HOLDINGS, AS AN OBLIGOR,HEREBY CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF ANY FEDERAL OR STATE COURT SITTING IN OR WITHJURISDICTION OVER THE STATE OF NEW YORK, IN ANY PROCEEDING OR DISPUTE RELATING IN ANY WAY TO THISAMENDMENT, AND AGREES THAT ANY SUCH PROCEEDING SHALL BE BROUGHT BY IT SOLELY IN ANY SUCH COURT.EACH OF THE COMPANY AND HOLDINGS, AS AN OBLIGOR, IRREVOCABLY WAIVES ALL CLAIMS, OBJECTIONS ANDDEFENSES THAT IT MAY HAVE REGARDING SUCH COURT’S PERSONAL OR SUBJECT MATTER JURISDICTION, VENUE ORINCONVENIENT FORUM. Nothing herein shall limit the right of Agent or any Lender to bringproceedings against any Obligor in any other court, nor limit the right of any party to serveprocess in any other manner permitted by Applicable Law. Nothing in this Amendment shall be deemedto preclude enforcement by Agent of any judgment or order obtained in any forum or jurisdiction.Notwithstanding the foregoing, Section 14.14 of the Loan Agreement is incorporated herein byreference and shall apply to this Amendment.     12. Counterparts. This Amendment may be executed in counterparts, each of which shallconstitute an original, but all of which when taken together shall constitute a single contract.Delivery of a signature page of any Loan Document by telecopy or electronic mail shall be effectiveas delivery of a manually executed counterpart of such agreement.     13. Severability. Wherever possible, each provision of this Amendment shall beinterpreted
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in such manner as to be valid under Applicable Law. If any provision is found to be invalidunder Applicable Law, it shall be ineffective only to the extent of such invalidity and theremaining provisions of this Amendment shall remain in full force and effect.     14. Entire Agreement. Time is of the essence of the Loan Documents. This Amendment andthe Loan Agreement, as amended hereby, and the other Loan Documents constitute the entire contractamong the parties relating to the subject matter hereof, and supersede any and all previousagreements and understandings, oral or written, relating to the subject matter hereof.[Remainder of Page Intentionally Left Blank]
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     **IN WITNESS WHEREOF,**this Amendment has been executed and delivered as of the date set forthabove.      **COMPANY**: