Outstanding Common Units. The Common Units and the limited partner interests represented thereby outstanding as of the date hereof (and prior to the issuance of the Firm Units or the Option Units, as the case may be), other than the Common Units issued in the offerings listed on Annex 3 to this opinion [Annex 3 is the same as Exhibit A to Xxxxxxx Xxxxx opinion], have been duly authorized and validly issued in accordance with the Partnership Agreement, and are fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by matters described in the most recent Preliminary Prospectus and the Prospectus under the caption “The Partnership Agreement — Limited Liability”). In rendering such opinion, such counsel may (i) rely in respect of matters of fact upon representations of the Partnership Parties set forth in the Underwriting Agreement and upon certificates of officers and employees of the Partnership Parties and upon information obtained from public officials, (ii) assume that all documents submitted to him as originals are authentic, that all copies submitted to them conform to the originals thereof, and that the signatures on all documents examined by him are genuine, (iii) state that his opinion is limited to matters governed by the federal laws of the United States of America and the Delaware LP Act, the Delaware LLC Act, the DGCL and Texas law. In addition, such counsel shall state that he has participated in conferences with officers and other representatives of the Partnership, the independent registered public accounting firm of the Partnership, your counsel and your representatives at which the contents of the Registration Statement, the Pricing Disclosure Package and the Prospectus and related matters were discussed and, although such counsel has not independently verified and is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus, on the basis of the foregoing, no facts have come to such counsel’s attention that lead such counsel to believe that (A) the Registration Statement, as of the latest Effective Time, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (B) the Pricing Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (C) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, it being understood that such counsel expresses no opinion, statement or belief in this letter with respect to (i) the financial statements and notes and schedules thereto and the auditor’s report thereon or other financial or accounting data included or incorporated by reference in or excluded from the Registration Statement, the Prospectus or the Pricing Disclosure Package and (ii) representations and warranties and other statements of fact included in the exhibits to the Registration Statement.
Appears in 1 contract
Outstanding Common Units. The Common Units and the limited partner interests represented thereby outstanding as of the date hereof (and prior to the issuance of the Firm Units or the Option Units, as the case may be), other than the Common Units issued in the offerings listed on Annex 3 to this opinion [Annex 3 is the same as Exhibit A to Xxxxxxx Xxxxx opinion], have been duly authorized and validly issued in accordance with the Partnership Agreement, and are fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by matters described in the most recent Preliminary Prospectus and the Prospectus under the caption “The Partnership Agreement — Agreement—Limited Liability”). Such counsel may state that the opinions set forth in paragraph 1 with respect to the due qualification and registration and good standing of the entities listed on Annex 1 to this opinion are based solely upon her review of certificates and other communications from the appropriate public officials of the applicable jurisdictions of qualification or registration. In rendering such opinion, such counsel may (i) rely in respect of matters of fact upon representations of the Partnership Parties set forth in the Underwriting this Agreement and upon certificates of officers and employees of the Partnership Parties and upon information obtained from public officials, (ii) assume that all documents submitted to him her as originals are authentic, that all copies submitted to them her conform to the originals thereof, and that the signatures on all documents examined by him her are genuine, (iii) state that his her opinion is limited to matters governed by the federal laws of the United States of America and America, the Delaware LP Act, the Delaware LLC Act, the DGCL and Texas lawthe laws of the State of Texas. In addition, such counsel shall state that he has she has, or lawyers under her supervision have, participated in conferences with officers and other representatives of the PartnershipPartnership Parties, the independent registered public accounting firm of the Partnership, your counsel and your representatives at which the contents of the Registration Statement, the Pricing Disclosure Package Statement and the Prospectus (including the documents incorporated by reference therein) and related matters were discussed and, although such counsel has not independently verified and is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package Statement and the Prospectus, on the basis of the foregoingforegoing (relying with respect to factual matters to the extent such counsel deems appropriate upon statements by officers and other representatives of the Partnership Parties), (a) such counsel is not aware of any legal or governmental proceedings pending or threatened to which the Partnership or any of its subsidiaries is a party or to which any of their respective properties is subject that are required to be described in the Prospectus (including the documents incorporated by reference therein), and are not so described and (b) no facts have come to such counsel’s attention that lead led such counsel to believe that (A) the Registration StatementStatement (including the documents incorporated by reference therein), as of the date it became effective and the latest Effective Time, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or (B) the Pricing Disclosure Package, as of Prospectus (including the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements documents incorporated by reference therein, in the light of the circumstances under which they were made, not misleading, or (C) the Prospectus), as of its date and as of the date hereof, contained included or contains includes an untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, it being understood that such counsel expresses no opinion, statement or belief in this such letter with respect to (i) the historical financial statements and related schedules, including the notes and schedules thereto and the auditor’s report thereon or thereon, (ii) any other financial or accounting data data, included or incorporated by reference in in, or excluded from from, the Registration Statement, the Prospectus Statement or the Pricing Disclosure Package Prospectus, and (iiiii) representations and warranties and other statements of fact included in the exhibits to the Registration Statement.Statement or to the documents incorporated by reference therein. Annex 1
Appears in 1 contract
Samples: Terms Agreement (NuStar Energy L.P.)
Outstanding Common Units. The Common Units and the limited partner interests represented thereby outstanding as of the date hereof (and prior to the issuance of the Firm Units or the Option Units, as the case may be), other than the Common Units issued in the offerings listed on Annex 3 to this opinion [Annex 3 is the same as Exhibit A to Xxxxxxx Xxxxx opinion], have been duly authorized and validly issued in accordance with the Partnership Agreement, and are fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by matters described in the most recent Preliminary Prospectus and the Prospectus under the caption “The Partnership Agreement — Limited Liability”). In rendering such opinion, such counsel may (i) rely in respect of matters of fact upon representations of the Partnership Parties set forth in the Underwriting Agreement and upon certificates of officers and employees of the Partnership Parties and upon information obtained from public officials, (ii) assume that all documents submitted to him as originals are authentic, that all copies submitted to them conform to the originals thereof, and that the signatures on all documents examined by him are genuine, (iii) state that his opinion is limited to matters governed by the federal laws of the United States of America and the Delaware LP Act, the Delaware LLC Act, the DGCL and Texas law. In addition, such counsel shall state that he has participated in conferences with officers and other representatives of the Partnership, the independent registered public accounting firm of the Partnership, your counsel and your representatives at which the contents of the Registration Statement, the Pricing Disclosure Package and the Prospectus and related matters were discussed and, although such counsel has not independently verified and is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus, on the basis of the foregoing, no facts have come to such counsel’s attention that lead such counsel to believe that (A) the Registration Statement, as of the latest Effective Time, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (B) the Pricing Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (C) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, it being understood that such counsel expresses no opinion, statement or belief in this letter with respect to (i) the financial statements and notes and schedules thereto and the auditor’s report thereon or other financial or accounting data included or incorporated by reference in or excluded from the Registration Statement, the Prospectus or the Pricing Disclosure Package and (ii) representations and warranties and other statements of fact included in the exhibits to the Registration Statement.. EXHIBIT C LETTER AGREEMENT FOR AFFILIATE PURCHASE CITIGROUP GLOBAL MARKETS INC. BARCLAYS CAPITAL INC. X.X. XXXXXX SECURITIES INC. As Representatives of the several Underwriters named in Schedule I to the Underwriting Agreement c/o Citigroup Global Markets Inc. 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 May 14, 2010 Ladies and Gentlemen: This letter is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”) among NuStar Energy L.P. (the “Partnership”), Riverwalk Logistics, L.P., NuStar GP, LLC and the Underwriters relating to an underwritten public offering (the “Offering”) of 4,400,000 common units representing limited partner interests (the “Common Units”), of the Partnership. Capitalized terms used herein have the meanings given them in the Underwriting Agreement. Simultaneously with the closing of the Offering, the Underwriters agree, severally, to sell to the undersigned, and the undersigned agrees to purchase from the Underwriters, at a price of $56.55 per Common Unit (which is the purchase price per Common Unit paid by the public to the Underwriters in the Offering), [For Xxxxxxx Xxxxxxx, insert 350,000] [For Xxxxxx Xxxxxx, insert 4,000] Common Units (the “Affiliate Units”). In consideration of the execution of the Underwriting Agreement by the Underwriters, and for other good and valuable consideration, the undersigned hereby irrevocably agrees that, without the prior written consent of Citigroup Global Markets Inc., on behalf of the Underwriters, the undersigned will not, directly or indirectly, (1) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any Common Units (including, without limitation, Common Units that may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and Common Units that may be issued upon exercise of any options or warrants) or securities convertible into or exercisable or exchangeable for Common Units, (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of the Common Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Units or LETTER AGREEMENT FOR AFFILIATE PURCHASE other securities, in cash or otherwise, (3) make any demand for or exercise any right or cause, or otherwise attempt to cause, to be filed a registration statement, including any amendments thereto, with respect to the registration of any Common Units or securities convertible into or exercisable or exchangeable for Common Units or any other securities of the Partnership or (4) publicly disclose the intention to do any of the foregoing, for a period commencing on the date hereof and ending on the 45th day after the date of the final prospectus relating to the Offering. In furtherance of the foregoing, the Partnership and its Transfer Agent are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this letter agreement. It is understood that, if the Partnership notifies you that it does not intend to proceed with the Offering, if the Underwriting Agreement does not become effective, or if the Underwriting Agreement (other than the provisions thereof that survive termination) shall terminate or be terminated prior to payment for and delivery of the Affiliate Units, the undersigned will be released from his obligations under this letter agreement. The undersigned understands that the Partnership and the Underwriters will proceed with the Offering in reliance on this letter agreement. Whether or not the Offering actually occurs depends on a number of factors, including market conditions. Any Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Partnership and the Underwriters. The undersigned further represents that he is not an “affiliate” (as defined in NASD Rule 2720) of a “member” of FINRA or an “associated person of a member” (each term as defined in Article I of the Bylaws of the Financial Industry Regulatory Authority). Yours very truly, Name:
Appears in 1 contract
Outstanding Common Units. The Common Units and the limited partner interests represented thereby outstanding as of the date hereof (and prior to the issuance of the Firm Units or the Option Units, as the case may be), other than the Common Units issued in the offerings listed on Annex 3 to this opinion [Annex 3 is the same as Exhibit A to Xxxxxxx Xxxxx opinion], have been duly authorized and validly issued in accordance with the Partnership Agreement, and are fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by matters described in the most recent Preliminary Prospectus and the Prospectus under the caption “The Partnership Agreement — Limited Liability”). In rendering such opinion, such counsel may (i) rely in respect of matters of fact upon representations of the Partnership Parties set forth in the Underwriting this Agreement and upon certificates of officers and employees of the Partnership Parties and upon information obtained from public officials, (ii) assume that all documents submitted to him her as originals are authentic, that all copies submitted to them her conform to the originals thereof, and that the signatures on all documents examined by him her are genuine, (iii) state that his her opinion is limited to matters governed by the federal laws of the United States of America and , the Delaware LP Act, the Delaware LLC Act, the DGCL and Texas lawlaws of the State of Texas. In addition, such counsel shall state that he she has participated in conferences with officers and other representatives of the Partnership, the independent registered public accounting firm of the Partnership, your counsel and your representatives at which the contents of the Registration Statement, the Pricing Disclosure Package and the Prospectus and related matters were discussed and, although such counsel has not independently verified and is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained included in the Registration Statement, the Pricing Disclosure Package and the Prospectus, on the basis of the foregoing, no facts have come to such counsel’s attention that lead such counsel to believe that (A) the Registration Statement, as of the latest Effective Time, contained included an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (B) the Pricing Disclosure Package, as of the Applicable Time, contained included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (C) the Prospectus, as of its date and as of the date hereofDelivery Date, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, it being understood that such counsel expresses no opinion, statement or belief in this letter with respect to (i) the financial statements and notes and schedules thereto and the auditor’s report thereon or other financial or accounting data included or incorporated by reference in or excluded from the Registration Statement, the Prospectus or the Pricing Disclosure Package and (ii) representations and warranties and other statements of fact included in the exhibits to the Registration Statement.. EXHIBIT C LETTER AGREEMENT FOR AFFILIATE PURCHASE Credit Suisse Securities (USA) LLC Xxxxxxx Xxxxx, Xxxxxx Xxxxxx & Xxxxx Incorporated Barclays Capital Inc. Citigroup Global Markets Inc. Xxxxxx Xxxxxxx & Co. LLC Xxxxx Fargo Securities, LLC As Representatives of the several Underwriters named in Schedule I attached hereto c/o Credit Suisse Securities (USA) LLC Eleven Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 December 6, 2011 Ladies and Gentlemen: This letter is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”) among NuStar Energy L.P. (the “Partnership”), Riverwalk Logistics, L.P., NuStar GP, LLC and the Underwriters relating to an underwritten public offering (the “Offering”) of 5,250,000 common units representing limited partner interests (the “Common Units”), of the Partnership. Capitalized terms used herein have the meanings given them in the Underwriting Agreement. Simultaneously with the closing of the Offering, the undersigned agrees to purchase from the Underwriters, at a price of $53.45 per Common Unit (which is the purchase price per Common Unit paid by the public to the Underwriters in the Offering) 187,000 Common Units (the “Affiliate Units”). In consideration of the execution of the Underwriting Agreement by the Representatives on behalf of the Underwriters, and for other good and valuable consideration, the undersigned hereby irrevocably agrees that, without the prior written consent of Credit Suisse Securities (USA) LLC, on behalf of the Underwriters, the undersigned will not, directly or indirectly, (1) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any Common Units (including, without limitation, Common Units that may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and Common Units that may be issued upon exercise of any options or warrants) or securities convertible into or exercisable or exchangeable for Common Units, (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of the Common Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Units or other securities, in cash or otherwise, (3) make any demand for or exercise any right or cause, or otherwise attempt to cause, to be filed a registration statement, including any amendments thereto, with respect to the registration of any Common Units or securities convertible into or exercisable or exchangeable for Common Units or any other securities of the Partnership or (4) publicly disclose the intention to do any of the foregoing, for a period commencing on the date hereof and ending on the 45th day after the date of the final prospectus relating to the Offering; provided, however, that the foregoing shall not apply to sales of Common Units to the Partnership to satisfy tax withholding obligations under the NuStar GP, LLC Third Amended and Restated 2000 Long-Term Incentive Plan, amended and restated as of May 1, 2011, and the NuStar GP, LLC Amended and Restated 2003 Employee Unit Incentive Plan, amended and restated as of April 1, 2007, (provided that any report filed under Section 16 of the Exchange Act in connection with such transaction shall indicate that the disposition was the result of tax withholding). In furtherance of the foregoing, the Partnership and its transfer agent are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this letter agreement. It is understood that, if the Partnership notifies the Representatives that it does not intend to proceed with the Offering, if the Underwriting Agreement does not become effective, or if the Underwriting Agreement (other than the provisions thereof that survive termination) shall terminate or be terminated prior to payment for and delivery of the Affiliate Units, the undersigned will be released from his obligations under this letter agreement. The undersigned understands that the Partnership and the Underwriters will proceed with the Offering in reliance on this letter agreement. Whether or not the Offering actually occurs depends on a number of factors, including market conditions. Any Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Partnership and the Underwriters. The undersigned further represents that he is not an “affiliate” (as defined in FINRA Rule 5121) of a “member” of FINRA or an “associated person of a member” (each term as defined in Article I of the Bylaws of the Financial Industry Regulatory Authority). The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this letter agreement and that, upon request, the undersigned will execute any additional documents necessary in connection with the enforcement hereof. Any obligations of the undersigned shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned. Yours very truly, Name:
Appears in 1 contract
Outstanding Common Units. The Common Units and the limited partner interests represented thereby outstanding as of the date hereof (and prior to the issuance of the Firm Units or the Option Units, as the case may be)such opinion, other than the Common Units issued in the offerings listed on Annex 3 to this opinion [Annex 3 is the same as Exhibit A to Xxxxxxx Xxxxx opinion], have been duly authorized and validly issued in accordance with the Partnership Agreement, and are fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by matters described in the most recent Preliminary Prospectus and the Prospectus under the caption “The Partnership Agreement — Limited Liability”). In rendering such opinion, such counsel may (i) rely in respect of matters of fact upon representations of the Partnership Parties set forth in the Underwriting this Agreement and upon certificates of officers and employees of the Partnership Parties and upon information obtained from public officials, (ii) assume that all documents submitted to him as originals are authentic, that all copies submitted to them conform to the originals thereof, and that the signatures on all documents examined by him are genuine, (iii) state that his opinion is limited to matters governed by the federal laws of the United States of America and the Delaware LP Act, the Delaware LLC Act, the DGCL and Texas law. In addition, such counsel shall state that he has participated in conferences with officers and other representatives of the Partnership, the independent registered public accounting firm of the Partnership, your counsel and your representatives at which the contents of the Registration Statement, the Pricing Disclosure Package Statement and the Prospectus and related matters were discussed and, although such counsel has not independently verified and is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package Statement and the Prospectus, on the basis of the foregoing, no facts have come to such counsel’s attention that lead such counsel to believe that (A) the Registration Statement, as of the latest Effective Time, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or (B) the Pricing Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (C) the Prospectus, as of its date and as of the date hereofof such opinion letter, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, it being understood that such counsel expresses no opinion, statement or belief in this letter with respect to (i) the financial statements and notes and schedules thereto and the auditor’s report thereon or other financial or accounting data included or incorporated by reference in or excluded from the Registration Statement, Statement or the Prospectus or the Pricing Disclosure Package and (ii) representations and warranties and other statements of fact included in the exhibits to the Registration Statement. EXHIBIT C NUSTAR ENERGY L.P. Common Units TERMS AGREEMENT [ ], 2011 Citigroup Global Markets Inc. 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx, 00000 Ladies and Gentlemen: NuStar Energy L.P., a Delaware limited partnership (the “Partnership”), Riverwalk Logistics, L.P., a Delaware limited partnership and the general partner of the Partnership (the “General Partner”), NuStar GP, LLC, a Delaware limited liability company and the general partner of the General Partner (“NuStar GP” and, together with the Partnership and the General Partner, the “Partnership Parties”), proposes, subject to the terms and conditions stated herein and in the Equity Distribution Agreement, dated May 12, 2011 (the “Equity Distribution Agreement”), between the Partnership Parties and Citigroup Global Markets Inc., to issue and sell to Citigroup Global Markets Inc. the securities specified in the Schedule I hereto (the “Purchased Offered Units”) [, and solely for the purpose of covering over-allotments, to grant to Citigroup Global Markets Inc. the option to purchase the additional securities specified in Schedule I hereto (the “Additional Offered Units”)]. [Citigroup Global Markets Inc. shall have the right to purchase from the Partnership Parties all or a portion of the Additional Offered Units as may be necessary to cover over-allotments made in connection with the offering of the Purchased Offered Units, at the same purchase price per share to be paid by Citigroup Global Markets Inc. to the Partnership for the Purchased Offered Units. This option may be exercised by Citigroup Global Markets Inc. at any time (but not more than once) on or before the thirtieth day following the date hereof, by written notice to the Partnership. Such notice shall set forth the aggregate number of Offered Units of Additional Offered Units as to which the option is being exercised, and the date and time when the Additional Offered Units are to be delivered (such date and time being herein referred to as the “Option Closing Date”); provided, however, that the Option Closing Date shall not be earlier than the Time of Delivery (as set forth in the Schedule I hereto) nor earlier than the second business day after the date on which the option shall have been exercised nor later than the fifth business day after the date on which the option shall have been exercised. Payment of the purchase price for the Additional Offered Units shall be made at the Option Closing Date in the same manner and at the same office as the payment for the Purchased Offered Units.] Each of the provisions of the Equity Distribution Agreement not specifically related to the solicitation by Citigroup Global Markets Inc., as agent of the Partnership Parties, of offers to purchase securities is incorporated herein by reference in its entirety, and shall be deemed to be part of this Terms Agreement to the same extent as if such provisions had been set forth in full herein. Each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Terms Agreement [and] [,] the Time of Delivery [and any Option Closing Date], except that each representation and warranty in Section 2 of the Equity Distribution Agreement which makes reference to the Prospectus (as therein defined) shall be deemed to be a representation and warranty as of the date of the Equity Distribution Agreement in relation to the Prospectus, and also a representation and warranty as of the date of this Terms Agreement [and] [,] the Time of Delivery [and any Option Closing Date] in relation to the Prospectus as amended and supplemented to relate to the Purchased Offered Units and provided that such representations and warranties may be updated to reflect such necessary modifications as are not material and approved by the Manager in advance. [An amendment to the Registration Statement (as defined in the Equity Distribution Agreement), or a supplement to the Prospectus, as the case may be, relating to the Purchased Offered Units [and the Additional Offered Units], in the form heretofore delivered to the Manager is now proposed to be filed with the Securities and Exchange Commission.] Subject to the terms and conditions set forth herein and in the Equity Distribution Agreement which are incorporated herein by reference, the Partnership Parties agree to issue and sell to Citigroup Global Markets Inc. and the latter agrees to purchase from the Partnership Parties the number of Offered Units of the Purchased Offered Units at the time and place and at the purchase price set forth in the Schedule I hereto. If the foregoing is in accordance with your understanding, please sign and return to us a counterpart hereof, whereupon this Terms Agreement, including those provisions of the Equity Distribution Agreement incorporated herein by reference, shall constitute a binding agreement between the Manager and the Partnership Parties. NUSTAR ENERGY L.P. By: RIVERWALK LOGISTICS, L.P., its general partner By: NUSTAR GP, LLC, its general partner By: RIVERWALK LOGISTICS, L.P. By: NUSTAR GP, LLC, its general partner By: NUSTAR GP, LLC By: ACCEPTED as of the date first written above. Citigroup Global Markets Inc. By: Name: Title: [Form of Terms Agreement] Schedule I to the Terms Agreement Title of Purchased Offered Units [and Additional Offered Units]: Common Units Representing Limited Partner Interests Number of Offered Units of Purchased Offered Units: [Number of Offered Units of Additional Offered Units:] [Price to Public:] Purchase Price by Citigroup Global Markets Inc.: Method of and Specified Funds for Payment of Purchase Price: By wire transfer to a bank account specified by the Partnership in same day funds.
Appears in 1 contract
Samples: Terms Agreement (NuStar Energy L.P.)
Outstanding Common Units. The Common Units and the limited partner interests represented thereby outstanding as of the date hereof (and prior to the issuance of the Firm Units or the Option Units, as the case may be), other than the Common Units issued in the offerings listed on Annex 3 to this opinion [Annex 3 is the same as Exhibit A to Xxxxxxx Xxxxx opinion], have been duly authorized and validly issued in accordance with the Partnership Agreement, and are fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by matters described in the most recent Preliminary Prospectus and the Prospectus under the caption “The Partnership Agreement — Agreement—Limited Liability”). Such counsel may state that the opinions set forth in paragraph 1 with respect to the due qualification and registration and good standing of the entities listed on Annex 1 to this opinion are based solely upon her review of certificates and other communications from the appropriate public officials of the applicable jurisdictions of qualification or registration. In rendering such opinion, such counsel may (i) rely in respect of matters of fact upon representations of the Partnership Parties set forth in the Underwriting this Agreement and upon certificates of officers and employees of the Partnership Parties and upon information obtained from public officials, (ii) assume that all documents submitted to him her as originals are authentic, that all copies submitted to them her conform to the originals thereof, and that the signatures on all documents examined by him her are genuine, (iii) state that his her opinion is limited to matters governed by the federal laws of the United States of America and America, the Delaware LP Act, the Delaware LLC Act, the DGCL and Texas lawthe laws of the State of Texas. In addition, such counsel shall state that he has she has, or lawyers under her supervision have, participated in conferences with officers and other representatives of the PartnershipPartnership Parties, the independent registered public accounting firm of the Partnership, your counsel and your representatives at which the contents of the Registration Statement, the Pricing Disclosure Package and the Prospectus (in each case, including the documents incorporated by reference therein) and related matters were discussed and, although such counsel has not independently verified and is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, on the basis of the foregoingforegoing (relying with respect to factual matters to the extent such counsel deems appropriate upon statements by officers and other representatives of the Partnership Parties), (a) such counsel is not aware of any legal or governmental proceedings pending or threatened to which the Partnership or any of its subsidiaries is a party or to which any of their respective properties is subject that are required to be described in the Registration Statement, the Pricing Disclosure Package, the Prospectus or any of the documents incorporated by reference therein and are not so described and (b) no facts have come to such counsel’s attention that lead led such counsel to believe that (A) the Registration StatementStatement (including the documents incorporated by reference therein), as of the date it became effective and the latest Effective Time, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (B) the Pricing Disclosure PackagePackage (including the documents incorporated by reference therein), as of the Applicable Time3:30 p.m. on November 17, contained any 2016, included an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, misleading or (C) the ProspectusProspectus (including the documents incorporated by reference therein), as of its date and as of the date hereof, contained included or contains includes an untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, it being understood that such counsel expresses no opinion, statement or belief in this such letter with respect to (i) the historical financial statements and related schedules, including the notes and schedules thereto and the auditor’s report thereon or thereon, (ii) any other financial or accounting data data, included or incorporated by reference in in, or excluded from from, the Registration Statement, the Prospectus or the Pricing Disclosure Package or the Prospectus, and (iiiii) representations and warranties and other statements of fact included in the exhibits to the Registration Statement.Statement or to the documents incorporated by reference therein. Annex 1
Appears in 1 contract
Outstanding Common Units. The Common Units and the limited partner interests represented thereby outstanding as of the date hereof (and prior to the issuance of the Firm Units or the Option Units, as the case may be), other than the Common Units issued in the offerings listed on Annex 3 to this opinion [Annex 3 is the same as Exhibit A to Xxxxxxx Xxxxx opinion], have been duly authorized and validly issued in accordance with the Partnership Agreement, and are fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by matters described in the most recent Preliminary Prospectus and the Prospectus under the caption “The Partnership Agreement — Agreement—Limited Liability”). Such counsel may state that the opinions set forth in paragraph 1 with respect to the due qualification and registration and good standing of the entities listed on Annex 1 to this opinion are based solely upon her review of certificates and other communications from the appropriate public officials of the applicable jurisdictions of qualification or registration. In rendering such opinion, such counsel may (i) rely in respect of matters of fact upon representations of the Partnership Parties set forth in the Underwriting this Agreement and upon certificates of officers and employees of the Partnership Parties and upon information obtained from public officials, (ii) assume that all documents submitted to him her as originals are authentic, that all copies submitted to them her conform to the originals thereof, and that the signatures on all documents examined by him her are genuine, (iii) state that his her opinion is limited to matters governed by the federal laws of the United States of America and America, the Delaware LP Act, the Delaware LLC Act, the DGCL and Texas lawthe laws of the State of Texas. In addition, such counsel shall state that he has she has, or lawyers under her supervision have, participated in conferences with officers and other representatives of the PartnershipPartnership Parties, the independent registered public accounting firm of the Partnership, your counsel and your representatives at which the contents of the Registration Statement, the Pricing Disclosure Package and the Prospectus (in each case, including the documents incorporated by reference therein) and related matters were discussed and, although such counsel has not independently verified and is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, on the basis of the foregoingforegoing (relying with respect to factual matters to the extent such counsel deems appropriate upon statements by officers and other representatives of the Partnership Parties), (a) such counsel is not aware of any legal or governmental proceedings pending or threatened to which the Partnership or any of its subsidiaries is a party or to which any of their respective properties is subject that are required to be described in the Registration Statement, the Pricing Disclosure Package, the Prospectus or any of the documents incorporated by reference therein and are not so described and (b) no facts have come to such counsel’s attention that lead led such counsel to believe that (A) the Registration StatementStatement (including the documents incorporated by reference therein), as of the date it became effective and the latest Effective Time, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (B) the Pricing Disclosure PackagePackage (including the documents incorporated by reference therein), as of the Applicable Time8:15 a.m. on April 12, contained any 2017, included an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, misleading or (C) the ProspectusProspectus (including the documents incorporated by reference therein), as of its date and as of the date hereof, contained included or contains includes an untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, it being understood that such counsel expresses no opinion, statement or belief in this such letter with respect to (i) the historical financial statements and related schedules, including the notes and schedules thereto and the auditor’s report thereon or thereon, (ii) any other financial or accounting data data, included or incorporated by reference in in, or excluded from from, the Registration Statement, the Prospectus or the Pricing Disclosure Package or the Prospectus, and (iiiii) representations and warranties and other statements of fact included in the exhibits to the Registration Statement.Statement or to the documents incorporated by reference therein. Annex 1 Entity Jurisdiction of Formation Foreign Qualifications NuStar Pipeline Operating Partnership L.P. f/k/a Kaneb Pipe Line Operating Partnership, L.P. Delaware Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Louisiana, Minnesota, Missouri, Nebraska, North Dakota, New Jersey, Oregon, South Dakota, Texas, Washington, Wyoming NuStar Logistics, L.P. f/k/a Valero Logistics Operations, L.P. Delaware California, Colorado, Kansas, Louisiana, New Jersey, New Mexico, North Carolina, Oklahoma, Texas Annex I EXHIBIT B FORM OF CFO CERTIFICATE The undersigned, Xxxxxx X. Xxxxx, the duly appointed Executive Vice President and Chief Financial Officer of NuStar GP, LLC, which acts as the general partner of Riverwalk Logistics, L.P., which acts as the general partner of NuStar Energy L.P. (the “Partnership”), solely in the undersigned’s capacity as Executive Vice President and Chief Financial Officer, hereby certifies that in connection with the offering (the “Offering”) by the Partnership of 12,500,000 common units (the “Firm Units”) representing limited partner interests in the Partnership (the “Common Units”), and up to an additional 1,875,000 Common Units (the “Option Units” and, together with the Firm Units, the “Offered Units”) pursuant to the underwriters’ option to purchase the Option Units, as described in the preliminary prospectus supplement dated April 11, 2017 (the “Preliminary Prospectus Supplement”) and the final prospectus supplement dated April 12, 2017 (“Final Prospectus Supplement,” and together with the Preliminary Prospectus Supplement, the “Prospectus Supplement”), that:
Appears in 1 contract
Outstanding Common Units. The Common Units and the limited partner interests represented thereby outstanding as of the date hereof (and prior to the issuance of the Firm Units or the Option Units, as the case may be), other than the Common Units issued in the offerings listed on Annex 3 to this opinion [Annex 3 is the same as Exhibit A to Xxxxxxx Xxxxx opinion], have been duly authorized and validly issued in accordance with the Partnership Agreement, and are fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by matters described in the most recent Preliminary Prospectus and the Prospectus under the caption “The Partnership Agreement — Agreement—Limited Liability”). In rendering such opinion, such counsel may (i) rely in respect of matters of fact upon representations of the Partnership Parties The opinions set forth in paragraph 1 above with respect to the Underwriting Agreement due qualification and upon certificates of officers registration and employees good standing of the Partnership Parties entities listed on Annex I to this opinion are based solely upon our review of certificates and upon information obtained other communications from the appropriate public officials, (ii) assume that all documents submitted to him as originals are authentic, that all copies submitted to them conform to the originals thereof, and that the signatures on all documents examined by him are genuine, (iii) state that his opinion is limited to matters governed by the federal laws officials of the United States applicable jurisdictions of America and the Delaware LP Act, the Delaware LLC Act, the DGCL and Texas lawqualification or registration. In addition, such counsel shall state that he has I, or other attorneys under my supervision, have participated in conferences with officers and other representatives of the PartnershipPartnership Parties, the independent registered public accounting firm of the Partnership, your counsel and your representatives at which the contents of the Registration Statement, the Pricing Disclosure Package and the Prospectus (in each case, including the documents incorporated by reference therein) and related matters were discussed and, although such counsel has I have not independently verified and is I am not passing upon, and does do not assume any responsibility for, the accuracy, completeness or fairness of the statements contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, on the basis of the foregoingforegoing (relying with respect to factual matters to the extent I deem appropriate upon statements by officers and other representatives of the Partnership Parties), (a) I am not aware of any legal or governmental proceedings pending or threatened to which the Partnership or any of its subsidiaries is a party or to which any of their respective properties is subject that are required to be described in the Registration Statement, the Pricing Disclosure Package, the Prospectus or any of the documents incorporated by reference therein and are not so described and (b) no facts have come to such counsel’s my attention that lead such counsel led me to believe that (A) the Registration StatementStatement (including the documents incorporated by reference therein), as of the date it became effective and the latest Effective TimeDate, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (B) the Pricing Disclosure PackagePackage (including the documents incorporated by reference therein), as of the Applicable Time6:45 p.m. New York City time on August 8, contained any 2023, included an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, misleading or (C) the ProspectusProspectus (including the documents incorporated by reference therein), as of its date and as of the date hereof, contained included or contains includes an untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, it being understood that such counsel expresses I express no opinion, statement or belief in this letter with respect to to: (i) the historical financial statements and related schedules, including the notes and schedules thereto and the auditor’s report thereon or thereon; (ii) any other financial or accounting data data, included or incorporated by reference in in, or excluded from from, the Registration Statement, the Prospectus or the Pricing Disclosure Package or the Prospectus; and (iiiii) representations and warranties and other statements of fact included in the exhibits to the Registration Statement.Statement or to the documents incorporated by reference therein. EXHIBIT B FORM OF LOCK-UP AGREEMENT Barclays Capital Inc. Citigroup Global Markets Inc. As Representatives of the several Underwriters named in Schedule I attached hereto c/o Barclays Capital Inc. 000 0xx Xxxxxx New York, New York 10020 c/o Citigroup Global Markets Inc. 000 Xxxxxxxxx Xxxxxx New York, New York 10013 August 8, 2023 Ladies and Gentlemen: The undersigned understands that you (the “Representatives”) and certain other firms (the “Underwriters”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) providing for the purchase by the Underwriters of common units (the “Common Units”) representing limited partner interests in NuStar Energy L.P., a Delaware limited partnership (the “Partnership”), and that the Underwriters propose to reoffer the Common Units to the public (the “Offering”). In consideration of the execution of the Underwriting Agreement by the Representatives on behalf of the Underwriters, and for other good and valuable consideration, the undersigned hereby irrevocably agrees that, without the prior written consent of the Representatives on behalf of the Underwriters, the undersigned will not, directly or indirectly, (1) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any Common Units (including, without limitation, Common Units that may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and Common Units that may be issued upon exercise of any options or warrants) or securities convertible into or exercisable or exchangeable for Common Units, (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of the Common Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Units or other securities, in cash or otherwise, (3) make any demand for or exercise any right or cause, or otherwise attempt to cause, to be filed a registration statement, including any amendments thereto, with respect to the registration of any Common Units or securities convertible into or exercisable or exchangeable for Common Units or any other securities of the Partnership or (4) publicly disclose the intention to do any of the foregoing, for a period commencing on the date hereof and ending on the 60th day after the date of the final prospectus relating to the Offering (such 60-day period, the “Lock-Up Period”). The foregoing paragraph shall not apply to (1) sales of Common Units to the Partnership to satisfy tax withholding obligations under (x) the NuStar GP, LLC Fifth Amended and Restated 2000 Long-Term Incentive Plan, amended and restated as of January 28, 2016, as further amended by the First Amendment to the NuStar GP, LLC Fifth Amended and Restated 2000 Long-Term Incentive Plan, dated as of February 7, 2018 or (y) the Amended and Restated NuStar Energy L.P. 2019 Long-Term Incentive Plan, amended and restated as of April 27, 2023 (provided that any report filed under Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), in connection with such transaction shall indicate that the disposition was the result of tax withholding), (2) bona fide gifts of Common Units; provided that it shall be a condition to any transfer pursuant to this clause (2) that (a) the transferee/donee agrees to be bound by the terms of this Lock-Up Agreement to the same extent as if the transferee/donee were a party hereto and (b) each party (donor, donee, transferor or transferee) shall not be required by law (including without limitation the disclosure requirements of the Securities Act of 1933, as amended, and the Exchange Act) to make, and shall agree to not voluntarily make, any filing or public announcement of the transfer or disposition prior to the expiration of the Lock-Up Period, or (3) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of Common Units, provided that such plan does not provide for the transfer of Common Units during the Lock-Up Period and no public announcement or filing under the Exchange Act regarding the establishment of such plan shall be voluntarily made by or on behalf of the undersigned or the Partnership and to the extent any such announcement or filing is required to be made, such announcement or filing shall include a statement to the effect that no transfer of Common Units may be made during the Lock-Up Period in contravention of this Lock-Up Agreement. In furtherance of the foregoing, the Partnership and its transfer agent are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Lock-Up Agreement. It is understood that, if the Partnership notifies the Representatives that it does not intend to proceed with the Offering, if the Underwriting Agreement does not become effective, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Common Units, the undersigned will be released from its obligations under this Lock-Up Agreement. The undersigned understands that the Partnership and the Underwriters will proceed with the Offering in reliance on this Lock-Up Agreement. Whether or not the Offering actually occurs depends on a number of factors, including market conditions. Any Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Partnership and the Underwriters. This Lock-Up Agreement shall automatically terminate upon the earliest to occur, if any, of (1) the termination of the Underwriting Agreement before the sale of any Common Units to the Underwriters or (2) August 28, 2023, in the event that the Underwriting Agreement has not been executed by that date. The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Lock-Up Agreement and that, upon request, the undersigned will execute any additional documents necessary in connection with the enforcement hereof. Any obligations of the undersigned shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned. Yours very truly,
Appears in 1 contract
Outstanding Common Units. The Common Units and the limited partner interests represented thereby outstanding as of the date hereof (and prior to the issuance of the Firm Units or the Option Units, as the case may be), other than the Common Units issued in the offerings listed on Annex 3 to this opinion [Annex 3 is the same as Exhibit A to Xxxxxxx Xxxxx opinion], have been duly authorized and validly issued in accordance with the Partnership Agreement, and are fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by matters described in the most recent Preliminary Prospectus and the Prospectus under the caption “The Partnership Agreement — Agreement—Limited Liability”). Such counsel may state that the opinions set forth in paragraph 1 with respect to the due qualification and registration and good standing of the entities listed on Annex 1 to this opinion are based solely upon her review of certificates and other communications from the appropriate public officials of the applicable jurisdictions of qualification or registration. In rendering such opinion, such counsel may (i) rely in respect of matters of fact upon representations of the Partnership Parties set forth in the Underwriting this Agreement and upon certificates of officers and employees of the Partnership Parties and upon information obtained from public officials, (ii) assume that all documents submitted to him her as originals are authentic, that all copies submitted to them her conform to the originals thereof, and that the signatures on all documents examined by him her are genuine, (iii) state that his her opinion is limited to matters governed by the federal laws of the United States of America and America, the Delaware LP Act, the Delaware LLC Act, the DGCL and Texas lawthe laws of the State of Texas. In addition, such counsel shall state that he has she has, or lawyers under her supervision have, participated in conferences with officers and other representatives of the PartnershipPartnership Parties, the independent registered public accounting firm of the Partnership, your counsel and your representatives at which the contents of the Registration Statement, the Pricing Disclosure Package and the Prospectus (in each case, including the documents incorporated by reference therein) and related matters were discussed and, although such counsel has not independently verified and is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, on the basis of the foregoingforegoing (relying with respect to factual matters to the extent such counsel deems appropriate upon statements by officers and other representatives of the Partnership Parties), (a) such counsel is not aware of any legal or governmental proceedings pending or threatened to which the Partnership or any of its subsidiaries is a party or to which any of their respective properties is subject that are required to be described in the Registration Statement, the Pricing Disclosure Package, the Prospectus or any of the documents incorporated by reference therein and are not so described and (b) no facts have come to such counsel’s attention that lead led such counsel to believe that (A) the Registration StatementStatement (including the documents incorporated by reference therein), as of the date it became effective and the latest Effective Time, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (B) the Pricing Disclosure PackagePackage (including the documents incorporated by reference therein), as of the Applicable Time3:20 p.m. on April 25, contained any 2017, included an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, misleading or (C) the ProspectusProspectus (including the documents incorporated by reference therein), as of its date and as of the date hereof, contained included or contains includes an untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, it being understood that such counsel expresses no opinion, statement or belief in this such letter with respect to (i) the historical financial statements and related schedules, including the notes and schedules thereto and the auditor’s report thereon or thereon, (ii) any other financial or accounting data data, included or incorporated by reference in in, or excluded from from, the Registration Statement, the Prospectus or the Pricing Disclosure Package or the Prospectus, and (iiiii) representations and warranties and other statements of fact included in the exhibits to the Registration Statement.Statement or to the documents incorporated by reference therein. Annex 1
Appears in 1 contract
