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%