EX-10.16



 





Exhibit 10.16




FOURTH AMENDMENT TO REVOLVING CREDIT AND SECURITY AGREEMENT




          This Fourth Amendment to Revolving Credit and Security Agreement is dated December 4, 2007, by
and among SPI Petroleum LLC, a Delaware limited liability company (the “Parent”), Maxum Petroleum,
Inc. (f/k/a Global Petroleum, Inc.), a Delaware corporation (“MPI”), Pecos, Inc., a California
corporation (“PI”), General Petroleum Corporation, a California corporation (“GPC”), Rainier
Petroleum Corporation, a Washington corporation (“RPC”), Sedro-Woolley Holdings Corporation, a
Washington corporation (“SWHC”), G.P. Atlantic, Inc., a South Carolina corporation (“GPAI”), Simons
Petroleum, Inc., a Texas corporation (“SPI-TX”), Simons Petroleum, Inc., an Oklahoma corporation
(“SPI-OK”), Hartney Fuel Oil Co., an Illinois corporation (“HFOC”), Petroleum Supply Company, Inc.,
an Illinois corporation (“PSCI”), Hartney Brothers, Inc., an Illinois corporation (“HBI”), SPI
Acquisition LLC, a Delaware limited liability company (“SPIA”), ETI Acquisition LLC, a Delaware
limited liability company (“ETIA”), Canyon State Oil Company, Inc., an Arizona corporation
(“CSOC”), Petroleum Products, Inc., a West Virginia corporation (“PPI”), Petroleum Transport, Inc.,
a West Virginia corporation (“PTI”), and Petroleum Fueling, Inc., a West Virginia corporation
(“PFI”) (the Parent, MPI, PI, GPC, RPC, SWHC, GPAI, SPI-TX, SPI-OK, HFOC, PSCI, HBI, SPIA, ETIA,
CSOC, PPI, PTI, and PFI are each, a “Borrower” and collectively, the “Borrowers”), by PNC Bank,
National Association (“PNC”), and the other financial institutions from time to time party thereto
(PNC and the other financial institutions are each, a “Lender” and collectively, the “Lenders”),
PNC as agent for the Lenders (in such capacity, the “Agent”), JPMorgan Chase Bank, N.A.
(“JPMorgan”), Bank of America, N.A. (“BOA”), The CIT Group/Business Credit, Inc. (“CIT”), LaSalle
Business Credit LLC (“LaSalle”), and Wells Fargo Foothill, LLC (“Wells Fargo”), as co-documentation
agents for the Lenders (Wells Fargo, JPMorgan, BOA, CIT and LaSalle are collectively, the
“Co-Documentation Agents”) (the “Fourth Amendment”).




WITNESSETH:




          WHEREAS, the Borrowers (excluding PPI, PTI, and PFI), the Lenders, the Agent and the
Co-Documentation Agents entered into that certain Revolving Credit and Security Agreement, dated
September 18, 2006, as amended by that certain (i) First Amendment, dated October 26, 2006, by and
among the Borrowers (excluding PPI, PTI, and PFI), the Lenders, the Agent and the Co-Documentation
Agents, (ii) Second Amendment to Revolving Credit and Security Agreement, dated May 1, 2007, by and
among the Borrowers, the Lenders, the Agent and the Co-Documentation Agents, and (iii) Third
Amendment to Revolving Credit and Security Agreement, dated October 17, 2007, by and among the
Borrowers, the Lenders, the Agent and the Co-Documentation Agents (as further amended, modified,
supplemented or restated from time to time, the “Loan Agreement”); and




          WHEREAS, the Borrowers desire to amend certain provisions of the Loan Agreement and the
Lenders and the Agent shall permit such amendments pursuant to the terms and subject to the
conditions set forth herein.




          NOW, THEREFORE, in consideration of the premises contained herein and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the parties hereto agree as follows:














 






     1. All capitalized terms used herein which are defined in the Loan Agreement shall have
the same meaning herein as in the Loan Agreement unless the context clearly indicates
otherwise.




     2. The reference to “LASALLE BUSINESS CREDIT LLC” is hereby deleted from the cover page of
the Loan Agreement.




     3. The preamble of the Loan Agreement is hereby deleted in its entirety and in its stead
is inserted the following:




     Revolving Credit and Security Agreement dated September 18,
2006 among SPI PETROLEUM LLC, a limited liability company organized
under the laws of the State of Delaware (“Parent”), the
Borrowers listed on Annex A hereto, the financial institutions which
are now or which hereafter become a party hereto (collectively, the
“Lenders” and individually a “Lender”), JPMORGAN
CHASE BANK, N.A., BANK OF AMERICA, N.A., THE CIT GROUP/BUSINESS
CREDIT, INC. AND WELLS FARGO FOOTHILL, LLC, as co-documentation
agents, and PNC BANK, NATIONAL ASSOCIATION (“PNC”), as agent
for Lenders (PNC, in such capacity, the “Agent”).




     4. Section 1.2 of the Loan Agreement is hereby amended by deleting the following
definitions in their entirety and replacing them with the following:




     “Maximum Revolving Advance Amount” shall mean Three
Hundred Thirty Five Million and 00/100 Dollars ($335,000,000.00).




     5. Effective on the Paulson Acquisition Effective Date, Section 1.2 of the Loan Agreement
is hereby amended by deleting the following definitions in their entirety and replacing them
with the following:




     “Acquisition Agreements” shall mean the collective
reference to the Pecos Acquisition Agreement, the Canyon Acquisition
Agreement, the Total Petroleum Acquisition Agreement, the Farmington
Acquisition Agreement, the Paulson Acquisition Agreement and all
other acquisition agreements executed in connection with Permitted
Acquisitions.




     “Management Agreement” shall mean that certain
Professional Services Agreement dated as of September 18, 2006, as
amended by (i) that certain letter dated April 27, 2007, and (ii)
that certain letter agreement, dated on or about December 5, 2007,
by and among NCA II Management, LLC, a Washington limited liability
company, Waud Capital Partners, L.L.C., a Delaware limited liability
company, RBCP Energy Fund Investments, LP, a



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Delaware limited partnership, Holdings, Simons Petroleum, Inc.,
an Oklahoma corporation, and the Parent.




     “Other Documents” shall mean the Revolving Credit Note,
any Guaranty, any Guarantor Security Agreement, any Borrower
Joinder, the Collateral Assignments, the Intercreditor Agreement,
the Mortgages and any and all other agreements, instruments and
documents, including, without limitation, guaranties, pledges,
collateral assignments, powers of attorney, consents, and all other
writings heretofore, now or hereafter executed and delivered by any
Borrower or any Loan Party in favor of Agent or any Lender as
required by this Loan Agreement or any of the foregoing in respect
of the implementation or performance hereof or thereof.




     6. Section 1.2 of the Loan Agreement is hereby amended by inserting the following
definitions:




     “Acquisition Agreements” shall mean the collective
reference to the Pecos Acquisition Agreement, the Canyon Acquisition
Agreement, the Total Petroleum Acquisition Agreement, the Farmington
Acquisition Agreement and all other acquisition agreements executed
in connection with Permitted Acquisitions.




     “Borrower Joinder” shall mean a joinder by a Person as
a Borrower under this Agreement, the Revolving Credit Note and the
other Other Documents in form and substance satisfactory to the
Agent.




     “Collateral Assignments” shall mean the Supply
Agreement Collateral Assignment and all other collateral assignments
executed in connection with Permitted Acquisitions.




     “Culp Disposition” shall mean the disposition of assets
of GPAI as contemplated by the Culp Disposition LOI.




     “Culp Disposition LOI” shall mean the letter of intent
dated May 8, 2007, by and between GPAI and On-Site.




     “Finance Corp Certificate of Merger” shall mean the
Certificate of Merger, merging MMSI with and into MPFC.




     “Finance Corp Merger” shall mean the merger of MMSI
with and into MPFC pursuant to the Finance Corp Certificate of
Merger, the surviving Person of which is MPFC.




     “Fourth Amendment Closing Date” shall mean December 4,
2007.



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     “GPAI” shall mean G.P. Atlantic, Inc., a South Carolina
corporation.




     “Holdings Certificate of Merger” shall mean the
Certificate of Merger, merging Parent with and into MPHI.




     “Holdings Merger” shall mean the merger of Parent with
and into MPHI pursuant to the Holdings Certificate of Merger, the
surviving Person of which is MPHI.




     “IPO” shall mean the initial public offering of the
capital stock of MPHI.




     “MMSI” shall mean Maxum Merger Sub, Inc., a Delaware
corporation.




     “MPFC” shall mean Maxum Petroleum Finance Corp., (f/k/a
Maxum Petroleum, Inc.), a Delaware corporation.




     “MPHI” shall mean Maxum Petroleum Holdings, Inc., a
Delaware corporation.




     “Name Change” shall mean the change of MPI’s name from
Maxum Petroleum, Inc. to “Maxum Petroleum Finance Corp.” (or a name
substantially similar thereto, provided that the Borrowing Agent
gives written notice of such substantially similar name to the Agent
prior to the date of such name change) in connection with the IPO
pursuant to the Name Change Certificate.




     “Name Change Certificate” shall mean the Certificate of
Amendment, changing MPI’s name from “Maxum Petroleum, Inc.” to
“Maxum Petroleum Finance Corp.” (or a name substantially similar
thereto, provided that the Borrowing Agent gives written notice of
such substantially similar name to the Agent prior to the date of
the filing of such Certificate of Amendment).




     “On-Site” shall mean On-Site Fuel Service, Inc., a
Mississippi corporation.




     “Paulson” shall mean Paulson Oil Company, an Indiana
corporation.




     “Paulson Acquisition” shall mean the acquisition by MPI
of all of the capital stock of Paulson pursuant to the terms of the
Paulson Acquisition Agreement, which acquisition shall occur within
ninety (90) days of the Fourth Amendment Closing Date.



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     “Paulson Acquisition Agreement” shall mean the Stock
Contribution and Purchase Agreement, by and among MPI, SPI, the
Paulson Sellers and the Paulson Representative, in form and
substance reasonably satisfactory to the Agent.




     “Paulson Acquisition Effective Date” shall mean the
date on which the Paulson Acquisition is consummated pursuant to the
Paulson Acquisition Agreement.




     “Paulson Representative” shall mean Spell in its
capacity as representative of the Paulson Sellers.




     “Paulson Sellers” shall mean Spell, Robert A. Paulson,
an individual, and Peter E. Paulson, an individual.




     “Spell” shall mean Spell Capital Partners Fund II,
L.P..




     “Fourth Amendment Closing Date” shall mean December 4,
2007.




     7. Effective on the Paulson Acquisition Effective Date, Section 1.2 of the Loan Agreement
is hereby amended by deleting the following definition:




     “Collateral Assignment”




     8. Effective on the Paulson Acquisition Effective Date, Section 1.2 of the Loan Agreement
is hereby amended by inserting the following definitions:




     “Collateral Assignments” shall mean the Paulson
Collateral Assignment, the Supply Agreement Collateral Assignment
and all other collateral assignments executed in connection with
Permitted Acquisitions.




     “Paulson Collateral Assignment” shall mean that certain
Collateral Assignment of Representations, Warranties, Covenants,
Indemnities and Purchase Price Adjustment Rights and Escrow Rights,
executed and delivered by MPI and SPI to the Agent with respect to
the Paulson Acquisition Agreement.




     “Supply Agreement Collateral Assignment” shall mean
that certain Collateral Assignment of Contract Rights, executed and
delivered by PPI to the Agent with respect to the Supply Agreement,
together with all amendments, supplements, modifications,
substitutions and replacements thereto and thereof.



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     9. Section 2.1(a)(y)(i)(A)(1) of the Loan Agreement is hereby deleted in its entirety and
in its stead is inserted the following:




	 	(1)	 	Advances relating to Extended Term Receivables shall not exceed $35,000,000 outstanding at any time and






     10. Section 2.1(a)(y)(ii)(B) of the Loan Agreement is hereby deleted in its entirety and
in its stead is inserted the following:




     (B) $55,000,000.00,




     minus




     11. Section 2.24 of the Loan Agreement is hereby deleted in its entirety and in its stead
is inserted the following:




     2.24. [Reserved].




     12. Section 4.3 of the Loan Agreement is hereby deleted in its entirety and in its stead
is inserted the following:




     4.3 Disposition of Collateral. Each Borrower will
safeguard and protect all Collateral in order to, among other
things, protect the Agent’s interest therein, and no Borrower shall
make any disposition thereof whether by sale, lease or otherwise
except (a) the sale of Inventory in the ordinary course of business;
(b) sale/leaseback transactions relating to which the property that
is the subject of any such transaction was acquired for the purpose
thereof within the past 90 days prior to the consummation of the
sale/leaseback transaction; (c) (i) the sale, lease or other
disposition of assets by a Borrower to another Borrower or (ii) the
sale, lease or other disposition of assets by a Borrower or any
Subsidiary of a Borrower, in each case with respect to this clause
(c) only, in the ordinary course of business, to a Subsidiary of a
Borrower, as long as the transferee of such assets is a secured
Guarantor hereunder subject to agreements, instruments and other
documentation acceptable to Agent in its good faith business
judgment; (d) non-exclusive licenses of intellectual property of the
Borrower and its Subsidiaries in the ordinary course of business;
(e) the sale, exchange or other disposition of Cash Equivalents in
the ordinary course of business; (f) the termination, surrender or
sublease of a real estate lease of the Borrower or any of its
Subsidiaries in the ordinary course of business, provided that
Borrower shall advise Agent in writing of any termination, surrender
or sublease that is material; (g) the disposition or transfer of
obsolete and worn-out Equipment or Equipment that is no longer used
or useful, in each case in the ordinary course of business, during
any fiscal year



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having an aggregate fair market value of not more than
$1,500,000 and only to the extent that (i) the proceeds of any such
disposition are used or allocated, and in fact are subsequently
used, to acquire replacement Equipment which is subject to Agent’s
First-Priority Interest or Second-Priority Interest, as the case may
be, or (ii) the proceeds of which are remitted to Agent to be
applied pursuant to Section 2.21; (h) the disposition of Collateral
pursuant to the Intercreditor Agreement; (i) dispositions of
accounts receivable and related assets under the Securitization
Documents; (j) the disposition that will occur as a result of the
Holdings Merger; and (k) the Culp Disposition (any of the foregoing
is referred to herein as a “Permitted Disposition”).




     13. Section 4.5 of the Loan Agreement is hereby deleted in its entirety and in its stead
is inserted the following:




     4.5 Ownership of Collateral. With respect to the
Collateral, at the time the Collateral becomes subject to Agent’s
security interest: (a) each Borrower shall be the sole owner of
(except that Michel Salbaing and Perot Bissell may own less than
        .0001% of the outstanding capital stock of MPHI) and fully
authorized and able to sell, transfer, pledge and/or grant a
First-Priority Interest or a Second-Priority Interest, as the case
may be, in each and every item of its respective Collateral to Agent
(with the further understanding that the Collateral may also from
time to time be subject to Permitted Encumbrances); and, except for
Permitted Encumbrances, the Collateral shall be free and clear of
all Liens and encumbrances whatsoever; (b) each document and
agreement constituting Collateral executed by each Borrower or
delivered to Agent or any Lender in connection with this Loan
Agreement shall be true and correct in all material respects; (c)
all signatures and endorsements of each Borrower that appear on such
documents and agreements shall be genuine and each Borrower shall
have full capacity to execute same; and (d) each Borrower’s
Equipment and Inventory shall be located at locations specifically
identified on Schedule 4.5 (as Borrower may update from time
to time by giving written notice to Agent thereof, provided
the foregoing ongoing permitted updates of such Schedule shall only
be allowed as to additional locations of such property within the
United States, and such property and any such additional locations
shall remain subject to any and all provisions of this Loan
Agreement and the other Loan Documents) and shall not be removed
from such location(s) without the prior written consent of Agent,
except if in-transit among such locations or out for repair, and
except with respect to the sale of Inventory in the ordinary course
of business and Equipment to the extent permitted in Section 4.3
hereof.



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     14. Effective on the Paulson Acquisition Effective Date, Section 5.5 of the Loan Agreement
is hereby deleted in its entirety and in its stead is inserted the following:




     (a) The pro forma balance sheet of Borrowers and their
consolidated Subsidiaries on a consolidated basis at the Parent
level (the “Pro Forma Balance Sheet”) when furnished to
Agent in accordance herewith shall reflect the consummation of the
transactions contemplated by the Pecos Acquisition Agreement, the
Canyon Acquisition Agreement, the Total Petroleum Acquisition
Agreement and the Paulson Acquisition Agreement, under this
Agreement and under the JPM Credit Agreement (collectively being
referred to herein as the “Transactions”) and shall fairly
reflect in all material respects the financial condition of
Borrowers and their consolidated Subsidiaries on a consolidated
basis as of the Fourth Amendment Closing Date after giving effect to
the Transactions, and is to be prepared in accordance with GAAP
(subject to the absence of footnotes, the application of SFAS 133
and 130 and normal year-end audit adjustments). The Pro Forma
Balance Sheet has been certified as accurate, complete and correct
in all material respects by the President and Chief Financial
Officer on behalf of Parent.




     (b) The annual (x) cash flow projections, (y) income
projections and (z) a projected balance sheet of the Borrowers
prepared on a consolidated basis at the Parent level for the fiscal
year ending June 30, 2008, copies of which are annexed hereto as
Exhibit 5.5(b) (the “Projections”), were prepared by
Parent, are based on underlying assumptions which were believed to
be reasonable as of the date made, and reflect Parent’s judgment,
based on assumptions which were believed to be reasonable at the
time made regarding what was believed to be at such time a
reasonably likely set of results for the projected period,
provided, however, since such Projections are by
their nature prospective and contingent on a wide range of factors,
actual results therefore may vary significantly, provided,
further, nothing has occurred in the interval between the
date of determination of the reasonableness of the assumptions
referenced above and the date of the delivery of the Projections to
Agent to render Parent’s belief regarding the foregoing assumptions
no longer reasonable. The Projections together with the Pro Forma
Balance Sheet, are referred to as the “Pro Forma Financial
Statements”.




     15. Section 6.14 of the Loan Agreement is hereby amended by adding the following new
sentence at the end of such Section 6.14:




Within 90 days (or such longer time period as reasonably determined
by Agent) after the Fourth Amendment Closing Date,



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the Agent shall have received evidence of the filing of
modifications to the Mortgages and title insurance bring-downs and
endorsements with respect thereto, all in form and substance
reasonably satisfactory to the Agent.




     16. Effective on the Paulson Acquisition Effective Date, Section 6.15 of the Loan
Agreement is hereby amended by adding the following new sentence at the end of such Section
6.15:




Within 60 days (or such longer time period as reasonably determined
by Agent) after the Paulson Acquisition Effective Date the Agent
shall have received evidence reasonably satisfactory to the Agent
that Paulson has directed all of its Customers to remit payments to
the Blocked Accounts.




     17. The introductory clause of Section 7.1(a) of the Loan Agreement is hereby deleted in
its entirety and in its stead is inserted the following:




     (a) Enter into any merger, consolidation or other
reorganization with or into any other Person or acquire all or a
substantial portion of the assets or stock of any Person or permit
any other Person to consolidate with or merge with it,
provided however, that (i) any Borrower may merge or
consolidate into another Borrower, (ii) in connection with the IPO,
MMSI may merge with and into MPFC in accordance with the Finance
Corp Certificate of Merger, so long as (1) MPFC survives such
merger, (2) MPFC provides (x) prompt notice to the Agent of such
merger, and (y) a copy of such Finance Corp Certificate of Merger
filed with the Delaware Secretary of State and all other filings, if
any, with respect to such merger, and (3) MPHI executes and delivers
a Borrower Joinder pursuant to Section 16.21 hereof, and (iii) in
connection with the IPO, Parent may merge with and into MPHI,
pursuant to the Holdings Certificate of Merger so long as (1) MPHI
survives such merger and (2) MPHI provides (x) prompt notice to the
Agent of such merger and (y) a copy of such Holdings Certificate of
Merger filed with the Delaware Secretary of State and all other
filings, if any, with respect to such merger; and provided
further that (i) any Borrower may purchase or acquire all or
a substantial portion of the assets or stock of any Person or a
business or division of another Person (a “Permitted
Acquisition”), and (ii) any Borrower may merge or consolidate
with or into any Person if all of the following requirements are met
in connection with such Permitted Acquisition, merger or
consolidation:



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     18. Effective on the Paulson Acquisition Effective Date, Section 7.1(a)(ii)(G) of the Loan
Agreement is hereby deleted in its entirety and in its stead is inserted the following:




          (G) (y) immediately prior to and after giving effect to such
Permitted Acquisition (including the payment of any prospective
portion of the purchase price or earn-outs), merger or
consolidation, except the Total Petroleum Acquisition, the
Farmington Acquisition and the Paulson Acquisition, the Borrowers
shall have in excess of Fifty Million and 00/100 Dollars
($50,000,000.00) of Undrawn Availability, and (z) immediately prior
to and after giving effect to the Paulson Acquisition (including the
payment of any prospective portion of the purchase price or
earn-outs), the Borrowers shall have in excess of Twenty Million and
00/100 Dollars ($20,000,000.00) of Undrawn Availability;




     19. Effective on the Paulson Acquisition Effective Date, Section 7.1(a)(ii)(I) of the Loan
Agreement is hereby deleted in its entirety and in its stead is inserted the following:




          (I) the Aggregate Consideration paid by any such Borrower for
all such Permitted Acquisitions, mergers or consolidations,
excluding the Total Petroleum Acquisition, the Farmington
Acquisition and the Paulson Acquisition, shall not exceed Twenty
Million and 00/100 Dollars ($20,000,000.00) in the aggregate in any
fiscal year of the Borrowers and Fifty Million and 00/100 Dollars
($50,000,000.00) in the aggregate during the Term.




     20. Clause (i) of Section 7.7 of the Loan Agreement is hereby deleted in its entirety and
in its stead is inserted the following:




(i) the payment of the Management Fees including, without
limitation, (x) a fee of three percent (3%) of the aggregate
consideration paid for each Permitted Acquisition, (y) a fee of
three percent (3%) of the gross consideration received for each
Permitted Disposition, and (z) a fee payable in connection with the
sale of the Borrowers equal to three hundredths of one percent
(0.3%) of the enterprise value of the Borrowers realized in any such
sale, in each case in accordance with the terms of the Management
Agreement (plus any amount accrued but unpaid due to a prior Default
or Event of Default), relating to the Borrowers that are due and
owing from Parent as long as no Default or Event of Default has
occurred and is continuing at or as of the date of the proposed
distribution thereof or would otherwise arise upon the making of any
such proposed distribution (and in connection therewith Parent shall
thereupon be permitted to make such Management Fee payments),



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     21. Section 7.8(iv) of the Loan Agreement is hereby deleted in its entirety and in its
stead is inserted the following:




     (iv) Indebtedness owed to Valvoline with respect to Equipment
financing in an aggregate amount not to exceed $5,000,000;




     22. Section 7.15 of the Loan Agreement is hereby deleted in its entirety and in its stead
is inserted the following:




     7.15 Amendment of Organizational Documents. Amend,
modify or waive any term or material provision of its organizational
documents, including, its articles of organization, operating
agreement, Articles of Incorporation or By-Laws, each as applicable,
or change its name, unless required by law, in a manner materially
adverse to Agent and Lenders except with their prior written
consent; provided, however, (x) MPI may amend its organizational
documents in connection with the Name Change to reflect the same, so
long as MPI provides (i) prompt notice to the Agent of such Name
Change, and (ii) a copy of the Name Change Certificate filed with
the Delaware Secretary of State and all other filings, if any, with
respect to such name change; (y) MPFC may amend its organizational
documents in connection with the Finance Corp Merger to reflect the
same; and (z) Parent may amend its organizational documents in
connection with the Holdings Merger to reflect the same. The
parties hereto agree, that (i) upon the effective date of the Name
Change, any and all references to MPI in the Loan Agreement or any
Other Documents shall automatically be deemed to be references to
MPFC without any further action on the part of the Borrowers or the
Agent, and (ii) upon the effective date of the Holdings Merger, any
and all references to Parent in the Loan Agreement or any Other
Documents shall automatically be deemed to be references to MPHI
without any further action on the part of the Borrowers or the
Agent.




     23. Article 7 of the Loan Agreement is hereby amended by inserting the following new
Section 7.21:




     7.21 Amendment of the Management Agreement. Amend,
modify or waive any term or provision of the Management Agreement,
except with the Agent’s and the Lenders’ prior written consent,
provided, however, SPI-OK and the Parent may amend the Management
Agreement solely to change (y) the timing of the payment of the fees
payable thereunder or (z) the allocation of such fees among the
parties thereto.



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     24. The second sentence of Section 9.2 of the Loan Agreement is hereby deleted in its
entirety and in its stead is inserted the following:




If at any time (a) the sum of (y) Undrawn Availability on average
for the most recently ended thirty (30) consecutive days plus (z)
Suppressed Availability on average for the most recently ended
thirty (30) consecutive days is less than $35,000,000, or (b)
Undrawn Availability is less than $20,000,000 for five (5)
consecutive days, Borrowers shall also deliver to Agent on a weekly
basis on Friday of each week relating to the prior week’s activities
(consisting of the seven days commencing on Monday of such prior
week and ending on Sunday of such week): (a) a Borrowing Base
Certificate (which remains subject to review and approval by Agent);
(b) a report regarding sales, collections and credits; (c) an
Inventory report regarding fuel listing amounts in both dollar value
and in gallons quantity for Designated Supply Contracts Locations,
Pathway Network locations, remote site tanks and marine terminal
tanks.




     25. Article 16 of the Loan Agreement is hereby amended by inserting the following new
Section 16.21:




     16.21 Joinder of MPHI. On the date of the filing of
the Finance Corp Certificate of Merger, MPHI shall execute and
deliver to the Agent (i) a Borrower Joinder pursuant to which it
shall join as a Borrower each of the documents to which the
Borrowers are parties; (ii) documents in the forms described in
Section 8.1 hereof, modified as appropriate to relate to MPHI; and
(iii) documents necessary to grant to the Agent for the ratable
benefit of each Lender and perfect (y) continuing first-priority
security interests in and to all of MPHI’s First-Priority Collateral
and (z) continuing second-priority security interests in and to all
of MPHI’s Second-Priority Collateral.




     26. Effective on the Paulson Acquisition Effective Date, Article 16 of the Loan Agreement
is hereby amended by inserting the following new Section 16.22:




     16.22 Joinder of Paulson. On the Paulson Acquisition
Effective Date, Paulson shall execute and deliver to the Agent (i) a
Borrower Joinder pursuant to which it shall join as a Borrower each
of the documents to which the Borrowers are parties; (ii) documents
in the forms described in Section 8.1 hereof, modified as
appropriate to relate to Paulson; and (iii) documents necessary to
grant to the Agent for the ratable benefit of each Lender and
perfect (y) continuing first-priority security interests in and to
all of Paulson’s First-Priority Collateral and (z) continuing



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second-priority security interests in and to all of Paulson’s
Second-Priority Collateral.




     27. Effective on the Paulson Acquisition Effective Date and provided that the Name Change,
the Finance Corp Merger and the Holdings Merger have not been consummated, “Annex
A” to the Loan Agreement is hereby deleted and in its stead is inserted “Annex A”
attached hereto as Attachment B.




     28. Effective on the Paulson Acquisition Effective Date and provided that the Name Change,
the Finance Corp Merger and the Holdings Merger have been consummated, “Annex A” to the
Loan Agreement is hereby deleted and in its stead is inserted “Annex A” attached hereto
as Attachment C.




     29. Effective upon the consummation of the Name Change, the Finance Corp Merger and the
Holdings Merger and provided that the Paulson Acquisition has been consummated,
“Annex A” to the Loan Agreement is hereby deleted and in its stead is inserted the
“Annex A” attached hereto as Attachment D.




     30. Effective upon the consummation of the Name Change, the Finance Corp Merger and the
Holdings Merger and provided that the Paulson Acquisition has not been
consummated, “Annex A” to the Loan Agreement is hereby deleted and in its stead is
inserted the “Annex A” attached hereto as Attachment E.




     31. The following schedules to the Loan Agreement are hereby updated, such that the
information set forth on each of the correspondingly numbered schedules to the Loan Agreement
shall be supplemented by the addition or deletion, as the case may be, thereto of the
information set forth on the correspondingly numbered schedules attached hereto as
Attachment F: Schedule 4.5 — Equipment and Inventory Locations; Schedule 4.15(c) —
Location of Executive Offices; Schedule 4.19(a) — Real Property; Schedule 5.2(b) —
Subsidiaries; Schedule 5.4 — Federal Tax Identification Numbers; Schedule 5.8(d) — Plans;
Schedule 5.9 — Intellectual Property, Source Code Escrow Agreements; and Schedule 7.10 —
Affiliate Transactions.




     32. Effective on the Paulson Acquisition Effective Date the following schedules to the
Loan Agreement are hereby amended, such that the information set forth on each of the
correspondingly numbered schedules to the Loan Agreement shall be supplemented by the addition
thereto of the information set forth on the correspondingly numbered schedules attached hereto
as Attachment G: Schedule 1.2.1 — Mortgaged Properties; Schedule 1.2.2 — Permitted
Encumbrances; Schedule 1.2.3 — Customers Re: Extended Term Receivables; Schedule 1.2.4 —
Designated Supply Contracts; Schedule 4.1 — Commercial Tort Claims; Schedule 4.5 — Equipment
and Inventory Locations; Schedule 4.15(c) — Location of Executive Offices; Schedule 4.19(a) —
Real Property; Schedule 5.2(a) — States of Qualification and Good Standing; Schedule 5.2(b) —
Subsidiaries; Schedule 5.4 — Federal Tax Identification Numbers; Schedule 5.6 — Prior Names;
Schedule 5.7 — Environmental Matters; Schedule 5.8(b) — Litigation; Schedule 5.8(d) — Plans;
Schedule 5.9 — Intellectual Property, Source Code Escrow Agreements; Schedule 5.10 — Licenses
and Permits; Schedule 5.14 — Labor Disputes; Schedule 5.24 — Bailees of Prepaid Fuel
Inventory;



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Schedule 7.3 — Guaranties; Schedule 7.4 — Investments; Schedule 7.8 — Indebtedness; and
Schedule 7.10 — Affiliate Transactions.




     33. Effective on the Paulson Acquisition Effective Date, “Exhibit 5.5(b)” to the
Loan Agreement (Financial Projections) is hereby deleted and in its stead is inserted
“Exhibit 5.5(b)” attached hereto.




     34. Effective on the Paulson Acquisition Effective Date, “Exhibit 16.3” to the
Loan Agreement (Commitment Transfer Supplement) is hereby deleted and in its stead is inserted
“Exhibit 16.3” attached hereto.




     35. The provisions of Sections 2 through 34 of this Fourth Amendment shall not become
effective until the Agent has received the following items, each in form and substance
reasonably acceptable to the Agent and its counsel:



               (a) this Fourth Amendment, duly executed by each of the Borrowers and each of the Lenders;



               (b) the documents and conditions listed in the Preliminary Closing Agenda set forth
on Attachment A, attached hereto and made a part hereof, that are required
to be delivered on or before the Fourth Amendment Closing Date as set forth
therein;



               (c) payment of all fees and expenses owed to the Agent and its counsel in
connection with this Fourth Amendment; and



               (d) such other documents as may be reasonably requested by the Agent.




     36. Each Borrower hereby reconfirms and reaffirms each of the representations and
warranties made by it in or pursuant to the Loan Agreement and any related documents to which
it is a party, and each of the representations and warranties made to the Lenders contained in
any certificate, document or financial or other statement furnished at any time under or in
connection with the Loan Agreement or any related agreement, are true and correct in all
material respects on and as of such date as if made on and as of such date, other than such
representations and warranties relating to a specific earlier time and in such case such
representations and warranties shall continue to be true in all material respects as of such
earlier date, except as such representations and warranties may have heretofore been amended,
modified or waived in writing in accordance with the Loan Agreement.




     37. Each Borrower acknowledges and agrees that each and every document, instrument or
agreement, which at any time has secured the Obligations including, without limitation, the
Loan Agreement and the Mortgages hereby continue to secure the Obligations.




     38. Each Borrower hereby represents and warrants to the Lenders and the Agent that (i)
such Borrower has the full power, authority and legal right to enter into this Fourth Amendment
and to perform all its respective Obligations hereunder, (ii) the officers of such Borrower
executing this Fourth Amendment have been duly authorized to execute and



-14-









 







deliver the same and bind such Borrower with respect to the provisions hereof, (iii) the
execution and delivery hereof by such Borrower and the performance and observance by such
Borrower of the provisions hereof and of the Loan Agreement and all documents executed or to be
executed therewith (a) are within such Borrower’s corporate powers, have been duly authorized,
are not in contravention of law or the terms of such Borrower’s by-laws, certificate of
incorporation, operating agreement or other documents relating to such Borrower’s formation,
all as applicable, or to the conduct of such Borrower’s business or of any material agreement
or undertaking to which such Borrower is a party or by which such Borrower is bound, and (b)
will not conflict with nor result in any breach in any of the provisions of or constitute a
default under or result in the creation of any Lien except Permitted Encumbrances upon any
asset of such Borrower under the provisions of any agreement, charter document, operating
agreement, instrument, by-law, or other instrument to which such Borrower is a party or by
which it or its property may be bound, and (iv) this Fourth Amendment, the Loan Agreement and
the documents executed or to be executed by such Borrower in connection herewith or therewith
constitute the legal, valid and binding obligations of such Borrower enforceable in accordance
with their terms, except as such enforceability may be limited by any applicable bankruptcy,
insolvency, moratorium or similar laws affecting creditors’ rights generally.




     39. Each Borrower represents and warrants that (i) no Event of Default has occurred and is
continuing under the Loan Agreement, nor will any occur as a result of the execution and
delivery of this Fourth Amendment or the performance or observance of any provision hereof and
(ii) it presently has no known claims or actions of any kind at law or in equity against the
Lenders or the Agent arising out of or in any way relating to the Loan Agreement or the Other
Documents.




     40. Each reference to the Loan Agreement that is made in the Loan Agreement or any other
document executed or to be executed in connection therewith shall hereafter be construed as a
reference to the Loan Agreement as amended hereby.




     41. The agreements contained in this Fourth Amendment are limited to the specific
agreements made herein. Except as amended hereby, all of the terms and conditions of the Loan
Agreement and the Other Documents shall remain in full force and effect. This Fourth Amendment
amends the Loan Agreement and is not a novation thereof.




     42. This Fourth Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts each of which, when so executed, shall be
deemed to be an original, but all such counterparts shall constitute but one and the same
instrument.




     43. This Fourth Amendment shall be governed by, and shall be construed and enforced in
accordance with, the Laws of the State of New York without regard to the principles of the
conflicts of law thereof. Each Borrower hereby consents to the jurisdiction and venue of any
federal or state court located in the County of New York, State of New York with respect to any
suit arising out of or mentioning this Fourth Amendment.



[INTENTIONALLY LEFT BLANK]




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     IN WITNESS WHEREOF, and intending to be legally bound, the parties hereto have caused this
Fourth Amendment to be duly executed by their duly authorized officers the day and year first above
written.



	 	 	 	 	 
	 	SPI Petroleum LLC, a Delaware limited liability
company
 	 
	 	By:  	/s/ Michel Salbaing 	 
	 	 	Name:  	Michel Salbaing 	 
	 	 	Title:  	Treasurer 	 
	 
	 	Maxum Petroleum, Inc., a Delaware corporation
 	 
	 	By:  	/s/ Michel Salbaing 	 
	 	 	Name:  	Michel Salbaing 	 
	 	 	Title:  	Secretary 	 
	 
	 	Simons Petroleum, Inc., a Texas corporation
 	 
	 	By:  	/s/ Michel Salbaing 	 
	 	 	Name:  	Michel Salbaing 	 
	 	 	Title:  	Treasurer 	 
	 
	 	Simons Petroleum, Inc., an Oklahoma 
corporation
 	 
	 	By:  	/s/ Michel Salbaing 	 
	 	 	Name:  	Michel Salbaing 	 
	 	 	Title:  	Treasurer 	 
	 
	 	SPI Acquisition LLC, a Delaware limited 
liability company
 	 
	 	By:  	Maxum Petroleum, Inc. 	 
	 	Its:  	Managing Member 	 



	 	 	 	 	 
	 	By:  	/s/ Michel Salbaing 	 
	 	 	Name:  	Michel Salbaing 	 
	 	 	Title:  	Secretary 	 
	 
	 	ETI Acquisition LLC, a Delaware limited 
liability company
 	 
	 	By:  	/s/ Michel Salbaing 	 
	 	 	Name:  	Michel Salbaing 	 
	 	 	Title:  	Treasurer 	 
	 














 





	 	 	 	 	 
	 	Hartney Fuel Oil Co., an Illinois corporation
 	 
	 	By:  	/s/ Michel Salbaing 	 
	 	 	Name:  	Michel Salbaing 	 
	 	 	Title:  	Treasurer 	 
	 
	 	Hartney Brothers, Inc., an Illinois corporation
 	 
	 	By:  	/s/ Michel Salbaing 	 
	 	 	Name:  	Michel Salbaing 	 
	 	 	Title:  	Treasurer 	 
	 
	 	Petroleum Supply Company, Inc., an Illinois 
corporation

 	 
	 	By:  	/s/ Michel Salbaing 	 
	 	 	Name:  	Michel Salbaing 	 
	 	 	Title:  	Treasurer 	 
	 
	 	Canyon State Oil Company, Inc., an Arizona 
corporation
 	 
	 	By:  	/s/ Michel Salbaing 	 
	 	 	Name:  	Michel Salbaing 	 
	 	 	Title:  	Treasurer 	 
	 
	 	Pecos, Inc., a California corporation
 	 
	 	By:  	/s/ Michel Salbaing 	 
	 	 	Name:  	Michel Salbaing 	 
	 	 	Title:  	Treasurer 	 
	 
	 	General Petroleum Corporation, a California 
corporation
 	 
	 	By:  	/s/ Michel Salbaing 	 
	 	 	Name:  	Michel Salbaing 	 
	 	 	Title:  	Treasurer 	 
	 
	 	Rainier Petroleum Corporation, a Washington corporation
 	 
	 	By:  	/s/ Michel Salbaing 	 
	 	 	Name:  	Michel Salbaing 	 
	 	 	Title:  	Treasurer 	 
	 














 





	 	 	 	 	 
	 	Sedro-Woolley Holdings Corporation, a 
Washington corporation

 	 
	 	By:  	/s/ Michel Salbaing
 	 
	 	 	Name:  	Michel Salbaing 	 
	 	 	Title:  	Treasurer 	 
	 
	 	G.P. Atlantic, Inc., a South Carolina corporation
 	 
	 	By:  	/s/ Michel Salbaing 	 
	 	 	Name:  	Michel Salbaing 	 
	 	 	Title:  	Treasurer 	 
	 
	 	Petroleum Products, Inc., a West Virginia 
corporation
 	 
	 	By:  	/s/ Michel Salbaing 	 
	 	 	Name:  	Michel Salbaing 	 
	 	 	Title:  	Treasurer 	 
	 
	 	Petroleum Transport, Inc., a West Virginia 
corporation
 	 
	 	By:  	/s/ Michel Salbaing 	 
	 	 	Name:  	Michel Salbaing 	 
	 	 	Title:  	Treasurer 	 
	 
	 	Petroleum Fueling, Inc., a West Virginia 
corporation
 	 
	 	By:  	/s/ Michel Salbaing 	 
	 	 	Name:  	Michel Salbaing 	 
	 	 	Title:  	Treasurer 	 
	 














 





	 	 	 	 	 
	 	PNC Bank, National Association, as Agent and 
as Lender
 	 
	 	By:  	/s/ Terrance McKinney 	 
	 	 	Name:  	Terrance McKinney 	 
	 	 	Title:  	Vice President 	 
	 
	 	JPMorgan Chase Bank, N.A., as Co-
Documentation Agent and as Lender
 	 
	 	By:  	/s/ J. Devin Mock 	 
	 	 	Name:  	J. Devin Mock 	 
	 	 	Title:  	Vice President 	 
	 
	 	Bank of America, N.A., as Co-Documentation 
Agent and as Lender
 	 
	 	By:  	/s/ Philip Nomura 	 
	 	 	Name:  	Philip Nomura 	 
	 	 	Title:  	Vice President 	 
	 
	 	The CIT Group/Business Credit, Inc., as Co-
Documentation Agent and as Lender
 	 
	 	By:  	/s/ Mark J. Long 	 
	 	 	Name:  	Mark J. Long 	 
	 	 	Title:  	Vice President 	 
	 
	 	Wells Fargo Foothill, LLC, as Co-
Documentation Agent and as Lender
 	 
	 	By:  	/s/ David P. Hill 	 
	 	 	Name:  	David P. Hill 	 
	 	 	Title:  	Vice President 	 
	 














 





	 	 	 	 	 
	 	Comerica Bank, as Lender

 	 
	 	By:  	/s/ Keith Nichols 	 
	 	 	Name:  	Keith Nichols 	 
	 	 	Title:  	Vice President 	 
	 
	 	North Fork Business Capital, as Lender
 	 
	 	By:  	/s/ Todd Kemme 	 
	 	 	Name:  	Todd Kemme 	 
	 	 	Title:  	Vice President