Exhibit



Exhibit 10.9



FIRST AMENDMENT TO ASPHALT TERMINALLING, TRANSPORTATION AND STORAGE SERVICES AGREEMENT
This FIRST AMENDMENT TO ASPHALT TERMINALLING, TRANSPORTATION AND STORAGE SERVICES AGREEMENT (this “Amendment”) is dated as of September 28, 2018, but effective August 6, 2018, by and between Western Refining Company, L.P. (“Customer”), and Asphalt Terminals LLC (“Provider”).  Customer and Provider may each be referred to herein as a “Party” and collectively as the “Parties”.  
RECITALS
WHEREAS, on August 6, 2018, the Parties entered into that certain Asphalt Terminalling, Transportation and Storage Services Agreement pursuant to which the Parties agreed that Provider would operate the Terminals pursuant to the terms set forth therein (the “Original Agreement”); and 
WHEREAS, the Parties desire to amend the Original Agreement pursuant to the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the covenants and obligations contained herein, the Parties to this Amendment hereby agree as follows:
		
	1.
	Amendments to the Original Agreement.   Schedule 4.1 (Minimum Asphalt Commitments), Schedule 4.2 (Dedicated Tanks), and Schedule 22.2 (Stipulated Commitment) are amended and restated in their entirety as set forth in revised Schedule 4.1, Schedule 4.2, and Schedule 22.2 attached hereto, respectively.  


		
	2.
	Miscellaneous.


(a)    Other than as set forth above, the Original Agreement shall remain in full force and effect as written.


(b)    Except as otherwise provided herein, all costs and expenses (including legal and financial advisory fees and expenses) incurred in connection with, or in anticipation of, this Amendment and the transactions contemplated hereby shall be paid by the Party incurring such expenses.


(c)    This Amendment and the legal relations between the Parties shall be governed by and construed in accordance with Section 29.3 of the Original Agreement.


(d)    This Amendment constitutes the entire agreement between the Parties pertaining to the subject matter hereof, and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the Parties pertaining to the subject matter hereof.


(e)    This Amendment may be executed in counterparts, each of which shall be deemed an original instrument, but all such counterparts together shall constitute but one agreement.  Either Party’s delivery of an executed counterpart signature page by facsimile (or electronic .pdf format 


1





transmission) is as effective as executing and delivering this Amendment in the presence of the other Party.  No Party shall be bound until such time as all of the Parties have executed counterparts of this Amendment.


(f)    This Amendment is solely for the benefit of the Parties and should not be deemed to confer upon third parties any remedy, claim, liability, reimbursement, cause of action or other right in excess of those existing without reference to this Amendment.


(g)    The invalidity or unenforceability of any term or provision of this Amendment in any situation or jurisdiction shall not affect the validity or enforceability of the other terms or provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction and the remaining terms and provisions shall remain in full force and effect, unless doing so would result in an interpretation of this Amendment that is manifestly unjust.




[Signature Page Follows]




2






IN WITNESS WHEREOF, the Parties have duly executed this Amendment as of the date first above written.


CUSTOMER:


Western Refining Company, L.P., by 
Western Refining GP, LLC, its general partner


By:  /s/ Gregory J. Goff
Name: Gregory J. Goff
Title: President and Chief Executive Officer


PROVIDER:


Asphalt Terminals LLC


By:  /s/ Steven M. Sterin
Name: Steven M. Sterin
Title: President and Chief Financial Officer










Signature Page 
First Amendment to Asphalt Terminalling Transportation and Storage Services Agreement






SCHEDULE 4.1 
MINIMUM ASPHALT COMMITMENTS
A.      Minimum Asphalt Storage Commitment
	
		
	Terminal
	Asphalt Minimum Storage Commitment (Barrels)

	Bakersfield, CA
	123,556

	Mojave, CA
	240,000

	Elk Grove, CA
	322,433

	Phoenix, AZ
	172,050

	 
	 






B.    Minimum Asphalt Throughput Commitment
	
		
	Description
	Minimum Asphalt Throughput Commitment (tons/Month)

	Bakersfield, CA
	2,833

	Mojave, CA
	3,542

	Elk Grove, CA
	4,250

	Phoenix, AZ
	12,396










Schedule 4.1






SCHEDULE 4.2
DEDICATED TANKS


A. Bakersfield Terminal
	
		
	Tank Number
	Tank Capacity

	PMA-1
	800

	PMA-2
	800

	PMA-3
	800

	PMA-4
	1,900

	T-1
	500

	T-10
	400

	T-11
	520

	T-1101
	1,285

	T-1102
	1,285

	T-12
	520

	T-14
	300

	T-15
	215

	T-16
	260

	T-17
	85

	T-18
	85

	T-19
	85

	T-2
	240

	T-20
	85

	T-21
	120

	T-22
	120

	T-23
	90

	T-24
	650

	T-25
	112

	T-25001
	24,170

	T-3
	4,200

	T-4
	550

	T-5
	520

	T-5901
	5,963

	T-5902
	5,963

	T-5903
	5,963

	T-6
	520

	T-60001
	61,250

	T-601RS
	600

	T-602RS
	600

	T-603RS
	600

	T-7
	520

	T-8
	520

	T-9
	360

	Total
	184,806








Schedule 4.2





B. Elk Grove Terminal
	
		
	Tank Number
	Tank Capacity

	142
	155 (OOS)*

	180
	143

	201
	200

	1000
	45

	1101
	1,200

	1401
	1,300

	1402
	1,300

	2000
	143

	100001
	100,000

	100002
	100,000

	10001
	10,000

	10002
	10,000

	10003
	10,000

	1B
	94 (OOS)

	3001
	3,000

	3002
	3,000

	50001
	50,000

	5001
	5,000

	5002
	5,000

	5003
	5,000

	5004
	5,000

	5005
	5,000

	501
	500

	502
	500

	503
	500

	504
	500

	505
	500

	506
	500

	507
	500

	508
	500

	509
	500

	5W
	149

	761
	750

	762
	750

	763
	750

	PMA Mix Tank
	60

	QTS1
	143

	Total
	322,433








Schedule 4.2





C. Phoenix Terminal
	
		
	Tank Number
	Tank Capacity

	25
	786

	26
	944

	27
	266

	28
	266

	29
	604

	30
	604

	49
	403

	50
	242

	60
	242

	70
	242

	80
	242

	1
	1,678

	100
	419

	10001
	9,865

	10002
	9,865

	101
	486

	102
	336

	1501
	786

	1502
	786

	1503
	786

	1504
	786

	1505
	786

	1506
	786

	1507
	786

	1515
	786

	18
	507

	19
	507

	20
	1,449

	200
	419

	201
	486

	202
	288

	21
	1,449

	22
	1,678

	23
	1,933

	31
	5,480

	32
	5,480

	33
	1,212

	34
	1,212

	4
	486

	420
	700






Schedule 4.2





	
		
	440
	786

	460
	786

	480
	786

	5
	1,118

	50001
	50,793

	50002
	50,793

	8
	272

	9
	541

	A
	1,699

	E
	484

	E-2
	725

	E-3
	725

	E-5
	725

	E6
	725

	G
	484

	H
	484

	J
	486

	K
	486

	L
	483

	M
	483

	PMA mix
	1,118

	PPA
	179 (OOS)

	Total
	172,050






D. Mojave Terminal
	
		
	Tank Number
	Tank Capacity

	T-2
	60,000

	T-4
	60,000

	T-6
	60,000

	T-8
	60,000

	Total
	240,000






*OOS (Out of Service).  For the avoidance of doubt, fees will be assessed only upon in-service dedicated tanks.


Schedule 4.2








SCHEDULE 22.2 
STIPULATED COMMITMENTS
A.    Stipulated Asphalt Storage Commitment
	
		
	Terminal
	Asphalt Tankage Reserved Capacity (Barrels)

	Bakersfield, CA
	123,556

	Mojave, CA
	240,000

	Elk Grove, CA
	322,433

	Phoenix, AZ
	172,050








B.    Stipulated Asphalt Throughput Commitment
	
		
	Terminal
	Stipulated Asphalt Throughput (tons/Month)

	Bakersfield, CA
	2,833

	Mojave, CA
	3,542

	Elk Grove, CA
	4,250

	Phoenix, AZ
	12,396










Schedule 22.2