exv10w2








	 	 	 	 	 



Exhibit 10.2




Execution Copy




AMENDMENT NO. 1 TO THE

AMENDED AND RESTATED TERM LOAN CREDIT AGREEMENT




          AMENDMENT NO. 1 TO THE AMENDED AND RESTATED TERM LOAN CREDIT AGREEMENT (this “Amendment”),
dated as of September 23, 2011 among Western Refining, Inc., a Delaware corporation (the
“Borrower”), Bank of America, N.A., as Administrative Agent (in such capacity, the “Administrative
Agent”) and the lenders party hereto.




          PRELIMINARY STATEMENTS:




          (1) The Borrower, certain financial institutions and other persons from time to time parties
thereto (the “Lenders”), Bank of America, N.A., as Administrative Agent, and the other agents party
thereto have entered into an Amended and Restated Term Loan Credit Agreement, dated as of March 29,
2011 (as the same may have been amended, supplemented or otherwise modified prior to the date
hereof, the “Credit Agreement”). Capitalized terms not otherwise defined in this Amendment have
the same meanings as specified in the Credit Agreement.




          (2) The Borrower and the Required Lenders have agreed to amend the Credit Agreement to effect the
changes hereinafter set forth.




          NOW THEREFORE, in consideration of the premises and for other good and valuable consideration (the
receipt and sufficiency of which is hereby acknowledged), the parties hereto hereby agree as
follows:




          SECTION
1. Amendments to Credit Agreement. The Credit Agreement is, effective as of the Amendment
No. 1 Effective Date (as hereinafter defined) and subject to the satisfaction of the conditions
precedent set forth in Section 2 hereof, hereby amended as follows:




          (a) Section 1.01 is amended to add the following definitions in the appropriate alphabetical
position:






          “Operating Lease Recharacterization” has the meaning specified in the definition of
“Recharacterized Operating Leases”.




          “Recharacterized Operating Leases” means leases that are classified as operating leases under GAAP
as in effect on the Closing Date that are subsequently classified as Capitalized Leases because of
changes in GAAP (any such change, an “Operating Lease Recharacterization”).



          (b) Section 1.01 is amended by:




          (i) deleting the parenthetical phrase “(as defined in the Revolving Credit Agreement)” in each
instance where it appears in the definition of “Consolidated EBITDA” contained therein; and




          (ii) amending and restating the definition of “Intercreditor Agreement” set forth therein to read
in its entirety as follows:




Western Refining — Amendment No. 1 to Credit Agreement





 









 









          “Intercreditor Agreement” means that certain Intercreditor Agreement dated as of May 31, 2007
among the Administrative Agent, the Term Administrative Agent, the Control Agent, and the Loan
Parties, as amended by a First Amendment dated as of June 30, 2008 and a Second Amendment and
Joinder dated as of June 12, 2009. As used in the definition of “Loan Documents” and in Sections
5.19(a), 6.12(b), 9.10(a)(i), and 10.01(g), the term “Intercreditor Agreement” shall include the
Noteholder Intercreditor Agreement.




          (c) Section 1.03(a) is amended by amending and restating the last sentence contained therein in its
entirety to read as follows:




          “Notwithstanding the foregoing, (i) for purposes of determining compliance with any financial ratio
contained herein, Indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried
at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC
470-20 on financial liabilities shall be disregarded and (ii) for purposes of determining
compliance with any provision of this Agreement, the determination of whether a lease is an
operating lease or a capital lease shall be made without giving effect to any operating leases
which are characterized as capital leases as a result of an Operating Lease Recharacterization.”




          (d) Section 7.01(l) is amended by replacing the amount “$25,000,000” contained therein with the
amount “$125,000,000.”




          (e) Section 7.03(f) is amended by replacing the amount “$50,000,000” contained therein with the
amount “$100,000,000.”




          SECTION 2. Conditions of Effectiveness to Amendment No. 1. This Amendment shall become effective
on the date (the “Amendment No. 1 Effective Date”) when, and only when, the following conditions
shall have been satisfied:




          (a) The Administrative Agent shall have received counterparts of this Amendment executed by the
Borrower and the Required Lenders or, as to any such party, advice reasonably satisfactory to the
Administrative Agent that such Lender has executed this Amendment.




          (b) The Administrative Agent shall have received for the account of each Lender that executes a
counterpart to this Amendment on or before 5:00 p.m., New York City time, on September 21, 2011, an
amendment fee in an amount equal to 0.10% of the aggregate principal amount of such Lender’s
outstanding Term Loans as of such date.




          SECTION 3. Representations and Warranties. The Borrower hereby represents and warrants as follows:




          (a) The Borrower (i) is duly organized, validly existing and in good standing under the Laws of
the State of Delaware and (ii) has all requisite power and authority and all requisite governmental
licenses, authorizations, consents and approvals to execute, deliver and perform its obligations
under this
Amendment, except to the extent that the failure to do so could not reasonably be expected to have
a Material Adverse Effect.




          (b) The execution, delivery and performance by the Borrower of this Amendment have been duly
authorized by all necessary corporate action, and do not and will not (i) contravene the terms of
the Borrower’s Organization Documents; (ii) conflict with or result in any breach or contravention
of, or the creation of any Lien under, or require any payment to be made under (A) any Contractual
Obligation to which the Borrower is a party or affecting the Borrower, or the properties of the
Borrower or any of its




Western Refining — Amendment No. 1 to Credit Agreement





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Restricted Subsidiaries or (B) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which the Borrower or its property is subject; or (iii) violate
any Law.




          (c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person is necessary or required in connection with
the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment.
This Amendment has been duly executed and delivered by the Borrower. This Amendment constitutes a
legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance
with its terms.




          (d) The representations and warranties of the Borrower and each other Loan Party set forth in
Article V of the Credit Agreement (other than the representations and warranties set forth in
Section 5.05(b) and 5.05(c)) are true and correct in all material respects on and as of the
Amendment No. 1 Effective Date, immediately before and immediately after giving effect to this Amendment, except
to the extent that any such representation and warranty is expressly stated to be made as of an
earlier date.




          (e) On the Amendment No. 1 Effective Date, immediately before and immediately after giving effect
to this Amendment, no Default or Event of Default has occurred and is continuing.




          SECTION 4. Reference to and Effect on the Credit Agreement and the Loan Documents. (a) On and
after the effectiveness of this Amendment, each reference in the Credit Agreement to “this
Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement, and
each reference in each of the other Loan Documents to “the Credit Agreement”, “thereunder”,
“thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference
to the Credit Agreement, as amended by this Amendment.




          (b) The Credit Agreement, as specifically amended by this Amendment, is and shall continue to be in
full force and effect and is hereby in all respects ratified and confirmed. Without limiting the
generality of the foregoing, the Collateral Documents and all of the Collateral described therein
do and shall continue to secure the payment of all Obligations of the Loan Parties under the Loan
Documents, in each case as amended by this Amendment.




          (c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of any Lender or the
Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of
any of the Loan Documents.




          SECTION 5. Costs and Expenses The Borrower agrees to pay on demand all reasonable and documented
out-of-pocket costs and expenses of the Administrative Agent in connection with the preparation,
execution, delivery and administration of this Amendment and the other instruments and documents to
be delivered hereunder (including, without limitation, the reasonable fees and
expenses of counsel for the Administrative Agent) in accordance with the terms of Section 10.04 of
the Credit Agreement.




          SECTION 6. Execution in Counterparts. This Amendment may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute but one and the same
agreement. Delivery of an executed counterpart of a signature page to this Amendment by telecopier
or other electronic delivery (e.g., “pdf”) shall be effective as delivery of a manually executed
counterpart of this Amendment.




Western Refining — Amendment No. 1 to Credit Agreement





3









 








          SECTION 7. Governing Law. This Amendment shall be governed by, and construed in accordance
with, the law of the State of New York.




[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




Western Refining — Amendment No. 1 to Credit Agreement






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          IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their
respective officers thereunto duly authorized, as of the date first above written.




	 	 	 	 	 
	 	WESTERN REFINING, INC.

 	 
	 	By  	/s/ Jeffrey S. Reyersdorfer
 	 
	 	 	Name:  	Jeffrey S. Reyersdorfer 	 
	 	 	Title:  	Sr. VP — Treasurer, Director of

Investor Relations and Assistant Secretary 	 
	 



Western Refining — Amendment No. 1 to Term Loan Credit Agreement

[Signature Page]



 









 





	 	 	 	 	 
	 	Acknowledged and accepted:





WESTERN REFINING COMPANY, L.P.

 	 
	 	By:  	WESTERN REFINING GP,
 	 
	 	 	LLC, Its General Partner 	 



	 	 	 	 	 
	 	By:  	/s/ Jeffrey S. Beyersdorfer
 	 
	 	 	Name:  	Jeffrey S. Beyersdorfer 	 
	 	 	Title:  	Sr. VP-Treasurer &
 Assistant Secretary 	 
	 
	 	ASCARATE GROUP LLC

 	 



	 	 	 	 	 
	 	By:  	WESTERN REFINING
 	 
	 	 	COMPANY, L.P.,
 its sole Member 	 
	 	 		 
	 	By:  	WESTERN REFINING
 	 
	 	 	GP, LLC,
its General Partner 	 



	 	 	 	 	 
	 	By:  	/s/ Jeffrey S. Beyersdorfer
 	 
	 	 	Name:  	Jeffrey S. Beyersdorfer 	 
	 	 	Title:  	Sr. VP-Treasurer &
 Assistant Secretary 	 



	 	 	 	 	 
	 	WESTERN REFINING LP, LLC

 	 
	 	By:  	/s/ Joan L. Yori
 	 
	 	 	Name:  	Joan L. Yori 	 
	 	 	Title:  	President, Treasurer & Secretary 	 
	 
	 	WESTERN REFINING YORKTOWN, INC.

 	 
	 	By:  	/s/ Gary R. Dalke
 	 
	 	 	Name:  	Gary R. Dalke 	 
	 	 	Title:  	Treasurer & Chief Financial Officer 	 
	 



Western
Refining — Amendment No. 1 to Term Loan Credit Agreement

[Signature Page]



 









 





	 	 	 	 	 
	 	Acknowledged and accepted:





WESTERN REFINING COMPANY, L P.

 	 
	 	By:  	WESTERN REFINING GP,
 	 
	 	 	LLC its General Partner 	 
	 	 	 	 
	 
	 	By:  	/s/ Jeffrey S. Beyersdorfer
 	 
	 	 	Name:  	Jeffrey S. Beyersdorfer 	 
	 	 	Title:  	Sr. VP-Treasurer & 

Assistant Secretary 	 
	 
	 	ASCARATE GROUP LLC

 	 
	 	By:  	WESTERN REFINING
 	 
	 	 	COMPANY, L P.,
its sole Member 	 
	 
	 	 	 
	 	By:  	WESTERN REFINING
 	 
	 	 	GP, LLC,
its General Partner 	 
	 
	 	 	 
	 	By:  	/s/ Jeffrey S. Beyersdorfer
 	 
	 	 	Name:  	Jeffrey S. Beyersdorfer 	 
	 	 	Title:  	Sr. VP-Treasurer &

Assistant Secretary 	 
	 
	 	WESTERN REFINING LP, LLC

 	 
	 	By:  	/s/ Joan L. Yori
 	 
	 	 	Name:  	Joan L. Yori 	 
	 	 	Title:  	President, Treasurer & Secretary 	 
	 
	 	WESTERN REFINING YORKTOWN, INC

 	 
	 	By:  	 	 
	 	 	Name:  	Gary R. Dalke 	 
	 	 	Title:  	Treasurer & Chief Financial Officer 	 
	 



Western Refining — Amendment No. 1 to Term Loan Credit Agreement

[Signature Page]



 









 





	 	 	 	 	 
	 	CINIZA PRODUCTION COMPANY

DIAL OIL CO.

EMPIRE OIL CO.

GIANT INDUSTRIES, INC.

WESTERN REFINING SOUTHWEST, INC.

GIANT FOUR CORNERS, INC.

WESTERN REFINING GP, LLC

WESTERN REFINING TERMINALS, INC.

WESTERN REFINING PIPELINE

COMPANY

GIANT STOP-N-GO OF NEW MEXICO,

INC.

WESTERN REFINING YORKTOWN

HOLDING COMPANY

WESTERN REFINING WHOLESALE, INC.

SAN JUAN REFINING COMPANY

 	 
	 	By:  	/s/ Jeffrey S. Beyersdorfer
 	 
	 	 	Name:  	Jeffrey S. Beyersdorfer 	 
	 	 	Title:  	Sr. VP-Treasurer &

Assistant Secretary 	 
	 
	 	YORK RIVER FUELS, LLC

 	 
	 	By:  	/s/ Jeffrey S. Beyersdorfer
 	 
	 	 	Name: 	Jeffrey S. Beyersdorfer 	 
	 	 	Title:	 Sr. VP-Treasurer &

Assistant Secretary 	 
	 



Western Refining — Amendment No. 1 to Term Loan Credit Agreement

[Signature Page]






 









 








	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,

as Administrative Agent

 	 
	 	By:  	/s/ DeWayne D. Rosse
 	 
	 	 	Name:  	DeWayne D. Rosse 	 
	 	 	Title:  	Agency Management Officer 	 
	 



Western Refining — Amendment No. 1 to Term Loan Credit Agreement

[Signature Page]