E XHIBIT 10.02
A PPLICATION FOR L ETTER OF C
REDIT AND
R EIMBURSEMENT A GREEMENT
Between
W ELLS F ARGO B ANK ,
N ATIONAL A SSOCIATION
and
N U S
TAR L OGISTICS ,
L.P.
Dated as of August 9,
2011
T ABLE OF C ONTENTS
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SECTION
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HEADING
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PAGE
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A
RTICLE O NE
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D
EFINITIONS
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1
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Section 1.1.
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Definitions
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1
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A
RTICLE T WO
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L
ETTER OF C
REDIT
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4
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Section 2.1.
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Issuance of Letter of Credit
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4
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Section 2.2.
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Letter
of Credit Drawings
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4
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Section 2.3.
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Reimbursement of Drawings Under the Letter of
Credit
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4
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Section 2.4.
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Fees
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4
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Section 2.5.
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Method
and Time of Payment; Etc.
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5
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Section 2.6.
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Computation of Interest
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5
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Section 2.7.
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Extension of Stated Expiration Date
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5
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Section 2.8.
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Amendments upon Extension
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5
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Section 2.9.
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Electronic Transmissions
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5
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Section 2.10.
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Substitute Credit Facility
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5
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A
RTICLE T HREE
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C
ONDITIONS P RECEDENT
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6
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A
RTICLE F OUR
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R
EPRESENTATIONS AND W ARRANTIES
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6
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A
RTICLE F IVE
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C
OVENANTS
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7
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Section 5.1.
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Credit
Agreement Covenants
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7
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Section 5.2.
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Amendments to Bond Documents
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7
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A
RTICLE S IX
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D
EFAULTS
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7
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Section 6.1.
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Events
of Default and Remedies
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7
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Section 6.2.
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Remedies
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7
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A
RTICLE S EVEN
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M
ISCELLANEOUS
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8
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Section 7.1.
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No
Deductions; Increased Costs
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8
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Section 7.2.
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Right
of Setoff; Other Collateral
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8
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Section 7.3.
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Indemnity
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8
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Section 7.4.
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Obligations Absolute
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9
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Section 7.5.
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Liability of the Bank
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10
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Section 7.6.
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Survival of this Agreement
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11
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Section 7.7.
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Modification of this Agreement
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11
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Section 7.8.
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Waiver
of Rights by the Bank
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12
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Section 7.9.
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Severability
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12
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Section 7.10.
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Governing Law
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12
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-i-
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Section 7.11.
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Notices
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12
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Section 7.12.
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Successors and Assigns
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13
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Section 7.13.
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Expenses
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13
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Section 7.14.
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Headings
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13
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Section 7.15.
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Counterparts
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13
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Section 7.16.
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Entire
Agreement
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14
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Section 7.17.
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Government Regulations
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14
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Section 7.18.
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Submission to Jurisdiction; Waiver of Jury
Trial
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14
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Section 7.19.
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Credit
Agreement
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14
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Section 7.20.
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Grant
of Security Interest in Pledged Bonds
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14
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-ii-
A PPLICATION FOR L ETTER OF C REDIT AND
R EIMBURSEMENT A GREEMENT
A PPLICATION FOR L ETTER OF C
REDIT AND R EIMBURSEMENT A GREEMENT ,
dated as of August 9, 2011 (as may be amended, supplemented or
otherwise modified from time to time, this
“Agreement” ), is by and between N
U S TAR L OGISTICS ,
L.P., a Delaware limited partnership (including its successors and
assigns, the “Applicant” ), and W
ELLS F ARGO B ANK ,
N ATIONAL A SSOCIATION a national banking association (including its
successors and assigns, the “Bank” ).
W ITNESSETH :
W HEREAS ,
the Applicant desires to secure a source of funds to be devoted
exclusively to the payment by the Trustee (such term and each other
capitalized term used herein having the meaning set forth in
Article One hereof), when and as due, of the principal of and
interest on the Bonds (or the portion of the Purchase Price (as
defined in the Indenture) corresponding to the principal of and
interest on the Bonds), and has applied to the Bank for issuance by
the Bank of the Letter of Credit in an Original Stated Amount of
$76,084,932.
W HEREAS ,
the Bank has agreed to issue the Letter of Credit subject to the
following terms and conditions.
Accordingly, the Applicant and the
Bank hereby agree as follows:
A RTICLE O NE
D EFINITIONS
Section 1.1.
Definitions. As used in
this Agreement:
“Agreement” - shall have the meaning set forth in the
preamble hereto.
“Applicant” - shall have the meaning set forth in the
preamble hereto.
“Available
Amount” - shall
have the meaning set forth in the Letter of Credit.
“Bank”
- shall have the meaning set forth
in the preamble hereto.
“Bond
Documents” - means
the Indenture, the Lease Agreement, the Fee Letter, the Remarketing
Agreement, each dated as of August 1, 2011, and the Official
Statement, dated August 9, 2011 with respect to the Bonds, and
the Bonds.
“Bonds”
- means the $75,000,000 aggregate
principal amount of the Issuer’s Revenue Bonds (NuStar
Logistics, L.P. Project) Series 2011.
“Business
Day” - shall have
the meaning set forth in the Letter of Credit.
“Cap Interest
Rate” - shall have
the meaning set forth in the Letter of Credit.
“Closing
Date” - means the
date on which the Letter of Credit is issued.
“Code”
- means the Internal Revenue Code of
1986, and any successor statute or statutes thereto.
“Costs”
- is defined in Section 7.3
hereof.
“Credit
Agreement” - means
the 5-year Revolving Credit Agreement dated as of December 10,
2007 among the Applicant, the MLP, the Bank, and the agents and
lenders party thereto, as amended by the First Amendment to 5-Year
Revolving Credit Agreement dated as of August 18, 2010 and
Second Amendment to 5-Year Revolving Credit Agreement dated as of
March 7, 2011, and as may be further amended, supplemented or
otherwise modified from time to time.
“Drawing
Document” - is
defined in Section 7.4 hereof.
“Event of
Default” - is
defined in Section 6.1 hereof.
“Governmental
Authority” - means
any nation or government, any state, department, agency or other
political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to any government, and any corporation or other entity
owned or controlled (through stock or capital ownership or
otherwise) by any of the foregoing.
“Indemnified
Person” - is
defined in Section 7.3 hereof.
“Indenture” - means the Indenture of Trust dated as of
August 1, 2011 between the Issuer and the Trustee, relating to
the Bonds, as amended, supplemented or otherwise modified from time
to time in accordance with the terms and provisions hereof and
thereof.
“Instruction”
- is defined in Section 7.3
hereof.
“ISP” or
“ISP98” means, International Standby Practices 1998
(International Chamber of Commerce Publication
No. 590).
“Issuer”
- means the Parish of St. James,
State of Louisiana.
“ Lease Agreement
” - means the Lease Agreement dated as of August 1, 2011
between the Issuer and the Applicant, as amended, supplemented or
otherwise modified from time to time in accordance with the terms
and provisions hereof and thereof.
-2-
“Letter of
Credit” - means the
irrevocable transferable direct pay letter of credit issued by the
Bank for the account of the Applicant in favor of the Trustee, in
the form of Appendix I hereto with appropriate insertions, as
amended, supplemented or otherwise modified from time to
time.
“MLP”
- NuStar Energy L.P., a Delaware
limited partnership.
“Notice of
Extension” - is
defined in Section 2.7 hereof.
“Obligations”
- means the fees relating to the
Letter of Credit, any and all obligations of the Applicant to
reimburse the Bank for any drawings under the Letter of Credit, and
all other obligations of the Applicant to the Bank arising under or
in relation to this Agreement.
“Original Stated
Amount” - is
defined in Section 2.1 hereof.
“Outstanding”
or “Bonds
Outstanding” - shall have the meaning set forth in the
Indenture.
“Person”
- means an individual, a
corporation, a partnership, an association, a trust or any other
entity or organization, including a government or political
subdivision or any agency or instrumentality thereof.
“Pledged
Bonds” - shall have
the meaning set forth in the Indenture and shall include the Bonds
described in Section 7.20 hereof.
“Potential
Default” - means an
event or condition which, but for the lapse of time or the giving
of notice, or both, would constitute an Event of
Default.
“Related
Documents” - means
this Agreement, the Letter of Credit, the Credit Agreement, the
Bond Documents, and any other agreement or instrument relating
thereto.
“Remarketing
Agent” - means
SunTrust Robinson Humphrey, Inc., a Tennessee corporation, as
Remarketing Agent under the Indenture and the Remarketing
Agreement, and its successors and assigns pursuant
thereto.
“Remarketing
Agreement” - means
the Remarketing Agreement dated as of August 1, 2011, between
the Remarketing Agent and the Applicant, as amended, supplemented
or otherwise modified from time to time, and any successor
agreement thereto entered into by the Applicant and a successor
Remarketing Agent.
“Standard Letter of Credit
Practice” means,
for the Bank, any domestic or foreign law or letter of credit
practices applicable in the city in which the Bank issued the
Letter of Credit. Such practices shall be (i) of banks that
regularly issue letters of credit in the particular city and
(ii) required or permitted under the ISP.
-3-
“Stated Expiration
Date” - shall have
the meaning set forth in the Letter of Credit.
“Trustee”
- means U.S. Bank National
Association, as Trustee under the Indenture, and any successor
trustee thereunder.
A RTICLE T WO
L ETTER OF C REDIT
Section 2.1. Issuance of
Letter of Credit . Upon
the terms, subject to the conditions and relying upon the
representations and warranties set forth in this Agreement or
incorporated herein by reference, the Bank agrees to issue the
Letter of Credit. The Letter of Credit shall be in the original
stated amount of U.S. $76,084,932 (the “Original Stated
Amount” ), which is the sum of (i) the principal
amount of Bonds outstanding on the Closing Date, plus
(ii) interest thereon computed as set forth in the Letter of
Credit at the Cap Interest Rate for a period of forty-four
(44) days.
Section 2.2. Letter of
Credit Drawings . The
Trustee is authorized to make drawings under the Letter of Credit
in ac