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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________
Form 10-K
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2022
or
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from _____to_____
Commission file number: 001-35081
kmi-20221231_g1.gif
Kinder Morgan, Inc.
(Exact name of registrant as specified in its charter) 
Delaware80-0682103
(State or other jurisdiction of
incorporation or organization)
(I.R.S. Employer
Identification No.)
1001 Louisiana Street, Suite 1000, Houston, Texas 77002
(Address of principal executive offices) (zip code)

Registrant’s telephone number, including area code: 713-369-9000
____________
 
Securities registered pursuant to Section 12(b) of the Act:
Title of each classTrading Symbol(s)Name of each exchange on which registered
Class P Common StockKMINew York Stock Exchange
2.250% Senior Notes due 2027KMI 27 ANew York Stock Exchange
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.  Yes ☑ No ☐
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.  Yes ☐  No ☑
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.  Yes ☑  No ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).  Yes ☑  No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “non-accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☑  Accelerated filer ☐  Non-accelerated filer ☐  Smaller reporting company ☐  Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C.7262(b)) by the registered public accounting firm that prepared or issued its audit report.  ☑
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an error to previously issued financial statements. ☐
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers during the relevant recovery period pursuant to §240.10D-1(b). ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Securities Exchange Act of 1934). Yes ☐  No ☑
Aggregate market value of the voting and non-voting common equity held by non-affiliates of the registrant, based on closing prices in the daily composite list for transactions on the New York Stock Exchange on June 30, 2022 was approximately $33,112,481,840.  As of February 7, 2023, the registrant had 2,248,003,224 shares of Class P common stock outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Registrant’s definitive proxy statement for the 2023 Annual Meeting of Stockholders, which shall be filed no later than April 30, 2023, are incorporated into PART III, as specifically set forth in PART III.



KINDER MORGAN, INC. AND SUBSIDIARIES
TABLE OF CONTENTS
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KINDER MORGAN, INC. AND SUBSIDIARIES (continued)
TABLE OF CONTENTS
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KINDER MORGAN, INC. AND SUBSIDIARIES
GLOSSARY
Company Abbreviations
Calnev=Calnev Pipe Line LLCKMLT=Kinder Morgan Liquid Terminals, LLC
CIG=Colorado Interstate Gas Company, L.L.C.KMP=Kinder Morgan Energy Partners, L.P. and its majority-owned and/or controlled subsidiaries
CPGPL=
Cheyenne Plains Gas Pipeline Company, L.L.C.
EagleHawk=EagleHawk Field Services LLCKMTP=
Kinder Morgan Texas Pipeline LLC
Elba Express=Elba Express Company, L.L.C.MEP=
Midcontinent Express Pipeline LLC
EIG=EIG Global Energy PartnersNGPL=Natural Gas Pipeline Company of America LLC and certain affiliates
ELC=Elba Liquefaction Company, L.L.C.
EPNG=El Paso Natural Gas Company, L.L.C.PHP=Permian Highway Pipeline LLC
FEP=Fayetteville Express Pipeline LLCRuby=Ruby Pipeline Holding Company, L.L.C.
Hiland=Hiland Partners, LPSFPP=SFPP, L.P.
KinderHawk=KinderHawk Field Services LLCSLNG=Southern LNG Company, L.L.C.
Kinetrex=Kinetrex EnergySNG=Southern Natural Gas Company, L.L.C.
KMBT=Kinder Morgan Bulk Terminals, Inc.Stagecoach=Stagecoach Gas Services LLC
KMI=Kinder Morgan, Inc. and its majority-owned and/or controlled subsidiariesTGP=Tennessee Gas Pipeline Company, L.L.C.
WIC=
Wyoming Interstate Company, L.L.C.
KMLP=Kinder Morgan Louisiana Pipeline LLCWYCO=WYCO Development L.L.C.
Unless the context otherwise requires, references to “we,” “us,” “our,” or “the Company” are intended to mean Kinder Morgan, Inc. and its majority-owned and/or controlled subsidiaries.
Common Industry and Other Terms
/d=per dayGAAP=United States Generally Accepted Accounting Principles
AFUDC=allowance for funds used during construction
Bbl=barrelsGTE=gas-to-electric
BBtu=billion British Thermal UnitsLIBOR=London Interbank Offered Rate
Bcf=billion cubic feetLLC=limited liability company
CERCLA=Comprehensive Environmental Response, Compensation and Liability ActLNG=liquefied natural gas
MBbl=thousand barrels
CO2
=
carbon dioxide or our CO2 business segment
MMBbl=million barrels
COVID-19=Coronavirus Disease 2019, a widespread contagious disease, or the related pandemic declared and resulting worldwide economic downturnMMtons=million tons
NGL=natural gas liquids
NYMEX=New York Mercantile Exchange
CPUC=California Public Utilities CommissionNYSE=New York Stock Exchange
DCF=distributable cash flowOTC=over-the-counter
DD&A=depreciation, depletion and amortizationPHMSA=United States Department of Transportation Pipeline and Hazardous Materials Safety Administration
Dth=dekatherms
EBDA=earnings before depreciation, depletion and amortization expenses, including amortization of excess cost of equity investmentsROU=Right-of-Use
RNG=renewable natural gas
EBITDA=earnings before interest, income taxes, depreciation, depletion and amortization expenses, including amortization of excess cost of equity investmentsSEC=United States Securities and Exchange Commission
SOFR=Secured Overnight Financing Rate
EPA=United States Environmental Protection AgencyU.S.=United States of America
FASB=Financial Accounting Standards BoardWTI=West Texas Intermediate
FERC=Federal Energy Regulatory Commission
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Information Regarding Forward-Looking Statements

This report includes forward-looking statements.  These forward-looking statements are identified as any statement that does not relate strictly to historical or current facts.  They use words such as “anticipate,” “believe,” “intend,” “plan,” “projection,” “forecast,” “strategy,” “outlook,” “continue,” “estimate,” “expect,” “may,” “will,” “shall,” or the negative of those terms or other variations of them or comparable terminology.  In particular, expressed or implied statements concerning future actions, conditions or events, future operating results or the ability to generate sales, income or cash flow, service debt or pay dividends, are forward-looking statements.  Forward-looking statements in this report include, among others, express or implied statements pertaining to: the long-term demand for our assets and services, and our anticipated dividends and capital projects, including expected completion timing and benefits of those projects.

Forward-looking statements are not guarantees of performance.  They involve risks, uncertainties and assumptions.  Future actions, conditions or events and future results may differ materially from those expressed in our forward-looking statements.  Many of the factors that will determine these results are beyond our ability to control or accurately predict.  Specific factors that could cause actual results to differ from those in our forward-looking statements include:

changes in supply of and demand for natural gas, NGL, refined petroleum products, oil, renewable fuels, CO2, electricity, petroleum coke, steel and other bulk materials and chemicals and certain agricultural products in North America;

economic activity, weather, alternative energy sources, conservation and technological advances that may affect price trends and demand;

competition from other pipelines, terminals or other forms of transportation, or from emerging technologies such as CO2 capture and sequestration;

changes in our tariff rates required by the FERC, the CPUC or another regulatory agency;

the timing and success of our business development efforts, including our ability to renew long-term customer contracts at economically attractive rates;

our ability to safely operate and maintain our existing assets and to access or construct new assets including pipelines, terminals, gas processing, gas storage and NGL fractionation capacity;

our ability to attract and retain key management and operations personnel;

difficulties or delays experienced by railroads, barges, trucks, ships or pipelines in delivering products to or from our terminals or pipelines;

shut-downs or cutbacks at major refineries, chemical or petrochemical plants, natural gas processing plants, ports, utilities, military bases or other businesses that use our services or provide services or products to us;

changes in crude oil and natural gas production (and the NGL content of natural gas production) from exploration and production areas that we serve, such as the Permian Basin area of West Texas, the shale plays in North Dakota, Ohio, Oklahoma, Pennsylvania and Texas, and the U.S. Rocky Mountains;

changes in laws or regulations, third-party relations and approvals, and decisions of courts, regulators and governmental bodies that may increase our compliance costs, restrict our ability to provide or reduce demand for our services, or otherwise adversely affect our business;

interruptions of operations at our facilities due to natural disasters, damage by third parties, power shortages, strikes, riots, terrorism (including cyber-attacks), war or other causes;

compromise of our IT systems, operational systems or sensitive data as a result of errors, malfunctions, hacking events or coordinated cyber-attacks;

the uncertainty inherent in estimating future oil, natural gas, and CO2 production or reserves;

issues, delays or stoppage associated with new construction or expansion projects;
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regulatory, environmental, political, grass roots opposition, legal, operational and geological uncertainties that could affect our ability to complete our expansion projects on time and on budget or at all;

our ability to acquire new businesses and assets and integrate those operations into our existing operations, and make cost-saving changes in operations, particularly if we undertake multiple acquisitions in a relatively short period of time, as well as our ability to expand our facilities;

the ability of our customers and other counterparties to perform under their contracts with us including as a result of our customers’ financial distress or bankruptcy;

changes in accounting pronouncements that impact the measurement of our results of operations, the timing of when such measurements are to be made and recorded, and the disclosures surrounding these activities;

changes in tax laws;

our ability to access external sources of financing in sufficient amounts and on acceptable terms to the extent needed to fund acquisitions of operating businesses and assets and expansions of our facilities;

our indebtedness, which could make us vulnerable to general adverse economic and industry conditions, limit our ability to borrow additional funds, place us at a competitive disadvantage compared to our competitors that have less debt, or have other adverse consequences;

our ability to obtain insurance coverage without significant levels of self-retention risk;

natural disasters, sabotage, terrorism (including cyber-attacks) or other similar acts or accidents causing damage to our properties greater than our insurance coverage limits;

possible changes in our and our subsidiaries’ credit ratings;

conditions in the capital and credit markets, inflation and higher interest rates;

political and economic instability of the oil and natural gas producing nations of the world;

national, international, regional and local economic, competitive and regulatory conditions and developments, including the effects of any enactment of import or export duties, tariffs or similar measures;

our ability to achieve cost savings and revenue growth;

the extent of our success in developing and producing CO2 and oil and gas reserves, including the risks inherent in development drilling, well completion and other development activities;

engineering and mechanical or technological difficulties that we may experience with operational equipment, in well completions and work-overs, and in drilling new wells; and

unfavorable results of litigation and the outcome of contingencies referred to in Note 18 “Litigation and Environmental” to our consolidated financial statements.

The foregoing list should not be construed to be exhaustive.  We believe the forward-looking statements in this report are reasonable.  However, there is no assurance that any of the actions, events or results expressed in forward-looking statements will occur, or if any of them do, of their timing or what impact they will have on our results of operations or financial condition.  Because of these uncertainties, you should not put undue reliance on any of our forward-looking statements.

Additional discussion of factors that may affect our forward-looking statements appear elsewhere in this report, including in Item 1A. “Risk Factors,” Item 7. “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and Item 7A. “Quantitative and Qualitative Disclosures About Market Risk—Energy Commodity Market Risk.” When considering forward-looking statements, you should keep in mind the factors described in this section and the other sections referenced above. We disclaim any obligation, other than as required by applicable law, to publicly update or revise any of our forward-looking statements to reflect future events or developments.
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PART I

Items 1 and 2. Business and Properties.
We are one of the largest energy infrastructure companies in North America. We own an interest in or operate approximately 83,000 miles of pipelines, 140 terminals, 700 Bcf of working natural gas storage capacity and have RNG generation capacity of approximately 2.2 Bcf per year of gross production. Our pipelines transport natural gas, renewable fuels, refined petroleum products, crude oil, condensate, CO2 and other products, and our terminals store and handle various commodities including gasoline, diesel fuel, renewable fuel feedstocks, chemicals, ethanol, metals and petroleum coke.

General Development of Business

Recent Developments

The following is a listing of significant developments and updates related to our major projects and financing transactions. “Capital Scope” is estimated for our share of the described project which may include portions not yet completed.
Asset or projectDescriptionActivityApprox. Capital Scope (KMI Share)
Placed in service, acquisitions or divestitures
ELCSold a 25.5% interest in ELC to an undisclosed financial buyer and now own a 25.5% interest.Completed in September 2022.n/a
Mas Ranger
Acquired three landfill assets with the purchase of Mas Ranger, LLC and its subsidiaries from Mas CanAm, LLC. Assets include an RNG facility in Arlington, Texas and Medium British Thermal Units facilities in Shreveport, Louisiana and Victoria, Texas.
Acquired in July 2022.$358 million
North American Natural ResourcesAcquired seven landfill assets with the purchase of North American Natural Resources, Inc. and, its sister companies, North American Biofuels, LLC and North American-Central, LLC (NANR). Assets include GTE facilities in Michigan and Kentucky. A final investment decision was made to convert Autumn Hills, one of the seven landfill assets acquired, to an RNG facility and construction began in January 2023.Acquired in August 2022.$132 million
Other Announcements
Natural Gas Pipelines
TGP and SNG Evangeline PassTwo-phase 2 Bcf/d project to serve Venture Global’s proposed Plaquemines LNG facility (Plaquemines). First phase, TGP will provide approximately 0.9 Bcf/d natural gas transportation capacity to Plaquemines. Second phase, TGP and SNG will jointly provide volumes up to the remaining 1.1 Bcf/d to Plaquemines. Expected in-service date for first phase is fourth quarter of 2024 and third quarter of 2025 for the second phase, pending receipt of all required permits.$678 million
Eagleford transport projectExpansion project includes constructing 69 miles of 42-inch pipeline, multiple receipt and delivery meters and upgrades to Kinder Morgan Freer compressor station to transport up to 1.88 Bcf/d of lean Eagleford production to Gulf Coast markets.Expected in-service date is fourth quarter 2023.$283 million
TGP East 300 UpgradeExpansion project involves upgrading compression facilities upstream on TGP’s system in order to provide 115,000 Dth/d of capacity to Con Edison’s distribution system in Westchester County, New York. Supported by a long-term contract with Con Edison.Expected in-service date is November 2023, pending receipt of all required permits. $263 million
PHP expansionJoint venture project that will expand PHP’s capacity by approximately 550,000 Dth/d, increasing natural gas deliveries from the Permian to U.S. Gulf Coast markets. Supported by long-term contracts.Expected in-service date is November 2023.$149 million
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Asset or projectDescriptionActivityApprox. Capital Scope (KMI Share)
Greenholly pipeline - North Holly expansionJoint venture project (our ownership interest of 37.58%) to construct 38 miles of 36-inch pipeline from partner receipt points to KinderHawk wholly owned North Holly gathering system and includes joint venture pipeline receipt interconnects off KinderHawk’s Greenwood system, upgrades to KinderHawk’s North Holly system and 400 gallons per minute treating capacity addition to KinderHawk’s North Holly plant. Supported by long-term contracts.Expected in-service date is second quarter 2023.$121 million
3Rivers Offload Phase IIConstruct 19 miles of 16-inch pipeline and associated compression allowing delivery of 50,000 Dth/d of incremental gathered production for third-party processing.Expected in-service date is third quarter 2023.$96
 million
CO2 - Energy Transition Ventures
RNG facilitiesConstruction of three additional landfill-based RNG facilities for Kinetrex in order to provide approximately 3.5 Bcf of RNG a year. Supported by a long-term contract.Expected to be in service throughout 2023.$150 million

Financings

During 2022, EPNG issued $300 million and KMI issued $1,500 million of new senior notes to repay maturing debt and for general corporate purposes. On January 17, 2023, we repaid $1,250 million of maturing senior notes using cash on hand and short-term borrowings. On January 31, 2023, we issued $1,500 million of new senior notes to repay short-term borrowings, maturing debt and for general corporate purposes. On January 18, 2023, our board of directors approved an increase in our share repurchase authorization of our share buy-back program from $2 billion to $3 billion. Subsequently, we have approximately $2.1 billion of capacity remaining under this program. During 2022, we repurchased approximately 21.7 million shares of Class P common stock for $368 million at an average price of $16.94 per share.

Narrative Description of Business

Business Strategy

Our business strategy is to:

focus on stable, fee-based energy transportation and storage assets that are central to the energy infrastructure and energy transition of growing markets within North America or served by U.S. exports;
increase utilization of our existing assets while controlling costs, operating safely, and employing environmentally sound operating practices;
exercise discipline in capital allocation and in evaluating expansion projects and acquisition opportunities;
leverage economies of scale from asset expansions and acquisitions that fit within our strategy; and
maintain a strong financial profile and enhance and return value to our stockholders.

It is our intention to carry out the above business strategy, modified as necessary to reflect changing economic conditions and other circumstances. However, as discussed under Item 1A. “Risk Factors” below and at the beginning of this report in “Information Regarding Forward-Looking Statements,” there are factors that could affect our ability to carry out our strategy or affect its level of success even if carried out.

We regularly consider and enter into discussions regarding potential acquisitions and divestitures, and we are currently contemplating potential transactions. Any such transaction would be subject to negotiation of mutually agreeable terms and conditions, and, as applicable, receipt of fairness opinions, and approval of our board of directors. While there are currently no unannounced purchase or sale agreements for the acquisition or sale of any material business or assets, such transactions can be effected quickly, may occur at any time and may be significant in size relative to our existing assets or operations.

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Business Segments

For financial information on our reportable business segments, see Note 16 “Reportable Segments” to our consolidated financial statements.

Natural Gas Pipelines

Our Natural Gas Pipelines business segment includes interstate and intrastate pipelines, underground storage facilities, our LNG liquefaction and terminal facilities and NGL fractionation facilities, and includes both FERC regulated and non-FERC regulated assets.
kmi-20221231_g2.jpg

Our primary businesses in this segment consist of natural gas transportation, storage, sales, gathering, processing and treating, and various LNG services.  Within this segment are: (i) approximately 45,000 miles of wholly owned natural gas pipelines and (ii) our equity interests in entities that have approximately 27,000 miles of natural gas pipelines, along with associated storage and supply lines for these transportation networks, which are strategically located throughout the North American natural gas pipeline grid.  Our transportation network provides access to the major natural gas supply areas and consumers in the western U.S., Rocky Mountain, Midwest, Texas, Louisiana, Southeastern and Northeast regions. Our LNG terminal facilities also serve natural gas market areas in the southeast. The following tables summarize our significant Natural Gas Pipelines business segment assets as of December 31, 2022. The design capacity represents transmission, gathering, regasification or liquefaction capacity, depending on the nature of the asset.
AssetOwnership Interest Miles of Pipeline Design (Bcf/d) [(MBbl/d)] CapacityStorage (Bcf) [Processing (Bcf/d)] Capacity
East Region
TGP(a)100 %11,755 12.23 76 
NGPL37.5 %9,105 7.84 288 
KMLP100 %140 3.89 — 
Stagecoach100 %185 3.22 41 
SNG(a)50 %6,925 4.47 66 
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AssetOwnership Interest Miles of Pipeline Design (Bcf/d) [(MBbl/d)] CapacityStorage (Bcf) [Processing (Bcf/d)] Capacity
Florida Gas Transmission (Citrus)50 %5,380 4.31 — 
MEP50 %515 1.81 — 
Elba Express100 %190 1.10 — 
FEP50 %185 2.00 — 
Gulf LNG Holdings50 %1.50 
SLNG100 %— 1.76 12 
ELC25.5 %— 0.35 — 
West Region
EPNG/Mojave100 %10,720 6.39 44 
CIG(b)100 %4,300 6.00 38 
WIC100 %850 3.61 — 
Ruby(c)50 %685 1.53 — 
CPGPL100 %415 1.20 — 
TransColorado100 %310 0.80 — 
Sierrita35 %60 0.52 — 
Young Gas Storage47.5 %15 — 
Keystone Gas Storage100 %15 — 
Midstream
KM Texas and Tejas pipelines(d)100 %5,9158.30  136
[0.52]
Mier-Monterrey pipeline(d)100 %900.65 — 
KM North Texas pipeline(d)100 %800.33 — 
Gulf Coast Express pipeline34 %5302.00 — 
PHP26.67 %4352.10 — 
Oklahoma
Oklahoma system100 %3,2250.73  [0.09]
Cedar Cove70 %1200.03 — 
South Texas
South Texas system100 %1,1551.93  [1.02]
Webb/Duval gas gathering system91 %1450.15 — 
Camino Real 100 %750.15 — 
EagleHawk25 %5501.20 — 
KM Altamont100 %1,5350.13  [0.1]
Red Cedar49 %8650.33 — 
Rocky Mountain
Fort Union50 %315 1.25 — 
Bighorn51 %265 0.60 — 
KinderHawk100 %535 2.35 — 
North Texas100 %530 0.14 — 
KM Treating100 %— — — 
Hiland - Williston - gas 100 %2,190 0.62  [0.33]
Liberty pipeline50 %85 
[140]
— 
South Texas NGL pipelines(e)100 %340 
[115]
— 
Utopia pipeline50 %265 
[50]
— 
Cypress pipeline50 %105 
[56]
— 
EagleHawk - Condensate(f)25 %410 
[220]
— 
(a)Includes proportionate share of storage capacity from our Bear Creek Storage joint venture.
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(b)Includes leased pipeline miles and proportionate share of design and storage capacity from our WYCO joint venture.
(c)As of December 31, 2022, we operated Ruby and owned an effective 50% interest. Ruby is not included on the map above. On January 13, 2023, a bankruptcy court confirmed a plan of reorganization satisfactory to all interested parties regarding Ruby which involved the sale of Ruby, and subsequently we no longer hold an interest in Ruby. For further information regarding Ruby’s bankruptcy filing, see Note 4 “Gains and Losses on Divestitures, Impairments and Other Write-downs—Ruby Chapter 11 Bankruptcy Filing.
(d)Collectively referred to as Texas intrastate natural gas pipeline operations.
(e)Includes proportionate share of design capacity from our Liberty pipeline joint venture.
(f)Asset also has storage capacity of 60 MBbl.

Segment Contracts

Revenues from our interstate natural gas pipelines, related storage facilities and LNG terminals are primarily received under long-term fixed contracts.  To the extent practicable and economically feasible in light of our strategic plans and other factors, we generally attempt to mitigate risk of reduced volumes and prices by negotiating contracts with longer terms, with higher per-unit pricing and for a greater percentage of our available capacity.  These long-term contracts are typically structured with a fixed fee reserving the right to transport or store natural gas and specify that we receive the majority of our fee for making the capacity available, whether or not the customer actually chooses to utilize that capacity. Similarly, our Texas Intrastate natural gas pipeline operations currently derive approximately 77% of its sales and transport margins from long-term transport and sales contracts. As contracts expire, we have additional exposure to the longer term trends in supply and demand for natural gas. As of December 31, 2022, the remaining weighted average contract life of our natural gas transportation contracts held by assets we own or have equity interests in (including intrastate pipelines’ sales portfolio) was approximately six years. Our LNG regasification and liquefaction and associated storage contracts are subscribed under long-term agreements with a weighted average remaining contract life of approximately 12 years.

Our Midstream assets provide natural gas gathering and processing services. These assets are mostly fee-based, and the revenues and earnings we realize from gathering natural gas, processing natural gas in order to remove NGL from the natural gas stream, and fractionating NGL into its base components, are affected by the volumes of natural gas made available to our systems. Such volumes are impacted by producer rig count and drilling activity. In addition to fee-based arrangements, some of which may include minimum volume commitments, we also provide some services based on percent-of-proceeds, percent-of-index and keep-whole contracts. Our service contracts may rely solely on a single type of arrangement, but more often they combine elements of two or more of the above, which helps us and our counterparties manage the extent to which each shares in the potential risks and benefits of changing commodity prices.

Segment Competition

The market for natural gas infrastructure is highly competitive, and new pipelines, storage facilities, treating facilities, and facilities for related services are currently being built to serve demand for natural gas in the domestic and export markets served by the pipelines in our Natural Gas Pipelines business segment.  We compete with interstate and intrastate pipelines for connections to new markets and supplies and for transportation, processing, storage and treating services.  We believe the principal elements of competition in our various markets are location, rates, terms of service, flexibility, availability of alternative forms of energy and reliability of service.  From time to time, projects are proposed that compete with our existing assets. Whether or when any such projects would be built, or the extent of their impact on our operations or profitability is typically not known.

Shippers on our natural gas pipelines compete with other forms of energy available to their natural gas customers and end users, including oil, coal, nuclear and renewables such as hydro, wind and solar power, along with other evolving forms of renewable energy.  Several factors influence the demand for natural gas, including price changes, the availability of supply, other forms of energy, the level of business activity, conservation, legislation and governmental regulations, the ability to convert to alternative fuels and weather.

8


Products Pipelines

Our Products Pipelines business segment consists of our refined petroleum products, crude oil and condensate pipelines, and associated terminals, our Southeast terminals, our condensate processing facility and our transmix processing facilities.
kmi-20221231_g3.jpg

The following summarizes the significant Products Pipelines business segment assets that we own and operate as of December 31, 2022:
AssetOwnership InterestMiles of PipelineNumber of Terminals (a) or locationsTerminal Capacity
(MMBbl)
Crude & Condensate
KM Crude & Condensate pipeline100 %266 2.6 
Camino Real Gathering100 %68 0.1 
Hiland - Williston Basin - oil(b)100 %1,617 0.8 
Double H pipeline(b)100 %512 — — 
Double Eagle pipeline50 %204 0.6 
KM Condensate Processing Facility (Splitter)100 %— 2.1 
Southeast Refined Products
Products (SE) pipeline51 %3,186 — — 
Central Florida pipeline100 %206 2.6 
Southeast Terminals100 %— 25 9.3 
Transmix Operations100 %— 0.7 
West Coast Refined Products
Pacific (SFPP)99.5 %2,804 13 15.9 
Calnev100 %566 2.1 
West Coast Terminals100 %44 10.1 
(a)The terminals provide services including short-term product storage, truck loading, vapor handling, additive injection, dye injection and ethanol blending.
(b)Collectively referred to as Bakken Crude assets.
9



Segment Contracts

The profitability of our refined petroleum products pipeline transportation business generally is driven by the volume of refined petroleum products that we transport and the prices we receive for our services. We also have 49 liquids terminals in this business segment that store fuels and offer blending services for ethanol and biodiesel. The transportation and storage volume levels are primarily driven by the demand for the refined petroleum products being shipped or stored.  Demand for refined petroleum products tends to track in large measure demographic and economic growth, and, with the exception of periods of time with very high product prices or recessionary conditions, demand tends to be relatively stable.  Because of that, we seek to own refined petroleum products pipelines and terminals located in, or that transport to, stable or growing markets and population centers.  The prices for shipping are generally based on regulated tariffs that are adjusted annually based on changes in the U.S. Producer Price Index and a FERC index rate.

Our crude, condensate and refined petroleum products transportation services are primarily provided pursuant to (i) either FERC or state tariffs (which do not require contractual commitments) or (ii) long-term contracts that normally contain minimum volume commitments. Where we have long-term contracts, our settlement volumes are generally not sensitive to changing market conditions in the shorter term; however, the revenues and earnings we realize from our pipelines and terminals are affected by the volumes of crude oil, refined petroleum products and condensate available to our pipeline systems, which are impacted by the levels of oil and gas drilling activity and product demand in the respective regions that we serve. Our petroleum condensate processing facility splits condensate into its various components, such as light and heavy naphtha, under a long-term fee-based agreement with a major integrated oil company. Our crude oil marketing activities generate revenues from the sale and delivery of crude oil and condensate purchased either directly from producers or from others on the open market. In general, sales prices referenced in underlying purchase and sales contracts are market-based and include pricing differentials for factors such as delivery location or crude oil quality.

Segment Competition

Our Products Pipelines’ pipeline and terminal operations compete against proprietary pipelines and terminals owned and operated by major oil companies, other independent products pipelines and terminals, trucking and marine transportation firms (for short-haul movements of products). Our transmix operations compete with refineries owned by major oil companies and independent transmix facilities.

10


Terminals

Our Terminals business segment includes the operations of our refined petroleum product, chemical, renewable fuel and other liquid terminal facilities (other than those included in the Products Pipelines business segment) and all of our petroleum coke, metal and ores facilities.  Our terminals are located primarily near large U.S. urban centers.  We believe the location of our facilities and our ability to provide flexibility to customers help attract new and retain existing customers at our terminals and provide expansion opportunities. We often classify our terminal operations based on the handling of either liquids or dry-bulk material products. In addition, our Terminals’ marine operations include Jones Act-qualified product tankers that provide marine transportation of crude oil, condensate, refined petroleum products and renewable fuel between U.S. ports.
kmi-20221231_g4.jpg

The following summarizes our Terminals business segment assets, as of December 31, 2022:
NumberCapacity
(MMBbl)
Liquids terminals4777.8
Bulk terminals28— 
Jones Act-qualified tankers165.3

Segment Contracts

The factors impacting our Terminals business segment generally differ between liquid and bulk terminals.  Our liquids terminals business generally has long-term contracts that require the customer to pay regardless of whether they use the capacity.  Thus, similar to our natural gas pipelines business, our liquids terminals business is less sensitive to short-term changes in supply and demand.  Therefore, the extent to which changes in these variables affect our terminals business in the near term is a function of the remaining length of the underlying service contracts (which on a weighted average basis is approximately three years), the extent to which revenues under the contracts are a function of the amount of product stored or transported, and the extent to which such contracts expire during any given period of time.

As with our refined petroleum products pipelines transportation business, the revenues from our bulk terminals business are generally driven by the volumes we handle and/or store, as well as the prices we receive for our services, which in turn are driven by the demand for the products being shipped or stored.  While we handle and store a large variety of products in our bulk terminals, the primary products are petroleum coke, metals and ores.  In addition, the majority of our contracts for this
11


business contain minimum volume guarantees and/or service exclusivity arrangements under which customers are required to utilize our terminals for all or a specified percentage of their handling and storage needs.  The profitability of our minimum volume contracts is generally unaffected by short-term variation in economic conditions; however, to the extent we expect volumes above the minimum and/or have contracts which are volume-based, we can be sensitive to changing market conditions.  To the extent practicable and economically feasible in light of our strategic plans and other factors, we generally attempt to mitigate the risk of reduced volumes and pricing by negotiating contracts with longer terms, with higher per-unit pricing and for a greater percentage of our available capacity.  In addition, weather-related events, including hurricanes, may impact our facilities and access to them and, thus, the profitability of certain terminals for limited periods of time or, in relatively rare cases of severe damage to facilities, for longer periods.

Our Jones Act-qualified tankers provide marine transportation of crude oil, condensate, refined products and renewable fuel in the U.S. and are primarily operating pursuant to fixed price term charters with major integrated oil companies, major refiners and the U.S. Military Sealift Command.

Segment Competition

We are one of the largest independent operators of liquids terminals in the U.S., based on barrels of liquids terminaling capacity.  Our liquids terminals compete with other publicly or privately held independent liquids terminals and terminals owned by oil, chemical, pipeline and refining companies.  Our bulk terminals compete with numerous independent terminal operators, terminals owned by producers and distributors of bulk commodities, stevedoring companies and other industrial companies opting not to outsource terminaling services.  In some locations, competitors are smaller, independent operators with lower cost structures.  Our Jones Act-qualified product tankers compete with other Jones Act-qualified vessel fleets.

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CO2

Our CO2 business segment produces, transports and markets CO2 for use in enhanced oil recovery projects as a flooding medium for recovering crude oil from mature oil fields. We also own and operate oil and gas producing fields, and RNG, LNG and landfill GTE facilities.  Our CO2 pipelines and related assets allow us to market a complete package of CO2 supply and transportation services to our customers.
kmi-20221231_g5.jpg

Source and Transportation Activities

CO2 Resource Interests

Our ownership of CO2 resources as of December 31, 2022 includes:
Ownership
Interest
Compression
Capacity (Bcf/d)
McElmo Dome unit45 %1.5 
Doe Canyon Deep unit87 %0.2 
Bravo Dome unit(a)11 %0.3 
(a)We do not operate this unit.

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CO2 and Crude Oil Pipelines

Industry demand for transportation on our CO2 pipelines is expected to remain stable for the foreseeable future.

Our ownership of CO2 and crude oil pipelines as of December 31, 2022 includes:
AssetOwnership InterestMiles of PipelineTransport Capacity (Bcf/d)
[(MBbl/d)]
CO2 pipelines
Cortez pipeline53 %5691.5
Central Basin pipeline100 %3370.7
Bravo pipeline(a)13 %2180.4
Canyon Reef Carriers pipeline98 %1630.3
Centerline CO2 pipeline
100 %1130.3
Eastern Shelf CO2 pipeline
100 %980.1
Pecos pipeline95 %250.1
Crude oil pipeline
Wink pipeline100 %434[145]
(a)We do not operate Bravo pipeline.

Oil, Gas and RNG Producing Activities

Oil and Gas Producing Interests

Our ownership interests in oil and gas producing fields as of December 31, 2022 include the following:
Working InterestKMI Gross Developed Acres
SACROC97 %50,316 
Yates50 %9,576 
Goldsmith Landreth San Andres99 %6,166 
Katz Strawn99 %7,194 
Reinecke70 %3,793 
Sharon Ridge(a)14 %2,619 
Tall Cotton100 %641
MidCross(a)13 %320
(a)We do not operate these fields.

Our oil and gas producing activities are not significant to KMI as a whole; therefore, we do not include the supplemental information on oil and gas producing activities under Accounting Standards Codification Topic 932, Extractive Activities – Oil and Gas.

Gas Plant Interests

Owned and operated gas plants as of December 31, 2022 include:
AssetOwnership InterestSource
Snyder gas plant(a)22 %
The SACROC unit and neighboring CO2 projects, specifically the Sharon Ridge and Cogdell units
Diamond M gas plant51 %Snyder gas plant
North Snyder gas plant100 %Snyder gas plant
(a)This is a working interest; in addition we have a 28% net profits interest.

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RNG, LNG and GTE Facilities

Owned and operated RNG, LNG and GTE facilities as of December 31, 2022 include:
AssetOwnership InterestStorage [Production] Generation Capacity(a)Product
LNG Indy100 %2 BcfLNG
Indy High BTU50 %[0.8 Bcf]RNG
Southeast Berrien100 %4.8 mW/hGTE
Autumn Hills100 %4.0 mW/hGTE
Central100 %4.0 mW/hGTE
Venice Park100 %6.4 mW/hGTE
Peoples100 %4.8 mW/hGTE
Morehead100 %1.6 mW/hGTE
Blue Ridge100 %1.6 mW/hGTE
Arlington RNG100 %7.3 mcf/dRNG
Shreveport RNG(b)— %3.8 mcf/dMedium BTU
Victoria RNG100 %1.4 mcf/dMedium BTU
(a)GTE generation capacity is measured in megawatts per hour (mW/h). RNG and Medium British Thermal Units (BTU) gas capacities are measured in thousands of cubic feet per day (mcf/d).
(b)We operate Shreveport for a fee and receive royalties on RNG sales.

Segment Contracts

The CO2 source and transportation business primarily has third-party contracts with minimum volume requirements, which as of December 31, 2022 had a remaining average contract life of approximately eight years.  CO2 sales contracts vary from customer to customer and have evolved over time as supply and demand conditions have changed.  Our current sales contracts have generally provided for a delivered price tied to the price of crude oil, but with a floor price.  Beginning in 2022, due to the floor price associated with a significant sales contract no longer being a component of the pricing formula, only a small percentage of our sales contracts will be based on a fixed fee or floor price. Our success in this portion of the CO2 business segment can be impacted by the demand for CO2.  In the CO2 business segment’s oil and gas producing activities, we monitor the amount of capital we expend in relation to the amount of production that we expect to add.  The revenues we receive from our crude oil and NGL sales are affected by the prices we realize from the sale of these products.  Over the long-term, we tend to receive prices that are dictated by the demand and overall market price for these products.  In the shorter term, however, market prices are likely not indicative of the revenues we will receive due to our risk management, or hedging, program, in which the prices to be realized for certain of our future sales quantities are fixed or bracketed through the use of financial derivative contracts, particularly for crude oil.  See Item 7. “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Results of Operations—Segment Earnings Results” for more information on crude oil sales prices.

Segment Competition

Our primary competitors for the sale of CO2 include suppliers that have an ownership interest in McElmo Dome, Bravo Dome and Sheep Mountain CO2 resources.  Our ownership interests in the Central Basin, Cortez and Bravo pipelines are in direct competition with other CO2 pipelines.  We compete with other interest owners in the McElmo Dome unit and the Bravo Dome unit for transportation of CO2 to the Denver City, Texas market area.

Major Customers

Our revenue is derived from a wide customer base. For each of the years ended December 31, 2022, 2021 and 2020, no revenues from transactions with a single external customer accounted for 10% or more of our total consolidated revenues. We do not believe that a loss of revenues from any single customer would have a material adverse effect on our business, financial position, results of operations or cash flows.

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Industry Regulation

Our business operations are subject to extensive federal, state and local laws and regulations. Please read Item 1A. “Risk Factors—Risks Related to Regulation” for discussions of the risks we face related to regulation. For information related to pending regulatory proceedings, see Note 18 “Litigation and Environmental” to our consolidated financial statements.

Interstate Natural Gas Transportation and Storage Regulation

We operate our interstate natural gas pipeline and storage facilities subject to the jurisdiction of the FERC and the provisions of the Natural Gas Act of 1938 (NGA), the Natural Gas Policy Act of 1978 (NGPA), and the Energy Policy Act of 2005 (the Energy Policy Act). These laws give the FERC authority over the construction and operation of such facilities, including their modification, extension, enlargement and abandonment.

Pursuant to the NGA, the FERC also has authority over the rates charged and terms and conditions of services offered by interstate natural gas pipeline and storage companies. The FERC’s regulatory authority extends to establishing minimum and maximum rates for services and allows operators to discount or negotiate rates on a non-discriminatory basis. The rates, terms and conditions of service are set forth in posted tariffs approved by the FERC for each of our interstate natural gas pipeline and storage companies. Posted tariff rates are deemed just and reasonable and cannot be changed without FERC authorization following an evidentiary hearing or settlement. The FERC can initiate proceedings, on its own initiative or in response to a shipper complaint, that could result in a rate change or confirm existing rates. Negotiated rates provide certainty to the pipeline and the shipper of agreed-upon rates during the term of the transportation agreement, regardless of changes to the posted tariff rates. Negotiated rate agreements must be filed with the FERC or included in summary form in the pipeline’s tariff.

FERC regulations also include a comprehensive framework for market transparency and nondiscrimination, as well as the FERC’s prohibition against market manipulation. Under the Energy Policy Act and related regulations, it is unlawful for any entity, directly or indirectly in connection with the purchase or sale of natural gas subject to the jurisdiction of the FERC, or the purchase or sale of transportation services subject to the jurisdiction of the FERC, to engage in fraudulent conduct. FERC Standards of Conduct regulate, among other things, the manner in which interstate natural gas pipelines may interact with their marketing affiliates. The FERC’s market oversight and transparency regulations require annual reports of purchases or sales of natural gas meeting certain thresholds and criteria and certain public postings of information on scheduled volumes.

The FERC has authority to impose civil penalties of more than $1.3 million per day per violation. Should we fail to comply with all applicable statutes, rules, regulations, and orders administered by the FERC, we could be subject to substantial civil penalties and fines.

In addition to having jurisdiction over interstate natural gas pipelines and storage companies, the FERC also has jurisdiction over the interstate transportation and storage services that are provided by intrastate pipelines and storage companies under Section 311 of the NGPA. We have numerous intrastate pipelines and storage companies that provide interstate services pursuant to Section 311 of the NGPA. Under Section 311, along with the FERC’s implementing regulations, an intrastate pipeline may transport gas “on behalf of” an interstate pipeline company or any local distribution company served by an interstate pipeline, without becoming subject to the FERC’s broader regulatory authority under the NGA. These services must be provided on an open and nondiscriminatory basis, and the rates charged for these services may not exceed a “fair and equitable” level as determined by the FERC in periodic rate proceedings.

Interstate Common Carrier Refined Petroleum Products and Oil Pipeline Rate Regulation

Some of our U.S. refined petroleum products and crude oil gathering and transmission pipelines are interstate common carrier pipelines, subject to regulation by the FERC under the Interstate Commerce Act, or ICA. The ICA requires that we maintain our tariffs on file with the FERC. Those tariffs set forth the rates we charge for providing gathering or transportation services on our interstate common liquids carrier pipelines as well as the rules and regulations governing these services. The ICA requires, among other things, that rates on interstate common liquids carrier pipelines be “just and reasonable” and nondiscriminatory. The ICA permits interested persons to challenge newly proposed or changed rates and authorizes the FERC to suspend the effectiveness of such rates for a period of up to seven months and to investigate such rates. If, upon completion of an investigation, the FERC finds that the new or changed rate is unlawful, it is authorized to require the carrier to refund to shippers the difference between the revenues collected during the pendency of the investigation and the revenues that would have been collected based on the rate the FERC finds to be just and reasonable. The FERC also may investigate, upon complaint or on its own motion, rates that are already in effect and may order a carrier to change its rates prospectively. Upon an appropriate showing, a shipper may obtain reparations for damages sustained during the two years prior to the filing of a complaint.
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Petroleum products and crude oil pipelines may change their rates within prescribed ceiling levels that are tied to an inflation index. Shippers may protest rate increases made within the ceiling levels, but such protests must show that the portion of the rate increase resulting from application of the index is substantially in excess of the pipeline’s increase in costs from the previous year. Generally, a petroleum products or crude oil pipeline will utilize the FERC’s indexing methodology to adjust its rates, as indexing serves as the default rate-adjustment mechanism. Cost-of-service based rates, market-based rates and settlement rates are alternatives to the default indexing mechanism and may be used in certain specified circumstances to change rates.

CPUC Rate Regulation

The intrastate common carrier operations of our refined products pipelines in California are subject to regulation by the CPUC under a “depreciated book plant” methodology, which is based on an original cost measure of investment. Intrastate tariffs filed by us with the CPUC have been established on the basis of revenues, expenses and investments allocated as applicable to the California intrastate portion of the refined products operations’ business. Tariff rates with respect to intrastate pipeline service in California are subject to challenge by protest by interested parties or by independent action of the CPUC.

Railroad Commission of Texas (RCT) Rate Regulation

The intrastate operations of our crude oil and liquids pipelines and natural gas pipelines and storage facilities in Texas are subject to regulation with respect to such intrastate transportation by the RCT. The RCT has the authority to regulate our rates, though it generally has not investigated the rates or practices of our intrastate pipelines in the absence of shipper complaints.

Mexico - Energy Regulatory Commission

The Mier-Monterrey Pipeline has a natural gas transportation permit granted by the Energy Regulatory Commission of Mexico (the Commission) that defines the conditions for the pipeline to carry out activity and provide natural gas transportation service. This permit expires in 2026, subject to an additional 15-year renewal term.

This permit establishes certain restrictive conditions, including without limitation: (i) compliance with the general conditions for the provision of natural gas transportation service; (ii) compliance with certain safety measures, contingency plans, maintenance plans and the official standards of Mexico regarding safety; (iii) compliance with the technical and economic specifications of the natural gas transportation system authorized by the Commission; (iv) compliance with certain technical studies established by the Commission; and (v) compliance with a minimum contributed capital not entitled to withdrawal of at least the equivalent of 10% of the investment proposed in the project.

Mexico - National Agency for Industrial and Operational Safety and Environmental Protection (ASEA)

ASEA regulates environmental compliance and industrial and operational safety. The Mier-Monterrey Pipeline must satisfy and maintain ASEA’s requirements, including compliance with certain safety measures, contingency plans, maintenance plans and the official standards of Mexico regarding safety, including a Safety Administration Program. The main environmental authorization for the operation of the pipeline is the Environmental Impact Authorization. The Mier-Monterrey Pipeline authorization expires at the end of March 2023, and is currently in the process of being renewed.

Pipeline Safety Regulation

We are also subject to pipeline safety regulations issued by PHMSA as well as any states that are certified by PHMSA to regulate pipeline safety for intrastate pipes in their respective states. These regulations apply to pipelines and pipeline facilities, including associated underground natural gas storage, terminals, and liquefied natural gas facilities. PHMSA regulations in particular, require us to develop and maintain pipeline integrity management programs to evaluate our pipelines and take additional measures to protect pipeline segments located in what are referred to as High Consequence Areas (HCAs) for both gas and liquid pipelines and Moderate Consequence Areas (MCAs) for gas pipelines, where a leak or rupture could potentially do the most harm.

In the past several years, PHMSA has passed several new rules that impose additional pipeline safety requirements including without limitation: (i) expanding certain integrity management program requirements outside of HCAs (with some exceptions) for both gas and hazardous liquid pipelines; (ii) requiring reconfirmation of the maximum allowable operating pressure (MAOP) by 2035 on certain gas pipelines; (iii) installation of remote control or automatic shut-off valves (or alternative equivalent technology) on certain newly constructed or replaced gas pipelines; (iv) increasing requirements for
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corrosion control; and (v) providing additional prescriptive requirements that increase conservatism and specificity on the evaluation of discovered anomalies and their associated repair criteria.

OSHA

We are also subject to the requirements of federal and state agencies, including, where appropriate, the Occupational Safety and Health Administration (OSHA), that address, among other things, employee health and safety.

State and Local Regulation

Certain of our activities are subject to various state and local laws and regulations, as well as orders of regulatory bodies, governing a wide variety of matters, including marketing, production, pricing, pollution, pipeline safety, protection of the environment, and human health and safety.

Marine Operations

The operation of tankers and marine equipment create maritime obligations involving property, personnel and cargo under General Maritime Law. These obligations create a variety of risks including, among other things, the risk of collision, which may result in claims for personal injury, cargo, contract, pollution, third-party claims and property damages to vessels and facilities.

We are subject to the Jones Act and other federal laws that restrict maritime transportation (between U.S. departure and destination points) to vessels built and registered in the U.S. and owned and crewed by U.S. citizens. As a result, we monitor the foreign ownership of our common stock and under certain circumstances consistent with our certificate of incorporation, we have the right to redeem shares of our common stock owned by non-U.S. citizens. If we do not comply with such requirements, we would be prohibited from operating our vessels in U.S. coastwise trade, and under certain circumstances we would be deemed to have undertaken an unapproved foreign transfer, resulting in severe penalties, including permanent loss of U.S. coastwise trading rights for our vessels, fines or forfeiture of the vessels. Furthermore, from time to time, legislation has been introduced unsuccessfully in the U.S. Congress to amend the Jones Act to ease or remove the requirement that vessels operating between U.S. ports be built and registered in the U.S. and owned and crewed by U.S. citizens.  If the Jones Act were amended in such fashion, we could face competition from foreign-flagged vessels.

In addition, the U.S. Coast Guard and the American Bureau of Shipping maintain the most stringent regime of vessel inspection in the world, which tends to result in higher regulatory compliance costs for U.S.-flag operators than for owners of vessels registered under foreign flags of convenience. The Jones Act and General Maritime Law also provide damage remedies for crew members injured in the service of the vessel arising from employer negligence or vessel unseaworthiness.

The Merchant Marine Act of 1936 is a federal law that provides the U.S. Secretary of Transportation, upon proclamation by the U.S. President of a national emergency or a threat to the national security, the authority to requisition or purchase any vessel or other watercraft owned by U.S. citizens (including us, provided that we are considered a U.S. citizen for this purpose). If one of our vessels were purchased or requisitioned by the U.S. government under this law, we would be entitled to be paid the fair market value of the vessel in the case of a purchase or, in the case of a requisition, the fair market value of charter hire. However, we would not be entitled to compensation for any consequential damages suffered as a result of such purchase or requisition.

Derivatives Regulation

We use energy commodity derivative contracts as part of our strategy to hedge our exposure to energy commodity market risk and other external risks in the ordinary course of business. The derivative contracts that we use include exchange-traded and OTC commodity financial instruments such as futures and options contracts, fixed price swaps and basis swaps. The Dodd-Frank Act requires the U.S. Commodity Futures Trading Commission (CFTC) and the SEC to promulgate rules and regulations establishing federal oversight and regulation of the OTC derivatives market and entities that participate in that market. In October 2020, the CFTC finalized one of the last remaining new rules pursuant to the Dodd-Frank Act that institutes broad new aggregate position limits for OTC swaps and futures and options traded on regulated exchanges. As finalized, these rules include exemptions for hedging positions.

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Environmental Matters

Our business operations are subject to extensive federal, state and local laws and regulations relating to environmental protection and human health and safety. For example, if a leak, release or spill of liquid petroleum products, chemicals or other hazardous substances occurs at or from our pipelines, storage or other facilities, we may experience significant operational disruptions, and we may have to pay a significant amount to clean up the leak, release or spill, pay government penalties, address natural resource damages, compensate for human exposure or property damage, install costly pollution control equipment or a combination of these and other measures. Furthermore, new projects may require permits, approvals and environmental analyses under federal and state laws, including the Clean Water Act, the Clean Air Act, the National Environmental Policy Act and the Endangered Species Act, as well as Executive Orders focused on environmental justice considerations. The resulting costs and liabilities could be material to us, and increasing compliance costs under federal and state environmental laws for both new and existing facilities could require us to make significant capital expenditures. In general, the cost of environmental control at facilities is increasing and limiting the return on capital projects and the number of capital projects that are viable. Please read Item 1A. “Risk Factors—Risks Related to Regulation.

In accordance with GAAP, we record liabilities for environmental matters when it is probable that obligations have been incurred and the amounts can be reasonably estimated. For information related to pending environmental matters, including our accruals of environmental reserves, see Note 18 “Litigation and Environmental” to our consolidated financial statements.

Hazardous and Non-Hazardous Waste

We generate both hazardous and non-hazardous wastes that are subject to the requirements of the Federal Resource Conservation and Recovery Act (RCRA) and comparable state statutes. RCRA establishes standards for the generation, treatment, storage, transport, and disposal of solid wastes, including hazardous wastes.

Superfund

The CERCLA or the Superfund law, and analogous state laws, impose joint and several liability, without regard to fault or the legality of the original conduct, on certain classes of potentially responsible persons for releases of hazardous substances into the environment. These persons include the owner or operator of a site and companies that disposed or arranged for the disposal of the hazardous substances found at the site. CERCLA authorizes the EPA and, in some cases, third parties to take actions in response to threats to public health or the environment and to seek to recover from the responsible classes of persons the costs they incur, including remediation costs. Additionally, CERCLA allows for the recovery of compensation for natural resource damages, if any. Although petroleum is excluded from CERCLA’s definition of a hazardous substance, in the course of our ordinary operations, we have and will generate materials that may fall within the definition of “hazardous substance.” By operation of law, if we are determined to be a potentially responsible person, we may be responsible under CERCLA for all or part of the costs required to evaluate and remediate sites at which such materials are present, in addition to compensation for natural resource damages, if any.

Clean Air Act

Our operations are subject to the Clean Air Act, its implementing regulations, and analogous state statutes and regulations. The EPA regulations under the Clean Air Act contain requirements for the monitoring, reporting, and control of greenhouse gas (GHG) emissions from stationary sources. For further information, see “—Climate Change” below.

Clean Water Act

Our operations can result in the discharge of pollutants. The Federal Water Pollution Control Act of 1972, as amended, also known as the Clean Water Act, and analogous state laws impose restrictions and controls regarding the discharge of fills and pollutants into waters of the U.S. The discharge of fills and pollutants into regulated waters is prohibited, except in accordance with the terms of a permit issued by applicable federal or state authorities. The Oil Pollution Act was enacted in 1990 and amends provisions of the Clean Water Act pertaining to prevention of and response to oil spills. Spill prevention, control and countermeasure requirements of the Clean Water Act and some state laws require containment and similar structures to help prevent contamination of navigable waters in the event of an overflow or release of oil.

EPA Revisions to Ozone National Ambient Air Quality Standard (NAAQS)

As required by the Clean Air Act, the EPA establishes National Ambient Air Quality Standards (NAAQS) for how much pollution is permissible, and the states then have to adopt rules so their air quality meets the NAAQS. In October 2015, the
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EPA published a rule lowering the ground level ozone NAAQS from 75 parts per billion (ppb) to a more stringent 70 ppb standard. This change triggered a process under which the EPA designated the areas of the country in or out of compliance with the 2015 standards. In December 2020, EPA completed a review of the ozone NAAQS and published a rule retaining the 2015 standards. State rules implementing the NAAQS, including those existing or proposed in Colorado and New Mexico, require the installation of more stringent air pollution controls on newly-installed equipment and possibly require the retrofitting of existing KMI facilities with air pollution controls. These rules will have financial impacts to our Natural Gas Business Unit. Future state rules could have financial impacts on multiple business units.

Climate Change

Due to concern over climate change, numerous proposals to monitor and limit emissions of GHGs have been made and are likely to continue to be made at the federal, state and local levels of government. Methane, a primary component of natural gas, and CO2, which is naturally occurring and also a byproduct of burning natural gas, are examples of GHGs. Various laws and regulations exist or are under development to regulate the emission of such GHGs, including the EPA programs to report GHG emissions and state actions to develop statewide or regional programs. The U.S. Congress has in the past considered legislation to reduce emissions of GHGs.

Beginning in 2009, EPA published several findings and rulemakings under the Clean Air Act requiring the permitting and reporting of certain GHGs, including CO2 and methane. Certain of our facilities are subject to these requirements. Operational or physical changes to existing facilities could require those facilities to comply with these requirements. In addition, proposed regulatory changes, if enacted, would require almost all existing oil and natural gas facilities to reduce GHG emissions.

At the state level, more than one-third of the states, either individually or through multi-state regional initiatives, already have begun implementing legal measures to reduce emissions of GHGs, such as through establishment of GHG reduction targets or regional GHG “cap and trade” programs. It is possible that sources such as our gas-fueled compressors and processing plants could become subject to these state GHG reduction regulations. Various states are also proposing or have implemented stricter regulations for reporting, monitoring or reducing GHGs that go beyond the requirements of the EPA. Compliance with state rules could require additional expenditures, above and beyond those spent to comply with the November 2021 proposed EPA GHG rules for new and existing sources.

Because our operations, including the compressor stations and processing plants, emit various types of GHGs, primarily methane and CO2, such new legislation or regulation could increase the costs related to operating and maintaining our facilities. Depending on the particular law, regulation or program, we or our subsidiaries could be required to incur capital expenditures for installing new monitoring equipment or emission controls on the facilities, acquire and surrender allowances for the GHG emissions, pay taxes related to the GHG emissions and administer and manage a more comprehensive GHG emissions program. We are not able at this time to estimate such increased costs; however, as is the case with similarly situated companies in our industry, they could be significant to us. While we may be able to include some or all of such increased costs in the rates charged by our or our subsidiaries’ pipelines, recovery of costs is uncertain in all cases and may depend on events beyond our control, including the outcome of future rate proceedings before the FERC or other regulatory bodies, and the provisions of any final legislation or other regulations. Any of the foregoing could have an adverse effect on our business, financial position, results of operations and prospects.

Because the combustion of natural gas produces lower GHG emissions per unit of energy than competing fossil fuels, cap-and-trade legislation or EPA regulatory initiatives to reduce GHGs could stimulate demand for natural gas by increasing the relative cost of competing fuels such as coal and oil.  In addition, we anticipate that GHG regulations will increase demand for carbon sequestration technologies, such as the techniques we have successfully demonstrated in our enhanced oil recovery operations within our CO2 business segment.  However, these potential positive effects on our markets may be offset if these same regulations also cause the cost of natural gas to increase relative to competing non-fossil fuels.  Although we currently cannot predict the magnitude and direction of these impacts, GHG regulations could have material adverse effects on our business, financial position, results of operations or cash flows.

Department of Homeland Security

The Department of Homeland Security, referred to in this report as the DHS, has regulatory authority over security at certain high-risk chemical facilities. The DHS has promulgated the Chemical Facility Anti-Terrorism Standards and required all high-risk chemical and industrial facilities, including oil and gas facilities, to comply with the regulatory requirements of these standards. This process includes completing security vulnerability assessments, developing site security plans, and implementing protective measures necessary to meet DHS-defined, risk-based performance standards. The DHS has not provided final notice to all facilities that it determines to be high risk and subject to the rule; therefore, neither the extent to
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which our facilities may be subject to coverage by the rules nor the associated costs to comply can currently be determined, but it is possible that such costs could be substantial.

Cybersecurity

In response to ongoing cybersecurity threats affecting the pipeline industry, the DHS’s Transportation Safety Administration, or TSA, has issued a series of security directives setting forth specific elements that all pipeline owners and operators must include in their cybersecurity planning and their reporting of any incidents. These security directives require, among other things, that pipeline owners comply with mandatory reporting measures; designate a cybersecurity coordinator; provide vulnerability assessments; ensure compliance with certain cybersecurity requirements; establish and implement a TSA-approved Cybersecurity Implementation Plan; develop and maintain a Cybersecurity Incident Response Plan; and establish a Cybersecurity Assessment Program, and submit an annual plan that describes how owners will assess the effectiveness of cybersecurity measures.

In addition, PHMSA requires reporting of any event that involves a release from or the shutdown of a pipeline, including because of a cyber-attack. The SEC has issued guidance outlining its position on cybersecurity disclosure requirements that apply under federal securities laws, but new binding rules imposing affirmative reporting requirements were proposed in March 2022 and are expected to be finalized in 2023. Also under development is the Cyber Incident Reporting for Critical Infrastructure Act of 2022 (CIRCIA), a law concerning the reporting of cyber incidents and ransomware payments that was signed into law in early 2022 and is expected to take effect in early 2024.

Human Capital

In managing our human capital resources, we use a strategic approach to building a diverse, inclusive, and respectful workplace. Our human resources department provides expertise and tools to attract, develop, and retain diverse talent and support our employees’ career and development goals. Our leadership teams have plans in place to enhance diversity and equality of opportunity in hiring, development, and promotions. We value our employees’ opinions and encourage them to engage with management and ask questions on topics such as our goals, challenges and employee concerns.

We employed 10,525 full-time personnel at December 31, 2022, including approximately 888 full-time hourly personnel at certain terminals and pipelines covered by collective bargaining agreements that expire between 2023 and 2027. We consider relations with our employees to be good.

We value the safety of our workforce and integrate a culture of safety, emergency preparedness and environmental responsibility through our operations management system (OMS). Our OMS conforms to common industry standards and establishes a framework that helps us (i) provide employees and contractors with a safe work environment; (ii) comply with laws, rules, regulations, policies, and procedures; and (iii) identify opportunities to improve. Although our ultimate target is zero incidents, we also have three non-zero employee safety performance targets as follows:
Non-zero employee safety performance target
2022 Company-wide TRIR (excluding COVID-19 cases)
Outperform the annual industry average total recordable incident rate (TRIR)
1.9 (0.8)
Outperform our own three-year TRIR average
Improve our company-wide employee TRIR from 1.0 in the baseline year 2019 to 0.7 by 2024

We seek to constantly improve our contractor TRIR performance through initiatives to address recent incident trends and new best practices.

Our board of directors’ nominating and governance committee is responsible for planning for succession in the senior management ranks of the Company, including the office of chief executive officer. The chief executive officer shall report to the committee, generally at the time of the regularly scheduled third quarter board of directors meeting in each year, regarding the processes in place to identify talent within and outside the Company to succeed to senior management positions and the information developed during the current calendar year pursuant to those processes. As part of our annual succession planning process, we identify minority and female candidates to include in the plan for senior positions. Management reviews its succession plan, including a discussion on development opportunities for potential successors, with the nominating and governance committee of our board of directors annually.

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We consider employee diversity an asset and support equal opportunity employment. We take affirmative steps to employ and advance in employment all persons without regard to their race/ethnicity; sex; sexual orientation; gender, including gender identity and expression; veteran status; disability; or other protected categories, and base employment decisions solely on valid job requirements. We are committed to a harassment free workplace, supported with online and face-to-face workplace harassment and discrimination prevention training for our employees. Employees and supervisors review our harassment and discrimination prevention policy every two years as part of our policy renewal training.

Our employees are an integral part of our success, and we value their career development. We encourage and support professional development and learning for our employees by offering workforce training, tuition reimbursement, leadership and other development programs. These programs help improve recruitment, development, and retention. We support our employees’ ongoing career goals and development through several programs. These programs help maximize our employees’ potential and give them the skills they need to further enhance their careers.

Our compensation program is linked to long- and short-term strategic financial and operational objectives, including environmental, safety, and compliance targets. Compensation includes competitive base salaries in the markets in which we operate and competitive benefits, including retirement plans, opportunities for annual bonuses, and, for eligible employees, long-term incentives and an employee stock purchase plan.

Properties and Rights-of-Way

We believe we generally have satisfactory title to the properties we own and use in our businesses, subject to liens for current taxes, liens incident to minor encumbrances, and easements and restrictions, which do not materially detract from the value of such property, the interests in those properties or the use of such properties in our businesses.  Our terminals, storage facilities, treating and processing plants, regulator and compressor stations, oil and gas wells, offices and related facilities are located on real property owned or leased by us.  In some cases, the real property we lease is on federal, state or local government land.

We generally do not own the land on which our pipelines are constructed.  Instead, we obtain and maintain rights to construct and operate the pipelines on other people’s land generally under agreements that are perpetual or provide for renewal rights.  Substantially all of our pipelines are constructed on rights-of-way granted by the apparent record owners of such property.  In many instances, lands over which rights-of-way have been obtained are subject to prior liens that have not been subordinated to the right-of-way grants.  In some cases, not all of the apparent record owners have joined in the right-of-way grants, but in substantially all such cases, signatures of the owners of a majority of the interests have been obtained.  Permits have been obtained from public authorities to cross over or under, or to lay facilities in or along, water courses, county roads, municipal streets and state highways, and in some instances, such permits are revocable at the election of the grantor, or, the pipeline may be required to move its facilities at its own expense.  Permits also have been obtained from railroad companies to run along or cross over or under lands or rights-of-way, many of which are also revocable at the grantor’s election.  Some such permits require annual or other periodic payments.  In a few minor cases, property for pipeline purposes was purchased by the Company.

Financial Information about Geographic Areas

For geographic information concerning our assets and operations, see Note 16 “Reportable Segments” to our consolidated financial statements.

Available Information

We make available free of charge on or through our internet website, at www.kindermorgan.com, our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. The SEC maintains an internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC at http://www.sec.gov. The information contained on or connected to our internet website is not incorporated by reference into this Form 10-K and should not be considered part of this or any other report that we file with or furnish to the SEC.

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Item 1A.  Risk Factors.

You should carefully consider the risks described below, in addition to the other information contained in this document. Realization of any of the following risks could have a material adverse effect on our business, financial condition, cash flows and results of operations.

Risks Related to Operating our Business

Our businesses are dependent on the supply of and demand for the products we handle.

Our pipelines, terminals and other assets and facilities, including the availability of expansion opportunities, depend in part on continued production of natural gas, crude oil and other products in the geographic areas that they serve. Without additions to crude oil and gas reserves, production will decline over time as reserves are depleted, and production costs may rise. Producers in areas served by us may not be successful in exploring for and developing additional reserves or their costs of doing so may become uneconomic. Commodity prices and tax incentives may not remain at levels that encourage producers to explore for and develop additional reserves, produce existing marginal reserves or renew transportation contracts as they expire. Our business also depends in part on the levels of demand for natural gas, crude oil, NGL, refined petroleum products, CO2, steel, chemicals and other products in the geographic areas to which our pipelines, terminals, shipping vessels and other facilities deliver or provide service, and the ability and willingness of our shippers and other customers to supply such demand. Decreases in the supply of or demand for natural gas, crude oil and other products could adversely impact the utilization of our assets.

Economic disruptions, such as those which occurred during the COVID-19 pandemic, or conditions in the business environment generally, such as declining or sustained low commodity prices, supply disruptions, or higher development or production costs, could result in a slowing of supply to our pipelines, terminals and other assets. Also, sustained lower demand for hydrocarbons, or changes in the regulatory environment or applicable governmental policies, including in relation to climate change or other environmental concerns, may have a negative impact on the supply of crude oil and other products. In recent years, a number of initiatives and regulatory changes relating to reducing GHG emissions have been undertaken by federal, state and municipal governments and crude oil and gas industry participants. In addition, public concern about the potential risks posed by climate change has resulted in increased demand for energy efficiency and a transition to energy provided from renewable energy sources rather than fossil fuels, fuel-efficient alternatives such as hybrid and electric vehicles, and pursuit of other technologies to reduce GHG emissions, such as carbon capture and sequestration. We have seen and may see further intensification of these trends if and to the extent that the Biden presidential administration succeeds in further enacting its energy and environmental policies.

Each of the foregoing could negatively impact our business directly, as well as our shippers and other customers, which in turn could negatively impact our prospects for new contracts for transportation, terminaling or other midstream services, or renewals of existing contracts or the ability of our customers and shippers to honor their contractual commitments. Furthermore, such unfavorable conditions may compound the adverse effects of larger disruptions such as COVID-19. See “—Financial distress experienced by our customers or other counterparties could have an adverse impact on us in the event they are unable to pay us for the products or services we provide or otherwise fulfill their obligations to us.” below.

We cannot predict the impact of future economic conditions, fuel conservation measures, alternative fuel requirements, governmental regulation or technological advances in fuel economy and energy generation devices, all of which could reduce the production of and/or demand for the products we handle.

We face competition from other pipelines and terminals, as well as other forms of transportation and storage.

Competition is a factor affecting our existing businesses and our ability to secure new project opportunities. Any current or future pipeline system or other form of transportation (such as barge, rail or truck) that delivers the products we handle into the areas that our pipelines serve could offer transportation services that are more desirable to shippers than those we provide because of price, location, facilities or other factors. Likewise, competing terminals or other storage options may become more attractive to our customers. To the extent that competitors offer the markets we serve more desirable transportation or storage options, or customers opt to construct their own facilities for services previously provided by us, this could result in unused capacity on our pipelines and in our terminals. We also could experience competition for the supply of the products we handle from both existing and proposed pipeline systems; for example, several pipelines access many of the same areas of supply as our pipeline systems and transport to destinations not served by us. If capacity on our assets remains unused, our ability to re-contract for expiring capacity at favorable rates or otherwise retain existing customers could be impaired. In addition, to the
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extent that companies pursuing development of carbon capture and sequestration technology are successful, they could compete with us for customers who purchase CO2 for use in enhanced oil recovery operations.

The volatility of crude oil, NGL and natural gas prices could adversely affect our business.

The revenues, cash flows, profitability and future growth of some of our businesses (and the carrying values of certain of their respective assets, which include related goodwill) depend to a large degree on prevailing crude oil, NGL and natural gas prices.

Prices for crude oil, NGL and natural gas are subject to large fluctuations in response to relatively minor changes in the supply of and demand for crude oil, NGL and natural gas, uncertainties within the market and a variety of other factors beyond our control. These factors include, among other things (i) weather conditions and events such as hurricanes in the U.S.; (ii) domestic and global economic conditions; (iii) the activities of the OPEC and other countries that are significant producers of crude oil (OPEC+); (iv) governmental regulation; (v) armed conflict or political instability in crude oil and natural gas producing countries; (vi) the foreign supply of and demand for crude oil and natural gas; (vii) the price of foreign imports; (viii) the proximity and availability of storage and transportation infrastructure and processing and treating facilities; and (ix) the availability and prices of alternative fuel sources. We use hedging arrangements to partially mitigate our exposure to commodity prices, but these arrangements also are subject to inherent risks. Please read “—Our use of hedging arrangements does not eliminate our exposure to commodity price risks and could result in financial losses or volatility in our income.” In addition, wide fluctuations in commodity prices can impact the accuracy of assumptions used in our budgeting process.

If commodity prices fall substantially or remain low for a sustained period and we are not sufficiently protected through hedging arrangements, we may be unable to realize a profit from these businesses and would operate at a loss.

Sharp declines in the prices of crude oil, NGL or natural gas, or a prolonged unfavorable price environment, may result in a commensurate reduction in our revenues, income and cash flows from our businesses that produce, process, or purchase and sell crude oil, NGL, or natural gas, and could have a material adverse effect on the carrying value (which includes assigned goodwill) of our CO2 business segment’s proved reserves, certain assets in certain midstream businesses within our Natural Gas Pipelines business segment, and certain assets within our Products Pipelines business segment. For example, following the commodity price declines we experienced due to COVID-19 during the first half of 2020, we recorded a combined $1.950 billion of non-cash impairments associated with our Natural Gas Pipelines Non-Regulated and CO2 reporting units, primarily for impairments of goodwill and assets owned in these businesses. See Note 4 “Gains and Losses on Divestitures, Impairments and Other Write-downs” and Note 8 “Goodwill” to our consolidated financial statements for more information.

For more information about our energy and commodity market risk, see Item 7A. “Quantitative and Qualitative Disclosures About Market Risk.”

Commodity transportation and storage activities involve numerous risks that may result in accidents or otherwise adversely affect our operations.

There are a variety of hazards and operating risks inherent to the transportation and storage of the products we handle, such as leaks; releases; the breakdown, underperformance or failure of equipment, facilities, information systems or processes; damage to our pipelines caused by third-party construction; the compromise of information and control systems; spills at terminals and hubs; spills associated with loading and unloading harmful substances at rail facilities; adverse sea conditions (including storms and rising sea levels) and releases or spills from our shipping vessels or vessels loaded at our marine terminals; operator error; labor disputes/work stoppages; disputes with interconnected facilities and carriers; operational disruptions or apportionment on third-party systems or refineries on which our assets depend; and catastrophic events or natural disasters such as fires, floods, explosions, earthquakes, acts of terrorists and saboteurs, cyber security breaches, and other similar events, many of which are beyond our control. Additional risks to our vessels include capsizing, grounding and navigation errors.

The occurrence of any of these risks could result in serious injury and loss of human life, significant damage to property and natural resources, environmental pollution, significant reputational damage, impairment or suspension of operations, fines or other regulatory penalties, costs associated with responding to an investigation or enforcement action brought by a governmental agency, and revocation of regulatory approvals or imposition of new requirements, any of which also could result in substantial financial losses, including lost revenue and cash flow to the extent that an incident causes an interruption of service. For pipeline and storage assets located near populated areas, including residential areas, commercial business centers, industrial sites and other public gathering areas, the level of damage resulting from these risks may be greater. In addition, the consequences of any operational incident (including as a result of adverse sea conditions) at one of our marine terminals may be
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even more significant as a result of the complexities involved in addressing leaks and releases occurring in the ocean or along coastlines and/or the repair of marine terminals.

Our operating results may be adversely affected by unfavorable economic and market conditions.

Unfavorable conditions such as a general slowdown of the global or U.S. economy, uncertainty and volatility in the financial markets, or inflation and rising interest rates, could materially adversely affect our operating results. For example, COVID-19 resulted in a global economic downturn in 2020. The slowdown resulting from the pandemic affected numerous industries, including the crude oil and gas industry, the steel industry and specific segments and markets in which we operate, resulting in reduced demand and increased price competition for our products and services. While global economic activity largely rebounded in 2021, we could experience similar or compounded adverse impacts as a result of other global events affecting economic conditions. Also, economic conditions in the wake of the pandemic have included inflationary pressure, which has resulted in higher operating expenses and project costs for us, as well as higher interest rates.

In addition, uncertain or changing economic conditions within one or more geographic regions may affect our operating results within the affected regions. Sustained unfavorable commodity prices, volatility in commodity prices or changes in markets for a given commodity might also have a negative impact on many of our customers, which could impair their ability to meet their obligations to us. See “—Financial distress experienced by our customers or other counterparties could have an adverse impact on us in the event they are unable to pay us for the products or services we provide or otherwise fulfill their obligations to us.” In addition, decreases in the prices of crude oil, NGL and natural gas are likely to have a negative impact on our operating results and cash flow. See “—The volatility of crude oil, NGL and natural gas prices could adversely affect our business.”

If economic and market conditions (including volatility in commodity markets) globally, in the U.S. or in other key markets become more volatile or deteriorate, we may experience material impacts on our business, financial condition and results of operations.

Financial distress experienced by our customers or other counterparties could have an adverse impact on us in the event they are unable to pay us for the products or services we provide or otherwise fulfill their obligations to us.

We are exposed to the risk of loss in the event of nonperformance by our customers or other counterparties, such as hedging counterparties, joint venture partners and suppliers. Many of our counterparties finance their activities through cash flow from operations or debt or equity financing, and some of them may be highly leveraged and may not be able to access additional capital to sustain their operations in the future. Our counterparties are subject to their own operating, market, financial and regulatory risks, and some have experienced, are experiencing, or may experience in the future, severe financial problems that have had or may have a significant impact on their creditworthiness. Further, the security we are able to obtain from such customers may be limited, including by FERC regulation. While certain of our customers are subsidiaries of an entity that has an investment grade credit rating, in many cases the parent entity has not guaranteed the obligations of the subsidiary and, therefore, the parent’s credit ratings may have no bearing on such customers’ ability to pay us for the services we provide or otherwise fulfill their obligations to us. See Note 2 “Summary of Significant Accounting Policies—Allowance for Credit Losses” in our consolidated financial statements.

Furthermore, financially distressed customers might be forced to reduce or curtail their future use of our products and services, which also could have a material adverse effect on our results of operations, financial condition, and cash flows.

We cannot provide any assurance that such customers and key counterparties will not become financially distressed or that such financially distressed customers or counterparties will not default on their obligations to us or file for bankruptcy protection. If one or more customers or counterparties files for bankruptcy protection, we likely would be unable to collect all, or even a significant portion of, amounts they owe to us. Similarly, our contracts with such customers may be renegotiated at lower rates or terminated altogether. Significant customer and other counterparty defaults and bankruptcy filings could have a material adverse effect on our business, financial position, results of operations or cash flows.

We are subject to reputational risks and risks relating to public opinion.

Our business, operations or financial condition generally may be negatively impacted as a result of negative public opinion towards our industry sector, the products we handle, or us specifically. Public opinion may be influenced by negative portrayals of the industry in which we operate as well as opposition to development projects. In addition, market events specific to us could result in the deterioration of our reputation with key stakeholders.

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Reputational risk cannot be managed in isolation from other forms of risk. Credit, market, operational, insurance, regulatory and legal risks, among others, must all be managed effectively to safeguard our reputation. Our reputation and public opinion could also be impacted by the actions and activities of other companies operating in the energy industry, particularly other energy infrastructure providers, over which we have no control. In particular, our reputation could be impacted by negative publicity related to pipeline incidents or unpopular expansion projects and due to opposition to development of hydrocarbons and energy infrastructure, particularly projects involving resources that are considered to increase GHG emissions and contribute to climate change. Negative impacts from a compromised reputation or changes in public opinion (including with respect to the production, transportation and use of hydrocarbons generally) could include increased regulatory oversight, difficulty obtaining rights-of-way and delays in obtaining, or challenges to, regulatory approvals with respect to growth projects, blockades, project cancellations, difficulty securing financing, revenue loss, reduction in customer base, and decreased value of our securities and our business. Moreover, governmental agencies have responded to environmental justice concerns by imposing greater scrutiny in permitting approvals and enforcement actions that could exacerbate such negative impacts.

Our use of hedging arrangements does not eliminate our exposure to commodity price risks and could result in financial losses or volatility in our income.

We engage in hedging arrangements to reduce our direct exposure to fluctuations in the prices of crude oil, natural gas and NGL, including differentials between regional markets. These hedging arrangements expose us to risk of financial loss in some circumstances, including when production is less than expected, when the counterparty to the hedging contract defaults on its contract obligations, or when there is a change in the expected differential between the underlying price in the hedging agreement and the actual price received. In addition, these hedging arrangements may limit the benefit we would otherwise receive from increases in prices for crude oil, natural gas and NGL. Furthermore, our hedging arrangements cannot hedge against any decrease in the volumes of products we handle. See “—Our businesses are dependent on the supply of and demand for the products we handle.

The markets for instruments we use to hedge our commodity price exposure generally reflect then-prevailing conditions in the underlying commodity markets. As our existing hedges expire, we will seek to replace them. To the extent then-existing underlying market conditions are unfavorable, new hedging arrangements available to us will reflect such unfavorable conditions, limiting our ability to hedge our exposure to unfavorable commodity prices.

When we engage in hedging transactions (for example, to mitigate our exposure to fluctuations in commodity prices or currency exchange rates or to balance our exposure to fixed and variable interest rates) that are effective economically, these transactions may not be considered effective for accounting purposes. Accordingly, our consolidated financial statements may reflect some volatility due to these hedges, even when there is no underlying economic impact at the dates of those consolidated financial statements. In addition, it may not be possible for us to engage in hedging transactions that completely eliminate our exposure to commodity prices; therefore, our consolidated financial statements may reflect a gain or loss arising from an exposure to commodity prices for which we are unable to enter into a completely effective hedge. For more information about our hedging activities, see Item 7A. “Quantitative and Qualitative Disclosures About Market Risk” and Note 14 “Risk Management” to our consolidated financial statements.

A breach of information security or the failure of one or more key information technology (IT) or operational (OT) systems, or those of third parties, may adversely affect our business, results of operations or business reputation.

Our business is dependent upon our operational systems to process a large amount of data and complex transactions. Some of the operational systems we use are owned or operated by independent third-party vendors. The various uses of these systems, networks and services include, but are not limited to, controlling our pipelines and terminals with industrial control systems, collecting and storing information and data, processing transactions, and handling other processes necessary to manage our business.

In accordance with government mandates, we have implemented and maintain a cybersecurity program—both internal and incorporating industry expertise—designed to protect our IT, OT and data systems from attacks, however, we can provide no assurance that our cybersecurity program will be completely effective. We have experienced increases in the number of attempts by external parties to access our networks or our company data without authorization. While we have taken additional steps to secure our networks and systems to specifically respond to new and elevated risks associated with recent increases in remote work, we may nevertheless be more vulnerable to a successful cyber-attack or information security incident when significant numbers of our employees are working remotely. The risk of a disruption or breach of our operational systems, or the compromise of the data processed in connection with our operations, has increased as attempted attacks, including acts of terrorism or cyber sabotage, have advanced in sophistication and number around the world.
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If any of our systems are damaged, fail to function properly or otherwise become unavailable, we may incur substantial costs to repair or replace them. We may also experience loss or corruption of critical data and interruptions or delays in our ability to perform critical functions, which could adversely affect our business and results of operations. A significant failure, compromise, breach or interruption in our systems, which may result from problems such as ransomware, malware, computer viruses, hacking attempts or third-party error or malfeasance, could result in a disruption of our operations, customer dissatisfaction, damage to our reputation and a loss of customers or revenues. Efforts by us and our vendors to develop, implement and maintain security measures, including malware and anti-virus software and controls, may not be successful in preventing these events, and any network and information systems-related events could require us to expend significant remedial resources. In the future, we may be required to expend significant additional resources to continue to enhance our information security measures, to comply with regulations, to develop and implement government-mandated plans, and/or to investigate and remediate information security vulnerabilities.

Attacks, including acts of terrorism or cyber sabotage, or the threat of such attacks, may adversely affect our business or reputation.

The U.S. government has issued public warnings indicating that pipelines and other infrastructure assets might be specific targets of terrorist organizations or “cyber sabotage” events. For example, in May 2021, a ransomware attack on a major U.S. refined products pipeline forced the operator to temporarily shut down the pipeline, resulting in disruption of fuel supplies along the East Coast. Potential targets include our pipeline systems, terminals, processing plants, databases or operating systems. The occurrence of an attack could cause a substantial decrease in revenues and cash flows, increased costs to respond or other financial loss, significant reporting requirements, damage to our reputation, increased regulation or litigation or inaccurate information reported from our operations. In the event of such an incident, we may need to retain cybersecurity experts to assist us in stopping, diagnosing, and recovering from the attack. There is no assurance that adequate cyber sabotage and terrorism insurance will be available at rates we believe are reasonable in the near future. The potential for an attack may subject our operations to increased risks and costs, and, depending on their ultimate magnitude, have a material adverse effect on our business, results of operations, financial condition and/or business reputation.

Hurricanes, earthquakes, flooding and other natural disasters, as well as subsidence and coastal erosion and climate-related physical risks, could have an adverse effect on our business, financial condition and results of operations.

Some of our pipelines, terminals and other assets are located in, and our shipping vessels operate in, areas that are susceptible to hurricanes, earthquakes, flooding and other natural disasters or could be impacted by subsidence and coastal erosion. These natural disasters could potentially damage or destroy our assets and disrupt the supply of the products we transport. Many climate models indicate that global warming is likely to result in rising sea levels, increased frequency and severity of weather events such as winter storms, hurricanes and tropical storms, extreme precipitation and flooding. These climate-related changes could result in damage to our physical assets, especially operations located in low-lying areas near coasts and river banks, and facilities situated in hurricane-prone and rain-susceptible regions. Natural disasters can similarly affect the facilities of our customers. The timing, severity and location of these climate change impacts are not known with certainty, and these impacts are expected to manifest themselves over varying time horizons.

In addition, we may experience increased insurance premiums and deductibles, or a decrease in available coverage, for our assets in areas subject to severe weather. In either case, losses could exceed our insurance coverage and our business, financial condition and results of operations could be adversely affected, perhaps materially. See “—Risks Related to Regulation—Climate-related risks and related regulation could result in significantly increased operating and capital costs for us and could reduce demand for our products and services.

Our insurance policies do not cover all losses, costs or liabilities that we may experience, and insurance companies that currently insure companies in the energy industry may cease to do so or substantially increase premiums.

Our insurance program may not cover all operational risks and costs and may not provide sufficient coverage in the event of a claim. We do not maintain insurance coverage against all potential losses and could suffer losses for uninsurable or uninsured risks or in amounts in excess of existing insurance coverage. Losses in excess of our insurance coverage could have a material adverse effect on our business, financial condition and results of operations.

Changes in the insurance markets subsequent to certain hurricanes and other natural disasters have made it more difficult and more expensive to obtain certain types of coverage. The occurrence of an event that is not fully covered by insurance, or failure by one or more of our insurers to honor its coverage commitments for an insured event, could have a material adverse effect on our business, financial condition and results of operations. Insurance companies may reduce the insurance capacity
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they are willing to offer or may demand significantly higher premiums or deductibles to cover our assets. If significant changes in the number or financial solvency of insurance underwriters for the energy industry occur, we may be unable to obtain and maintain adequate insurance at a reasonable cost. There is no assurance that our insurers will renew their insurance coverage on acceptable terms, if at all, or that we will be able to arrange for adequate alternative coverage in the event of non-renewal. The unavailability of full insurance coverage to cover events in which we suffer significant losses could have a material adverse effect on our business, financial condition and results of operations.

Expanding our existing assets and constructing new assets is part of our growth strategy. Our ability to begin and complete expansion and new-build projects may be inhibited by difficulties in obtaining permits and rights-of-way, public opposition, increases in costs of construction materials, cost overruns, inclement weather and other delays. Should we pursue projects through joint ventures with others, we will share control of and any benefits from those projects.

We regularly undertake construction projects to expand our existing assets and to construct new assets. New growth projects generally will be subject to, among other things, the receipt of regulatory approvals, feasibility and cost analyses, funding availability and industry, market and demand conditions, and environmental justice considerations. A variety of factors outside of our control, such as difficulties in obtaining rights-of-way and permits or other regulatory approvals, have caused, and may continue to cause, delays in or cancellations of our construction projects. Regulatory authorities may modify their permitting policies in ways that disadvantage our construction projects, such as the FERC’s ongoing evaluation of its process for reviewing and approving applications for construction of natural gas infrastructure, including consideration of changes to its Certificate Policy Statement and its issuance of a Draft GHG Policy Statement. Federal regulators may also expand existing regulatory requirements, such as PHMSA’s recent expansion of gas gathering pipeline regulation and PHMSA’s consideration of regulating the transportation of gaseous CO2. Such factors can be exacerbated by public opposition to our projects. See “—We are subject to reputational risks and risks relating to public opinion.” Inclement weather, natural disasters and delays in performance by third-party contractors have also resulted in, and may continue to result in, increased costs or delays in construction. In addition, we may experience increasing costs for construction materials. Significant increases in costs of construction materials, cost overruns or delays, or our inability to obtain a required permit or right-of-way, could have a material adverse effect on our return on investment, results of operations and cash flows, and could result in project cancellations or limit our ability to pursue other growth opportunities.

If we pursue joint ventures with third parties, those parties may share approval rights over major decisions, and may act in their own interests. Their views may differ from our own or our views of the interests of the venture which could result in operational delays or impasses, which in turn could affect the financial expectations of and our expected benefits from the venture.

Substantially all of the land on which our pipelines are located is owned by third parties. If we are unable to procure and maintain access to land owned by third parties, our revenue and operating costs, and our ability to complete construction projects, could be adversely affected.

We must obtain and maintain the rights to construct and operate pipelines on other owners’ land, including private landowners, railroads, public utilities and others. While our interstate natural gas pipelines in the U.S. have federal eminent domain authority, the availability of eminent domain authority for our other pipelines varies from state to state depending upon the type of pipeline—petroleum liquids, natural gas, CO2, or crude oil—and the laws of the particular state. In any case, we must compensate landowners for the use of their property, and in eminent domain actions, such compensation may be determined by a court. If we are unable to obtain rights-of-way on acceptable terms, our ability to complete construction projects on time, on budget, or at all, could be adversely affected. In addition, we are subject to the possibility of increased costs under our rights-of-way or rental agreements with landowners, primarily through renewals of expiring agreements and rental increases. If we were to lose these rights, our operations could be disrupted or we could be required to relocate the affected pipelines, which could cause a substantial decrease in our revenues and cash flows and a substantial increase in our costs.

The acquisition of additional businesses and assets is part of our growth strategy. We may experience difficulties completing acquisitions or integrating new businesses and properties, and we may be unable to achieve the benefits we expect from any future acquisitions.

Part of our business strategy includes acquiring additional businesses and assets. We cannot provide any assurance that we will be able to find complementary acquisition targets or complete such acquisitions, or achieve the desired results from any acquisitions we do complete. Any acquired businesses or assets will be subject to many of the same risks as our existing businesses and may not achieve the levels of performance that we anticipate.

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We may not realize anticipated operating advantages and cost savings. Integration of acquired businesses or assets involves a number of risks, including (i) the loss of key customers of the acquired business; (ii) demands on management related to the increase in our size; (iii) the diversion of management’s attention from the management of daily operations; (iv) difficulties in implementing or unanticipated costs of accounting, budgeting, reporting, internal controls and other systems; and (v) difficulties in the retention and assimilation of necessary employees.

Difficulties in integration may be magnified if we make multiple acquisitions over a relatively short period of time. Because of difficulties in combining and expanding operations, we may not be able to achieve the cost savings and other size-related benefits that we hoped to achieve after these acquisitions, which would harm our financial condition and results of operations.

The future success of our oil and gas development and production operations depends in part upon our ability to develop additional oil and gas reserves that are economically recoverable, which involves risks that may result in a total loss of investment.

The rate of production from oil and natural gas properties declines as reserves are depleted. Without successful development activities, the reserves, revenues and cash flows of the oil and gas producing assets within our CO2 business segment will decline. We may not be able to develop or acquire additional reserves at an acceptable cost or have necessary financing for these activities in the future. Additionally, if we do not realize production volumes greater than, or equal to, our hedged volumes, we may suffer financial losses not offset by physical transactions.

Developing and operating oil and gas properties involves a high degree of business and financial risk that even a combination of experience, knowledge and careful evaluation may not be able to overcome. Acquisition and development decisions generally are based on subjective judgments and assumptions that, while they may be reasonable, are by their nature speculative. It is impossible to predict with certainty the production potential of a particular property or well. Furthermore, the successful completion of a well does not ensure a profitable return on the investment. A variety of geological, operational and market-related factors may substantially delay or prevent completion of any well or otherwise prevent a property or well from being profitable.

Our business requires the retention and recruitment of a skilled executive team and workforce, and difficulties recruiting and retaining executives and other key personnel could impair our ability to develop and implement our business strategy.

Our success depends in part on the performance of and our ability to attract, retain and effectively manage the succession of a skilled executive team. We depend on our executive officers to develop and execute our business strategy. If we are not successful in retaining our executive officers, or replacing them, our business, financial condition or results of operations could be adversely affected. We do not maintain key personnel insurance.

In addition, our business requires the retention and recruitment of a skilled workforce, including engineers, technical personnel and other professionals. We and our affiliates compete with other companies in the energy industry for this skilled workforce. In addition, many of our current employees are retirement eligible and have significant institutional knowledge that must be transferred to other employees. If we are unable to (i) retain current employees; (ii) successfully complete the knowledge transfer; and/or (iii) recruit new employees of comparable knowledge and experience, our business could be negatively impacted. In addition, we could experience increased costs to retain and recruit these professionals.

Risks Related to Financing Our Business

Our substantial debt could adversely affect our financial health and make us more vulnerable to adverse economic conditions.

As of December 31, 2022, we had approximately $31.7 billion of consolidated debt (excluding debt fair value adjustments). Additionally, we and substantially all of our wholly owned U.S. subsidiaries are parties to a cross guarantee agreement under which each party to the agreement unconditionally guarantees the indebtedness of each other party, which means that we are liable for the debt of each of such subsidiaries. This level of consolidated debt and the cross guarantee agreement could have important consequences, such as (i) limiting our ability to obtain additional financing to fund our working capital, capital expenditures, debt service requirements or potential growth, or for other purposes; (ii) increasing the cost of our future borrowings; (iii) limiting our ability to use operating cash flow in other areas of our business or to pay dividends because we must dedicate a substantial portion of these funds to make payments on our debt; (iv) placing us at a competitive disadvantage compared to competitors with less debt; and (v) increasing our vulnerability to adverse economic and industry conditions.
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Our ability to service our consolidated debt, and our ability to meet our consolidated leverage targets, will depend upon, among other things, our future financial and operating performance, which will be affected by prevailing economic conditions and financial, business, regulatory and other factors, many of which are beyond our control. If our consolidated cash flow is not sufficient to service our consolidated debt, and any future indebtedness that we incur, we will be forced to take actions such as reducing dividends, reducing or delaying our business activities, acquisitions, investments or capital expenditures, selling assets or seeking additional equity capital. We may also take such actions to reduce our indebtedness if we determine that our earnings (or consolidated EBITDA, as calculated in accordance with our revolving credit facility) may not be sufficient to meet our consolidated leverage targets or to comply with consolidated leverage ratios required under certain of our debt agreements. We may not be able to effect any of these actions on satisfactory terms or at all. For more information about our debt, see Note 9 “Debt” to our consolidated financial statements.

Our business, financial condition and operating results may be affected adversely by adverse changes in the availability, terms and cost of capital or a reduction in the availability of credit.

We may need to rely on external financing sources, including commercial borrowings and issuances of debt and equity securities, to fund acquisitions, capital projects or refinancing debt maturities. Adverse changes to the availability, terms and cost of capital, interest rates or our credit ratings (which would have a corresponding impact on the credit ratings of our subsidiaries that are party to the cross guarantee agreement) could cause our cost of doing business to increase by limiting our access to capital, including our ability to refinance maturities of existing indebtedness on similar terms, which could in turn reduce our cash flows, and could limit our ability to pursue acquisition or expansion opportunities. Our credit ratings may be impacted by our leverage, liquidity, credit profile and potential transactions. Although the ratings from credit agencies are not recommendations to buy, sell or hold our securities, our credit ratings will generally affect the market value of our and our subsidiaries’ debt securities and the terms available to us for future issuances of debt securities.

Also, disruptions and volatility in the global financial markets may lead to an increase in interest rates or a contraction in credit availability, impacting our ability to finance our operations and strategy on favorable terms. A significant reduction in the availability of credit could materially and adversely affect our business, financial condition and results of operations.

Our and our customers’ access to capital could be affected by evolving financial institutions’ policies concerning businesses linked to fossil fuels.

Our and our customers’ access to capital could be affected by financial institutions’ evolving policies concerning businesses linked to fossil fuels. Concerns about the potential effects of climate change have caused some to direct their attention towards sources of funding for fossil-fuel energy companies, which has resulted in certain financial institutions, funds and other sources of capital restricting or eliminating their investment in such companies. Ultimately, this could make it more difficult for our customers to secure funding for exploration and production activities or for us to secure funding for growth projects, and consequently could both indirectly affect demand for our services and directly affect our ability to fund construction or other capital projects.

Our large amount of variable rate debt makes us vulnerable to increases in interest rates.

As of December 31, 2022, approximately $6.3 billion of our approximately $31.7 billion of consolidated debt (excluding debt fair value adjustments) was subject to variable interest rates, either as short-term or long-term variable-rate debt obligations, or as long-term fixed-rate debt effectively converted to variable rates through the use of interest rate swaps. Variable-to-fixed interest rate swap agreements covering an additional $1.25 billion of our consolidated debt will expire at the end of 2023. In response to increasing inflation, the U.S. Federal Reserve raised interest rates in March 2022 for the first time in over three years, raised rates several more times since and has signaled it expects to make additional rate increases. As interest rates increase, the amount of cash required to service variable-rate debt also increases, as do our costs to refinance maturities of existing indebtedness, and our earnings and cash flows could be adversely affected.

For more information about our interest rate risk, see Item 7A. “Quantitative and Qualitative Disclosures About Market Risk—Interest Rate Risk.

Our debt instruments may limit our financial flexibility and increase our financing costs.

The instruments governing our debt contain restrictive covenants that may prevent us from engaging in certain transactions that may be beneficial to us. Some of the agreements governing our debt generally require us to comply with various affirmative and negative covenants, including the maintenance of certain financial ratios and restrictions on (i) incurring
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additional debt; (ii) entering into mergers, consolidations and sales of assets; (iii) granting liens; and (iv) entering into sale-leaseback transactions. The instruments governing any future debt may contain similar or more limiting restrictions. Our ability to respond to changes in business and economic conditions and to obtain additional financing, if needed, may be restricted.

Risks Related to Regulation

The FERC or state public utility commissions, such as the CPUC, may establish pipeline tariff rates that have a negative impact on us. In addition, the FERC, state public utility commissions or our customers could initiate proceedings or file complaints challenging the tariff rates charged by our pipelines, which could have an adverse impact on us.

The profitability of our regulated pipelines is influenced by fluctuations in costs and our ability to recover any increases in our costs in the rates charged to our shippers. To the extent that our costs increase in an amount greater than what we are permitted by the FERC or state public utility commissions to recover in our rates, or to the extent that there is a lag before we can file for and obtain rate increases, such events can have a negative impact on our operating results.

Our existing rates may also be challenged by complaint or protest. Regulators and shippers on our pipelines have rights to challenge, and have challenged, the rates we charge under certain circumstances prescribed by applicable regulations. Some shippers on our pipelines have filed complaints with the regulators seeking prospective reductions in the tariff rates and, in the case of a protest to a rate filing, seeking substantial refunds for alleged overcharges during the years in question. Further, the FERC has initiated and may continue to initiate investigations to determine whether our interstate natural gas pipeline rates are just and reasonable. Please read Note 18 “Litigation and Environmental” to our consolidated financial statements for a description of material pending challenges to the rates we charge on our pipelines. We are unable to predict the extent to which these proceedings will result in lower transportation rates on our pipelines, and in the case of a protest, refunds for alleged overcharges. Any successful challenge to our rates could materially adversely affect our future earnings, cash flows and financial condition.

New laws, policies, regulations, rulemaking and oversight, as well as changes to those currently in effect, could adversely impact our earnings, cash flows and operations.

Our assets and operations are subject to extensive regulation and oversight by federal, state and local regulatory authorities. Legislative changes, as well as regulatory actions taken by these authorities, have the potential to adversely affect our profitability. Additional regulatory burdens and uncertainties will be created if and to the extent that more stringent energy and environmental and pipeline safety policies are enacted. Overall, we have seen an increase in the efforts of regulatory authorities to issue new regulations and guidance and to interpret existing laws and regulations in ways that promote the use of renewable energy sources and further protection of the environment, call upon companies to increase monitoring and emissions reduction efforts, and increase investigations and enforcement actions for potential violations of environmental laws. For example, in November 2021, the EPA proposed a rule containing standards of performance for GHG emissions, in the form of methane limitations, and volatile organic compound emissions for crude oil and natural gas sources, including the production, processing, transmission and storage segments. In November 2022, the EPA announced a supplemental proposal expanding on the November 2021 proposed rule aimed at achieving more comprehensive emissions reductions from oil and natural gas sources. In April 2022, the EPA proposed a rule calling for significant reductions in nitrogen oxide emissions in 26 states, including on new and existing natural gas fired reciprocating engines used at compressor stations. These types of proposals, if finalized, would affect our assets and operations indirectly, such as by increasing the costs associated with the production of natural gas and liquids that we transport, or directly, such as by increasing significantly our capital and operating costs associated with impacted equipment.

These and other initiatives of regulatory authorities may affect our assets and operations directly or indirectly, such as by preventing or delaying the exploration for and production of natural gas and liquids that we transport or expanding regulation of existing infrastructure or new sources that are not currently regulated.

Regulation affects almost every part of our business. In addition to environmental and pipeline safety matters, we are subject to regulations extending to such matters as (i) federal, state and local taxation; (ii) rates (which include reservation, commodity, surcharges, fuel and gas lost and unaccounted for), operating terms and conditions of service; (iii) the types of services we may offer to our customers; (iv) the contracts for service entered into with our customers; (v) the certification and construction of new facilities; (vi) the integrity, safety and security (including against cyber-attacks) of facilities and operations; (vii) the acquisition of other businesses; (viii) the acquisition, extension, disposition or abandonment of services or facilities; (ix) reporting and information posting requirements; (x) the maintenance of accounts and records; and (xi) relationships with affiliated companies involved in various aspects of the natural gas and energy businesses.
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Should we fail to comply with any applicable statutes, rules, regulations, and orders of such regulatory authorities, we could be subject to substantial penalties and fines and potential loss of government contracts. New laws or regulations, or different interpretations of existing laws or regulations, including unexpected policy changes, applicable to our income, operations, assets or another aspect of our business could have a material adverse impact on our earnings, cash flow, financial condition and results of operations. For more information, see Items 1 and 2. “Business and Properties—Narrative Description of Business—Industry Regulation.

Environmental, health and safety laws and regulations could expose us to significant costs and liabilities.

Our operations are subject to extensive federal, state and local laws, regulations and potential liabilities arising under or relating to the protection or preservation of the environment, natural resources and human health and safety. Such laws and regulations affect many aspects of our past, present and future operations, and generally require us to obtain and comply with various environmental registrations, licenses, permits, inspections and other approvals. It is possible that costs associated with complying with the aforementioned laws will increase as a result of the emphasis regulatory authorities are placing on protection of the environment and environmental justice considerations. Liability under such laws and regulations may be incurred without regard to fault under CERCLA, the Resource Conservation and Recovery Act, the Federal Clean Water Act, the Oil Pollution Act, or analogous state laws, as a result of the presence or release of hydrocarbons and other hazardous substances into or through the environment, and these laws may require response actions and remediation and may impose liability for natural resource and other damages. Private parties, including the owners of properties through which our pipelines pass, also may have the right to pursue legal actions to enforce compliance as well as to seek damages for non-compliance with such laws and regulations or for personal injury or property damage. Our insurance may not cover all environmental risks and costs and/or may not provide sufficient coverage in the event an environmental claim is made against us.

Failure to comply with these laws and regulations, including required permits and other approvals, also may expose us to civil, criminal and administrative fines, penalties and/or interruptions in our operations that could harm our business, financial position, results of operations and prospects. For example, if a leak, release or spill of liquid petroleum products, chemicals or other hazardous substances occurs at or from our pipelines, shipping vessels or storage or other facilities, we may experience significant operational disruptions, and we may have to pay a significant amount to clean up or otherwise respond to the leak, release or spill, pay government penalties, address natural resource damage, compensate for human exposure or property damage, install costly pollution control equipment or undertake a combination of these and other measures.

We own and/or operate numerous properties and equipment that have been used for many years in connection with our business activities and contain hydrocarbons or other hazardous substances. While we believe we have utilized operating, handling and disposal practices that were consistent with industry practices at the time, hydrocarbons or other hazardous substances may have been released at or from properties and equipment owned, operated or used by us or our predecessors, or at or from properties where our or our predecessors’ wastes have been taken for disposal. In addition, many of these properties have been owned and/or operated by third parties whose management, handling and disposal of hydrocarbons or other hazardous substances were not under our control. These properties and any hazardous substances released and wastes disposed at or from them may be subject to U.S. laws such as CERCLA, which impose joint and several liability without regard to fault or the legality of the original conduct. Under such laws, we could be required to remove previously disposed wastes, remediate property contamination or both, including contamination caused by prior owners or operators. Furthermore, it is possible that some wastes that are currently classified as non-hazardous, which could include wastes currently generated during our pipeline or liquids or bulk terminal operations or wastes from oil and gas facilities that are currently exempt as being exploration and production waste, may in the future be designated as hazardous wastes. Hazardous wastes are subject to more rigorous and costly handling and disposal requirements than non-hazardous wastes. Such changes in the regulations may result in additional capital expenditures or operating expenses for us.

Environmental and health and safety laws and regulations are subject to change. The long-term trend in environmental regulation has been to place more restrictions and limitations on activities that may be perceived to affect the environment, wildlife, natural resources and human health, including without limitation, the exploration, development, storage and transportation of oil and gas. For example, the Federal Clean Air Act and other similar federal and state laws are subject to periodic review and amendment, which could result in more stringent emission control requirements obligating us to make significant capital expenditures at our facilities. Several state and federal agencies have also increased their daily and maximum penalty amounts in recent years. There can be no assurance as to the amount or timing of future expenditures for environmental compliance or remediation, and actual future expenditures may be different from the amounts we currently anticipate.

New or revised regulations that result in increased compliance costs or additional operating restrictions, particularly if those costs are not fully recoverable from our customers, as well as increased penalty amounts for inadvertent non-compliance,
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such as a pipeline leak, could have a material adverse effect on our business, financial position, results of operations and prospects. For more information, see Items 1 and 2. “Business and Properties—Narrative Description of Business—Environmental Matters.

Increased regulatory requirements relating to the safety and integrity of our pipelines may require us to incur significant capital and operating expense outlays to comply.

We are subject to extensive laws and regulations related to pipeline safety and integrity at the federal and state levels. There are, for example, regulations issued by PHMSA for pipeline operators in the areas of design, operations, integrity testing, repairs, qualification and training, emergency response, control room management, and public awareness. We expect the costs of compliance with these regulations, including integrity management rules, will be substantial. The majority of compliance costs relate to pipeline integrity testing and repairs and reconfirmation of the maximum allowable operating pressure on our gas pipelines. Technological advances in in-line inspection tools, identification of additional threats to a pipeline’s integrity and changes to the amount of pipeline determined to be located in HCAs or MCAs can have a significant impact on integrity testing and repair costs. We plan to continue our integrity testing programs to assess and maintain the integrity of our existing and future pipelines as required by PHMSA rules. Repairs or upgrades deemed necessary to address results of integrity assessments and other testing and/or ensure the continued safe and reliable operation of our pipelines and pipeline facilities could cause us to incur significant and unanticipated capital and operating expenditures. Such expenditures will vary depending on the number of repairs determined to be necessary as a result of integrity assessments and other testing. We expect to increase expenditures in the future to comply with PHMSA regulations.

Further, additional laws and regulations that may be enacted in the future or a new interpretation of existing laws and regulations could significantly increase the amount of these expenditures. Pipeline safety regulations or changes to such regulations may require additional leak detection, reporting, the replacement of some of our pipeline segments, addition of monitoring equipment and more frequent monitoring, inspection or testing of our pipeline facilities. Repair, remediation, and preventative or mitigating actions may require significant capital and operating expenditures. Pipeline safety regulation has increased over time, including recent final gas and hazardous liquid regulations that we must timely implement, and existing obligations may increase with new proposed rules that are currently under consideration. Congress is set to reauthorize the Pipeline Safety Act in 2023, which could further expand PHMSA’s current rulemaking agenda and/or statutory authority in certain areas. For example, PHMSA is working on a number of proposed rulemakings projected for publication in 2023, including those related to (i) pipeline leak detection and repair; (ii) updating regulations for LNG facilities; (iii) inspection and maintenance requirements for idled pipelines; and (iv) revising existing requirements for transportation of CO2 in the liquid phase as well as establishing regulation of the transportation of gaseous CO2 (projected in 2024). There can be no assurance as to the amount or timing of future expenditures for pipeline safety and integrity regulation, and actual future expenditures may be different from the amounts we currently anticipate. Revised or additional regulations that result in increased compliance costs or additional operating restrictions, particularly if those costs are not deemed by regulators to be fully recoverable from our customers, could have a material adverse effect on our business, financial position, results of operations and prospects.

Climate-related risks and related regulation could result in significantly increased operating and capital costs for us and could reduce demand for our products and services.

Various laws and regulations exist or are under development that seek to regulate the emission of GHGs such as methane and CO2, including the EPA programs to control GHG emissions, PHMSA’s existing and anticipated leak detection and repair requirements, and state actions to develop statewide or regional programs. Existing EPA regulations require us to report GHG emissions in the U.S. from sources such as our larger natural gas compressor stations, fractionated NGL, and production of naturally occurring CO2 (for example, from our McElmo Dome CO2 field), even when such production is not emitted to the atmosphere. Proposed approaches to further address GHG emissions include establishing GHG “cap and trade” programs, a fee on methane emissions from petroleum and natural gas systems, increased efficiency standards, participation in international climate agreements, issuance of executive orders by the U.S. presidential administration and incentives or mandates for pollution reduction, use of renewable energy sources, or use of alternative fuels with lower carbon content. For more information about climate change regulation, see Items 1 and 2. “Business and Properties—Narrative Description of Business—Environmental Matters—Climate Change.

Adoption of any such laws or regulations could increase our costs to operate and maintain our facilities, expand existing facilities or construct new facilities. We could be required to install new emission controls on our facilities, acquire allowances for our GHG emissions, pay taxes related to our GHG emissions and administer and manage a GHG emissions program, and such increased costs could be significant. Recovery of such increased costs from our customers is uncertain in all cases and may depend on events beyond our control, including the outcome of future rate proceedings before the FERC. Such laws or regulations could also lead to reduced demand for hydrocarbon products that are deemed to contribute to GHGs, or restrictions
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on their use, which in turn could adversely affect demand for our products and services. See also “—Business Risks—We are subject to reputational risks and risks relating to public opinion.” and “—Business Risks—Hurricanes, earthquakes, flooding and other natural disasters, as well as subsidence and coastal erosion and climate-related physical risks, could have an adverse effect on our business, financial condition and results of operations.”

In March 2022, the SEC proposed new climate-related disclosure rules, which if adopted as proposed, would require significant new climate-related disclosure in SEC filings, including certain climate-related metrics and GHG emissions data, and third-party attestation requirements. At this time, we cannot predict the costs of compliance with or any potential adverse impacts resulting from, the new rules if adopted as proposed.

Any of the foregoing could have adverse effects on our business, financial position, results of operations or cash flows.

Increased regulation of exploration and production activities, including activity on public lands, could result in reductions or delays in drilling and completing new oil and natural gas wells, as well as reductions in production from existing wells, which could adversely impact the volumes of natural gas transported on our natural gas pipelines and our own oil and gas development and production activities.

We gather, process or transport crude oil, natural gas or NGL from several areas, including lands that are federally managed. Policy and regulatory initiatives or legislation by Congress may decrease access to federally managed lands or increase the regulatory burdens associated with using these lands to produce crude oil or natural gas, or both. Recently, the federal government has deprioritized onshore leasing and its review of applications for permits to drill. Third-party interests groups and members of the oil and gas industry have initiated litigation challenging decisions to approve or prohibit oil and gas activities on federally managed lands.

In addition, oil and gas development and production activities are subject to increasing regulation at the federal, state and local levels. For example, there have been initiatives at the federal and state levels to regulate or otherwise restrict the use of certain hydraulic fracturing activities, and many states are promulgating stricter requirements related not only to well development but also to compressor stations and other facilities in the oil and gas industry. These activities are subject to laws and regulations regarding the acquisition of permits before drilling, restrictions on drilling activities and location, emissions into the environment, water discharges, transportation of hazardous materials, and storage and disposition of wastes. In addition, legislation has been enacted that requires well and facility sites to be abandoned and reclaimed to the satisfaction of state authorities.

Adoption of legislation or regulations restricting these activities in our areas of operations could impose operational delays, increased operating costs and additional regulatory burdens on exploration and production operators, which could reduce their production of crude oil, natural gas or NGL and, in turn, adversely affect our revenues, cash flows and results of operations by decreasing the volumes of these commodities that we handle. These laws and regulations may also adversely affect our own oil and gas development and production activities.

The Jones Act includes restrictions on ownership by non-U.S. citizens of our U.S. point to point maritime shipping vessels, and failure to comply with the Jones Act, or changes to or a repeal of the Jones Act, could limit our ability to operate our vessels in the U.S. coastwise trade, result in the forfeiture of our vessels or otherwise adversely impact our earnings, cash flows and operations.

We are subject to the Jones Act, which generally restricts U.S. point-to-point maritime shipping to vessels operating under the U.S. flag, built in the U.S., owned and operated by U.S.-organized companies that are controlled and at least 75% owned by U.S. citizens and crewed by predominately U.S. citizens. Our business would be adversely affected if we fail to comply with the Jones Act provisions on coastwise trade. If we do not comply with any of these requirements, we would be prohibited from operating our vessels in the U.S. coastwise trade and, under certain circumstances, we could be deemed to have undertaken an unapproved transfer to non-U.S. citizens that could result in severe penalties, including permanent loss of U.S. coastwise trading rights for our vessels, fines or forfeiture of vessels. Our business could be adversely affected if the Jones Act were to be modified or repealed so as to permit foreign competition that is not subject to the same U.S. government imposed burdens.

Proposed changes to U.S. federal, state, and local tax laws, if enacted, could have a material adverse effect on our business and profitability.

New federal, state, or local tax legislation or administrative guidance may be enacted or issued in the future, and such legislation or guidance could materially impact our current or future tax planning and effective tax rates. It is unclear (i) whether these or similar changes will occur, (ii) if such changes occur, when such changes will become effective, and (iii)
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whether such changes will have a material adverse effect on our business, profitability, financial position, results of operations, or cash flows.

Risks Related to Ownership of Our Capital Stock

The guidance we provide for our anticipated dividends is based on estimates. Circumstances may arise that lead to conflicts between using funds to pay anticipated dividends or to invest in our business.

We disclose in this report and elsewhere the expected cash dividends on our common stock. These reflect our current judgment, but as with any estimate, they may be affected by inaccurate assumptions and other risks and uncertainties, many of which are beyond our control. See “Information Regarding Forward-Looking Statements” at the beginning of this report. If our board of directors elects to pay dividends at the anticipated level and that action would leave us with insufficient cash to take timely advantage of growth opportunities (including through acquisitions), to meet any large unanticipated liquidity requirements, to fund our operations, to maintain our leverage metrics or otherwise to properly address our business prospects, our business could be harmed.

Conversely, a decision to address such needs might lead to the payment of dividends below the anticipated levels. As events present themselves or become reasonably foreseeable, our board of directors, which determines our business strategy and our dividends, may decide to address those matters by reducing our anticipated dividends. Alternatively, because nothing in our governing documents or credit agreements prohibits us from borrowing to pay dividends, we could choose to incur debt to enable us to pay our anticipated dividends. This would add to our substantial debt discussed above under “—Risks Related to Financing Our Business—Our substantial debt could adversely affect our financial health and make us more vulnerable to adverse economic conditions.”

Our certificate of incorporation restricts the ownership of our common stock by non-U.S. citizens within the meaning of the Jones Act. These restrictions may affect the liquidity of our common stock and may result in non-U.S. citizens being required to sell their shares at a loss.

The Jones Act requires, among other things, that at least 75% of our common stock be owned at all times by U.S. citizens, as defined under the Jones Act, in order for us to own and operate vessels in the U.S. coastwise trade. As a safeguard to help us maintain our status as a U.S. citizen, our certificate of incorporation provides that, if the number of shares of our common stock owned by non-U.S. citizens exceeds 22%, we have the ability to redeem shares owned by non-U.S. citizens to reduce the percentage of shares owned by non-U.S. citizens to 22%. These redemption provisions may adversely impact the marketability of our common stock, particularly in markets outside of the U.S. Further, those stockholders would not have control over the timing of such redemption and may be subject to redemption at a time when the market price or timing of the redemption is disadvantageous. In addition, the redemption provisions might have the effect of impeding or discouraging a merger, tender offer or proxy contest by a non-U.S. citizen, even if it were favorable to the interests of some or all of our stockholders.

Item 1B.  Unresolved Staff Comments.

None.

Item 3.  Legal Proceedings.

See Note 18 “Litigation and Environmental” to our consolidated financial statements.

Item 4.  Mine Safety Disclosures.

Except for one terminal facility that is in temporary idle status with the Mine Safety and Health Administration, we do not own or operate mines for which reporting requirements apply under the mine safety disclosure requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank). We have not received any specified health and safety violations, orders or citations, related assessments or legal actions, mining-related fatalities, or similar events requiring disclosure pursuant to the mine safety disclosure requirements of Dodd-Frank for the year ended December 31, 2022.

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PART II

Item 5.  Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.

As of February 7, 2023, we had 9,941 holders of our Class P common stock, which does not include beneficial owners whose shares are held by a nominee, such as a broker or bank.

For information on our equity compensation plans, see Note 10 “Share-based Compensation and Employee Benefits—Share-based Compensation” to our consolidated financial statements.

Our Purchases of Our Class P Stock
(During the quarter ended December 31, 2022)
Settlement PeriodTotal number of securities purchased(a)Average price paid per security(b)Total number of securities purchased as part of publicly announced plans(a)Maximum number (or approximate dollar value) of securities that may yet be purchased under the plans or programs(a)
October 1 to October 31, 20222,056,189 $16.75 2,056,189 $1,057,284,126 
November 1 to November 30, 2022— — — 1,057,284,126 
December 1 to December 31, 2022— — — 1,057,284,126 
Total2,056,189 $16.75 2,056,189 $1,057,284,126 
(a)On July 19, 2017, our board of directors approved a $2 billion common share buy-back program. On January 18, 2023, our board of directors approved an increase in our share repurchase authorization to $3 billion from $2 billion, increasing the maximum dollar value of securities that may yet be purchased under the plan as of January 18, 2023 to $2.1 billion. After repurchase, the shares are canceled and no longer outstanding.
(b)Amount includes any commission or other costs to repurchase shares.

Item 6.  [Reserved] 

Item 7.  Management’s Discussion and Analysis of Financial Condition and Results of Operations.

The following discussion and analysis should be read in conjunction with our consolidated financial statements and the notes thereto.  We prepared our consolidated financial statements in accordance with GAAP. Additional sections in this report which should be helpful to the reading of our discussion and analysis include the following: (i) a description of our business strategy found in Items 1 and 2. “Business and Properties—Narrative Description of Business—Business Strategy;” (ii) a description of developments during 2022, found in Items 1 and 2. “Business and Properties—General Development of Business—Recent Developments;” (iii) a description of terms for services and commodities we provide, found in Items 1 and 2.
“Business and Properties—Narrative Description of Business—Business Segments;” (iv) a description of risk factors affecting us and our business, found in Item 1A. Risk Factors;” and (v) a discussion of forward-looking statements, found in “Information Regarding Forward-Looking Statements” at the beginning of this report.

A comparative discussion of our 2021 to 2020 operating results can be found in Item 7. “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Results of Operations” included in our Annual Report on Form 10-K for the year ended December 31, 2021 filed with the SEC on February 7, 2022.

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General

Significant Acquisitions and Dispositions

Following are significant acquisitions and dispositions during the reporting periods. See Note 3, “Acquisitions and Divestitures” to our consolidated financial statements for further information on these transactions.

EventDescriptionBusiness Segment
Sale of interest in ELC
(September 2022)
We sold a 25.5% interest in our joint venture ELC. We now own a 25.5% interest in ELC and continue to operate, have a controlling financial interest in and consolidate ELC.
Natural Gas Pipelines business segment
(East Region)
North American Natural Resources acquisition
(August 2022)
We acquired seven landfill assets with the purchase of North American Natural Resources, Inc. and, its sister companies, North American Biofuels, LLC and North American-Central, LLC (NANR) consisting of GTE facilities in Michigan and Kentucky.
CO2 business segment
(Energy Transition Ventures group)
Mas Ranger acquisition
(July 2022)
We acquired three landfill assets with the purchase of Mas Ranger, LLC and its subsidiaries from Mas CanAm, LLC, comprising an RNG facility in Arlington, Texas and medium Btu facilities in Shreveport, Louisiana and Victoria, Texas.
CO2 business segment
(Energy Transition Ventures group)

February 2021 Winter Storm

Our earnings for 2021 reflect impacts of the February 2021 winter storm that affected Texas, which are largely nonrecurring. See “—Segment Earnings Results” below.

2023 Dividends and Discretionary Capital

We expect to declare dividends of $1.13 per share for 2023, a 2% increase from the 2022 declared dividends of $1.11 per share. We also expect to invest $2.1 billion in expansion projects and contributions to joint ventures, or discretionary capital expenditures during 2023.

The expectations for 2023 discussed above involve risks, uncertainties and assumptions, and are not guarantees of performance.  Many of the factors that will determine these expectations are beyond our ability to control or predict, and because of these uncertainties, it is advisable not to put undue reliance on any forward-looking statement.  Please read our Item 1A. “Risk Factors” and “Information Regarding Forward-Looking Statements” at the beginning of this report for more information.  Furthermore, we plan to provide updates to these 2022 expectations when we believe previously disclosed expectations no longer have a reasonable basis.

Critical Accounting Estimates

Critical accounting estimates and assumptions involve material levels of subjectivity and complex judgement to account for highly uncertain matters or matters with a high susceptibility to change, and could result in a material impact to our financial statements. Examples of certain areas that require more judgment relative to others when preparing our consolidated financial statements and related disclosures include our use of estimates in determining (i) revenue recognition; (ii) income taxes; (iii) the economic useful lives of our assets and related depletion rates; (iv) the fair values used in (a) assignment of the purchase price for a business acquisition, (b) calculations of possible asset and equity investment impairment charges, (c) calculation for the annual goodwill impairment test (or interim tests if triggered), and (d) recording derivative contract assets and liabilities; (v) reserves for environmental claims, legal fees, transportation rate cases and other litigation liabilities; (vi) provisions for credit losses; and (vii) exposures under contractual indemnifications. We routinely evaluate these estimates, utilizing historical experience, consultation with experts and other methods we consider reasonable in the particular circumstances. Nevertheless, actual results may differ significantly from our estimates, and any effects on our business, financial position or results of operations resulting from revisions to these estimates are recorded in the period in which the facts that give rise to the revision become known.

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For a summary of our significant accounting policies, see Note 2 “Summary of Significant Accounting Policies” to our consolidated financial statements and the following discussion for further information regarding critical estimates and assumptions used in the preparation of our financial statements. For discussion on our hedging activities and related
sensitivities to our estimates, see Note 14 Risk Managementto our consolidated financial statements and Item 7A.
“Quantitative and Qualitative Disclosures About Market Risk,” respectively.

Impairments

In addition to our annual testing of impairment for goodwill, we evaluate impairment of our long-lived assets when a triggering event occurs. Management applies judgment in determining whether there is an impairment indicator. Fair value calculated for the purpose of testing our long-lived assets, including intangible assets, goodwill and equity method investments, for impairment involves the use of significant estimates and assumptions regarding the timing and amounts of future cash inflows and outflows, discount rates, market prices and asset lives, among other items. The estimates and assumptions can be affected by a variety of factors, including external factors such as industry and economic trends, and internal factors such as changes in our business strategy and our internal forecasts. An estimate of the sensitivity to changes in underlying assumptions of a fair value calculation is not practicable, given the numerous assumptions that can materially affect our estimates.

For more information on our impairments and significant estimates and assumptions used in our impairment evaluations, see Note 4 “Gains and Losses on Divestitures, Impairments and Other Write-downs.”

Environmental Matters

With respect to our environmental exposure, we utilize both internal staff and external experts to assist us in identifying environmental issues and in estimating the costs and timing of remediation efforts. Our accrual of environmental liabilities often coincides either with our completion of a feasibility study or our commitment to a formal plan of action, but generally, we recognize and/or adjust our probable environmental liabilities, if necessary or appropriate, following quarterly reviews of potential environmental issues and claims that could impact our assets or operations. In recording and adjusting environmental liabilities, we consider the effect of environmental compliance, pending legal actions against us, and potential third-party liability claims. For more information on environmental matters, see Part I, Items 1 and 2. “Business and Properties—Narrative Description of Business—Environmental Matters.” For more information on our environmental disclosures, see Note 18 “Litigation and Environmental” to our consolidated financial statements.

Legal and Regulatory Matters

Many of our operations are regulated by various U.S. regulatory bodies, and we are subject to legal and regulatory matters as a result of our business operations and transactions. We utilize both internal and external counsel in evaluating our potential exposure to adverse outcomes from orders, judgments or settlements. Any such liability recorded is revised as better information becomes available. Accordingly, to the extent that actual outcomes differ from our estimates, or additional facts and circumstances cause us to revise our estimates, our earnings will be affected. For more information on regulatory matters, see Part I, Items 1 and 2. “Business and Properties—Narrative Description of Business—Industry Regulation.” For more information on legal proceedings, see Note 18 “Litigation and Environmental” to our consolidated financial statements. 

Employee Benefit Plans

Our pension and OPEB obligations and net benefit costs are primarily based on actuarial calculations. A significant assumption we utilize is the discount rate used in calculating our benefit obligations. The selection of assumptions used in the actuarial calculations of our pension and OPEB plans is further discussed in Note 10Share-based Compensation and Employee Benefits” to our consolidated financial statements.

Actual results may differ from the assumptions included in these calculations, and as a result, our estimates associated with our pension and OPEB can be, and have been revised in subsequent periods. The income statement impact of the changes in the assumptions on our related benefit obligations are deferred and amortized into income over either the period of expected future service of active participants, or over the expected future lives of inactive plan participants.

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The following sensitivity analysis shows the estimated impact of a 1% change in the primary assumptions used in our actuarial calculations associated with our pension and OPEB plans for the year ended December 31, 2022:
Pension BenefitsOPEB
Net benefit cost (income)Change in funded status(a)Net benefit cost (income)Change in funded status(a)
(In millions)
One percent increase in:
Discount rates$(13)$145 $— $13 
Expected return on plan assets(22)— (4)— 
Rate of compensation increase(9)— — 
One percent decrease in:
Discount rates15 (169)— (15)
Expected return on plan assets22 — — 
Rate of compensation increase(3)— — 
(a)Includes amounts deferred as either accumulated other comprehensive income (loss) or as a regulatory asset or liability for certain of our regulated operations.

Income Taxes

We make significant judgments and estimates in determining our provision for income taxes, including our assessment of our income tax positions given the uncertainties involved in the interpretation and application of complex tax laws and regulations in various taxing jurisdictions. Numerous and complex judgments and assumptions are inherent in the estimation of future taxable income when determining a valuation allowance, including factors such as future operating conditions and the apportionment of income by state. For more information, see Note 5 “Income Taxes” to our consolidated financial statements.

Results of Operations

Overview

As described in further detail below, our management evaluates our performance primarily using the GAAP financial measures of Segment EBDA (as presented in Note 16, “Reportable Segments”) and Net income attributable to Kinder Morgan, Inc., along with the non-GAAP financial measures of Adjusted Earnings and DCF, both in the aggregate and per share for each, Adjusted Segment EBDA, Adjusted EBITDA and Net Debt.

GAAP Financial Measures

The Consolidated Earnings Results for the years ended December 31, 2022 and 2021 present Segment EBDA and Net income attributable to Kinder Morgan, Inc., which are prepared and presented in accordance with GAAP. Segment EBDA is a useful measure of our operating performance because it measures the operating results of our segments before DD&A and certain expenses that are generally not controllable by our business segment operating managers, such as general and administrative expenses and corporate charges, interest expense, net, and income taxes. Our general and administrative expenses and corporate charges include such items as unallocated employee benefits, insurance, rentals, unallocated litigation and environmental expenses, and shared corporate services including accounting, information technology, human resources and legal services.

Non-GAAP Financial Measures

Our non-GAAP financial measures described below should not be considered alternatives to GAAP Net income attributable to Kinder Morgan, Inc. or other GAAP measures and have important limitations as analytical tools. Our computations of these non-GAAP financial measures may differ from similarly titled measures used by others. You should not consider these non-GAAP financial measures in isolation or as substitutes for an analysis of our results as reported under GAAP. Management compensates for the limitations of these non-GAAP financial measures by reviewing our comparable GAAP measures, understanding the differences between the measures and taking this information into account in its analysis and its decision making processes.
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Certain Items

Certain Items, as adjustments used to calculate our non-GAAP financial measures, are items that are required by GAAP to be reflected in Net income attributable to Kinder Morgan, Inc., but typically either (i) do not have a cash impact (for example, unsettled commodity hedges and asset impairments), or (ii) by their nature are separately identifiable from our normal business operations and in our view are likely to occur only sporadically (for example, certain legal settlements, enactment of new tax legislation and casualty losses). We also include adjustments related to joint ventures (see “Amounts from Joint Ventures” below and the tables included in “—Consolidated Earnings Results (GAAP)—Certain Items Affecting Consolidated Earnings Results,” “—Non-GAAP Financial Measures—Reconciliation of Net Income Attributable to Kinder Morgan, Inc. (GAAP) to Adjusted EBITDA” and “—Non-GAAP Financial Measures—Supplemental Information” below). In addition, Certain Items are described in more detail in the footnotes to tables included in “—Segment Earnings Results” and “—DD&A, General and Administrative and Corporate Charges, Interest, net and Noncontrolling Interests” below.

Adjusted Earnings

Adjusted Earnings is calculated by adjusting Net income attributable to Kinder Morgan, Inc. for Certain Items. Adjusted Earnings is used by us and certain external users of our financial statements to assess the earnings of our business excluding Certain Items as another reflection of our ability to generate earnings. We believe the GAAP measure most directly comparable to Adjusted Earnings is Net income attributable to Kinder Morgan, Inc. Adjusted Earnings per share uses Adjusted Earnings and applies the same two-class method used in arriving at basic earnings per share. See “—Non-GAAP Financial Measures—Reconciliation of Net Income Attributable to Kinder Morgan, Inc. (GAAP) to Adjusted Earnings to DCF” below.

DCF

DCF is calculated by adjusting Net income attributable to Kinder Morgan, Inc. for Certain Items (Adjusted Earnings), and further by DD&A and amortization of excess cost of equity investments, income tax expense, cash taxes, sustaining capital expenditures and other items. We also include amounts from joint ventures for income taxes, DD&A and sustaining capital expenditures (see “Amounts from Joint Ventures” below). DCF is a significant performance measure useful to management and external users of our financial statements in evaluating our performance and in measuring and estimating the ability of our assets to generate cash earnings after servicing our debt, paying cash taxes and expending sustaining capital, that could be used for discretionary purposes such as dividends, stock repurchases, retirement of debt, or expansion capital expenditures. DCF should not be used as an alternative to net cash provided by operating activities computed under GAAP. We believe the GAAP measure most directly comparable to DCF is Net income attributable to Kinder Morgan, Inc. DCF per share is DCF divided by average outstanding shares, including restricted stock awards that participate in dividends. See “—Non-GAAP Financial Measures—Reconciliation of Net Income Attributable to Kinder Morgan, Inc. (GAAP) to Adjusted Earnings to DCF” and “—Non-GAAP Financial Measures—Adjusted Segment EBDA to Adjusted EBITDA to DCF” below.

Adjusted Segment EBDA

Adjusted Segment EBDA is calculated by adjusting Segment EBDA for Certain Items attributable to the segment. Adjusted Segment EBDA is used by management in its analysis of segment performance and management of our business. We believe Adjusted Segment EBDA is a useful performance metric because it provides management and external users of our financial statements additional insight into the ability of our segments to generate cash earnings on an ongoing basis. We believe it is useful to investors because it is a measure that management uses to allocate resources to our segments and assess each segment’s performance. We believe the GAAP measure most directly comparable to Adjusted Segment EBDA is Segment EBDA. See “—Consolidated Earnings Results (GAAP)—Certain Items Affecting Consolidated Earnings Results” for a reconciliation of Segment EBDA to Adjusted Segment EBDA by business segment.

Adjusted EBITDA

Adjusted EBITDA is calculated by adjusting EBITDA for Certain Items. We also include amounts from joint ventures for income taxes and DD&A (see “Amounts from Joint Ventures” below). Adjusted EBITDA is used by management and external users, in conjunction with our Net Debt (as described further below), to evaluate our leverage. Therefore, we believe Adjusted EBITDA is useful to investors. We believe the GAAP measure most directly comparable to Adjusted EBITDA is Net income attributable to Kinder Morgan, Inc. See “—Adjusted Segment EBDA to Adjusted EBITDA to DCF” and “—Non-GAAP Financial Measures—Reconciliation of Net Income Attributable to Kinder Morgan, Inc. (GAAP) to Adjusted EBITDA” below.

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Amounts from Joint Ventures

Certain Items, DCF and Adjusted EBITDA reflect amounts from unconsolidated joint ventures and consolidated joint ventures utilizing the same recognition and measurement methods used to record “Earnings from equity investments” and “Noncontrolling interests,” respectively. The calculations of DCF and Adjusted EBITDA related to our unconsolidated and consolidated joint ventures include the same items (DD&A and income tax expense, and for DCF only, also cash taxes and sustaining capital expenditures) with respect to the joint ventures as those included in the calculations of DCF and Adjusted EBITDA for our wholly-owned consolidated subsidiaries. (See “—Non-GAAP Financial Measures—Supplemental Information” below.) Although these amounts related to our unconsolidated joint ventures are included in the calculations of DCF and Adjusted EBITDA, such inclusion should not be understood to imply that we have control over the operations and resulting revenues, expenses or cash flows of such unconsolidated joint ventures.

Net Debt

Net Debt is calculated, based on amounts as of December 31, 2022, by subtracting the following amounts from our total debt balance of $31,788 million: (i) cash and cash equivalents of $745 million; and (ii) debt fair value adjustments of $115 million; and excluding the foreign exchange impact on Euro-denominated bonds of $(8) million for which we have entered into currency swaps to convert that debt to U.S. dollars. Net Debt is a non-GAAP financial measure that management believes is useful to investors and other users of our financial information in evaluating our leverage. We believe the most comparable measure to Net Debt is total debt.

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Consolidated Earnings Results (GAAP)

The following tables summarize the key components of our consolidated earnings results.
Year Ended December 31,
20222021Earnings
increase/(decrease)
(In millions, except percentages)
Segment EBDA(a)  
Natural Gas Pipelines$4,801 $3,815 $986 26 %
Products Pipelines1,107 1,064 43 %
Terminals975 908 67 %
CO2
819 760 59 %
Total segment EBDA7,702 6,547 1,155 18 %
DD&A(2,186)(2,135)(51)(2)%
Amortization of excess cost of equity investments(75)(78)%
General and administrative and corporate charges(593)(623)30 %
Interest, net(1,513)(1,492)(21)(1)%
Income before income taxes3,335 2,219 1,116 50 %
Income tax expense(710)(369)(341)(92)%
Net income2,625 1,850 775 42 %
Net income attributable to noncontrolling interests(77)(66)(11)(17)%
Net income attributable to Kinder Morgan, Inc.$2,548 $1,784 $764 43 %
(a)Includes revenues, earnings from equity investments, operating expenses, (gain) loss on divestitures and impairments, net, other income, net and other, net.  Operating expenses include costs of sales, operations and maintenance expenses, and taxes, other than income taxes.

Year Ended December 31, 2022 vs. 2021

Net income attributable to Kinder Morgan, Inc. increased $764 million in 2022 compared to 2021. The increase was primarily due to the $1,600 million non-cash impairment loss and associated income tax benefit in 2021 related to South Texas gathering and processing assets within our Natural Gas Pipeline segment and higher earnings across all of our business segments partially offset by the benefit in the 2021 period of $1,092 million for largely nonrecurring pre-tax earnings related to the February 2021 winter storm, mostly impacting the earnings from our Natural Gas Pipelines and CO2 business segments.
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Certain Items Affecting Consolidated Earnings Results
Year Ended December 31,
20222021
GAAPCertain ItemsAdjustedGAAPCertain ItemsAdjustedAdjusted amounts
increase/(decrease) to earnings
(In millions)
Segment EBDA
Natural Gas Pipelines$4,801 $141 $4,942 $3,815 $1,648 $5,463 $(521)
Products Pipelines1,107 — 1,107 1,064 53 1,117 (10)
Terminals975 — 975 908 42 950 25 
CO2
819 (11)808 760 (6)754 54 
Total Segment EBDA(a)7,702 130 7,832 6,547 1,737 8,284 (452)
DD&A and amortization of excess cost of equity investments(2,261)— (2,261)(2,213)— (2,213)(48)
General and administrative and corporate charges(a)(593)(587)(623)— (623)36 
Interest, net(a)(1,513)(11)(1,524)(1,492)(26)(1,518)(6)
Income before income taxes3,335 125 3,460 2,219 1,711 3,930 (470)
Income tax expense(b)(710)(37)(747)(369)(491)(860)113 
Net income2,625 88 2,713 1,850 1,220 3,070 (357)
Net income attributable to noncontrolling interests(a)(77)— (77)(66)— (66)(11)
Net income attributable to Kinder Morgan, Inc.$2,548 $88 $2,636 $1,784 $1,220 $3,004 $(368)
(a)For a more detailed discussion of these Certain Items, see the footnotes to the tables within “—Segment Earnings Results and —DD&A, General and Administrative and Corporate Charges, Interest, net and Noncontrolling Interests” below.
(b)The combined net effect of the income tax Certain Items represents the income tax provision on Certain Items plus discrete income tax items.

Net income attributable to Kinder Morgan, Inc. adjusted for Certain Items (Adjusted Earnings) decreased by $368 million from the prior year. The decrease was primarily due to lower Adjusted Segment EBDA contributions of $668 million from our Natural Gas Pipelines business segment’s Midstream region (see “—Segment Earnings Results—Natural Gas Pipelines” further below) which was impacted by the February 2021 winter storm (and therefore largely nonrecurring) partially offset by lower income tax expense related to the reduction in earnings.
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Non-GAAP Financial Measures

Reconciliation of Net Income Attributable to Kinder Morgan, Inc. (GAAP) to Adjusted Earnings to DCF
Year Ended December 31,
20222021
(In millions)
Net income attributable to Kinder Morgan Inc. (GAAP)$2,548 $1,784 
Total Certain Items88 1,220 
Adjusted Earnings(a)2,636 3,004 
DD&A and amortization of excess cost of equity investments for DCF(b)2,534 2,481 
Income tax expense for DCF(a)(b)822 943 
Cash taxes(b)(83)(69)
Sustaining capital expenditures(b)(901)(864)
Other items(c)(38)(35)
DCF$4,970 $5,460 

Adjusted Segment EBDA to Adjusted EBITDA to DCF
Year Ended December 31,
20222021
(In millions, except per share amounts)
Natural Gas Pipelines$4,942 $5,463 
Products Pipelines1,107 1,117 
Terminals975 950 
CO2
808 754 
Adjusted Segment EBDA(a)7,832 8,284 
General and administrative and corporate charges(a)(587)(623)
Joint venture DD&A and income tax expense(a)(b)348 351 
Net income attributable to noncontrolling interests(a)(77)(66)
Adjusted EBITDA7,516 7,946 
Interest, net(a)(1,524)(1,518)
Cash taxes(b)(83)(69)
Sustaining capital expenditures(b)(901)(864)
Other items(c)(38)(35)
DCF$4,970 $5,460 
Adjusted Earnings per share$1.16 $1.32 
Weighted average shares outstanding for dividends(d)2,271 2,278 
DCF per share$2.19 $2.40 
Declared dividends per share$1.11 $1.08 
(a)Amounts are adjusted for Certain Items. See tables included in “—Reconciliation of Net Income Attributable to Kinder Morgan, Inc. (GAAP) to Adjusted EBITDA” and “—Supplemental Information” below.
(b)Includes or represents DD&A, income tax expense, cash taxes and/or sustaining capital expenditures (as applicable for each item) from joint ventures. See tables included in “—Supplemental Information” below.
(c)Includes pension contributions, non-cash pension expense and non-cash compensation associated with our restricted stock program.
(d)Includes restricted stock awards that participate in dividends.

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Reconciliation of Net Income Attributable to Kinder Morgan, Inc. (GAAP) to Adjusted EBITDA
Year Ended December 31,
20222021
(In millions)
Net income attributable to Kinder Morgan, Inc. (GAAP)$2,548 $1,784 
Certain Items:
Fair value amortization(15)(19)
Legal, environmental and other reserves51 160 
Change in fair value of derivative contracts(a)57 19 
Loss on impairments, divestitures and other write-downs, net(b)— 1,535 
Income tax Certain Items(37)(491)
Other32 16 
Total Certain Items(c)88 1,220 
DD&A and amortization of excess cost of equity investments2,261 2,213 
Income tax expense(d)747 860 
Joint venture DD&A and income tax expense(d)(e)348 351 
Interest, net(d)1,524 1,518 
Adjusted EBITDA$7,516 $7,946 
(a)Gains or losses are reflected in our DCF when realized.
(b)2021 amount primarily includes a pre-tax non-cash impairment loss of $1,600 million related to our South Texas gathering and processing assets within our Natural Gas Pipelines business segment reported within “(Gain) loss on divestitures and impairments, net” and a pre-tax gain of $206 million associated with the sale of a partial interest in our equity investment in NGPL Holdings LLC, offset partially by a write-down of $117 million on a long-term subordinated note receivable from an equity investee, Ruby, reported within “Other, net” and “Earnings from equity investments,” respectively, on the accompanying consolidated statement of income.
(c)2022 and 2021 amounts include $1 million and $124 million, respectively, reported within “Earnings from equity investments” on our accompanying consolidated statements of income.
(d)Amounts are adjusted for Certain Items. See tables included in “—Supplemental Information” and “—DD&A, General and Administrative and Corporate Charges, Interest, net and Noncontrolling Interests” below.
(e)Represents joint venture DD&A and income tax expense. See table included in “—Supplemental Information” below.

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Supplemental Information
Year Ended December 31,
20222021
(In millions)
DD&A (GAAP)$2,186 $2,135 
Amortization of excess cost of equity investments (GAAP)75 78 
DD&A and amortization of excess cost of equity investments2,261 2,213 
Joint venture DD&A273 268 
DD&A and amortization of excess cost of equity investments for DCF$2,534 $2,481 
Income tax expense (GAAP)$710 $369 
Certain Items37 491 
Income tax expense(a)747 860 
Unconsolidated joint venture income tax expense(a)(b)75 83 
Income tax expense for DCF(a)$822 $943 
Additional joint venture information
Unconsolidated joint venture DD&A$323 $312 
Less: Consolidated joint venture partners’ DD&A50 44 
Joint venture DD&A273 268 
Unconsolidated joint venture income tax expense(a)(b)75 83 
Joint venture DD&A and income tax expense(a)$348 $351 
Unconsolidated joint venture cash taxes(b)$(70)$(60)
Unconsolidated joint venture sustaining capital expenditures$(148)$(116)
Less: Consolidated joint venture partners’ sustaining capital expenditures(8)(9)
Joint venture sustaining capital expenditures$(140)$(107)
(a)Amounts are adjusted for Certain Items.
(b)Amounts are associated with our Citrus, NGPL and Products (SE) Pipe Line equity investments.

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Segment Earnings Results

Natural Gas Pipelines 
 Year Ended December 31,
 20222021
 (In millions, except operating statistics)
Revenues$12,686 $11,709 
Operating expenses(8,562)(7,000)
Gain (loss) on divestitures and impairments, net10 (1,599)
Other income
Earnings from equity investments683 487 
Other, net(19)216 
Segment EBDA4,801 3,815 
Certain Items(a)141 1,648 
Adjusted Segment EBDA$4,942 $5,463 
Change from prior periodIncrease/(Decrease)
Segment EBDA$986 
Adjusted Segment EBDA$(521)
Volumetric data(b)
Transport volumes (BBtu/d)39,064 38,577 
Sales volumes (BBtu/d)2,482 2,473 
Gathering volumes (BBtu/d)3,046 2,749 
NGLs (MBbl/d)30 29 
(a)For more detail of these Certain Items, see the discussion of changes in Segment EBDA below.
(b)Joint venture throughput is reported at our ownership share. Volumes for acquired pipelines are included and volumes for assets sold are excluded for all periods presented, however, EBDA contributions from acquisitions are included only for the periods subsequent to their acquisition.

Below are the changes in Segment EBDA between 2022 and 2021:

Year Ended December 31, 2022 versus Year Ended December 31, 2021

Segment EBDA
 20222021increase/(decrease)
 (In millions)
Midstream$1,441 $442 $999 
East2,502 2,510 (8)
West858 863 (5)
Total Natural Gas Pipelines$4,801 $3,815 $986 

The changes in Segment EBDA for our Natural Gas Pipelines business segment in the comparable years of 2022 and 2021 are explained by the following discussion:
A $999 million (226%) increase in Midstream was affected by the following items for 2022 and 2021: (i) a pre-tax non-cash asset impairment loss of $1,600 million in the 2021 period related to our South Texas gathering and processing assets; (ii) an increase in expense in the 2021 period related to a certain litigation matter; and (iii) an increase in revenues
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and costs of sales period over period related to the impacts of non-cash mark-to-market derivative contracts used to hedge forecasted commodity sales and purchases, all of which we treated as Certain Items.

In addition, Midstream’s Segment EBDA was unfavorably impacted by lower realized gas sales margins of $781 million on our Texas intrastate natural gas pipeline operations and $77 million on our South Texas assets largely driven by higher commodity prices related to the February 2021 winter storm partially offset by (i) higher volumes on our KinderHawk assets; (ii) higher commodity sales margins driven by higher prices on our Altamont asset; and (iii) higher earnings on our Oklahoma assets from lower costs of sales due to higher commodity prices in 2021 on certain purchase contracts as a result of the February 2021 winter storm. Overall, Midstream’s revenue changes are partially offset by corresponding changes in costs of sales.

• An $8 million (—%) decrease in the East Region was affected by a pre-tax gain in the 2021 period associated with the sale of a partial interest in our equity investment in NGPL Holdings which we treated as a Certain Item.

In addition, East Region’s Segment EBDA was favorably impacted by (i) our July 2021 acquisition of the Stagecoach assets; (ii) higher equity earnings from MEP driven by new customer contracts in 2022; (iii) increased earnings from KMLP reflecting a new LNG customer contract; and (iv) higher equity earnings from SNG as a result of increased demand for services; partially offset by decreased earnings on TGP driven by higher operating expenses due in part to higher pipeline integrity costs partially offset by higher park and loan revenues.

A $5 million (1%) decrease in the West Region was primarily impacted by lower earnings from CIG driven by lower revenues resulting from a rate case settlement and from EPNG driven by increased operating expenses and decreased revenues due to lower commodity and park and loan volumes which resulted from a partial pipeline outage, partially offset by an increase in gas sales margin.

In addition, the West Region’s Segment EBDA was affected by the following items for 2022 and 2021: (i) a write-down on a long-term subordinated note receivable from our equity investee, Ruby, in 2021; (ii) an increase in operating expenses in the 2022 period related to litigation reserves and other costs associated with the EPNG pipeline rupture; and (iii) an increase in expense in the 2022 period resulting from a payment associated with the bankruptcy settlement involving our equity investee, Ruby, all of which we treated as Certain Items.

Below are the changes in Adjusted Segment EBDA between 2022 and 2021:

Year Ended December 31, 2022 versus Year Ended December 31, 2021

20222021
 Segment EBDA
(GAAP)
Certain ItemsAdjusted Segment EBDASegment EBDA
(GAAP)
Certain ItemsAdjusted Segment EBDAAdjusted Segment EBDA increase/(decrease)
 (In millions)
Midstream$1,441 $62 $1,503 $442 $1,729 $2,171 $(668)
East2,502 2,503 2,510 (199)2,311 192 
West858 78 936 863 118 981 (45)
Total Natural Gas Pipelines$4,801 $141 $4,942 $3,815 $1,648 $5,463 $(521)



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Products Pipelines
 Year Ended December 31,
 20222021
 (In millions, except  operating statistics)
Revenues$3,418 $2,245 
Operating expenses(2,391)(1,239)
Gain on divestitures and impairments, net12 — 
Earnings from equity investments68 57 
Other, net— 
Segment EBDA1,107 1,064 
Certain Items(a)— 53 
Adjusted Segment EBDA$1,107 $1,117 
Change from prior periodIncrease/(Decrease)
Segment EBDA$43 
Adjusted Segment EBDA$(10)
Volumetric data(b)
Gasoline(c)978 987 
Diesel fuel367 390 
Jet fuel264 223 
Total refined product volumes1,609 1,600 
Crude and condensate471 498 
Total delivery volumes (MBbl/d)2,080 2,098 
(a)For more detail of these Certain Items, see the discussion of changes in Segment EBDA below.
(b)Joint venture throughput is reported at our ownership share.
(c)Volumes include ethanol pipeline volumes.

Below are the changes in Segment EBDA between 2022 and 2021:

Year Ended December 31, 2022 versus Year Ended December 31, 2021

Segment EBDA
 20222021increase/(decrease)
 (In millions)
West Coast Refined Products$511 $448 $63 
Southeast Refined Products265 258 
Crude and Condensate331 358 (27)
Total Products Pipelines$1,107 $1,064 $43 

The changes in Segment EBDA for our Products Pipelines business segment in the comparable years of 2022 and 2021 are explained by the following discussion:
A $63 million (14%) increase in West Coast Refined Products was affected by increased expenses in the 2021 period related to litigation and environmental reserve adjustments which we treated as Certain Items.

In addition, West Coast Refined Products Segment EBDA was further impacted by a gain on sale of land at Calnev and increased earnings driven by higher revenues on our West Coast terminals from higher volumes and rates, partially offset
49


by lower earnings on our Pacific operations resulting from higher integrity management expenses partially offset by higher revenues driven by increased transportation rates.

A $7 million (3%) increase in Southeast Refined Products was primarily due to an increase in equity earnings from Products (SE) Pipe Line primarily due to higher revenues as a result of increased volumes partially offset by higher pipeline integrity costs. Overall, revenues from our Transmix processing operations were largely offset by corresponding costs of sales.
A $27 million (8%) decrease in Crude and Condensate was primarily due to lower earnings from our Bakken Crude assets due to lower volumes on our Double H pipeline and from our Kinder Morgan Crude & Condensate pipeline driven primarily by lower deficiency revenues, partially offset by higher earnings from our KM Condensate Processing facility reflecting increased revenues due to higher volumes and rate escalations. Our Crude and Condensate business also had higher revenues of $974 million with a corresponding increase in cost of sales, resulting from increased marketing activities.

Below are the changes in Adjusted Segment EBDA between 2022 and 2021:

Year Ended December 31, 2022 versus Year Ended December 31, 2021

20222021
 Segment EBDA
(GAAP)
Certain ItemsAdjusted Segment EBDASegment EBDA
(GAAP)
Certain ItemsAdjusted Segment EBDAAdjusted Segment EBDA increase/(decrease)
 (In millions)
West Coast Refined Products$511 $— $511 $448 $53 $501 $10 
Southeast Refined Products265 — 265 258 — 258 
Crude and Condensate331 — 331 358 — 358 (27)
Total Products Pipelines$1,107 $— $1,107 $1,064 $53 $1,117 $(10)


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Terminals
 Year Ended December 31,
 20222021
 (In millions, except 
operating statistics)
Revenues$1,792 $1,715 
Operating expenses(853)(793)
Gain (loss) on divestitures and impairments, net(36)
Other income
Earnings from equity investments14 15 
Other, net
Segment EBDA975 908 
Certain Items(a)— 42 
Adjusted Segment EBDA$975 $950 
Change from prior periodIncrease/(Decrease)
Segment EBDA$67 
Adjusted Segment EBDA$25 
Volumetric data(b)
Liquids leasable capacity (MMBbl)77.8 77.8 
Liquids utilization %(c)93.3 %94.8 %
Bulk transload tonnage (MMtons)53.2 51.3 
(a)For more detail of these Certain Items, see the discussion of changes in Segment EBDA below.
(b)Volumes for facilities divested, idled, and/or held for sale are excluded for all periods presented.
(c)The ratio of our tankage capacity in service to liquids leasable capacity.

For purposes of the following tables and related discussions, the results of operations of our terminals held for sale or divested, including any associated gain or loss on sale, are reclassified for all periods presented from the historical region and included within the All others group.

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Below are the changes in Segment EBDA between 2022 and 2021:

Year Ended December 31, 2022 versus Year Ended December 31, 2021

Segment EBDA
 20222021increase/(decrease)
 (In millions)
Mid Atlantic$101 $63 $38 
Lower River74 51 23 
Gulf Central134 122 12 
Gulf Liquids285 300 (15)
Northeast92 107 (15)
Marine operations146 151 (5)
All others (including intrasegment eliminations)143 114 29 
Total Terminals$975 $908 $67 

The changes in Segment EBDA for our Terminals business segment in the comparable years of 2022 and 2021 are explained by the following discussion:
A $38 million (60%) increase in the Mid Atlantic terminals was primarily due to higher handling rates and coal volumes at our Pier IX facility.

A $23 million (45%) increase in the Lower River terminals was primarily due to higher deficiency revenues from a coal customer and the non-recurring impact associated with 2021’s Hurricane Ida, including lower revenues and higher operating expenses recognized in the 2021 period. The non-recurring impact on 2021 operating expenses associated with Hurricane Ida was treated by us as a Certain Item.

A $12 million (10%) increase in the Gulf Central terminals was primarily due to higher volumes for petroleum coke handling activities, owing largely to refinery outages in the 2021 period associated with the February 2021 winter storm and lower property tax expense at Battleground Oil Specialty Terminal Company LLC.

A $15 million (5%) decrease in the Gulf Liquids region was primarily due to re-contracting at lower rates and higher property tax expense partially offset by contractual rate escalations.

A $15 million (14%) decrease in the Northeast terminals was primarily driven by decreased revenues associated with lower utilization and lower rates on re-contracted tank positions at our Carteret and Perth Amboy facilities.

A $5 million (3%) decrease in Marine operations was primarily due to lower average charter rates partially offset by higher fleet utilization.

In addition, other Terminals Segment EBDA was further affected in the 2021 period by pre-tax non-cash impairment losses related to the planned divestiture of our Wilmington terminal and the sale of our interest in Kinder Morgan Resources LLC, both of which we treated as Certain Items.



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Below are the changes in Adjusted Segment EBDA between 2022 and 2021: 

Year Ended December 31, 2022 versus Year Ended December 31, 2021

20222021
 Segment EBDA
(GAAP)
Certain ItemsAdjusted Segment EBDASegment EBDA
(GAAP)
Certain ItemsAdjusted Segment EBDAAdjusted Segment EBDA increase/(decrease)
 (In millions)
Mid Atlantic$101 $— $101 $63 $— $63 $38 
Lower River74 — 74 51 59 15 
Gulf Central134 — 134 122 — 122 12 
Gulf Liquids285 — 285 300 — 300 (15)
Northeast92 — 92 107 — 107 (15)
Marine operations146 — 146 151 — 151 (5)
All others (including intrasegment eliminations)143 — 143 114 34 148 (5)
Total Terminals$975 $— $975 $908 $42 $950 $25 


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CO2 
 Year Ended December 31,
 20222021
 (In millions, except 
operating statistics)
Revenues$1,334 $1,009 
Operating expenses(554)(289)
Gain on divestitures and impairments, net
Earnings from equity investments38 32 
Segment EBDA819 760 
Certain Items(a)(11)(6)
Adjusted Segment EBDA $808 $754 
Change from prior periodIncrease/(Decrease)
Segment EBDA$59 
Adjusted Segment EBDA$54 
Volumetric data
SACROC oil production19.92 19.88 
Yates oil production6.52 6.57 
Other2.75 3.25 
Total oil production, net (MBbl/d)(b)29.19 29.70 
NGL sales volumes, net (MBbl/d)(b)9.40 9.38 
CO2 sales volumes, net (Bcf/d)
0.36 0.38 
Realized weighted average oil price ($ per Bbl)(c)$66.78 $52.71 
Realized weighted average NGL price ($ per Bbl)$39.59 $25.39 
(a)For more detail of these Certain Items, see the discussion of changes in Segment EBDA below.
(b)Net of royalties and outside working interests.
(c)Had we not used energy derivative contracts to transfer commodity price risk, our crude oil sales prices would have averaged $96.36 per barrel and $68.47 per barrel in 2022 and 2021, respectively.

Below are the changes in Segment EBDA between 2022 and 2021:

Year Ended December 31, 2022 versus Year Ended December 31, 2021
Segment EBDA
 20222021increase/(decrease)
 (In millions)
Oil and Gas Producing activities$553 $507 $46 
Source and Transportation activities247 245 
Subtotal800 752 48 
Energy Transition Ventures19 11 
Total CO2
$819 $760 $59 
The changes in Segment EBDA for our CO2 business segment in the comparable years of 2022 and 2021 are explained by the following discussion:
A $46 million (9%) increase in Oil and Gas Producing activities primarily due to higher realized crude oil and NGL prices which increased revenues by $203 million, a 2021 settlement of $38 million for a terminated affiliate purchase contract with Source and Transportation activities partially offset by higher operating expenses of $186 million mainly
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driven by the benefit realized in the 2021 period from returning power to the grid by curtailing oil production during the February 2021 winter storm.

In addition, Oil and Gas Producing activities Segment EBDA was favorably affected in 2022 and 2021 by changes in revenues related to non-cash mark-to-market derivative hedge contracts which we treated as Certain Items.

A $2 million (1%) increase in Source and Transportation activities primarily due to increased revenues of $51 million related to higher CO2 sales prices partially offset by a 2021 settlement of $38 million for a terminated affiliate sales contract with Oil and Gas Producing activities and decreased revenues related to lower CO2 sales volumes.

In addition, Source and Transportation activities was unfavorably impacted by a gain on sale of an asset in 2021 which we treated as a Certain Item.

Below are the changes in Adjusted Segment EBDA between 2022 and 2021:

Year Ended December 31, 2022 versus Year Ended December 31, 2021

20222021
 Segment EBDA
(GAAP)
Certain ItemsAdjusted Segment EBDASegment EBDA
(GAAP)
Certain ItemsAdjusted Segment EBDAAdjusted Segment EBDA increase/(decrease)
 (In millions)
Oil and Gas Producing activities$553 $(11)$542 $507 $$511 $31 
Source and Transportation activities247 — 247 245 (10)235 12 
Subtotal800 (11)789 752 (6)746 43 
Energy Transition Ventures19 — 19 — 11 
Total CO2
$819 $(11)$808 $760 $(6)$754 $54 

We believe that our existing hedge contracts in place within our CO2 business segment substantially mitigate commodity price sensitivities in the near-term and to lesser extent over the following few years from price exposure. Below is a summary of our CO2 business segment hedges outstanding as of December 31, 2022.

2023202420252026
Crude Oil(a)
Price ($ per Bbl)$64.19 $61.66 $61.76 $65.72 
Volume (MBbl/d)22.30 14.14 9.72 4.10 
NGLs
Price ($ per Bbl)$59.13 
Volume (MBbl/d)3.08 
Midland-to-Cushing Basis Spread
Price ($ per Bbl)$0.97 
Volume (MBbl/d)17.96 
(a)Includes West Texas Intermediate hedges.

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DD&A, General and Administrative and Corporate Charges, Interest, net and Noncontrolling Interests
 Year Ended December 31,
 20222021Earnings increase/(decrease)
 (In millions)
DD&A (GAAP)$(2,186)$(2,135)$(51)
General and administrative (GAAP)$(637)$(655)$18 
Corporate benefit44 32 12 
Certain Items(a)— 
General and administrative and corporate charges(b)$(587)$(623)$36 
Interest, net (GAAP)$(1,513)$(1,492)$(21)
Certain Items(a)(11)(26)15 
Interest, net(b)$(1,524)$(1,518)$(6)
Net income attributable to noncontrolling interests (GAAP)$(77)$(66)$(11)
Certain Items(a)— — — 
Net income attributable to noncontrolling interests(b)$(77)$(66)$(11)
(a)For more detailed discussions of these Certain Items, see the discussions of changes in DD&A, General and Administrative and Corporate Charges, Interest, net and Noncontrolling Interests below.
(b)Amounts are adjusted for Certain Items.

We had a favorable change of $18 million in general and administrative expenses and a favorable change of $12 million in our corporate benefit in 2022 when compared to 2021. The combined changes were primarily due to higher capitalized costs of $24 million, reflecting higher capital spending, and lower benefit-related and pension costs of $18 million partially offset by $9 million of higher labor, travel and legal costs. In addition, the combined changes included the unfavorable impact of an increase in costs of $6 million associated with the Ruby bankruptcy which we treated as a Certain Item.

In the table above, we report our interest expense as “net,” meaning that we have subtracted interest income and capitalized interest from our total interest expense to arrive at one interest amount.  Our consolidated interest expense, net increased $21 million in 2022 when compared to 2021 primarily due to higher realized LIBOR/SOFR rates associated with interest rate swaps partially offset by lower average long-term debt balances at slightly lower weighted average rates.

The increase in interest expense was further impacted by (i) non-cash differences between the change in fair value of interest rate swaps not designated as accounting hedges and the change in fair value of hedged debt, primarily related to our floating-to-fixed LIBOR/SOFR interest rate swaps, and (ii) non-cash debt fair value adjustments associated with acquisitions, both of which were treated by us as Certain Items

We use interest rate swap agreements to convert a portion of the underlying cash flows related to our long-term fixed rate debt securities (senior notes) into variable rate debt in order to achieve our desired mix of fixed and variable rate debt. As of December 31, 2022 and 2021, approximately 20% and 21%, respectively, of the principal amount of our debt balances were subject to variable interest rates—either as short-term or long-term variable rate debt obligations or as fixed-rate debt converted to variable rates through the use of interest rate swaps. The percentage at December 31, 2022 includes $1,250 million of variable-to-fixed interest rate derivative contracts which expire in December 2023. The percentage at December 31, 2021 excludes $4,860 million of variable-to-fixed interest rate derivative contracts which became effective January 4, 2022 and hedged our exposure through 2022. For more information on our interest rate swaps, see Note 14 “Risk Management—Interest Rate Risk Management” to our consolidated financial statements.

Net income attributable to noncontrolling interests represents the allocation of our consolidated net income attributable to all outstanding ownership interests in our consolidated subsidiaries that are not owned by us. 

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Income Taxes

 Year Ended December 31,
 20222021Increase
 (In millions)
Income tax expense$710 $369 $341 

The increase in income tax expense is due primarily to (i) higher pretax book income in 2022; (ii) the release of a valuation allowance related to our investment in NGPL in 2021; (iii) the Enhanced Oil Recovery Credit in 2021; and (iv) lower dividend-received deductions in 2022.

On August 16, 2022, the Inflation Reduction Act of 2022 (IRA) was enacted into law. The IRA contains significant U.S. federal income tax law changes, including the addition of a corporate alternative minimum tax imposed at a rate of fifteen percent (15%) on our global adjusted financial statement income effective as of January 1, 2023. Based on current guidance, we do not expect the IRA to have a material adverse impact on our business, results of operations or financial position.

Liquidity and Capital Resources

General

As of December 31, 2022, we had $745 million of “Cash and cash equivalents,” a decrease of $395 million from December 31, 2021. Additionally, as of December 31, 2022, we had borrowing capacity of approximately $3.9 billion under our credit facilities (discussed below in “—Short-term Liquidity”). As discussed further below, we believe our cash flows from operating activities, cash position and remaining borrowing capacity on our credit facilities are more than adequate to allow us to manage our day-to-day cash requirements and anticipated obligations.

We have consistently generated substantial cash flow from operations, providing a source of funds of $4,967 million and $5,708 million in 2022 and 2021, respectively. The year-to-year decrease is discussed below in “—Cash Flows—Operating Activities.” We primarily rely on cash provided from operations to fund our operations as well as our debt service, sustaining capital expenditures, dividend payments, and our growth capital expenditures; however, we may access the debt capital markets from time to time to refinance our maturing long-term debt and finance incremental investments, if any.

Our board of directors declared a quarterly dividend of $0.2775 per share for the fourth quarter of 2022, consistent with previous quarters in 2022. The total of the dividends declared for 2022 of $1.11 represents a 3% increase over total dividends declared for 2021.

On February 23, 2022, EPNG issued in a private offering $300 million aggregate principal amount of 3.50% senior notes due 2032 and received net proceeds of $298 million after discount and issuance costs.

On August 3, 2022, we issued in a registered offering two series of senior notes consisting of $750 million aggregate principal amount of 4.80% senior notes due 2033 and $750 million aggregate principal amount of 5.45% senior notes due 2052 and received combined net proceeds of $1,484 million. We used a portion of the proceeds to repay short-term borrowings and for general corporate purposes.

During the first quarter of 2022, upon maturity, we repaid EPNG’s 8.625% senior notes, our 4.15% corporate senior notes, and the 1.50% series of our Euro denominated debt. During the second quarter 2022, we repaid $1 billion of our 3.95% senior notes using short-term borrowings. The short-term borrowings were repaid in the third quarter 2022 with proceeds from the August 2022 senior note issuances.

On January 17, 2023, we repaid $1 billion of our 3.15% and $250 million of our floating rate senior notes using cash on hand and short-term borrowings. On January 31, 2023, we issued in a registered offering $1.5 billion aggregate principal amount of 5.20% senior notes due 2033 for net proceeds of $1,485 million, which were used to repay short-term borrowings, maturing debt and for general corporate purposes.

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Short-term Liquidity

As of December 31, 2022, our principal sources of short-term liquidity are (i) cash from operations; and (ii) our combined $4.0 billion of credit facilities with an available capacity of approximately $3.9 billion and an associated $3.5 billion commercial paper program. The loan commitments under our credit facilities can be used for working capital and other general corporate purposes and as a backup to our commercial paper program. Commercial paper borrowings reduce borrowings allowed under our credit facilities and letters of credit reduce borrowings allowed under our $3.5 billion credit facility. On December 15, 2022, we amended our credit facilities to provide for, among other things, the replacement of LIBOR-based provisions with term SOFR provisions, updated related benchmark replacement provisions and the extension of the maturity date on our $3.5 billion credit facility from August 2026 to August 2027. We provide for liquidity by maintaining a sizable amount of excess borrowing capacity under our credit facilities and, as previously discussed, have consistently generated strong cash flows from operations.

As of December 31, 2022, our $3,385 million of short-term debt consisted primarily of senior notes that mature in the next twelve months. We intend to fund our debt as it becomes due, primarily through credit facility borrowings, commercial paper borrowings, cash flows from operations, and/or issuing new long-term debt. Our short-term debt balance as of December 31, 2021 was $2,646 million.
 
We had working capital (defined as current assets less current liabilities) deficits of $3,127 million and $1,992 million as of December 31, 2022 and 2021, respectively. From time to time, our current liabilities may include short-term borrowings used to finance our expansion capital expenditures, which we may periodically replace with long-term financing and/or pay down using retained cash from operations. The overall $1,135 million unfavorable change from year-end 2021 was primarily due to (i) a $739 million increase in current debt, primarily related to senior notes that mature in the next twelve months; (ii) a $395 million decrease in cash and cash equivalents, which was used to repay a portion of senior notes that matured in the first quarter of 2022; and (iii) unfavorable net short-term fair value adjustments of $276 million on derivative contract assets and liabilities in 2022, offset partially by (i) a $156 million decrease in accrued contingencies; (ii) a $72 million increase in inventories, primarily products inventories; (iii) a $44 million net favorable change in our accounts receivables and payables, and (iv) a $42 million increase in restricted deposits. Generally, our working capital balance varies due to factors such as the timing of scheduled debt payments, timing differences in the collection and payment of receivables and payables, the change in fair value of our derivative contracts, and changes in our cash and cash equivalent balances as a result of excess cash from operations after payments for investing and financing activities (discussed below in “—Long-term Financing” and “—Capital Expenditures”).

We employ a centralized cash management program for our U.S.-based bank accounts that concentrates the cash assets of our wholly owned subsidiaries in joint accounts for the purpose of providing financial flexibility and lowering the cost of borrowing. These programs provide that funds in excess of the daily needs of our wholly owned subsidiaries are concentrated, consolidated or otherwise made available for use by other entities within the consolidated group. We place no material restrictions on the ability to move cash between entities, payment of intercompany balances or the ability to upstream dividends to KMI other than restrictions that may be contained in agreements governing the indebtedness of those entities.

Credit Ratings and Capital Market Liquidity

We believe that our capital structure will continue to allow us to achieve our business objectives. We expect that our short-term liquidity needs will be met primarily through retained cash from operations or short-term borrowings. Generally, we anticipate re-financing maturing long-term debt obligations in the debt capital markets and are therefore subject to certain market conditions which could result in higher costs or negatively affect our and/or our subsidiaries’ credit ratings. A decrease in our credit ratings could negatively impact our borrowing costs and could limit our access to capital.

As of December 31, 2022, our short-term corporate debt ratings were A-2, Prime-2 and F2 at Standard and Poor’s, Moody’s Investor Services and Fitch Ratings, Inc., respectively.

The following table represents KMI’s and KMP’s senior unsecured debt ratings as of December 31, 2022.
Rating agencySenior debt ratingOutlook
Standard and Poor’sBBB Stable
Moody’s Investor ServicesBaa2Stable
Fitch Ratings, Inc.BBBStable
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Long-term Financing

Our equity consists of Class P common stock with a par value of $0.01 per share. We do not expect to need to access the equity capital markets to fund our discretionary capital investments for the foreseeable future. See also “—Dividends and Stock Buy-back Program” below for additional discussion related to our dividends and stock buy-back program.

From time to time, we issue long-term debt securities, often referred to as senior notes.  All of our senior notes issued to date, other than those issued by certain of our subsidiaries, generally have very similar terms, except for interest rates, maturity dates and prepayment premiums. All of our fixed rate senior notes provide that the notes may be redeemed at any time at a price equal to 100% of the principal amount of the notes plus accrued interest to the redemption date, and, in most cases, plus a make-whole premium.  In addition, from time to time, our subsidiaries issue long-term debt securities. Furthermore, we and almost all of our direct and indirect wholly owned domestic subsidiaries are parties to a cross guaranty wherein each party guarantees each other party’s debt. See “—Summarized Combined Financial Information for Guarantee of Securities of Subsidiaries. As of December 31, 2022 and 2021, the aggregate principal amount outstanding of our various long-term debt obligations (excluding current maturities) was $28,288 million and $29,772 million, respectively.

We achieve our variable rate exposure primarily by issuing long-term fixed rate debt and then swapping a portion of the fixed rate interest payments for variable rate interest payments and through the issuance of commercial paper or credit facility borrowings.

For additional information about our outstanding senior notes and debt-related transactions in 2022, see Note 9 “Debt” to our consolidated financial statements.  For information about our interest rate risk, see Item 7A. “Quantitative and Qualitative Disclosures About Market Risk—Interest Rate Risk.

Counterparty Creditworthiness

Some of our customers or other counterparties may experience severe financial problems that may have a significant impact on their creditworthiness. These financial problems may arise from current global economic conditions, continued volatility of commodity prices or otherwise. In such situations, we utilize, to the extent allowable under applicable contracts, tariffs and regulations, prepayments and other security requirements, such as letters of credit, to enhance our credit position relating to amounts owed from these counterparties. While we believe we have taken reasonable measures to protect against counterparty credit risk, we cannot provide assurance that one or more of our customers or other counterparties will not become financially distressed and will not default on their obligations to us. The balance of our allowance for credit losses as of both December 31, 2022 and 2021, was $1 million, reflected in “Other current assets” on our consolidated balance sheets.

Capital Expenditures

We account for our capital expenditures in accordance with GAAP. Additionally, we distinguish between capital expenditures as follows:
Type of ExpenditurePhysical Determination of Expenditure
Sustaining capital expenditures
Maintain throughput or capacity
Expansion capital expenditures (discretionary capital expenditures)(a)
Increase throughput or capacity (i.e., production capacity) from that which existed immediately prior to the making or acquisition of additions or improvements
(a)Not included in calculating DCF (see “—Results of Operations—Non-GAAP Financial Measures—Reconciliation of Net Income Attributable to Kinder Morgan, Inc. (GAAP) to Adjusted Earnings to DCF”).

Budgeting of maintenance capital expenditures, which we refer to as sustaining capital expenditures, is done annually on a bottom-up basis. For each of our assets, we budget for and make those sustaining capital expenditures that are necessary to maintain safe and efficient operations, meet customer needs and comply with our operating policies and applicable law. We may budget for and make additional sustaining capital expenditures that we expect to produce economic benefits such as increasing efficiency and/or lowering future expenses. Budgeting and approval of expansion capital expenditures are generally made periodically throughout the year on a project-by-project basis in response to specific investment opportunities identified by our business segments from which we generally expect to receive sufficient returns to justify the expenditures.  Generally, the determination of whether a capital expenditure is classified as sustaining or as expansion capital expenditures is made on a project level. The classification of our capital expenditures as expansion capital expenditures or as sustaining capital expenditures is made consistent with our accounting policies and is generally a straightforward process, but in certain
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circumstances can be a matter of management judgment and discretion. The classification has an impact on DCF because capital expenditures that are classified as expansion capital expenditures are not deducted from DCF, while those classified as sustaining capital expenditures are.
 
Our capital expenditures for the year ended December 31, 2022, and the amount we expect to spend for 2023 to sustain our assets and grow our business are as follows:
2022Expected 2023
(In millions)
Sustaining capital expenditures(a)(b)$901 $1,002 
Discretionary capital investments(b)(c)(d)1,709 2,138 
(a)2022 and Expected 2023 amounts include $140 million and $145 million, respectively, for sustaining capital expenditures from unconsolidated joint ventures, reduced by consolidated joint venture partners’ sustaining capital expenditures. See table included in “Non-GAAP Financial Measures—Supplemental Information.”
(b)2022 combined sustaining and discretionary amounts include $96 million due to increases in accrued capital expenditures and contractor retainage and net changes in other.
(c)2022 amount includes $264 million of our contributions to certain unconsolidated joint ventures for capital investments and $489 million for our acquisitions of Mas Ranger and NANR.
(d)Amounts include our actual or estimated contributions to certain unconsolidated joint ventures, net of actual or estimated contributions from certain partners in non-wholly owned consolidated subsidiaries for capital investments.

Off Balance Sheet Arrangements
 
We have invested in entities that are not consolidated in our financial statements. For information on our obligations with respect to these investments, as well as our obligations with respect to related letters of credit, see Note 13 “Commitments and Contingent Liabilities” to our consolidated financial statements. Additional information regarding the nature and business purpose of our investments is included in Note 7 “Investments” to our consolidated financial statements.

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Contractual Obligations and Commercial Commitments

The table below provides a summary of our material cash requirements.
 Payments due by period
 TotalLess than 1
year
1-3 years3-5 yearsMore than 5 years
 (In millions)
Contractual obligations:     
Debt borrowings-principal payments(a)$31,673 $3,385 $3,491 $1,992 $22,805 
Interest payments(b)
21,234 1,616 2,900 2,689 14,029 
Lease obligations(c)375 58 90 61 166 
Pension and OPEB plans(d) 469 50 31 32 356 
Transportation, volume and storage agreements(e)661 157 267 131 106 
Other obligations(f) 341 90 105 38 108 
Total$54,753 $5,356 $6,884 $4,943 $37,570 
Other commercial commitments:     
Standby letters of credit(g)$153 $81 $72 
Capital expenditures(h)$527 $527 
(a)See Note 9 “Debt” to our consolidated financial statements.
(b)Interest payment obligations exclude adjustments for interest rate swap agreements and assume no change in variable interest rates from those in effect at December 31, 2022.  
(c)Represents commitments pursuant to the terms of operating lease agreements as of December 31, 2022.
(d)Represents the amount by which the benefit obligations exceeded the fair value of plan assets at year-end for pension and OPEB plans whose accumulated postretirement benefit obligations exceeded the fair value of plan assets. The payments by period include expected contributions in 2023 and estimated benefit payments for underfunded plans in the other years. 
(e)Primarily represents transportation agreements of $298 million, storage agreements for capacity of $159 million and NGL volume agreements of $155 million.
(f)Primarily includes (i) rights-of-way obligations; and (ii) environmental liabilities related to sites that we own or have a contractual or legal obligation with a regulatory agency or property owner upon which we will perform remediation activities. These environmental liabilities are included within “Other current liabilities” and “Other long-term liabilities and deferred credits” in our consolidated balance sheet as of December 31, 2022.
(g)The $153 million in letters of credit outstanding as of December 31, 2022 consisted of the following (i) $54 million under six letters of credit for insurance purposes; (ii) a $46 million letter of credit supporting our International Marine Terminals Partnership Plaquemines Bond; (iii) a $24 million letter of credit supporting our Kinder Morgan Operating LLC “B” tax-exempt bonds; and (iv) a combined $30 million in twenty-nine letters of credit supporting environmental and other obligations of us and our subsidiaries.
(h)Represents commitments for the purchase of plant, property and equipment as of December 31, 2022.

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Cash Flows
 
The following table summarizes our net cash flows provided by (used in) operating, investing and financing activities between 2022 and 2021.
Year Ended December 31,
20222021Changes
(In millions)
Net Cash Provided by (Used in)  
Operating activities $4,967 $5,708 $(741)
Investing activities(2,175)(2,305)130 
Financing activities(3,145)(3,465)320 
Net Decrease in Cash, Cash Equivalents and Restricted Deposits$(353)$(62)$(291)

Operating Activities
$741 million less cash provided by operating activities in the comparable years of 2022 and 2021 is explained by the following discussion.
a $502 million decrease in cash after adjusting the $775 million increase in net income by $1,277 million for the combined effects of the period-to-period net changes in non-cash items. This overall cash decrease primarily resulted from the benefit recognized in 2021 for largely nonrecurring earnings related to the February 2021 winter storm (see discussion above in “—Results of Operations”); and
a $239 million decrease in cash associated with net changes in working capital items and other non-current assets and liabilities. The decrease was primarily driven by unfavorable changes due to the timing of trade payments in accounts payable and payments from reserves in 2022 compared with 2021 associated with litigation matters.

Investing Activities

$130 million less cash used in investing activities in the comparable years of 2022 and 2021 is explained by the following discussion.
a $1,060 million decrease in expenditures for the acquisition of assets and investments, net of cash acquired, primarily driven by a combined $487 million of net cash used for our acquisitions of Mas Ranger, LLC and NANR in 2022, compared with a combined $1,538 million of net cash used for the acquisitions of Stagecoach and Kinetrex in 2021; See Note 3 “Acquisitions and Divestitures” to our consolidated financial statements for further information regarding these two acquisitions; partially offset by,
a $400 million decrease in proceeds from sales of property, plant and equipment, investments, and other assets, net of removal costs primarily due to $412 million received from the sale of a partial interest in our equity investment in NGPL Holdings in 2021;
a $340 million increase in capital expenditures reflecting an overall increase of expansion capital projects for most of our business segments in 2022 over the comparative 2021 period; and
a $191 million increase in cash used for contributions to equity investees driven primarily by higher contributions in 2022 compared with 2021 to SNG associated with a debt payment.

Financing Activities

$320 million less cash used in financing activities in the comparable years of 2022 and 2021 is explained by the following discussion.
$557 million of net proceeds received from the sale of a 25.5% ownership interest in ELC in 2022; and
a $197 million net decrease in cash used related to debt activity as a result of lower net debt payments in 2022 compared to 2021; partially offset by,
$368 million of cash used in 2022 for share repurchases under our share buy-back program.

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Dividends and Stock Buy-back Program

The table below reflects the declaration of dividends of $1.11 per share for 2022:
Three months endedTotal quarterly dividend per share for the periodDate of declarationDate of recordDate of dividend
March 31, 2022
$0.2775April 20, 2022May 2, 2022May 16, 2022
June 30, 2022
0.2775July 20, 2022August 1, 2022August 15, 2022
September 30, 2022
0.2775October 19, 2022October 31, 2022November 15, 2022
December 31, 2022
0.2775January 18, 2023January 31, 2023February 15, 2023

We expect to continue to return additional value to our shareholders in 2023 through our previously announced dividend increase. We plan to increase our dividend by 2% to $1.13 per common share in 2023. On January 18, 2023, our board of directors approved an increase to our stock buy-back program from $2 billion to $3 billion. Since December 2017, in total, we have repurchased approximately 54 million shares of our Class P common stock under the program at an average price of approximately $17.40 per share for approximately $943 million, leaving a remaining capacity of $2.1 billion. For information on our equity buy-back program, see Note 11 “Stockholders’ Equity” to our consolidated financial statements.

The actual amount of dividends to be paid on our capital stock will depend on many factors, including our financial condition and results of operations, liquidity requirements, business prospects, capital requirements, legal, regulatory and contractual constraints, tax laws, Delaware laws and other factors. See Item 1A. “Risk Factors—The guidance we provide for our anticipated dividends is based on estimates. Circumstances may arise that lead to conflicts between using funds to pay anticipated dividends or to invest in our business. All of these matters will be taken into consideration by our board of directors when declaring dividends.

Our dividends are not cumulative. Consequently, if dividends on our stock are not paid at the intended levels, our stockholders are not entitled to receive those payments in the future. Our dividends generally will be paid on or about the 15th day of each February, May, August and November.

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Summarized Combined Financial Information for Guarantee of Securities of Subsidiaries

KMI and certain subsidiaries (Subsidiary Issuers) are issuers of certain debt securities. KMI and substantially all of KMI’s wholly owned domestic subsidiaries (Subsidiary Guarantors), are parties to a cross guarantee agreement whereby each party to the agreement unconditionally guarantees, jointly and severally, the payment of specified indebtedness of each other party to the agreement. Accordingly, with the exception of certain subsidiaries identified as subsidiary non-guarantors (Subsidiary Non-Guarantors), the parent issuer, Subsidiary Issuers and Subsidiary Guarantors (the “Obligated Group”) are all guarantors of each series of our guaranteed debt (Guaranteed Notes). As a result of the cross guarantee agreement, a holder of any of the Guaranteed Notes issued by KMI or Subsidiary Issuers are in the same position with respect to the net assets, and income of KMI and the Subsidiary Issuers and Guarantors. The only amounts that are not available to the holders of each of the Guaranteed Notes to satisfy the repayment of such securities are the net assets, and income of the Subsidiary Non-Guarantors.

In lieu of providing separate financial statements for the Obligated Group, we have presented the accompanying supplemental summarized combined income statement and balance sheet information for the Obligated Group based on Rule 13-01 of the SEC’s Regulation S-X.  Also, see Exhibit 10.14 to this Report “Cross Guarantee Agreement, dated as of November 26, 2014, among KMI and certain of its subsidiaries, with schedules updated as of December 31, 2022.

All significant intercompany items among the Obligated Group have been eliminated in the supplemental summarized combined financial information. The Obligated Group’s investment balances in Subsidiary Non-Guarantors have been excluded from the supplemental summarized combined financial information. Significant intercompany balances and activity for the Obligated Group with other related parties, including Subsidiary Non-Guarantors (referred to as “affiliates”), are presented separately in the accompanying supplemental summarized combined financial information.

Excluding fair value adjustments, as of December 31, 2022 and 2021, the Obligated Group had $30,886 million and $31,608 million, respectively, of Guaranteed Notes outstanding.  

Summarized combined balance sheet and income statement information for the Obligated Group follows:
December 31,
Summarized Combined Balance Sheet Information20222021
(In millions)
Current assets$3,514 $3,556 
Current assets - affiliates618 1,233 
Noncurrent assets61,523 61,754 
Noncurrent assets - affiliates516 508 
Total Assets$66,171 $67,051 
Current liabilities$6,612 $5,413 
Current liabilities - affiliates707 1,332 
Noncurrent liabilities30,668 32,310 
Noncurrent liabilities - affiliates1,096 1,047 
Total Liabilities39,083 40,102 
Kinder Morgan, Inc.’s stockholders’ equity27,088 26,949 
Total Liabilities and Stockholders’ Equity$66,171 $67,051 
Summarized Combined Income Statement InformationYear Ended December 31, 2022
(In millions)
Revenues$17,778 
Operating income3,611 
Net income2,175 

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Recent Accounting Pronouncements

Please refer to Note 19 “Recent Accounting Pronouncements” to our consolidated financial statements for information concerning recent accounting pronouncements.

Item 7A.  Quantitative and Qualitative Disclosures About Market Risk.

Generally, our market risk sensitive instruments and positions have been determined to be “other than trading.”  Our exposure to market risk as discussed below includes forward-looking statements and represents an estimate of possible changes in fair value or future earnings that would occur assuming hypothetical future movements in energy commodity prices or interest rates.  Our views on market risk are not necessarily indicative of actual results that may occur and do not represent the maximum possible gains and losses that may occur, since actual gains and losses will differ from those estimated based on actual fluctuations in energy commodity prices or interest rates and the timing of transactions.

Energy Commodity Market Risk

We enter into certain energy commodity derivative contracts in order to reduce and minimize the risks encountered in the ordinary course of business associated with unfavorable changes in the market price of crude oil, natural gas and NGL. The derivative contracts that we use include exchange-traded and OTC commodity financial instruments, including, but not limited to, futures and options contracts, fixed price swaps and basis swaps. We may categorize such use of energy commodity derivative contracts as cash flow hedges because the derivative contract is used to hedge the anticipated future cash flow of a transaction that is expected to occur but whose value is uncertain.

Our hedging strategy involves entering into a financial position intended to offset our physical position, or anticipated position, in order to minimize the risk of financial loss from an adverse price change. For example, as sellers of crude oil, natural gas and NGL, we often enter into fixed price swaps and/or futures contracts to guarantee or lock-in the sale price of our crude oil or the margin from the sale and purchase of our natural gas at the time of market delivery, thereby in whole or in part offsetting any change in prices, either positive or negative. Using derivative contracts for this purpose helps provide increased certainty with regard to operating cash flows which helps us to undertake further capital improvement projects, attain budget results and meet dividend targets.

Our policies require that derivative contracts are only entered into with carefully selected major financial institutions or similar counterparties based upon their credit ratings and other factors, and we maintain strict dollar and term limits that correspond to our counterparties’ credit ratings. While it is our policy to enter into derivative transactions principally with investment grade counterparties and actively monitor their credit ratings, it is nevertheless possible that losses will result from counterparty credit risk in the future.

We measure the risk of price changes in the derivative instrument portfolios utilizing a sensitivity analysis model. The sensitivity analysis applied to each portfolio measures the potential income or loss (i.e., the change in fair value of the derivative instrument portfolio) based upon a hypothetical 10% movement in the underlying quoted market prices. In addition to these variables, the fair value of each portfolio is influenced by fluctuations in the notional amounts of the instruments and the discount rates used to determine the present values. Because we enter into derivative contracts largely for the purpose of mitigating the risks that accompany certain of our business activities, both in the sensitivity analysis model and in reality, the change in the market value of the derivative contracts’ portfolio is offset largely by changes in the value of the underlying physical transactions. A hypothetical 10% movement in the underlying commodity prices would have the following effect on the associated derivative contracts’ estimated fair value:
As of December 31,
Commodity derivative20222021
(In millions)
Crude oil$157 $135 
Natural gas49 36 
NGL
Total$211 $179 

Our sensitivity analysis represents an estimate of the reasonably possible gains and losses that would be recognized on the crude oil, natural gas and NGL portfolios of derivative contracts assuming hypothetical movements in future market rates and is
65


not necessarily indicative of actual results that may occur. It does not represent the maximum possible loss or any expected loss that may occur, since actual future gains and losses will differ from those estimated. Actual gains and losses may differ from estimates due to actual fluctuations in market rates, operating exposures and the timing thereof, as well as changes in our portfolio of derivatives during the year.

Interest Rate Risk

In order to maintain a cost effective capital structure, it is our policy to borrow funds using a mix of fixed rate debt and variable rate debt. Fixed-to-variable interest rate swap agreements are entered into for the purpose of converting a portion of the underlying cash flows related to long-term fixed rate debt securities into variable rate debt in order to achieve our desired mix of fixed and variable rate debt. Variable-to-fixed interest rate swap agreements are entered into primarily for the purpose of managing our exposure to changes in interest rates on our debt balances that are subject to variable interest rates and adjusting, on a short-term basis, our mix of fixed rate debt and variable rate debt based on changes in market conditions. The market risk inherent in our debt instruments and positions is the potential change arising from increases or decreases in interest rates as discussed below.

For fixed rate debt, changes in interest rates generally affect the fair value of the debt instrument, but not our earnings or cash flows. Conversely, for variable rate debt, changes in interest rates generally do not impact the fair value of the debt instrument, but may affect our future earnings and cash flows. Generally, there is not an obligation to prepay fixed rate debt prior to maturity and, as a result, changes in fair value should not have a significant impact on the fixed rate debt. We are generally subject to interest rate risk upon refinancing maturing debt. Below are our debt balances, including debt fair value adjustments, and sensitivity to interest rates:
 December 31, 2022December 31, 2021
 Carrying
value
Estimated
fair value(a)
Carrying
value
Estimated
fair value(a)
(In millions)
Fixed rate debt(b)$31,474 $29,756 $33,006 $37,459 
Variable rate debt$314 $314 $314 $316 
Notional principal amount of variable-to-fixed interest rate swap agreements(c)(1,500)(490)
Notional principal amount of fixed-to-variable interest rate swap agreements7,500 7,100 
Debt balances subject to variable interest rates(d)$6,314 $6,924 
(a)Fair values were determined using Level 2 inputs.
(b)A hypothetical 10% change in the average interest rates applicable to such debt as of December 31, 2022 and 2021, would result in changes of approximately $1,882 million and $1,614 million, respectively, in the estimated fair values of these instruments.
(c)December 31, 2022 amount includes $1.25 billion of variable-to-fixed interest rate swap agreements that expire in December 2023. December 31, 2021 amount excludes $4.9 billion of variable-to-fixed interest rate swap agreements that became effective January 4, 2022 and expired December 31, 2022.
(d)A hypothetical 10% change in the weighted average interest rate on all of our borrowings (approximately 48 and 47 basis points, respectively, in 2022 and 2021) when applied to our outstanding balance of variable rate debt as of December 31, 2022 and 2021, including adjustments for the notional swap amounts described in the table above, would result in changes of approximately $30 million and $32 million.

As presented in the table above, we monitor the mix of fixed rate and variable rate debt obligations in light of changing market conditions and from time to time, may alter that mix by, for example, refinancing outstanding balances of variable rate debt with fixed rate debt (or vice versa) or by entering into interest rate swap agreements or other interest rate hedging agreements. As of December 31, 2022, including debt converted to variable rates through the use of interest rate swaps but excluding our debt fair value adjustments, approximately 20% of our debt balances were subject to variable interest rates.

For more information on our interest rate risk management and on our interest rate swap agreements, see Note 14 “Risk Management” to our consolidated financial statements.

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Foreign Currency Risk

As of December 31, 2022, we had a notional principal amount of $543 million of cross-currency swap agreements that effectively convert all of our fixed-rate Euro denominated debt, including annual interest payments and the payment of principal at maturity, to U.S. dollar denominated debt at fixed rates. These swaps eliminate the foreign currency risk associated with our foreign currency denominated debt.

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Item 8.  Financial Statements and Supplementary Data.



KINDER MORGAN, INC. AND SUBSIDIARIES
INDEX TO FINANCIAL STATEMENTS
Page
Number
   
(PCAOB ID: 238)
  
  
   
   
   
   
68




Report of Independent Registered Public Accounting Firm

To the Board of Directors and Stockholders of Kinder Morgan, Inc.

Opinions on the Financial Statements and Internal Control over Financial Reporting

We have audited the accompanying consolidated balance sheets of Kinder Morgan, Inc. and its subsidiaries (the “Company”) as of December 31, 2022 and 2021, and the related consolidated statements of income, of comprehensive income, of stockholders’ equity and of cash flows for each of the three years in the period ended December 31, 2022, including the related notes (collectively referred to as the “consolidated financial statements”). We also have audited the Company's internal control over financial reporting as of December 31, 2022, based on criteria established in Internal Control - Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).

In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of the Company as of December 31, 2022 and 2021, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2022 in conformity with accounting principles generally accepted in the United States of America. Also in our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2022, based on criteria established in Internal Control - Integrated Framework (2013) issued by the COSO.

Basis for Opinions

The Company's management is responsible for these consolidated financial statements, for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting, included in Management’s Report on Internal Control Over Financial Reporting appearing under Item 9A. Our responsibility is to express opinions on the Company’s consolidated financial statements and on the Company's internal control over financial reporting based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud, and whether effective internal control over financial reporting was maintained in all material respects.

Our audits of the consolidated financial statements included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. Our audit of internal control over financial reporting included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audits also included performing such other procedures as we considered necessary in the circumstances. We believe that our audits provide a reasonable basis for our opinions.

Definition and Limitations of Internal Control over Financial Reporting

A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

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Critical Audit Matters

The critical audit matter communicated below is a matter arising from the current period audit of the consolidated financial statements that was communicated or required to be communicated to the audit committee and that (i) relates to accounts or disclosures that are material to the consolidated financial statements and (ii) involved our especially challenging, subjective, or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matter below, providing a separate opinion on the critical audit matter or on the accounts or disclosures to which it relates.

Goodwill Impairment Assessment

As described in Notes 2 and 8 to the consolidated financial statements, the Company’s consolidated goodwill balance was $20 billion as of December 31, 2022. Management evaluates goodwill for impairment on May 31 of each year, or more frequently to the extent events occur or conditions change between annual tests that would indicate a risk of possible impairment at the interim period. Management estimates fair value based on a market approach utilizing forecasted earnings before interest, taxes, depreciation and amortization (EBITDA) and the enterprise value to estimated EBITDA multiples of comparable companies for each reporting unit.

The principal considerations for our determination that performing procedures relating to the goodwill impairment assessment is a critical audit matter are the significant judgment by management when developing the fair value estimate of the reporting units. This in turn led to a high degree of auditor judgment, subjectivity, and effort in performing procedures and evaluating management’s significant assumptions related to forecasted EBITDA and the enterprise value to estimated EBITDA multiples of comparable companies for each reporting unit. In addition, the audit effort involved the use of professionals with specialized skill and knowledge.

Addressing the matter involved performing procedures and evaluating audit evidence in connection with forming our overall opinion on the consolidated financial statements. These procedures included testing the effectiveness of controls relating to management’s goodwill impairment assessment, including controls related to developing the fair value estimate of the reporting units. These procedures also included, among others, testing management’s process for developing the fair value estimate of the reporting units; evaluating the appropriateness of the market approach; testing the completeness and accuracy of underlying data used in the market approach, and evaluating the reasonableness of the significant assumptions used by management related to forecasted EBITDA and the enterprise value to estimated EBITDA multiples of comparable companies for each reporting unit. Evaluating management’s significant assumptions related to forecasted EBITDA and the enterprise value to estimated EBITDA multiples of comparable companies for each reporting unit involved evaluating whether the assumptions used by management were reasonable considering (i) the current and past performance of the reporting unit; (ii) the consistency with external market and industry data; and (iii) whether these assumptions were consistent with evidence obtained in other areas of the audit. Professionals with specialized skill and knowledge were used to assist in the evaluation of the appropriateness of the market approach and the reasonableness of the significant assumption related to the enterprise value to estimated EBITDA multiples of comparable companies for each reporting unit.


/s/ PricewaterhouseCoopers LLP

Houston, Texas
February 8, 2023

We have served as the Company’s auditor since 1997.
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KINDER MORGAN, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(In millions, except per share amounts)
 Year Ended December 31,
 202220212020
Revenues 
Services$8,145 $7,757 $7,618 
Commodity sales10,897 8,714 3,891 
Other158 139 191 
Total Revenues19,200 16,610 11,700 
Operating Costs, Expenses and Other
Costs of sales9,255 6,493 2,545 
Operations and maintenance2,655 2,368 2,475 
Depreciation, depletion and amortization2,186 2,135 2,164 
General and administrative637 655 648 
Taxes, other than income taxes441 426 378 
(Gain) loss on divestitures and impairments, net (Note 4)(32)1,624 1,932 
Other income, net(7)(7)(2)
Total Operating Costs, Expenses and Other15,135 13,694 10,140 
Operating Income4,065 2,916 1,560 
Other Income (Expense)
Earnings from equity investments803 591 780 
Amortization of excess cost of equity investments(75)(78)(140)
Interest, net(1,513)(1,492)(1,595)
Other, net (Note 3)55 282 56 
Total Other Expense(730)(697)(899)
Income Before Income Taxes3,335 2,219 661 
Income Tax Expense(710)(369)(481)
Net Income2,625 1,850 180 
Net Income Attributable to Noncontrolling Interests(77)(66)(61)
Net Income Attributable to Kinder Morgan, Inc.$2,548 $1,784 $119 
Class P Common Stock 
Basic and Diluted Earnings Per Share$1.12 $0.78 $0.05 
Basic and Diluted Weighted Average Shares Outstanding2,258 2,266 2,263 

The accompanying notes are an integral part of these consolidated financial statements.
71



KINDER MORGAN, INC. AND SUBSIDIARIES
 CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME
(In millions)
Year Ended December 31,
 202220212020
Net income$2,625 $1,850 $180 
Other comprehensive income (loss), net of tax 
Net unrealized (loss) gain from derivative instruments (net of taxes of $92, $131, and $(75), respectively)
(312)(432)249 
Reclassification into earnings of net derivative instruments loss (gain) to net income (net of taxes of $(95), $(83), and $78, respectively)
320 273 (255)
Benefit plan adjustments (net of taxes of $(1), $(47), and $19, respectively)
155 (68)
Total other comprehensive income (loss) (4)(74)
Comprehensive income
2,634 1,846 106 
Comprehensive income attributable to noncontrolling interests
(77)(66)(61)
Comprehensive income attributable to KMI
$2,557 $1,780 $45 

The accompanying notes are an integral part of these consolidated financial statements.
72



KINDER MORGAN, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(In millions, except share and per share amounts)
 December 31,
 20222021
ASSETS  
Current assets  
Cash and cash equivalents$745 $1,140 
Restricted deposits49 
Accounts receivable1,840 1,611 
Fair value of derivative contracts231 220 
Inventories634 562 
Other current assets304 289 
Total current assets3,803 3,829 
Property, plant and equipment, net35,599 35,653 
Investments7,653 7,578 
Goodwill 19,965 19,914 
Other intangibles, net1,809 1,678 
Deferred income taxes— 115 
Deferred charges and other assets1,249 1,649 
Total Assets$70,078 $70,416 
LIABILITIES AND STOCKHOLDERS’ EQUITY  
Current liabilities  
Current portion of debt$3,385 $2,646 
Accounts payable1,444 1,259 
Accrued interest515 504 
Accrued taxes264 270 
Fair value of derivative contracts465 178 
Other current liabilities857 964 
Total current liabilities6,930 5,821 
Long-term liabilities and deferred credits  
Long-term debt
Outstanding28,288 29,772 
Debt fair value adjustments115 902 
Total long-term debt28,403 30,674 
Deferred income taxes623 — 
Other long-term liabilities and deferred credits2,008 2,000 
Total long-term liabilities and deferred credits31,034 32,674 
Total Liabilities37,964 38,495 
Commitments and contingencies (Notes 9, 13, 17 and 18)
Stockholders’ Equity  
Class P Common Stock, $0.01 par value, 4,000,000,000 shares authorized, 2,247,681,626 and 2,267,391,527 shares, respectively, issued and outstanding
22 23 
Additional paid-in capital41,673 41,806 
Accumulated deficit(10,551)(10,595)
Accumulated other comprehensive loss(402)(411)
Total Kinder Morgan, Inc.’s stockholders’ equity30,742 30,823 
Noncontrolling interests1,372 1,098 
Total Stockholders’ Equity32,114 31,921 
Total Liabilities and Stockholders’ Equity$70,078 $70,416 

The accompanying notes are an integral part of these consolidated financial statements.
73


KINDER MORGAN, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In millions)
 Year Ended December 31,
 202220212020
Cash Flows From Operating Activities   
Net income$2,625 $1,850 $180 
Adjustments to reconcile net income to net cash provided by operating activities   
Depreciation, depletion and amortization2,186 2,135 2,164 
Deferred income taxes692 355 345 
Amortization of excess cost of equity investments75 78 140 
(Gain) loss on divestitures and impairments, net (Note 4)(32)1,624 1,932 
Gain on sale of interest in equity investment (Note 3)— (206)— 
Earnings from equity investments(803)(591)(780)
Distributions of equity investment earnings725 720 633 
Pension contributions net of noncash pension benefit expenses(50)(39)(90)
Changes in components of working capital, net of the effects of acquisitions and dispositions   
Accounts receivable(220)(265)88 
Inventories(183)(202)16 
Other current assets(51)(109)49 
Accounts payable161 387 (19)
Accrued interest, net of interest rate swaps50 (17)(51)
Accrued taxes(5)(93)
Other current liabilities(10)146 (81)
Rate reparations, refunds and other litigation reserve adjustments(190)(57)40 
Other, net(3)(103)77 
Net Cash Provided by Operating Activities4,967 5,708 4,550 
Cash Flows From Investing Activities   
Acquisitions of assets and investments, net of cash acquired (Note 3)(487)(1,547)(16)
Capital expenditures(1,621)(1,281)(1,707)
Sales of property, plant and equipment, investments, and other net assets, net of removal costs406 1,069 
Contributions to investments(229)(38)(386)
Distributions from equity investments in excess of cumulative earnings156 163 154 
Other, net— (8)(25)
Net Cash Used in Investing Activities(2,175)(2,305)(911)
Cash Flows From Financing Activities
Issuances of debt9,058 5,959 3,888 
Payments of debt(9,735)(6,831)(3,996)
Debt issue costs(25)(27)(25)
Dividends (Note 11)(2,504)(2,443)(2,362)
Repurchases of shares(368)— (50)
Proceeds from sale of noncontrolling interests (Note 3)557 — — 
Contributions from investment partner and noncontrolling interests14 
Distributions to investment partner— (82)(79)
Distributions to noncontrolling interests (116)(20)(15)
Other, net(14)(25)(13)
Net Cash Used in Financing Activities(3,145)(3,465)(2,638)
Effect of Exchange Rate Changes on Cash, Cash Equivalents and Restricted Deposits— — (1)
Net (Decrease) Increase in Cash, Cash Equivalents and Restricted Deposits(353)(62)1,000 
Cash, Cash Equivalents and Restricted Deposits, beginning of period1,147 1,209 209 
Cash, Cash Equivalents and Restricted Deposits, end of period$794 $1,147 $1,209 
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KINDER MORGAN, INC. AND SUBSIDIARIES (continued)
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In millions)
 Year Ended December 31,
 202220212020
Cash and Cash Equivalents, beginning of period$1,140 $1,184 $185 
Restricted Deposits, beginning of period25 24 
Cash, Cash Equivalents and Restricted Deposits, beginning of period1,147 1,209 209 
Cash and Cash Equivalents, end of period745 1,140 1,184 
Restricted Deposits, end of period49 25 
Cash, Cash Equivalents and Restricted Deposits, end of period794 1,147 1,209 
Net (Decrease) Increase in Cash, Cash Equivalents and Restricted Deposits$(353)$(62)$1,000 
Noncash Investing and Financing Activities
Increase in property, plant and equipment from both accruals and contractor retainage$72 $74 
ROU assets and operating lease obligations recognized (Note 17)22 59 $20 
Supplemental Disclosures of Cash Flow Information
Cash paid during the period for interest (net of capitalized interest)1,460 1,529 1,661 
Cash paid during the period for income taxes, net13 10 227 

The accompanying notes are an integral part of these consolidated financial statements.
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KINDER MORGAN, INC. AND SUBSIDIARIES
 CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY
(In millions)
Common stockAdditional
paid-in
capital
Accumulated
deficit
Accumulated
other
comprehensive
loss
Stockholders’
equity
attributable
to KMI
Non-controlling
interests
Total
 Issued sharesPar value
Balance at December 31, 20192,265 $23 $41,745 $(7,693)$(333)$33,742 $344 $34,086 
Repurchases of shares(4)(50)(50)(50)
Restricted shares61 61 61 
Net income119 119 61 180 
Dividends(2,362)(2,362)(2,362)
Distributions— (15)(15)
Contributions— 11 11 
Other— 
Other comprehensive loss(74)(74)(74)
Balance at December 31, 2020
2,264 23 41,756 (9,936)(407)31,436 402 31,838 
Restricted shares50 50 50 
Net income1,784 1,784 66 1,850 
Dividends(2,443)(2,443)(2,443)
Distributions— (20)(20)
Contributions— 
Reclassification of redeemable noncontrolling interest— 646 646 
Other comprehensive loss(4)(4)(4)
Balance at December 31, 2021
2,267 23 41,806 (10,595)(411)30,823 1,098 31,921 
Impact of adoption of ASU 2020-06 (Note 11)
(11)(11)(11)
Balance at January 1, 20222,267 23 41,795 (10,595)(411)30,812 1,098 31,910 
Repurchases of shares(21)(1)(367)(368)(368)
EP Trust I Preferred security conversions
Restricted shares54 54 54 
Net income2,548 2,548 77 2,625 
Dividends(2,504)(2,504)(2,504)
Distributions— (116)(116)
Contributions— 
Impact of change in ownership interest in subsidiary190 190 311 501 
Other comprehensive income
Balance at December 31, 2022
2,248 $22 $41,673 $(10,551)$(402)$30,742 $1,372 $32,114 

The accompanying notes are an integral part of these consolidated financial statements.
76


KINDER MORGAN, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

1. General

We are one of the largest energy infrastructure companies in North America. Unless the context requires otherwise, references to “we,” “us,” “our,” “the Company,” or “KMI” are intended to mean Kinder Morgan, Inc. and its consolidated subsidiaries. Our pipelines transport natural gas, refined petroleum products, renewable fuels, crude oil, condensate, CO2 and other products, and our terminals store and handle various commodities including gasoline, diesel fuel, renewable fuel feedstocks, chemicals, ethanol, metals and petroleum coke.
 
2. Summary of Significant Accounting Policies

Basis of Presentation

Our reporting currency is U.S. dollars, and all references to dollars are U.S. dollars, unless stated otherwise. Our accompanying consolidated financial statements have been prepared under the rules and regulations of the SEC. These rules and regulations conform to the accounting principles contained in the FASB’s Accounting Standards Codification (ASC), the single source of GAAP. Under such rules and regulations, all significant intercompany items have been eliminated in consolidation. Additionally, certain amounts from prior years have been reclassified to conform to the current presentation.

Use of Estimates

Certain amounts included in or affecting our financial statements and related disclosures must be estimated, requiring us to make certain assumptions with respect to values or conditions which cannot be known with certainty at the time our financial statements are prepared. These estimates and assumptions affect the amounts we report for assets and liabilities, our revenues and expenses during the reporting period, and our disclosures, including those related to contingent assets and liabilities at the date of our financial statements. We evaluate these estimates on an ongoing basis, utilizing historical experience, consultation with experts and other methods we consider reasonable in the particular circumstances. Nevertheless, actual results may differ significantly from our estimates. Any effects on our business, financial position or results of operations resulting from revisions to these estimates are recorded in the period in which the facts that give rise to the revision become known.

Certain accounting policies are of more significance in our financial statement preparation process than others, and set out below are the principal accounting policies we apply in the preparation of our consolidated financial statements.

Cash Equivalents and Restricted Deposits

We define cash equivalents as all highly liquid short-term investments with original maturities of three months or less.

Amounts included in the restricted deposits in the accompanying consolidated financial statements represent a combination of restricted cash amounts required to be set aside by regulatory agencies to cover obligations for our captive insurance subsidiary, cash margin deposits posted by us with our counterparties associated with certain energy commodity contract positions and escrow deposits.

Allowance for Credit Losses

We evaluate our financial assets measured at amortized cost and off-balance sheet credit exposures for expected credit losses over the contractual term of the asset or exposure. We consider available information relevant to assessing the collectability of cash flows including the expected risk of credit loss even if that risk is remote. We measure expected credit losses on a collective (pool) basis when similar risk characteristics exist, and we reflect the expected credit losses on the amortized cost basis of the financial asset as of the reporting date.

Our financial instruments primarily consist of our accounts receivable from customers, notes receivable from affiliates and contingent liabilities such as proportional guarantees of debt obligations of an equity investee. We utilized historical analysis of credit losses experienced over the previous five years along with current conditions and reasonable and supportable forecasts of future conditions in our evaluation of collectability of our financial assets.
77



Our allowance for credit losses as of both December 31, 2022 and 2021 was $1 million and is included in “Other current assets” in our accompanying consolidated balance sheets.

Inventories

Our inventories consist of materials and supplies and products such as natural gas, NGL, crude oil, condensate, refined petroleum products and transmix. We report products inventory at the lower of weighted-average cost or net realizable value. We report materials and supplies inventories at cost, and periodically review for physical deterioration and obsolescence.

Property, Plant and Equipment, net

Capitalization, Depreciation and Depletion and Disposals

We report property, plant and equipment at its acquisition cost. We expense costs for routine maintenance and repairs in the period incurred. The following table summarizes our significant policies related to our property, plant and equipment. The application of these policies can involve significant estimates.
AssetAccounting AreaPolicy
Straight-line assetsDepreciation rates
Depreciable lives are based on estimated economic lives. This includes age, manufacturing specifications, technological advances, estimated production life of the oil or gas field served by the asset, contract terms for assets on leased or customer property and historical data concerning useful lives of similar assets.
Gains and losses
A gain or loss on the sale of property, plant and equipment is calculated as the difference between the cost of the asset disposed of, net of depreciation, and the sale proceeds received or when held for sale, the market value of the asset.
A gain on an asset disposal is recognized in income in the period that the sale is closed.
A loss is recognized when the asset is sold or when classified as held for sale.
Gains and losses are recorded in operating costs, expenses and other.
Composite assetsDepreciation rates
A single depreciation rate is applied to the total cost of a functional group of assets that have similar economic characteristics until the net book value of the composite group equals the salvage value.
Interstate natural gas FERC-regulated entities use the depreciation rates approved by the FERC.
A depreciation rate for other composite assets is based on estimated economic lives. This includes age, manufacturing specifications, technological advances, estimated production life of the oil or gas field served by the asset, contract terms for assets on leased or customer property and historical data concerning useful lives of similar assets.
Gains and losses
Gains and losses are credited or charged to accumulated depreciation, net of salvage and cost of removal.
Gains and losses on FERC-approved operating unit sales and land sales are recorded in operating costs, expenses and other.
Oil and gas producing activities(a)Successful efforts method of accounting
Costs that are incurred to acquire leasehold and subsequent development costs are capitalized.
Costs that are associated with the drilling of successful exploration wells are capitalized if proved reserves are found.
Costs associated with the drilling of exploratory wells that do not find proved reserves, geological and geophysical costs, and costs of certain non-producing leasehold costs are expensed as incurred.
The capitalized costs of our producing oil and gas properties are depreciated and depleted by the units-of-production method.
Other miscellaneous property, plant and equipment are depreciated over the estimated useful lives of the asset.
Enhanced recovery techniques
In some cases, the cost of the CO2 associated with enhanced recovery is capitalized as part of our development costs when it is injected.
The cost of CO2 associated with pressure maintenance operations for reservoir management is expensed when it is injected.
When CO2 is recovered in conjunction with oil production, it is extracted and re-injected, and all of the associated costs are expensed as incurred.
Proved developed reserves are used in computing units of production rates for drilling and development costs, and total proved reserves are used for depletion of leasehold costs.
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(a)Gains and losses associated with assets in our oil and gas producing activities have a similar treatment as with that associated with our straight-line assets.

Circumstances may develop which cause us to change our estimates, thus impacting the future calculation of depreciation and amortization expense. Historically, adjustments to useful lives have not had a material impact on our aggregate depreciation levels from year to year.

Asset Retirement Obligations

We record liabilities for obligations related to the retirement and removal of long-lived assets used in our businesses. The majority of our asset retirement obligations are associated with our CO2 business where we are required to plug and abandon oil and gas wells that have been removed from service and to remove the surface wellhead equipment and compressors, but we also have obligations for certain gathering and long-haul pipelines and certain processing plants. We record, as liabilities, the fair value of asset retirement obligations on a discounted basis when they are incurred and can be reasonably estimated, which is typically at the time the assets are installed or acquired. The fair value estimates are primarily based on Level 3 inputs of the fair value hierarchy. The inputs include estimates and assumptions related to timing of settlement and retirement costs, which we base on historical retirement costs, future inflation rates and credit-adjusted risk-free interest rates. Amounts recorded for the related assets are increased by the amount of these obligations. Over time, the liabilities are accreted to reflect the change in their present value, and the initial capitalized costs are depreciated over the useful lives of the related assets. The liabilities are eventually extinguished when the asset is taken out of service. Our estimates of retirement costs could change as a result of changes in cost estimates and/or timing of the obligation.

The following table summarizes changes in the asset retirement obligations included in our accompanying consolidated balance sheets:
December 31,
20222021
(In millions)
Balance at beginning of period$196 $215 
Accretion expense12 
New obligations
Settlements(6)(8)
Revisions to previous estimates— (24)
Balance at end of period(a)$204 $196 
(a)Balances at December 31, 2022 and 2021 include $3 million and $4 million, respectively, included within “Other current liabilities” on our accompanying consolidated balance sheets.

For certain assets, we currently cannot reasonably estimate the fair value of the asset retirement obligations because the associated assets have indeterminate lives. These assets include certain pipelines, processing plants and distribution facilities, and liquids and bulk terminal facilities. Based on the widespread use of hydrocarbons domestically and for international export, management expects supply and demand to exist for the foreseeable future. Therefore, the remaining useful lives of these assets is indeterminate due to prolonged expected demand. Additionally, these assets could also benefit from potential future conversion opportunities. For example, certain assets could be converted to transport, handle or store products other than traditional hydrocarbons. Under our integrity program, individual asset parts are replaced regularly. Although some of the individual asset parts may be replaced, the assets themselves may remain intact indefinitely. For these assets, an asset retirement obligation, if any, will be recognized once sufficient information is available to reasonably estimate the fair value of the obligation.

Long-lived Asset Impairments

We evaluate long-lived assets including leases and investments for impairment whenever events or changes in circumstances indicate that our carrying amount of an asset or investment may not be recoverable.

In addition to our annual goodwill impairment test discussed further below, to the extent triggering events exist, we complete a review of the carrying value of our long-lived assets, including property, plant and equipment as well as other intangibles, and record, as applicable, the appropriate impairments using a two-step approach. To determine if a long-lived asset is recoverable, we compare the asset’s estimated undiscounted cash flows to its carrying value (step 1). Because the
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impairment test for long-lived assets held in use is based on estimated undiscounted cash flows, there may be instances where an asset or asset group is not considered impaired, even when its fair value may be less than its carrying value, because the asset or asset group is recoverable based on the cash flows to be generated over the estimated life of the asset or asset group. If the carrying value of a long-lived asset or asset group is in excess of estimated undiscounted cash flows, we typically use discounted cash flow analyses to calculate the fair value of the long-lived asset to determine if an impairment is required and the amount of the impairment losses to be recognized (step 2).

We evaluate our oil and gas producing properties for impairment of value on a field-by-field basis or, in certain instances, by logical grouping of assets if there is significant shared infrastructure, using undiscounted future cash flows based on estimated future oil and gas production volumes.  

Oil and gas producing properties deemed to be impaired are written down to their fair value, as determined by discounted future cash flows based on estimated future oil and gas production volumes.  Unproved oil and gas properties that are individually significant are periodically assessed for impairment of value, and a loss is recognized at the time of impairment.

Refer to Note 4 for further information.

Equity Method of Accounting and Basis Differences

We use the equity method of accounting for investments which we do not control, but for which we have the ability to exercise significant influence. The carrying values of these investments are impacted by our share of investee income or loss, distributions, amortization or accretion of basis differences and other-than-temporary impairments.

The difference between the carrying value of an investment and our share of the investment’s underlying equity in net assets is referred to as a basis difference. If the basis difference is assigned to depreciable or amortizable assets and liabilities, the basis difference is amortized or accreted as part of our share of investee earnings. To the extent that the basis difference relates to goodwill, referred to as equity method goodwill, the amount is not amortized.

We evaluate our equity method investments for other-than-temporary impairment. When an other-than-temporary impairment is recognized the loss is recorded as a reduction in equity earnings.

Goodwill

Goodwill is the cost of an acquisition of a business in excess of the fair value of acquired assets and liabilities and is recorded as an asset on our balance sheet. Goodwill is not subject to amortization but must be tested for impairment at least annually and in interim periods if indicators of impairment exist. This test requires us to assign goodwill to an appropriate reporting unit and compare the fair value of a reporting unit to its carrying value. If the carrying value of a reporting unit, including allocated goodwill, exceeds its fair value an impairment is measured and recorded at the amount by which the reporting unit’s carrying value exceeds its fair value.

We evaluate goodwill for impairment on May 31 of each year, or more frequently to the extent events occur or conditions change between annual tests that would indicate a risk of possible impairment at the interim period.  For purposes of our May 31, 2022 evaluation, we grouped our businesses into seven reporting units as follows: (i) Natural Gas Pipelines Regulated; (ii) Natural Gas Pipelines Non-Regulated; (iii) CO2; (iv) Products Pipelines (excluding associated terminals); (v) Products Pipelines Terminals (evaluated separately from Products Pipelines for goodwill purposes); (vi) Terminals; and (vii) Energy Transition Ventures. Generally, the evaluation of goodwill for impairment involves a quantitative test, although under certain circumstance an initial qualitative evaluation may be sufficient to conclude that goodwill is not impaired without conducting the quantitative test.

A large portion of our goodwill is non-deductible for tax purposes, and as such, to the extent there are impairments, all or a portion of the impairment may not result in a corresponding tax benefit.

Refer to Note 8 for further information.

Other Intangibles

Excluding goodwill, our other intangible assets include customer contracts and other relationships and agreements.

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Our intangible assets primarily relate to customer contracts or other relationships for the handling and storage of petroleum, chemical, and dry-bulk materials, including oil, gasoline, and other refined petroleum products, petroleum coke, metals and ores, the gathering of natural gas and the production and supply of RNG. We determined the values of these intangible assets by first, estimating the revenues derived from a customer contract or relationship (offset by the cost and expenses of supporting assets to fulfill the contract), and second, discounting the revenues at a risk adjusted discount rate.

We amortize the costs of our intangible assets to expense in a systematic and rational manner over their estimated useful lives. The life of each intangible asset is based either on the life of the corresponding customer contract or agreement or, in the case of a customer relationship intangible (the life of which was determined by an analysis of all available data on that business relationship), the length of time used in the discounted cash flow analysis to determine the value of the customer relationship. Among the factors we weigh, depending on the nature of the asset, are the effects of obsolescence, new technology, and competition.

The following tables summarize our other intangible assets as of December 31, 2022 and 2021 and our amortization expense for the years ended December 31, 2022, 2021 and 2020: 
Weighted Average Amortization Period (years)December 31,
20222021
(In millions)
Gross11.2$3,382 $3,036 
Accumulated amortization(1,573)(1,358)
Net carrying amount$1,809 $1,678 
December 31,
202220212020
(In millions)
Amortization expense$253 $237 $212 

Our estimated amortization expense for our intangible assets for each of the next five fiscal years is:
20232024202520262027
(In millions)
Estimated amortization expenses$201 $175 $170 $168 $167 

Revenue Recognition

The majority of our revenues are accounted for under Topic 606, Revenue from Contracts with Customers; however, to a limited extent, some revenues are accounted for under other guidance such as Topic 842, Leases or Topic 815, Derivatives and Hedging Activities.

Revenue from Contracts with Customers

We review our contracts with customers using the following steps to recognize revenue based on the transfer of goods or services to customers and in amounts that reflect the consideration the company expects to receive for those goods or services. The steps include: (i) identify the contract; (ii) identify the performance obligations of the contract; (iii) determine the transaction price; (iv) allocate the transaction price to the performance obligations in the contract; and then (v) recognize revenue when (or as) the performance obligation is satisfied. Each of these steps involves management judgment and an analysis of the contract’s material terms and conditions.

Our customer sales contracts primarily include sales of natural gas, NGL, crude oil, CO2 and transmix, as described below. Generally, for the majority of these contracts (i) each unit (Bcf, gallon, barrel, etc.) of commodity is a separate performance obligation, as our promise is to sell multiple distinct units of commodity at a point in time; (ii) the transaction price principally consists of variable consideration, which amount is determinable each month end based on our right to invoice at month end for the value of commodity sold to the customer that month; and (iii) the transaction price is allocated to each performance obligation based on the commodity’s standalone selling price and recognized as revenue upon delivery of the commodity, which is the point in time when the customer obtains control of the commodity and our performance obligation is satisfied.

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Our customer services contracts are primarily for transportation service, storage service, gathering and processing service, and terminaling, as described below. Generally, for the majority of these contracts (i) our promise is to transfer (or stand ready to transfer) a series of distinct integrated services over a period of time, which is a single performance obligation; (ii) the transaction price includes fixed and/or variable consideration, which amount is determinable at contract inception and/or at each month end based on our right to invoice at month end for the value of services provided to the customer that month; and (iii) the transaction price is recognized as revenue over the service period specified in the contract (which can be a day, including each day in a series of promised daily services, a month, a year, or other time increment, including a deficiency makeup period) as the services are rendered using a time-based (passage of time) or units-based (units of service transferred) output method for measuring the transfer of control of the services and satisfaction of our performance obligation over the service period, based on the nature of the promised service (e.g., firm or non-firm) and the terms and conditions of the contract (e.g., contracts with or without makeup rights).

Firm Services

Firm services (also called uninterruptible services) are services that are promised to be available to the customer at all times during the period(s) covered by the contract, with limited exceptions. Our firm service contracts are typically structured with take-or-pay or minimum volume provisions, which specify minimum service quantities a customer will pay for even if it chooses not to receive or use them in the specified service period (referred to as “deficiency quantities”). We typically recognize the portion of the transaction price associated with such provisions, including any deficiency quantities, as revenue depending on whether the contract prohibits the customer from making up deficiency quantities in subsequent periods, or the contract permits this practice, as follows:

Contracts without Makeup Rights. If contractually the customer cannot make up deficiency quantities in future periods, our performance obligation is satisfied, and revenue associated with any deficiency quantities is generally recognized as each service period expires. Because a service period may exceed a reporting period, we determine at inception of the contract and at the beginning of each subsequent reporting period if we expect the customer to take the minimum volume associated with the service period. If we expect the customer to make up all deficiencies in the specified service period (i.e., we expect the customer to take the minimum service quantities), the minimum volume provision is deemed not substantive and we will recognize the transaction price as revenue in the specified service period as the promised units of service are transferred to the customer. Alternatively, if we expect that there will be any deficiency quantities that the customer cannot or will not make up in the specified service period (referred to as “breakage”), we will recognize the estimated breakage amount (subject to the constraint on variable consideration) as revenue ratably over such service period in proportion to the revenue that we will recognize for actual units of service transferred to the customer in the service period. For certain take-or-pay contracts where we make the service, or a part of the service (e.g., reservation) continuously available over the service period, we typically recognize the take-or-pay amount as revenue ratably over such period based on the passage of time.

Contracts with Makeup Rights. If contractually the customer can acquire the promised service in a future period and make up the deficiency quantities in such future period (the “deficiency makeup period”), we have a performance obligation to deliver those services at the customer’s request (subject to contractual and/or capacity constraints) in the deficiency makeup period. At inception of the contract, and at the beginning of each subsequent reporting period, we estimate if we expect that there will be deficiency quantities that the customer will or will not make up. If we expect the customer will make up all deficiencies it is contractually entitled to, any non-refundable consideration received relating to temporary deficiencies that will be made up in the deficiency makeup period will be deferred as a contract liability, and we will recognize that amount as revenue in the deficiency makeup period when either of the following occurs: (i) the customer makes up the volumes or (ii) the likelihood that the customer will exercise its right for deficiency volumes then becomes remote (e.g., there is insufficient capacity to make up the volumes, the deficiency makeup period expires). Alternatively, if we expect at inception of the contract, or at the beginning of any subsequent reporting period, that there will be any deficiency quantities that the customer cannot or will not make up (i.e., breakage), we will recognize the estimated breakage amount (subject to the constraint on variable consideration) as revenue ratably over the specified service periods in proportion to the revenue that we will recognize for actual units of service transferred to the customer in those service periods.

Non-Firm Services

Non-firm services (also called interruptible services) are the opposite of firm services in that such services are provided to a customer on an “as available” basis. Generally, we do not have an obligation to perform these services until we accept a customer’s periodic request for service. For the majority of our non-firm service contracts, the customer will pay only for the
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actual quantities of services it chooses to receive or use, and we typically recognize the transaction price as revenue as those units of service are transferred to the customer in the specified service period (typically a daily or monthly period).

Contract Balances

Contract assets and contract liabilities are the result of timing differences between revenue recognition, billings and cash collections. We recognize contract assets in those instances where billing occurs subsequent to revenue recognition, and our right to invoice the customer is conditioned on something other than the passage of time. Our contract assets are substantially related to breakage revenue associated with our firm service contracts with minimum volume commitment payment obligations and contracts where we apply revenue levelization (i.e., contracts with fixed rates per volume that increase over the life of the contract for which we record revenue ratably per unit over the life of the contract based on our performance obligations that are generally unchanged over the life of the contract). Our contract liabilities are substantially related to (i) capital improvements paid for in advance by certain customers generally in our non-regulated businesses, which we subsequently recognize as revenue on a straight-line basis over the initial term of the related customer contracts; (ii) consideration received from customers for temporary deficiency quantities under minimum volume contracts that we expect will be made up in a future period, which we subsequently recognize as revenue when the customer makes up the volumes or the likelihood that the customer will exercise its right for deficiency volumes becomes remote (e.g., there is insufficient capacity to make up the volumes, the deficiency makeup period expires); and (iii) contracts with fixed rates per volume that decrease over the life of the contract where we apply revenue levelization for amounts received for our future performance obligations. We reassess amounts recorded as contract assets or liabilities upon contract modification.

Refer to Note 15 for further information.

Cost of Sales

Cost of sales primarily includes the cost to purchase energy commodities sold, including natural gas, crude oil, NGL and other refined petroleum products, adjusted for the effects of our energy commodity hedging activities, as applicable. Costs of our crude oil, gas and CO2 producing activities, such as those in our CO2 business segment, are not accounted for as costs of sales.

Operations and Maintenance

Operations and maintenance includes costs of services and is primarily comprised of (i) operational labor costs and (ii) operations, maintenance and asset integrity, regulatory and environmental costs. Costs associated with our crude oil, gas and CO2 producing activities included within operations and maintenance totaled $367 million, $180 million and $319 million for the years ended December 31, 2022, 2021 and 2020, respectively.

Environmental Matters

We capitalize or expense, as appropriate, environmental expenditures.  We capitalize certain environmental expenditures required to obtain rights-of-way, regulatory approvals or permitting as part of the construction of facilities we use in our business operations. We accrue and expense environmental costs that relate to an existing condition caused by past operations, which do not contribute to current or future revenue generation. We generally do not discount environmental liabilities to a net present value, and we record environmental liabilities when environmental assessments and/or remedial efforts are probable and we can reasonably estimate the costs.  Generally, our accrual of these environmental liabilities coincides with either our completion of a feasibility study or our commitment to a formal plan of action. We recognize receivables for anticipated associated insurance recoveries when such recoveries are deemed to be probable. We record at estimated fair value, where appropriate, environmental liabilities assumed in a business combination.

We routinely conduct reviews of potential environmental issues and claims that could impact our assets or operations. These reviews assist us in identifying environmental issues and estimating the costs and timing of remediation efforts. We also routinely adjust our environmental liabilities to reflect changes in previous estimates. In making environmental liability estimations, we consider the material effect of environmental compliance, pending legal actions against us, and potential third-party liability claims we may have against others. Often, as the remediation evaluation and effort progresses, additional information is obtained, requiring revisions to estimated costs. These revisions are reflected in our income in the period in which they are reasonably determinable.

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Leases

We lease property including corporate and field offices and facilities, vehicles, heavy work equipment including rail cars and large trucks, tanks, office equipment and land. Our leases have remaining lease terms of one to 48 years, some of which have options to extend or terminate the lease. We determine if an arrangement is a lease at inception or upon modification. For purposes of calculating operating lease liabilities, lease terms may be deemed to include options to extend or terminate the lease when it is reasonably certain that we will exercise that option.

Our operating ROU assets and operating lease liabilities are recognized based on the present value of lease payments over the lease term at commencement date. Leases with variable rate adjustments, such as Consumer Price Index (CPI) adjustments, are reflected based on contractual lease payments as outlined within the lease agreement and not adjusted for any CPI increases or decreases. Because most of our leases do not provide an explicit rate of return, we use our incremental secured borrowing rate based on lease term information available at the commencement date of the lease in determining the present value of lease payments. We have real estate lease agreements with lease and non-lease components, which are accounted for separately. For certain equipment leases, such as copiers and vehicles, we account for the leases under a portfolio method. Leases that were grandfathered under various portions of Topic 842, such as land easements, are reassessed when the agreements are modified.

Refer to Note 17 for further information.

Share-based Compensation
 
We recognize compensation expense ratably over the vesting period of the restricted stock award based on the grant-date fair value, which is determined based on the market price of our Class P common stock on the grant date, less estimated forfeitures. Forfeiture rates are estimated based on historical forfeitures under our restricted stock award plans. Upon vesting, the restricted stock award will be paid in shares of our Class P common stock.
 
Pensions and Other Postretirement Benefits

We recognize the differences between the fair value of each of our and our consolidated subsidiaries’ pension and other postretirement benefit plans’ assets and the benefit obligations as either assets or liabilities on our consolidated balance sheets. We record deferred plan costs and income—unrecognized losses and gains, unrecognized prior service costs and credits, and any remaining unamortized transition obligations—net of income taxes in “Accumulated other comprehensive loss,” with the proportionate share associated with less than wholly owned consolidated subsidiaries allocated and included within “Noncontrolling interests,” or as a regulatory asset or liability for certain of our regulated operations, until they are amortized as a component of benefit expense.

Deferred Financing Costs

We capitalize financing costs incurred with new borrowings and amortize the costs over the contractual term of the related obligations.

Redeemable Noncontrolling Interest

Through December 14, 2021, we had a redeemable noncontrolling interest which represented the interest in one of our consolidated subsidiaries, ELC, not owned by us, and which in certain limited circumstances, the partner had the right to relinquish its interest in the subsidiary and redeem its cumulative contributions, net of distributions it had received through date of the amended operating agreement. Distributions paid to EIG prior to that date were recorded as a reduction to the redeemable noncontrolling interest balance and included in “Distributions to investment partner” in our accompanying consolidated statements of cash flows. On December 14, 2021, the ownership agreement was modified such that EIG’s interest was no longer contingently redeemable, and the balance was reclassified to “Noncontrolling Interests.” Net income attributable to redeemable noncontrolling interest was $58 million and $54 million for the years ended December 31, 2021 and 2020, respectively, and is included in “Net Income Attributable to Noncontrolling Interests” in our accompanying consolidated statements of income.

Noncontrolling Interests

Noncontrolling interests represents the interests in our consolidated subsidiaries that are not owned by us.  In our accompanying consolidated statements of income, the noncontrolling interest in the net income of our less than wholly owned consolidated subsidiaries is shown as an allocation of our consolidated net income and is presented separately as “Net Income
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Attributable to Noncontrolling Interests.”  In our accompanying consolidated balance sheets, noncontrolling interests is presented separately as “Noncontrolling interests” within “Stockholders’ Equity.”

Income Taxes

Income tax expense is recorded based on an estimate of the effective tax rate in effect or to be in effect during the relevant periods. Changes in tax legislation are included in the relevant computations in the period in which such changes are enacted. We do business in a number of states with differing laws concerning how income subject to each state’s tax structure is measured and at what effective rate such income is taxed. Therefore, we must make estimates of how our income will be apportioned among the various states in order to arrive at an overall effective tax rate. Changes in our effective tax rate, including any effect on previously recorded deferred taxes, are recorded in the period in which the need for such change is identified.

Deferred income tax assets and liabilities are recognized for temporary differences between the basis of assets and liabilities for financial reporting and tax purposes. Deferred tax assets are reduced by a valuation allowance when it is more-likely-than-not that all, or a portion, of a deferred tax asset will not be realized. While we have considered estimated future taxable income and prudent and feasible tax planning strategies in determining the amount of our valuation allowance, any change in the amount that we expect to ultimately realize will be included in income in the period in which such a determination is reached.

In determining the deferred income tax asset and liability balances attributable to our investments, we apply an accounting policy that looks through our investments. The application of this policy resulted in no deferred income taxes being provided on the difference between the book and tax basis on the non-tax-deductible goodwill portion of our investments, including KMI’s investment in its wholly-owned subsidiary, KMP.

Risk Management Activities

We utilize energy commodity derivative contracts for the purpose of mitigating our risk resulting from fluctuations in the market price of commodities including crude oil, natural gas, and NGL.  In addition, we enter into interest rate swap agreements for the purpose of managing our interest rate exposure associated with our debt obligations. We also enter into cross-currency swap agreements to manage our foreign currency risk associated with certain debt obligations. We measure our derivative contracts at fair value and we report them on our balance sheet as either an asset or liability. For certain physical forward commodity derivatives contracts, we apply the normal purchase/normal sale exception, whereby the revenues and expenses associated with such transactions are recognized during the period when the commodities are physically delivered or received.

For qualifying accounting hedges, we formally document the relationship between the hedging instrument and the hedged item, the risk management objectives, and the methods used for assessing and testing effectiveness. When we designate a derivative contract as a cash flow accounting hedge, the entire change in fair value of the derivative that is included in the assessment of hedge effectiveness is deferred in “Accumulated other comprehensive loss” and reclassified into earnings in the period in which the hedged item affects earnings. When we designate a derivative contract as a fair value accounting hedge, the change in fair value of the hedged item is recorded as an adjustment to the carrying value of the hedged item and recognized currently in earnings in the same line item that the change in fair value of the derivative is recognized currently in earnings. Therefore, any difference between the changes in fair values of the item being hedged and the derivative contract results in a gain or loss from the hedging relationship recognized currently in earnings.

For derivative instruments that are not designated as accounting hedges, or for which we have not elected the normal purchase/normal sales exception, changes in fair value are recognized currently in earnings.

Fair Value

The fair values of our financial instruments are separated into three broad levels (Levels 1, 2 and 3) based on our assessment of the availability of observable market data and the significance of non-observable data used to determine fair value. We assign each fair value measurement to a level corresponding to the lowest level input that is significant to the fair value measurement in its entirety. Recognized valuation techniques utilize inputs such as contractual prices, quoted market prices or rates, and discount factors.  These inputs may be either readily observable or corroborated by market data.

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Regulatory Assets and Liabilities

Regulatory assets and liabilities represent probable future revenues or expenses associated with certain charges and credits that will be recovered from or returned to customers through the ratemaking process. In instances where we receive recovery in tariff rates related to losses on dispositions of operating units, we record a regulatory asset for the estimated recoverable amount.  We include the amounts of our regulatory assets and liabilities within “Other current assets,” “Deferred charges and other assets,” “Other current liabilities” and “Other long-term liabilities and deferred credits,” respectively, in our accompanying consolidated balance sheets.

The following table summarizes our regulatory asset and liability balances as of December 31, 2022 and 2021:
December 31,
20222021
(In millions)
Current regulatory assets$73 $66 
Non-current regulatory assets183 220 
Total regulatory assets(a)$256 $286 
Current regulatory liabilities$50 $32 
Non-current regulatory liabilities175 163 
Total regulatory liabilities(b)$225 $195 
(a)Regulatory assets as of December 31, 2022 include (i) $110 million of unamortized losses on disposal of assets; (ii) $45 million income tax gross up on equity AFUDC; and (iii) $101 million of other assets, including amounts related to fuel tracker arrangements. Approximately $143 million of the regulatory assets, with a weighted average remaining recovery period of 10 years, are recoverable without earning a return, including the income tax gross up on equity AFUDC for which there is an offsetting deferred income tax balance for FERC rate base purposes; therefore, it does not earn a return.
(b)Regulatory liabilities as of December 31, 2022 are comprised of customer prepayments to be credited to shippers or other over-collections that are expected to be returned to shippers or netted against under-collections over time. Approximately $110 million of the $175 million classified as non-current is expected to be credited to shippers over a remaining weighted average period of 15 years, while the remaining $65 million is not subject to a defined period.

Earnings per Share

We calculate earnings per share using the two-class method. Earnings were allocated to Class P common stock and participating securities based on the amount of dividends paid in the current period plus an allocation of the undistributed earnings or excess distributions over earnings to the extent that each security participates in earnings or excess distributions over earnings. Our unvested restricted stock awards, which may be restricted stock or restricted stock units issued to employees and non-employee directors and include dividend equivalent payments, do not participate in excess distributions over earnings.

The following table sets forth the allocation of net income available to shareholders of Class P common stock and participating securities:
Year Ended December 31,
202220212020
(In millions, except per share amounts)
Net Income Available to Stockholders$2,548 $1,784 $119 
Participating securities:
   Less: Net Income Allocated to Restricted stock awards(a)(13)(14)(13)
Net Income Allocated to Class P Stockholders$2,535 $1,770 $106 
Basic Weighted Average Shares Outstanding2,258 2,266 2,263 
Basic Earnings Per Share$1.12 $0.78 $0.05 
(a)As of December 31, 2022, there were approximately 13 million restricted stock awards outstanding.

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The following maximum number of potential common stock equivalents are antidilutive and, accordingly, are excluded from the determination of diluted earnings per share. As we have no other common stock equivalents, our diluted earnings per share are the same as our basic earnings per share for all periods presented.
Year Ended December 31,
202220212020
(In millions on a weighted average basis)
Unvested restricted stock awards13 13 13 
Convertible trust preferred securities

3.
Acquisitions and Divestitures

Business Combinations

For acquired businesses, we recognize the identifiable assets acquired, the liabilities assumed and any noncontrolling interest in the acquiree at their estimated fair values on the date of acquisition with any excess purchase price over the fair value of net assets acquired recorded to goodwill. Determining the fair value of these items requires management’s judgment and the utilization of an independent valuation specialist, if applicable, and involves the use of significant estimates and assumptions.

As of December 31, 2022, our allocation of the purchase price for significant acquisitions completed during the years ended December 31, 2022 and 2021 are detailed below:
Assignment of Purchase Price
RefDateAcquisitionPurchase priceCurrent assetsProperty, plant & equipmentOther long-term assetsCurrent liabilitiesLong-term liabilitiesResulting goodwill
(In millions)
(1)8/22North American Natural Resources$132 $$$64 $— $— $61 
(2)7/22Mas Ranger, LLC358 31 320 (2)— — 
(3)8/21Kinetrex318 18 49 272 (6)(68)53 
(4)7/21Stagecoach1,258 53 1,187 24 (6)— — 

(1) North American Natural Resources Acquisition

On August 11, 2022, we completed the acquisition of seven landfill assets with the purchase of North American Natural Resources, Inc. and, its sister companies, North American Biofuels, LLC and North American-Central, LLC (NANR) consisting of GTE facilities in Michigan and Kentucky for $132 million, including purchase price adjustments for working capital. Other long-term assets within the preliminary purchase price allocation consists of intangibles related to gas rights and customer contracts with a weighted average amortization period of approximately 13 years. The goodwill associated with this acquisition is tax deductible. The acquired assets align with our strategy to invest in low-carbon energy and are included as part of our new Energy Transition Ventures group within our CO2 business segment.

(2) Mas Ranger Acquisition

On July 19, 2022, we completed an acquisition of three landfill assets with the purchase of Mas Ranger, LLC and its subsidiaries from Mas CanAm, LLC, comprising an RNG facility in Arlington, Texas and medium Btu facilities in Shreveport, Louisiana and Victoria, Texas for $358 million including preliminary purchase price adjustments for working capital. Other long-term assets within the preliminary purchase price allocation reflects an intangible related to a customer contract with an amortization period of approximately 17 years. The acquired assets align with our strategy to invest in low-carbon energy and are included as part of our new Energy Transition Ventures group within our CO2 business segment.

(3) Kinetrex Acquisition

On August 20, 2021, we completed the acquisition of Indianapolis-based Kinetrex from an affiliate of Parallel49 Equity for $318 million, including purchase price adjustments for working capital. Deferred charges and other within the purchase price allocation includes $63 million related to an equity investment and $199 million related to a customer relationship with an amortization period of approximately 10 years. Kinetrex is a supplier of LNG in the Midwest and a producer and supplier of
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RNG under long-term contracts to transportation service providers. Kinetrex has a 50% interest in the largest RNG facility in Indiana, and we commenced construction on three additional landfill-based RNG facilities in September 2021. The acquired assets align with our strategy to invest in low-carbon energy and are included as part of our new Energy Transition Ventures group within our CO2 business segment.

(4) Stagecoach Acquisition

On July 9, 2021 and November 24, 2021, we completed the acquisitions of Stagecoach and its subsidiaries, a natural gas pipeline and storage joint venture between Consolidated Edison, Inc. and Crestwood Equity Partners, LP, for approximately $1,258 million, including a purchase price adjustment for working capital. Deferred charges and other within the purchase price allocation relates to customer contracts with a weighted average amortization period of less than 2 years. The determination of fair value utilized valuation methodologies including discounted cash flows and the cost approach. The significant assumptions made in performing these valuations include a discount rate of approximately 12%, future revenues and replacement costs. To compute estimated future cash flows for Stagecoach, transportation and storage revenue forecasts were developed based on projected demand and future rates for services in the Northeast market areas.

Pro Forma Information

Pro forma consolidated income statement information that gives effect to the above acquisitions as if they had occurred as of January 1, 2021 is not presented because it would not be materially different from the information presented in our accompanying consolidated statements of income.

Divestitures

Sale of Interest in ELC

On September 26, 2022, we completed the sale of a 25.5% ownership interest in ELC. We received net proceeds of $557 million which were used to reduce short-term borrowings. As we continue to have a controlling financial interest in ELC, we recorded an increase of $190 million to “Additional paid in capital” for the impact of the change in our ownership interest in ELC, which is reflected on our accompanying consolidated statement of stockholders’ equity for the year ended December 31, 2022. We continue to own a 25.5% interest in and operate ELC.

We continue to consolidate ELC. We have determined that ELC is a variable interest entity and Southern Liquefaction Company, LLC (SLC), which is indirectly controlled by us, is the primary beneficiary because it has the ability to direct the activities that most significantly impact ELC’s economic performance and the right to receive benefits and the obligation to absorb losses. In addition to being the operator of ELC, the evaluation of ELC as a variable interest entity and SLC as the primary beneficiary included consideration of the following: (i) a liquefaction service agreement between ELC and its customer was designed for recovery by ELC of actual costs for operating and maintaining ELC’s facilities, which reduces the risk for all equity owners to absorb losses resulting from cost variability; and (ii) substantially all ELC’s activities involve KMI subsidiaries under common control that provide services for and benefit from the operations of ELC.

The following table shows the carrying amount and classification of ELC’s assets and liabilities in our consolidated balance sheet:
December 31, 2022
(In millions)
Assets
Current assets$34 
Property, plant and equipment, net 1,197 
Deferred charges and other assets
Liabilities
Current liabilities$15 
Other long-term liabilities and deferred credits

We receive distributions from ELC, indirectly, through our interest in SLC, but otherwise, the assets of ELC cannot be used to settle our obligations. ELC’s creditors have no recourse against our general credit and the obligations of ELC may only be settled using the assets of ELC. ELC does not guarantee our debt or other similar commitments.
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Sale of an Interest in NGPL Holdings LLC

On March 8, 2021, we and Brookfield Infrastructure Partners L.P. (Brookfield) completed the sale of a combined 25% interest in our joint venture, NGPL Holdings LLC (NGPL Holdings), to a fund controlled by ArcLight Capital Partners, LLC (ArcLight). We received net proceeds of $412 million for our proportionate share of the interests sold, which included the transfer of $125 million of our $500 million related party promissory note receivable from NGPL Holdings to ArcLight with quarterly interest payments at 6.75%. We recognized a pre-tax gain of $206 million for our proportionate share, which is included within “Other, net” in our accompanying consolidated statement of income for the year ended December 31, 2021. We and Brookfield now each hold a 37.5% interest in NGPL Holdings.

4.  Gains and Losses on Divestitures, Impairments and Other Write-downs

During the years ended December 31, 2022, 2021, and 2020, we recorded net pre-tax (gains) losses of $(32) million, $1,535 million and $1,922 million, respectively, reflecting net (gains) losses on divestitures, impairments and other write downs as detailed further below. The year ended December 31, 2021 amount primarily includes pre-tax long-lived asset impairments of $1,634 million. The year ended December 31, 2020 amount primarily includes pre-tax goodwill and long-lived asset impairment losses of $1,600 million and $376 million, respectively.

We recognized the following non-cash pre-tax (gains) losses on divestitures, impairments or other write-downs on assets and equity investments during the years ended December 31, 2022, 2021, and 2020:
Year Ended December 31,
202220212020
(In millions)
Natural Gas Pipelines
Impairments of long-lived assets(a)$— $1,600 $— 
Impairment of goodwill(b)— — 1,000 
Gain on sale of interest in NGPL Holdings(c)— (206)— 
Loss on write-down of related party note receivable(d)— 117 — 
(Gains) losses on divestitures of long-lived assets(10)(1)10 
Products Pipelines
Impairments of long-lived assets— — 21 
Gain on divestiture of long-lived asset(12)— — 
Terminals
Impairments of long-lived assets— 34 
(Gains) losses on divestitures of long-lived assets(e)(9)(54)
Gain on sale of equity investment interests— — (10)
CO2
Impairment of goodwill(b)— — 600 
Impairments of long-lived assets(f)— — 350 
Gains on divestitures of long-lived assets(1)(8)— 
Other gains on divestitures of long-lived assets— (3)— 
Pre-tax (gains) losses on divestitures, impairments and other write-downs, net$(32)$1,535 $1,922 
(a)2021 amount represents non-cash impairments associated with our South Texas gathering and processing assets.
(b)2020 amount represent non-cash goodwill impairments associated with our Natural Gas Pipelines Non-Regulated and CO2 reporting units (see “—ImpairmentsGoodwill” below).
(c)See Note 3.
(d)See “—Investment in Ruby” below for a further discussion.
(e)2020 amount includes a $55 million gain related to the sale of our Staten Island terminal.
(f)2020 amount represents a non-cash impairment of oil and gas properties.

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Impairments

Long-lived Assets

During the second quarter of 2021, we evaluated our South Texas gathering and processing assets within our Natural Gas Pipeline business segment for impairment, which was driven by lower expectations regarding the volumes and rates associated with the re-contracting of contracts expiring through 2024. To compute the estimated undiscounted future cash flows we used the forecast of expected revenues adjusted for upcoming contract expirations. This analysis indicated that our South Texas gathering and processing assets failed step one. In step two, we utilized an income approach to estimate fair value and compared it to the carrying value. The significant assumptions made in calculating fair value include estimates of future cash flows and discount rates. We applied an approximate 8.5% discount rate, a Level 3 input, which we believed represented the estimated weighted average cost of capital of a theoretical market participant. As a result of our evaluation, we recognized a non-cash, long-lived asset impairment of $1,600 million during the year ended December 31, 2021.

During the first half of 2020, the energy production and demand factors related to COVID-19 and the sharp decline in commodity prices represented a triggering event that required us to perform impairment testing on certain businesses that are sensitive to commodity prices. As a result, we performed an impairment analysis of long-lived assets within our CO2 business segment which resulted in a non-cash impairment of long-lived assets within our CO2 business segment shown in the above table during the year ended December 31, 2020.

As of March 31, 2020, for our CO2 assets, the computation of estimated undiscounted future cash flows included the following:

To compute estimated future cash flows for our oil and gas producing properties, we used our reserve engineer specialists to estimate future oil and gas production volumes. These estimates of future oil and gas production volumes are based upon historical performance along with adjustments for expected crude oil and natural gas field development. In calculating future cash flows, management utilized estimates of commodity prices based on a March 31, 2020 NYMEX forward curve adjusted for the impact of our existing sales contracts to determine the applicable net crude oil and NGL pricing for each property. Operating expenses were determined based on estimated fixed and variable field production requirements, and capital expenditures were based on economically viable development projects.

To compute estimated future cash flows for our CO2 source and transportation assets, throughput and production volume forecasts were developed based on projected demand for our CO2 services based upon management’s projections of the availability of CO2 supply and the future demand for CO2 for use in enhanced oil recovery projects. The CO2 pricing assumption was a function of the March 31, 2020 NYMEX forward curve adjusted for the impact of existing sales contracts to determine the applicable net CO2 pricing. Operating expenses were determined based on estimated fixed and variable field production requirements, and capital expenditures were based on economically viable development projects.

For certain oil and gas properties that failed the first step, we used a discounted cash flow analysis to estimate fair value. We applied a 10.5% discount rate, which we believe represented the estimated weighted average cost of capital of a theoretical market participant. Based on step two of our long-lived assets impairment test, we recognized $350 million of impairments on those oil and gas producing properties where the total carrying value exceeded its total estimated fair market value as of March 31, 2020.

Goodwill

The fair value estimates used in our goodwill impairment test are primarily based on Level 3 inputs of the fair value hierarchy. The inputs include valuation estimates using market and income approach valuation methodologies, which include assumptions primarily involving management’s significant judgments and estimates with respect to market multiples, comparable sales transactions, weighted average costs of capital, general economic conditions and the related demand for products handled or transported by our assets as well as assumptions regarding future cash flows based on production growth rate assumptions, terminal values and discount rates. Prior to 2022, we used primarily a market approach and, in some instances where deemed necessary, also used discounted cash flow analyses to determine the fair value of our assets. We used discount rates representing our estimate of the risk-adjusted discount rates that would be used by market participants specific to the particular reporting unit.

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During the first quarter of 2020, we conducted interim impairment tests of goodwill for our CO2 and Natural Gas Pipelines Non-Regulated reporting units, and during the second quarter 2020, we conducted our annual impairment test of goodwill for all of our reporting units which resulted in non-cash impairments of goodwill within our CO2 and Natural Gas Pipelines business segments during the year ended December 31, 2020 as shown in the table above.

Our May 31, 2020 goodwill impairment tests of the Products Pipelines, Products Pipelines Terminals, Natural Gas Pipelines Regulated and CO2 reporting units indicated that their fair values exceeded their carrying values. The results of our impairment analyses for our Products Pipelines, Terminals and CO2 reporting units, determined that each of the three reporting unit’s fair value was in excess of carrying value by less than 10%. For the Products Pipelines and Terminals reporting units, we used the market approach with assumptions similar to those described below for the Natural Gas Pipelines Non-Regulated reporting unit. For our May 31, 2020 goodwill impairment test of the CO2 reporting unit we used the income approach with assumptions similar to those used for its March 31, 2020 goodwill impairment test.

In regards to our Natural Gas Pipelines Non-Regulated reporting unit, while no impairment was required as of March 31, 2020, it experienced a sharp decline in customer demand for its services during the second quarter of 2020. This represented a timing lag from the initial economic decline impacts resulting from the severe downturn in the upstream energy industry, including our CO2 business, whereby oil and gas producing companies accelerated their shut down of wells and reduced production during the second quarter which consequently adversely impacted the demand for our midstream services. In addition, continued diminished (i) current and expected future commodity pricing and (ii) peer group market capitalization values provided further indicators that an impairment of goodwill had occurred for this reporting unit during the second quarter.

Our May 31, 2020 goodwill impairment test for the Natural Gas Pipelines Non-Regulated reporting unit utilized a weighted average of a market approach (25%) and income approach (75%) to estimate its fair value. We gave higher weighting to the income approach as we believe it was more representative of the value that would be received from a market participant.

The market approach was based on enterprise value (EV) to estimated 2020 EBITDA multiples for a selected number of peer group midstream companies with comparable operations and economic characteristics. We estimated the median EV to EBITDA multiple to be approximately 10x without consideration of any control premium. The income approach we used to determine fair value included an analysis of estimated discounted cash flows based on 6.5 years of projections and application of an exit multiple based on management’s expectations of a discount rate and exit multiple that would be applied by a theoretical market participant and for market transactions of comparable assets. We applied an approximate 8% discount rate to the undiscounted cash flow amounts which represents our estimate of the weighted average cost of capital of a theoretical market participant. The discounted cash flows included various assumptions on forecasted commodity throughput volumes and contract prices for each underlying asset within the reporting unit. The fair value based on a weighting of the market and income approaches resulted in an implied EV to 2020 EBITDA multiple valuation of approximately 11x. Management believes this is a reasonable estimate of fair value based on comparable sales transactions and the fact that it implies a reasonable control premium.

The results of the Natural Gas Pipelines Non-Regulated reporting unit goodwill impairment analysis was a partial impairment of goodwill of approximately $1,000 million as of May 31, 2020.

For our March 31, 2020 interim goodwill impairment test of the CO2 reporting unit, we applied an income approach to evaluate its fair value based on the present value of its cash flows that it is expected to generate in the future. Due to the uncertainty and volatility in market conditions within its peer group as of the test date, we did not incorporate the market approach to estimate fair value as of March 31, 2020.

In determining the fair value for our CO2 reporting unit, we applied a 9.25% discount rate to the undiscounted cash flow amounts computed in the long-lived asset impairment analyses described above. The discount rate we used represents our estimate of the weighted average cost of capital of a theoretical market participant. The result of our goodwill analysis was a partial impairment of goodwill in our CO2 reporting unit of approximately $600 million as of March 31, 2020.

The fair value estimates used in the long-lived asset and goodwill tests were primarily based on Level 3 inputs of the fair value hierarchy.
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Economic disruptions resulting from events such as COVID-19, conditions in the business environment generally, such as sustained low crude oil demand and continued low commodity prices, supply disruptions, or higher development or production costs, could result in a slowing of supply to our pipelines, terminals and other assets, which will have an adverse effect on the demand for services provided by our four business segments. Financial distress experienced by our customers or other counterparties could have an adverse impact on us in the event they are unable to pay us for the products or services we provide or otherwise fulfill their obligations to us.

As conditions warrant, we routinely evaluate our assets for potential triggering events that could impact the fair value of certain assets or our ability to recover the carrying value of long-lived assets. Such assets include accounts receivable, equity investments, goodwill, other intangibles and property plant and equipment, including oil and gas properties and in-process construction. Depending on the nature of the asset, these evaluations require the use of significant judgments including but not limited to judgments related to customer credit worthiness, future volume expectations, current and future commodity prices, discount rates, regulatory environment, as well as general economic conditions and the related demand for products handled or transported by our assets. Because certain of our assets have been written down to fair value, or its fair value is close to carrying value, any deterioration in fair value could result in further impairments. Such non-cash impairments could have a significant effect on our results of operations, which would be recognized in the period in which the carrying value is determined to not be recoverable.

For additional information regarding changes in our goodwill, see Note 8.

Investment in Ruby

During the first quarter of 2021, we recognized a pre-tax charge of $117 million related to a write-down of our subordinated note receivable from our equity investee, Ruby, which is included within “Earnings from equity investments” in our accompanying consolidated statement of income for the year ended December 31, 2021. The write-down was driven by the impairment recognized by Ruby of its assets.

Ruby Chapter 11 Bankruptcy Filing

The balance of Ruby Pipeline, L.L.C.’s 2022 unsecured notes matured on April 1, 2022 in the principal amount of $475 million. Although Ruby had sufficient liquidity to operate its business, it lacked sufficient liquidity to satisfy its obligations under the 2022 unsecured notes on the maturity date of April 1, 2022. Accordingly, on March 31, 2022, Ruby filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code in the United States Bankruptcy Court for the District of Delaware. Ruby, as the debtor, continued to operate in the ordinary course as a debtor in possession under the jurisdiction of the United States Bankruptcy Court. We fully impaired our equity investment in Ruby in the fourth quarter of 2019 and fully impaired our investment in Ruby’s subordinated notes in the first quarter of 2021. We had no amounts included in our “Investments” on our accompanying consolidated balance sheets associated with Ruby as of December 31, 2022 or 2021.

On January 13, 2023, the bankruptcy court confirmed a plan of reorganization satisfactory to all interested parties regarding Ruby, which involved payment of Ruby’s outstanding senior notes with the proceeds from the sale of Ruby to Tallgrass, a settlement by KMI and Pembina of certain potential causes of action relating to the bankruptcy, and cash on hand. Our payment to the bankruptcy estate, net of payments it received in respect of a long-term subordinated note receivable from Ruby, was approximately $28.5 million which was accrued for as of December 31, 2022 and included within “Other, net” in our accompanying consolidated statement of income for the year ended December 31, 2022. Consummation of the settlement and the sale of Ruby to Tallgrass occurred on January 13, 2023.

5. Income Taxes

The components of “Income Before Income Taxes” are as follows:
 Year Ended December 31,
 202220212020
(In millions)
U.S.$3,318 $2,217 $663 
Foreign17 (2)
Total Income Before Income Taxes$3,335 $2,219 $661 

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Components of the income tax provision applicable for federal, foreign and state taxes are as follows: 
 Year Ended December 31,
 202220212020
(In millions)
Current tax expense (benefit)   
Federal$— $— $(20)
State14 11 
Foreign147 
Total18 14 136 
Deferred tax expense (benefit)   
Federal642 334 440 
State50 21 49 
Foreign— — (144)
Total692 355 345 
Total tax provision$710 $369 $481 

The difference between the statutory federal income tax rate and our effective income tax rate is summarized as follows:
 Year Ended December 31,
 202220212020
(In millions, except percentages)
Federal income tax$700 21.0 %$466 21.0 %$139 21.0 %
Increase (decrease) as a result of:      
Net effects of noncontrolling interests(16)(0.5)%(14)(0.6)%(13)(2.0)%
State income tax, net of federal benefit69 2.0 %50 2.2 %52 7.9 %
Dividend received deduction(36)(1.1)%(46)(2.1)%(27)(4.1)%
Release of valuation allowance— — %(38)(1.7)%— — %
Nondeductible goodwill— — %— — %336 50.8 %
General business credit— — %(36)(1.6)%— — %
Federal refunds— — %— — %(20)(3.0)%
Other(7)(0.2)%(13)(0.6)%14 2.2 %
Total$710 21.2 %$369 16.6 %$481 72.8 %

Deferred tax assets and liabilities result from the following:
 December 31,
 20222021
(In millions)
Deferred tax assets  
Employee benefits$116 $154 
Net operating loss carryforwards2,007 1,476 
Tax credit carryforwards303 301 
Interest expense limitation82 — 
Other192 229 
Valuation allowances(79)(93)
Total deferred tax assets2,621 2,067 
Deferred tax liabilities  
Property, plant and equipment163 166 
Investments3,056 1,769 
Other25 17 
Total deferred tax liabilities3,244 1,952 
Net deferred tax (liability)/asset$(623)$115 
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Deferred Tax Assets and Valuation Allowances

A reconciliation of our valuation allowances for the year ended December 31, 2022 is as follows:
Year Ended
December 31, 2022
(In millions)
Balance at beginning of period$93 
Statute expirations for federal and state NOL and foreign tax credits(16)
Currency fluctuation
Balance at end of period$79 

The following table provides details related to our deferred tax assets and valuation allowances as of December 31, 2022:
Unused AmountDeferred Tax AssetValuation AllowanceExpiration Period
(In millions)
Net Operating Loss
U.S. federal net operating loss $5,005 $1,051 $— Indefinite
U.S. federal net operating loss3,209 674 — 2029 - 2037
State losses5,034 254 (47)2023 - 2042
Foreign losses83 28 (28)Indefinite
Tax Credits
General business credits299 299 — 2036 - 2042
Foreign tax credits(4)2023 - 2027

Use of a portion of our U.S. federal carryforwards is subject to the limitations provided under Sections 382 and 383 of the Internal Revenue Code as well as the separate return limitation rules of Internal Revenue Service regulations. If certain substantial changes in our ownership occur, there would be an annual limitation on the amount of carryforwards that could be utilized.

Unrecognized Tax Benefits: We recognize the tax benefit from an uncertain tax position only if it is more likely than not that the tax position will be sustained on examination by the taxing authorities, based not only on the technical merits of the tax position based on tax law, but also the past administrative practices and precedents of the taxing authority.  The tax benefits recognized in the financial statements from such a position are measured based on the largest benefit that has a greater than 50% likelihood of being realized upon ultimate resolution.

A reconciliation of our gross unrecognized tax benefit excluding interest and penalties is as follows:
Year Ended December 31,
202220212020
(In millions)
Balance at beginning of period$21 $18 $16 
Reductions based on statute expirations(5)— — 
Additions to state reserves for prior years
Balance at end of period$23 $21 $18 
Amounts which, if recognized, would affect the effective tax rate$23 

In addition, we believe it is reasonably possible that our liability for unrecognized tax benefits will increase by $4 million during the next year, primarily due to additions for state filing positions taken in prior years, offset by releases from statute expirations.
 
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The following table summarizes information of our open tax years:
JurisdictionOpen Tax Year
U.S.2017 - 2021
Various states2012 - 2021
Foreign2008 - 2021

6.  Property, Plant and Equipment, net
 
As of December 31, 2022 and 2021, our property, plant and equipment, net consisted of the following:
 Straight Line
Estimated Useful Life
Composite
Depreciation Rates
December 31,
 20222021
(Years) (%)(In millions)
Interstate Natural Gas FERC-Regulated
Pipelines (Natural gas)
0.80-6.67
$11,793 $11,718 
Equipment (Natural gas)
0.80-6.67
8,839 8,722 
Other(a)
0.00-25
833 769 
Accumulated depreciation, depletion and amortization(9,883)(9,433)
Depreciable assets11,582 11,776 
Land and land rights-of-way388 387 
Construction work in process258 114 
Total interstate natural gas FERC-regulated12,228 12,277 
Other
Pipelines (Natural gas, liquids, crude oil and CO2)
5-40
0.79-33.33
8,329 8,536 
Equipment (Natural gas, liquids, crude oil, CO2 and terminals)
5-40
0.79-33.33
18,645 17,789 
Other(a)
3-10
0.00-33.33
4,791 4,587 
Accumulated depreciation, depletion and amortization(10,529)(9,359)
Depreciable assets21,236 21,553 
Land and land rights-of-way1,350 1,331 
Construction work in process785 492 
Total other23,371 23,376 
Property, plant and equipment, net$35,599 $35,653 
(a)Includes general plant, general structures and buildings, computer and communication equipment, intangibles, vessels, transmix products, linefill and miscellaneous property, plant and equipment.

Depreciation, depletion and amortization expense for property, plant and equipment was $1,905 million, $1,873 million and $1,928 million for the years ended December 31, 2022, 2021 and 2020, respectively.

 
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7.  Investments
 
Our investments primarily consist of equity investments where we hold significant influence over investee actions and for which we apply the equity method of accounting. The following table provides details on our investments as of December 31, 2022 and 2021, and our earnings (loss) from these respective investments for the years ended December 31, 2022, 2021 and 2020: 
Ownership Interest Equity InvestmentsEarnings (Loss) from
Equity Investments
 December 31,December 31,Year Ended December 31,
 202220222021202220212020
(In millions)
Citrus Corporation50%$1,781 $1,768 $145 $151 $165 
SNG50%1,669 1,514 145 128 129 
PHP26.67%666 647 70 63 — 
NGPL Holdings(a)37.5%610 604 111 94 116 
Gulf Coast Express Pipeline LLC34%597 618 91 86 90 
MEP50%371 388 10 (17)(6)
Products (SE) Pipe Line Corporation51.17%348 346 51 48 43 
Utopia Holding LLC50%325 328 20 20 20 
Gulf LNG Holdings Group, LLC50%311 347 24 22 19 
EagleHawk25%273 266 13 17 
Red Cedar Gathering Company49%155 168 17 10 12 
Double Eagle Pipeline LLC50%90 112 18 12 
Watco Companies, LLC(b)79 75 16 
Cortez Pipeline Company52.98%31 28 30 29 24 
FEP50%— — — 70 
Ruby(c)(d)— — — (116)15 
All others347 369 47 47 38 
Total investments$7,653 $7,578 $803 $591 $780 
Amortization of excess cost$(75)$(78)$(140)
(a)Our investment in NPGL Holdings includes a related party promissory note receivable from NGPL Holdings with quarterly interest payments at 6.75%. On March 8, 2021, we and Brookfield completed the sale of a combined 25% interest in our joint venture, NGPL Holdings, to ArcLight including a transfer of $125 million in principal amount of our related party promissory note receivable (see Note 3). We and Brookfield now each hold a 37.5% interest in NGPL Holdings. The outstanding principal amount of our related party promissory note receivable at both December 31, 2022 and 2021 was $375 million. For the years ended December 31, 2022, 2021 and 2020, we recognized $25 million, $27 million and $34 million, respectively, of interest within “Earnings from equity investments” on our accompanying consolidated statements of income.
(b)We hold a preferred equity investment in Watco Companies, LLC (Watco).  We own 50,000 Class B preferred shares and pursuant to the terms of the investment, receive priority, cumulative cash and stock distributions from the preferred shares at a rate of 3.00% per quarter.  We do not hold any voting powers, but the class does provide us certain approval rights, including the right to appoint one of the members to Watco’s board of managers. During the fourth quarter of 2020, we sold our Preferred A and common equity investment in Watco, and recognized a pre-tax gain of $10 million within “Other, net” on our accompanying consolidated statement of income for the year ended December 31, 2020.
(c)The loss from our investment in Ruby for the year ended December 31, 2021 includes a non-cash impairment charge of $117 million related to a write-down of our subordinated note receivable from Ruby driven by the impairment by Ruby of its assets (see Note 4 “Gains and Losses on Divestitures, Impairments, and Other Write-downs—Investment in Ruby.)
(d)As of December 31, 2022, we operated Ruby and owned an effective 50% interest. As of January 13, 2023, we no longer own an interest in Ruby. For further information regarding Ruby’s bankruptcy filing, see Note 4 “Gains and Losses on Divestitures, Impairments, and Other Write-downs—Investment in Ruby—Ruby Chapter 11 Bankruptcy Filing.”

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Summarized combined financial information for our significant equity investments (listed or described above) is reported below (amounts represent 100% of investee financial information):
Year Ended December 31,
Income Statement20222021(a)2020
(In millions)
Revenues$5,967 $5,537 $5,200 
Costs and expenses4,204 6,153 4,325 
Net income (loss)$1,763 $(616)$875 
December 31,
Balance Sheet20222021
(In millions)
Current assets$1,470 $1,314 
Non-current assets23,361 23,154 
Current liabilities1,622 1,808 
Non-current liabilities10,207 10,001 
Partners’/owners’ equity13,002 12,659 
(a)2021 amounts include a non-cash impairment charge of $2.2 billion recorded by Ruby.

8.  Goodwill
 
Changes in the amounts of our goodwill for each of the years ended December 31, 2022 and 2021 are summarized by reporting unit as follows:  
 Natural Gas Pipelines RegulatedNatural Gas Pipelines Non-Regulated
CO2
Products PipelinesProducts Pipelines TerminalsTerminalsEnergy Transition VenturesTotal
(In millions)
Gross goodwill
$15,892 $4,940 $1,528 $2,575 $221 $1,481 $— $26,637 
Accumulated impairment losses
(1,643)(2,597)(600)(1,197)(70)(679)— (6,786)
December 31, 202014,249 2,343 928 1,378 151 802 — 19,851 
Acquisitions— — — — — — 63 63 
December 31, 202114,249 2,343 928 1,378 151 802 63 19,914 
Acquisitions(a)— — — — — — 51 51 
December 31, 202214,249 2,343 928 1,378 151 802 114 19,965 
Gross goodwill
15,892 4,940 1,528 2,575 221 1,481 114 26,751 
Accumulated impairment losses
(1,643)(2,597)(600)(1,197)(70)(679)— (6,786)
December 31, 2022$14,249 $2,343 $928 $1,378 $151 $802 $114 $19,965 
(a)Includes goodwill arising from our acquisition of NANR and a $10 million purchase price adjustment related to our acquisition of Kinetrex in 2021 that was attributed to long-term deferred tax liabilities.

As of May 31, 2022, the results of our annual analysis did not indicate an impairment of goodwill. Each of our reporting units had an estimated fair value in excess of their respective carrying values (by at least 10%). We did not identify any triggers requiring further impairment analysis during the remainder of the year.

We estimated fair value based on a market approach utilizing forecasted earnings before interest, taxes, depreciation and amortization (EBITDA) and the enterprise value to estimated EBITDA multiples of comparable companies for each of our reporting units. The value of each reporting unit was determined from the perspective of a market participant in an orderly transaction between market participants at the measurement date.

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The fair value estimates used in our Step 1 analysis are subject to variability in the forecasted EBITDA projections and in the enterprise value to estimated EBITDA multiples of comparable companies for each of our reporting units. A significant unfavorable change to any one or combination of these factors would result in a change to the reporting unit fair values discussed above and potentially result in future impairments of goodwill. Such non-cash impairments could have a significant effect on our results of operations.

9.  Debt

The following table provides detail on the principal amount of our outstanding debt balances:
December 31,
 20222021
(In millions)
Credit facility and commercial paper borrowings$— $— 
Corporate senior notes(a)
4.15%, due March 2022
— 375 
1.50%, due March 2022(b)
— 853 
3.95%, due September 2022
— 1,000 
3.15%, due January 2023
1,000 1,000 
Floating rate, due January 2023(c)250 250 
3.45%, due February 2023
625 625 
3.50%, due September 2023
600 600 
5.625%, due November 2023
750 750 
4.15%, due February 2024
650 650 
4.30%, due May 2024
600 600 
4.25%, due September 2024
650 650 
4.30%, due June 2025
1,500 1,500 
1.75%, due November 2026
500 500 
6.70%, due February 2027
2.25%, due March 2027(b)
535 569 
6.67%, due November 2027
4.30%, due March 2028
1,250 1,250 
7.25%, due March 2028
32 32 
6.95%, due June 2028
31 31 
8.05%, due October 2030
234 234 
2.00%, due February 2031
750 750 
7.40%, due March 2031
300 300 
7.80%, due August 2031
537 537 
7.75%, due January 2032
1,005 1,005 
7.75%, due March 2032
300 300 
4.80%, due February 2033
750 — 
7.30%, due August 2033
500 500 
5.30%, due December 2034
750 750 
5.80%, due March 2035
500 500 
7.75%, due October 2035
6.40%, due January 2036
36 36 
6.50%, due February 2037
400 400 
7.42%, due February 2037
47 47 
6.95%, due January 2038
1,175 1,175 
6.50%, due September 2039
600 600 
6.55%, due September 2040
400 400 
7.50%, due November 2040
375 375 
6.375%, due March 2041
600 600 
5.625%, due September 2041
375 375 
5.00%, due August 2042
625 625 
4.70%, due November 2042
475 475 
5.00%, due March 2043
700 700 
5.50%, due March 2044
750 750 
5.40%, due September 2044
550 550 
5.55%, due June 2045
1,750 1,750 
5.05%, due February 2046
800 800 
5.20%, due March 2048
750 750 
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December 31,
 20222021
3.25%, due August 2050
500 500 
3.60%, due February 2051
1,050 1,050 
5.45%, due January 2052
750 — 
7.45%, due March 2098
26 26 
TGP senior notes(a)
7.00%, due March 2027
300 300 
7.00%, due October 2028
400 400 
2.90%, due March 2030
1,000 1,000 
8.375%, due June 2032
240 240 
7.625%, due April 2037
300 300 
EPNG senior notes(a)
8.625%, due January 2022
— 260 
7.50%, due November 2026
200 200 
3.50%, due February 2032
300 — 
8.375%, due June 2032
300 300 
CIG senior notes(a)
4.15%, due August 2026
375 375 
6.85%, due June 2037
100 100 
EPC Building, LLC, promissory note, 3.967%, due January 2022 through December 2035
348 364 
Trust I Preferred Securities, 4.75%, due March 2028(d)
220 221 
Other miscellaneous debt(e)242 248 
Total debt – KMI and Subsidiaries31,673 32,418 
Less: Current portion of debt3,385 2,646 
Total long-term debt – KMI and Subsidiaries(f)$28,288 $29,772 
(a)Notes provide for the redemption at any time at a price equal to 100% of the principal amount of the notes plus accrued interest to the redemption date plus a make whole premium and are subject to a number of restrictions and covenants. The most restrictive of these include limitations on the incurrence of liens and limitations on sale-leaseback transactions.
(b)Consists of senior notes denominated in Euros that have been converted to U.S. dollars and are respectively reported above at the December 31, 2022 exchange rate of 1.0705 U.S. dollars per Euro and at the December 31, 2021 exchange rate of 1.1370 U.S. dollars per Euro. As of December 31, 2022 and 2021, the cumulative changes in the exchange rate of U.S. dollars per Euro since issuance had resulted in a decrease of $8 million and an increase of $26 million, respectively, related to the 2.25% series, and as of December 31, 2021, an increase of $38 million to our debt balance related to the 1.50% series. As of December 31, 2022, we had outstanding associated cross-currency swap agreements which are designated as cash flow hedges.
(c)As of December 31, 2022, we had outstanding an associated floating-to-fixed interest rate swap agreement which is designated as a cash flow hedge.
(d)Capital Trust I (Trust I), is a 100%-owned business trust that as of December 31, 2022, had 4.4 million of 4.75% trust convertible preferred securities outstanding (referred to as the Trust I Preferred Securities). Trust I exists for the sole purpose of issuing preferred securities and investing the proceeds in 4.75% convertible subordinated debentures, which are due 2028. Trust I’s sole source of income is interest earned on these debentures. This interest income is used to pay distributions on the preferred securities. We provide a full and unconditional guarantee of the Trust I Preferred Securities. There are no significant restrictions from these securities on our ability to obtain funds from our subsidiaries by distribution, dividend or loan. The Trust I Preferred Securities are non-voting (except in limited circumstances), pay quarterly distributions at an annual rate of 4.75% and carry a liquidation value of $50 per security plus accrued and unpaid distributions. The Trust I Preferred Securities outstanding as of December 31, 2022 are convertible at any time prior to the close of business on March 31, 2028, at the option of the holder, into the following mixed consideration: (i) 0.7197 of a share of our Class P common stock; and (ii) $25.18 in cash without interest. We have the right to redeem these Trust I Preferred Securities at any time.
(e)Includes finance lease obligations with monthly installments. The lease terms expire between 2026 and 2070.
(f)Excludes our “Debt fair value adjustments” which, as of December 31, 2022 and 2021, increased our combined debt balances by $115 million and $902 million, respectively. In addition to all unamortized debt discount/premium amounts, debt issuance costs and purchase accounting on our debt balances, our debt fair value adjustments also include amounts associated with the offsetting entry for hedged debt and any unamortized portion of proceeds received from the early termination of interest rate swap agreements. For further information about our debt fair value adjustments, see “—Debt Fair Value Adjustments” below.

On February 23, 2022, EPNG issued in a private offering $300 million aggregate principal amount of 3.50% senior notes due 2032 and received net proceeds of $298 million after discount and issuance costs.

On August 3, 2022, we issued in a registered offering two series of senior notes consisting of $750 million aggregate principal amount of 4.80% senior notes due 2033 and $750 million aggregate principal amount of 5.45% senior notes due 2052 and received combined net proceeds of $1,484 million. We used a portion of the proceeds to repay short-term borrowings and for general corporate purposes.

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On January 31, 2023, we issued in a registered offering $1,500 million aggregate principal amount of 5.20% senior notes due 2033 for net proceeds of $1,485 million, which were used to repay short-term borrowings, maturing debt and for general corporate purposes.

We and substantially all of our wholly owned domestic subsidiaries are party to a cross guarantee agreement whereby each party to the agreement unconditionally guarantees, jointly and severally, the payment of specified indebtedness of each other party to the agreement.

Current Portion of Debt
The following table details the components of our “Current portion of debt” reported on our consolidated balance sheets:
December 31,
20222021
(In millions)
$3.5 billion credit facility due August 20, 2027
$— $— 
$500 million credit facility due November 16, 2023
— — 
Commercial paper notes— — 
Current portion of senior notes
8.625%, due January 2022(a)
— 260 
4.15%, due March 2022(a)
— 375 
1.50%, due March 2022(a)(b)
— 853 
3.95% due September 2022(c)
— 1,000 
3.15% due January 2023(d)
1,000 — 
Floating rate, due January 2023(d)(e)250 — 
3.45% due February 2023
625 — 
3.50% due September 2023
600 — 
5.625%, due November 2023
750 — 
Trust I Preferred Securities, 4.75% due March 2028(f)
111 111 
Current portion of other debt49 47 
Total current portion of debt$3,385 $2,646 
(a)We repaid the principal amount of these senior notes during the first quarter of 2022.
(b)Denominated in Euros.
(c)We repaid the principal amount of these senior notes on June 1, 2022.
(d)On January 17, 2023, we repaid these senior notes using cash on hand and short-term borrowings.
(e)These senior notes have an associated floating-to-fixed interest rate swap agreement which is designated as a cash flow hedge.
(f)Reflects the portion of cash consideration payable if all the outstanding securities as of the end of the reporting period were converted by the holders.

Credit Facilities and Restrictive Covenants
On December 15, 2022, we amended our credit facilities, discussed further below, to provide for, among other things, the replacement of LIBOR-based provisions with term SOFR provisions, related updates to benchmark replacement provisions and the extension of the maturity date on our $3.5 billion credit facility from August 2026 to August 2027.

Our revolving credit facilities consist of (i) a $3.5 billion revolving credit facility due August 2027 with a syndicate of lenders, which can be increased by up to $1.0 billion if certain conditions, including the receipt of additional lender commitments, are met, and (ii) a $500 million amended revolving credit facility due November 2023. Borrowings under our credit facilities can be used for working capital and other general corporate purposes and as backup to our commercial paper program.

We maintain a $3.5 billion commercial paper program through the private placement of short-term notes. On September 26, 2022, we reduced our commercial paper program from $4.0 billion to $3.5 billion to conform its size to that of our $3.5 billion revolving credit facility, which matures in August 2027. The notes mature up to 270 days from the date of issue and are not redeemable or subject to voluntary prepayment by us prior to maturity. The notes are sold at par value less a discount representing an interest factor or if interest bearing, at par. Borrowings under our commercial paper program reduce the borrowings allowed under our credit facilities.
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Depending on the type of loan request, our borrowings under our credit facilities bear interest at either (i) SOFR, plus (x) a credit spread adjustment and (y) an applicable margin ranging from 1.000% to 1.750% (for our $3.5 billion credit facility) or to 2.000% (for our $500 million credit facility) per annum based on our credit ratings or (ii) the greatest of (1) the Federal Funds Rate plus 0.5%; (2) the Prime Rate; or (3) SOFR for a one-month eurodollar loan, plus (x) a credit spread adjustment, (y) 1%, and (z) in each case, an applicable margin ranging from 0.100% to 0.750% (for our $3.5 billion credit facility) or to 1.000% (for our $500 million credit facility) per annum based on our credit rating. Standby fees for the unused portion of the credit facility will be calculated at a rate ranging from 0.100% to 0.250% (for our $3.5 billion credit facility) or to 0.300% (for our $500 million credit facility).
 
Our credit facilities contain financial and various other covenants that apply to us and our subsidiaries and are common in such agreements, including a maximum ratio of Consolidated Net Indebtedness to Consolidated EBITDA (as defined in the credit facilities, as amended) of 5.50 to 1.00, for any four-fiscal-quarter period. Other negative covenants include restrictions on our and certain of our subsidiaries’ ability to incur debt, grant liens, make fundamental changes or engage in certain transactions with affiliates, or in the case of certain material subsidiaries, permit restrictions on dividends, distributions or making or prepayments of loans to us or any guarantor. Our credit facilities also restrict our ability to make certain restricted payments if an event of default (as defined in the credit facilities) has occurred and is continuing or would occur and be continuing.

As of December 31, 2022, we had no borrowings outstanding under our credit facilities, no borrowings outstanding under our commercial paper program and $81 million in letters of credit. Our availability under our credit facilities as of December 31, 2022 was approximately $3.9 billion. As of December 31, 2022, we were in compliance with all required covenants.

Maturities of Debt

The scheduled maturities of the outstanding debt balances, excluding debt fair value adjustments as of December 31, 2022, are summarized as follows:
YearTotal
(In millions)
2023$3,385 
20241,925 
20251,566 
20261,102 
2027890 
Thereafter22,805 
Total$31,673 

Debt Fair Value Adjustments

The following table summarizes the “Debt fair value adjustments” included on our accompanying consolidated balance sheets:
December 31,
20222021
(In millions)
Purchase accounting debt fair value adjustments$472 $498 
Carrying value adjustment to hedged debt(367)376 
Unamortized portion of proceeds received from the early termination of interest rate swap agreements(a)204 223 
Unamortized debt discounts, net(68)(71)
Unamortized debt issuance costs(126)(124)
Total debt fair value adjustments$115 $902 
(a)As of December 31, 2022, the weighted-average amortization period of the unamortized premium from the termination of interest rate swaps was approximately 12 years.
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Fair Value of Financial Instruments
 
The carrying value and estimated fair value of our outstanding debt balances is disclosed below: 
 December 31, 2022December 31, 2021
 Carrying
value
Estimated
fair value(a)
Carrying
value
Estimated
fair value(a)
(In millions)
Total debt$31,788 $30,070 $33,320 $37,775 
(a)Included in the estimated fair value are amounts for our Trust I Preferred Securities of $195 million and $218 million as of December 31, 2022 and 2021, respectively.

We used Level 2 input values to measure the estimated fair value of our outstanding debt balance as of both December 31, 2022 and 2021.

Interest Rates, Interest Rate Swaps and Contingent Debt

The weighted average interest rate on all of our borrowings was 4.76% during 2022 and 4.67% during 2021. Information on our interest rate swaps is contained in Note 14. For information about our contingent debt agreements, see Note 13 “Commitments and Contingent Liabilities—Contingent Debt”).

10.      Share-based Compensation and Employee Benefits

Share-based Compensation

Class P Common Stock

Following is a summary of our stock compensation plans:
Directors’ Plan
Long Term Incentive Plan
Participating individualsEligible non-employee directors
Eligible employees
Total number of shares of Class P common stock authorized1,190,000 63,000,000 
Vesting period6 months
1 year to 10 years

Kinder Morgan, Inc. Second Amended and Restated Stock Compensation Plan for Non-Employee Directors

We have a Kinder Morgan, Inc. Second Amended and Restated Stock Compensation Plan for Non-Employee Directors (Directors’ Plan).  The plan recognizes that the compensation paid to each eligible non-employee director is fixed by our board of directors, generally annually, and that the compensation is payable in cash.  Pursuant to the plan, in lieu of receiving some or all of the cash compensation, each eligible non-employee director may elect annually to receive shares of Class P common stock.  During the year ended December 31, 2022, we made restricted Class P common stock grants to our non-employee directors of 34,820.

Kinder Morgan, Inc. 2021 Amended and Restated Stock Incentive Plan

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We also have a Kinder Morgan, Inc. 2021 Amended and Restated Stock Incentive Plan (Long Term Incentive Plan).  The following table sets forth a summary of activity and related balances under our Long Term Incentive Plan:
SharesWeighted Average Grant Date Fair Value per Share
(In thousands, except per share amounts)
Outstanding at December 31, 2021
12,617 $17.63 
Granted4,110 17.31 
Vested(2,744)20.94 
Forfeited(695)17.17 
Outstanding at December 31, 2022
13,288 $16.87 

The following tables set forth additional information related to our Long Term Incentive Plan:
Year Ended December 31,
202220212020
(In millions, except per share amounts)
Weighted average grant date fair value per share$17.31 $17.44 $15.10 
Intrinsic value of awards vested during the year47 77 59 
Restricted stock awards expense(a)60 59 73 
Restricted stock awards capitalized(a)11 
(a)We allocate labor and benefit costs to joint ventures that we operate in accordance with our partnership agreements.
December 31, 2022
Unrecognized restricted stock awards compensation costs, less estimated forfeitures (in millions)
$104 
Weighted average remaining amortization period
1.99 years

Pension and Other Postretirement Benefit (OPEB) Plans

Savings Plan

We maintain a defined contribution plan covering eligible U.S. employees. We contribute 5% of eligible compensation for most of the plan participants. Certain collectively bargained participants receive Company contributions in accordance with collective bargaining agreements. A participant becomes fully vested in Company contributions after two years and may take a distribution upon termination of employment or retirement. The total cost for our savings plan was approximately $51 million, $48 million and $53 million for the years ended December 31, 2022, 2021 and 2020, respectively.

Pension Plans

Our pension plans are defined benefit plans that cover substantially all of our U.S. employees and provide benefits under a cash balance formula. A participant in the cash balance formula accrues benefits through contribution credits based on a combination of age and years of service, multiplied by eligible compensation. Interest is also credited to the participant’s plan account. A participant becomes fully vested in the plan after three years and may take a lump sum or annuity distribution upon termination of employment or retirement. Certain collectively bargained and grandfathered employees accrue benefits through career pay or final pay formulas.

OPEB Plans

We and certain of our subsidiaries provide OPEB benefits, including medical benefits for closed groups of retired employees and certain grandfathered employees and their dependents, and limited postretirement life insurance benefits for retired employees. These plans provide a fixed subsidy to post-age 65 Medicare eligible participants to purchase coverage through a retiree Medicare exchange. Medical benefits under these OPEB plans may be subject to deductibles, co-payment provisions, dollar caps and other limitations on the amount of employer costs, and we reserve the right to change these benefits.

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Benefit Obligation, Plan Assets and Funded Status. The following table provides information about our pension and OPEB plans as of and for each of the years ended December 31, 2022 and 2021:
Pension BenefitsOPEB
2022202120222021
(In millions)
Change in benefit obligation:
Benefit obligation at beginning of period$2,658 $2,844 $257 $299 
Service cost55 53 
Interest cost57 45 
Actuarial gain(503)(80)(44)(21)
Benefits paid(190)(204)(26)(28)
Participant contributions— — 
Other— — 
Benefit obligation at end of period2,077 2,658 195 257 
Change in plan assets:   
Fair value of plan assets at beginning of period2,231 2,199 382 361 
Actual return on plan assets(350)180 (63)40 
Employer contributions50 56 
Participant contributions— — 
Other— — 
Benefits paid(190)(204)(26)(28)
Fair value of plan assets at end of period1,741 2,231 302 382 
Funded status - net (liability) asset at December 31,$(336)$(427)$107 $125 
Amounts recognized in the consolidated balance sheets:
Non-current benefit asset(a)$— $— $239 $302 
Current benefit liability— — (15)(18)
Non-current benefit liability(336)(427)(117)(159)
Funded status - net (liability) asset at December 31,$(336)$(427)$107 $125 
Amounts of pre-tax accumulated other comprehensive (loss) income recognized in the consolidated balance sheets:
Unrecognized net actuarial (loss) gain$(455)$(495)$135 $176 
Unrecognized prior service (cost) credit(1)(2)
Accumulated other comprehensive (loss) income$(456)$(497)$139 $182 
Information related to plans whose accumulated benefit obligations exceeded the fair value of plan assets:
Accumulated benefit obligation$2,047 $2,608 $167 $219 
Fair value of plan assets1,741 2,231 34 42 
(a)2022 and 2021 OPEB amounts include $45 million and $54 million, respectively, of non-current benefit assets related to a plan we sponsor which is associated with employee services provided to an unconsolidated joint venture, and for which we have recorded an offsetting related party deferred credit.

The 2022 net actuarial gain for the pension plans was primarily due to an increase in the weighted average discount rate used to determine the benefit obligation as of December 31, 2022. The 2022 net actuarial gain for the OPEB plans was primarily due to an increase in the weighted average discount rate used to determine the benefit obligations as of December 31, 2022 and changes in the claims cost assumptions. The 2021 net actuarial gain for the pension plans was primarily due to an increase in the weighted average discount rate used to determine the benefit obligation as of December 31, 2021, partially offset by changes made to the assumptions used to determine at what age and in what form benefits commence. The 2021 net
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actuarial gain for the OPEB plans was primarily due to an increase in the weighted average discount rate used to determine the benefit obligations as of December 31, 2021 and changes in the claims cost assumptions.

Plan Assets. The investment policies and strategies are established by our plan’s fiduciary committee for the assets of each of the pension and OPEB plans, which are responsible for investment decisions and management oversight of the plans. The stated philosophy of the fiduciary committee is to manage these assets in a manner consistent with the purpose for which the plans were established and the time frame over which the plans’ obligations need to be met. The objectives of the investment management program are to (i) meet or exceed plan actuarial earnings assumptions over the long term and (ii) provide a reasonable return on assets within established risk tolerance guidelines and to maintain the liquidity needs of the plans with the goal of paying benefit and expense obligations when due. In seeking to meet these objectives, the fiduciary committee recognizes that prudent investing requires taking reasonable risks in order to raise the likelihood of achieving the targeted investment returns. In order to reduce portfolio risk and volatility, the fiduciary committee has adopted a strategy of using multiple asset classes.

The allowable range for asset allocations in effect for our plans as of December 31, 2022, by asset category, are as follows:
Pension BenefitsOPEB
Cash
0% to 23%
Equities
42% to 52%
42% to 72%
Fixed income securities
37% to 47%
25% to 50%
Real estate
2% to 12%
Company securities (KMI Class P common stock and/or debt securities)
0% to 10%

Below are the details of our pension and OPEB plan assets by class and a description of the valuation methodologies used for assets measured at fair value.

Level 1 assets’ fair values are based on quoted market prices for the instruments in actively traded markets. Included in this level are cash, equities and exchange traded mutual funds. These investments are valued at the closing price reported on the active market on which the individual securities are traded.

Level 2 assets’ fair values are primarily based on pricing data representative of quoted prices for similar assets in active markets (or identical assets in less active markets). Included in this level are short-term investment funds, fixed income securities and derivatives. Short-term investment funds are valued at amortized cost, which approximates fair value. The fixed income securities’ fair values are primarily based on an evaluated price which is based on a compilation of primarily observable market information or a broker quote in a non-active market. Derivatives are exchange-traded through clearinghouses and are valued based on these prices.

Plan assets with fair values that are based on the net asset value per share, or its equivalent (NAV), as a practical expedient to measure fair value, as reported by the issuers are determined based on the fair value of the underlying securities as of the valuation date and include common/collective trust funds, private investment funds and limited partnerships. The plan assets measured at NAV are not categorized within the fair value hierarchy described above, but are separately identified in the following tables.

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Listed below are the fair values of our pension and OPEB plans’ assets that are recorded at fair value by class and categorized by fair value measurement used at December 31, 2022 and 2021:
Pension Assets
20222021
Level 1Level 2TotalLevel 1Level 2Total
(In millions)
Measured within fair value hierarchy
Cash$— $— $— $11 $— $11 
Short-term investment funds— 27 27 — 25 25 
Equities(a)152 — 152 153 — 153 
Fixed income securities— 421 421 — 566 566 
Subtotal$152 $448 600 $164 $591 755 
Measured at NAV
Common/collective trusts(b)1,138 1,389 
Private investment funds(c)— 39 
Private limited partnerships(d)48 
Subtotal1,141 1,476 
Total plan assets fair value$1,741 $2,231 
(a)Plan assets include $110 million and $97 million of KMI Class P common stock for 2022 and 2021, respectively.
(b)Common/collective trust funds were invested in approximately 66% equities, 22% fixed income securities and 12% real estate in 2022 and 83% equities and 17% fixed income securities in 2021.
(c)Private investment funds were invested in 100% fixed income securities in 2021.
(d)Includes assets invested in real estate, venture and buyout funds.
OPEB Assets
20222021
Level 1Level 2TotalLevel 1Level 2Total
(In millions)
Measured within fair value hierarchy
Short-term investment funds$— $$$— $$
Measured at NAV
Common/collective trusts(a)299 379 
Total plan assets fair value$302 $382 
(a)Common/collective trust funds were invested in approximately 61% equities and 39% fixed income securities for 2022 and 63% equities and 37% fixed income securities for 2021.

Employer Contributions and Expected Payment of Future Benefits. As of December 31, 2022, we expect the following cash flows under our plans:
Pension BenefitsOPEB
(In millions)
Contributions expected in 2023
$50 $— 
Benefit payments expected in:
2023$210 $26 
2024206 24 
2025202 23 
2026199 21 
2027191 20 
2028 - 2032861 76 

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Actuarial Assumptions and Sensitivity Analysis. Benefit obligations and net benefit cost are based on actuarial estimates and assumptions. The following table details the weighted-average actuarial assumptions used in determining our benefit obligation as of December 31, 2022 and 2021 and net benefit costs of our pension and OPEB plans for 2022, 2021 and 2020:
Pension BenefitsOPEB
2022202120222021
Assumptions related to benefit obligations:
Discount rate5.41 %2.74 %5.38 %2.56 %
Rate of compensation increase3.50 %3.50 %n/an/a
Interest crediting rate3.50 %3.01 %n/an/a
Pension BenefitsOPEB
202220212020202220212020
Assumptions related to benefit costs:
Discount rate2.74 %2.27 %3.17 %2.56 %2.08 %3.03 %
Expected return on plan assets6.50 %6.25 %6.75 %5.75 %5.75 %6.50 %
Rate of compensation increase3.50 %3.50 %3.50 %n/an/an/a
Interest crediting rate3.01 %2.57 %3.71 %n/an/an/a

We utilize a full yield curve approach in estimating the service and interest cost components of net periodic benefit cost (credit) for our retirement benefit plans by applying the specific spot rates along the yield curve used in the determination of the benefit obligation to their underlying projected cash flows. The expected long-term rates of return on plan assets were determined by combining a review of the historical returns realized within the portfolio, the investment strategy included in the plans’ investment policy, and capital market projections for the asset classes in which the portfolio is invested and the target weightings of each asset class. The expected return on plan assets listed in the table above is a pre-tax rate of return based on our targeted portfolio of investments. For the OPEB assets subject to unrelated business income taxes, we utilize an after-tax expected return on plan assets to determine our benefit costs.

Actuarial estimates for our OPEB plans assume an annual increase in the per capita cost of covered health care benefits. The initial annual rate of increase is 5.87% which gradually decreases to 4.00% by the year 2047.

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Components of Net Benefit Cost and Other Amounts Recognized in Other Comprehensive Income. For each of the years ended December 31, the components of net benefit cost and other amounts recognized in pre-tax other comprehensive income related to our pension and OPEB plans are as follows:
Pension BenefitsOPEB
202220212020202220212020
(In millions)
Components of net benefit cost (credit):
Service cost$55 $53 $59 $$$
Interest cost57 45 71 
Expected return on assets(142)(133)(137)(17)(16)(16)
Amortization of prior service cost (credit)— (3)(5)(5)
Amortization of net actuarial loss (gain)29 52 40 (18)(17)(13)
Net benefit cost (credit)— 17 34 (32)(33)(25)
Other changes in plan assets and benefit obligations recognized in other comprehensive (income) loss:
Net (gain) loss arising during period(11)(127)157 24 (40)(43)
Amortization or settlement recognition of net actuarial (loss) gain(29)(52)(40)17 17 13 
Amortization of prior service (cost) credit(1)— (1)
Total recognized in total other comprehensive (income) loss(a)(41)(179)116 43 (20)(27)
Total recognized in net benefit cost (credit) and other comprehensive (income) loss$(41)$(162)$150 $11 $(53)$(52)
(a)Excludes $4 million, $3 million and $2 million for the years ended December 31, 2022, 2021 and 2020 respectively, associated with other plans.

11. Stockholders’ Equity

Class P Common Stock

On July 19, 2017, our board of directors approved a $2 billion share buy-back program that began in December 2017. On January 18, 2023, our board of directors approved an increase in our share repurchase authorization to $3 billion. Activity under the buy-back program is as follows:
Year Ended December 31,
202220212020
(In millions, except per share amounts)
Total value of shares repurchased$368 $— $50 
Total number of shares repurchased21 — 
Average repurchase price per share$16.94 $— $13.93 

Since December 2017, in total, we have repurchased 54 million of our shares under the program at an average price of $17.40 per share for $943 million, leaving capacity under the program, after our subsequent increase, of $2.1 billion.

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On December 19, 2014, we entered into an equity distribution agreement authorizing us to issue and sell through or to the managers party thereto, as sales agents and/or principals, shares having an aggregate offering price of up to $5 billion from time to time during the term of this agreement. During the years ended December 31, 2022, 2021 and 2020 we did not issue any shares under this agreement.
 
Dividends

The following table provides information about our per share dividends: 
Year Ended December 31,
202220212020
Per share cash dividend declared for the period$1.11 $1.08 $1.05 
Per share cash dividend paid in the period1.1025 1.0725 1.0375 

On January 18, 2023, our board of directors declared a cash dividend of $0.2775 per share for the quarterly period ended December 31, 2022, which is payable on February 15, 2023 to shareholders of record as of January 31, 2023.

Adoption of Accounting Pronouncement

On January 1, 2022, we adopted Accounting Standards Update (ASU) No. 2020-06, “Debt – Debt with Conversion and Other Options (Subtopic 470-20) and Derivatives and Hedging – Contracts in Entity’s Own Equity (Subtopic 815-40): Accounting for Convertible Instruments and Contracts in an Entity’s Own Equity.” This ASU (i) simplifies an issuer’s accounting for convertible instruments by eliminating two of the three models in Subtopic 470-20 that require separate accounting for embedded conversion features, (ii) amends diluted earnings per share calculations for convertible instruments by requiring the use of the if-converted method and (iii) simplifies the settlement assessment entities are required to perform on contracts that can potentially settle in an entity’s own equity by removing certain requirements. Using the modified retrospective method, the adoption of this ASU resulted in a pre-tax adjustment of $14 million to unwind the remaining unamortized debt discount within “Debt fair value adjustments” on our consolidated balance sheet and an adjustment of $11 million to unwind the balance of the conversion feature classified in “Additional paid in capital” on our consolidated statement of stockholders’ equity for the year ended December 31, 2022.

Accumulated Other Comprehensive Loss

Changes in the components of our “Accumulated other comprehensive loss” not including noncontrolling interests are summarized as follows:
 Net unrealized
gains/(losses)
on cash flow
hedge derivatives
Pension and
other
postretirement
liability adjustments
Total
Accumulated other
comprehensive
loss
(In millions)
Balance at December 31, 2019$(7)$(326)$(333)
Other comprehensive gain (loss) before reclassifications 249 (68)181 
Gains reclassified from accumulated other comprehensive loss(255)— (255)
Net current-period change in accumulated other comprehensive loss(6)(68)(74)
Balance at December 31, 2020(13)(394)(407)
Other comprehensive (loss) gain before reclassifications (432)155 (277)
Losses reclassified from accumulated other comprehensive loss273 — 273 
Net current-period change in accumulated other comprehensive loss(159)155 (4)
Balance at December 31, 2021(172)(239)(411)
Other comprehensive (loss) gain before reclassifications (312)(311)
Losses reclassified from accumulated other comprehensive loss320 — 320 
Net current-period change in accumulated other comprehensive loss
Balance at December 31, 2022$(164)$(238)$(402)

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12.  Related Party Transactions

Affiliate Balances

We have transactions with affiliates which consist of (i) unconsolidated affiliates in which we hold an investment accounted for under the equity method of accounting (see Note 7 for additional information related to these investments); and (ii) external partners of our joint ventures we consolidate.

The following tables summarize our affiliate balance sheet balances and income statement activity, other than amounts reported within our “Investments” balances and “Earnings from equity investments” activity:
December 31,
20222021
(In millions)
Balance sheet location
Accounts receivable$39 $38 
Other current assets
$42 $42 
Current portion of debt$$
Accounts payable19 21 
Other current liabilities
Long-term debt142 148 
Other long-term liabilities and deferred credits47 56 
$222 $235 
Year Ended December 31,
202220212020
(In millions)
Income statement location
Revenues$172 $164 $206 
Operating Costs, Expenses and Other
Costs of sales$134 $145 $116 
Other operating expenses50 52 119 

13.  Commitments and Contingent Liabilities
 
Rights-Of-Way Obligations

Our rights-of-way obligations primarily consist of non-lease agreements that existed at the time of Topic 842, Leases, adoption, at which time we elected a practical expedient which allowed us to continue our historical treatment. Our future minimum rental commitments related to our rights-of-way obligations were $120 million as of December 31, 2022.

Contingent Debt

Our contingent debt disclosures pertain to certain types of guarantees or indemnifications we have made and cover certain types of guarantees included within debt agreements, even if the likelihood of requiring our performance under such guarantee is remote.

As of December 31, 2022 and 2021, our contingent debt obligations, as well as our obligations with respect to related letters of credit, totaled $163 million and $170 million, respectively. December 31, 2022 and 2021 amounts are represented by our proportional share of the debt obligations of one equity investee, Cortez Pipeline Company (Cortez). Under such guarantees we are severally liable for our percentage ownership share of Cortez’s debt in the event of its non-performance. The contingent debt obligations balances as of December 31, 2022 and 2021 each included $120 million for 100% guaranteed debt obligations for a subsidiary of Cortez.
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Guarantees and Indemnifications

We are involved in joint ventures and other ownership arrangements that sometimes require financial and performance guarantees. In a financial guarantee, we are obligated to make payments if the guaranteed party fails to make payments under, or violates the terms of, the financial arrangement. In a performance guarantee, we provide assurance that the guaranteed party will execute on the terms of the contract. If they do not, we are required to perform on their behalf. We also periodically provide indemnification arrangements related to assets or businesses we have sold. These arrangements include, but are not limited to, indemnifications for income taxes, the resolution of existing disputes and environmental matters.

While many of these agreements may specify a maximum potential exposure, or a specified duration to the indemnification obligation, there are also circumstances where the amount and duration are unlimited. Other than with our rights-of-way obligations and contingent debt described above, we are currently not subject to any material requirements to perform under quantifiable arrangements. We are unable to estimate a maximum exposure for our other guarantee and indemnification agreements that do not provide for limits on the amount of future payments due to the uncertainty of these exposures.

See Note 18 for a description of matters that we have identified as contingencies requiring accrual of liabilities and/or disclosure, including any such matters arising under guarantee or indemnification agreements.

14.  Risk Management

Certain of our business activities expose us to risks associated with unfavorable changes in the market price of natural gas, NGL and crude oil.  We also have exposure to interest rate and foreign currency risk as a result of the issuance of our debt obligations.  Pursuant to our management’s approved risk management policy, we use derivative contracts to hedge or reduce our exposure to some of these risks.

Energy Commodity Price Risk Management

As of December 31, 2022, we had the following outstanding commodity forward contracts to hedge our forecasted energy commodity purchases and sales: 
 Net open position long/(short)
Derivatives designated as hedging contracts  
Crude oil fixed price(18.4)MMBbl
Crude oil basis(4.2)MMBbl
Natural gas fixed price(62.6)Bcf
Natural gas basis(40.1)Bcf
NGL fixed price(0.6)MMBbl
Derivatives not designated as hedging contracts  
Crude oil fixed price(1.0)MMBbl
Crude oil basis(9.2)MMBbl
Natural gas fixed price(7.1)Bcf
Natural gas basis(44.7)Bcf
NGL fixed price(0.8)MMBbl
As of December 31, 2022, the maximum length of time over which we have hedged, for accounting purposes, our exposure to the variability in future cash flows associated with energy commodity price risk is through December 2026.

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Interest Rate Risk Management

We utilize interest rate derivatives to hedge our exposure to both changes in the fair value of our fixed rate debt instruments and variability in expected future cash flows attributable to variable interest rate payments. The following table summarizes our outstanding interest rate contracts as of December 31, 2022:
Notional amountAccounting treatmentMaximum term
(In millions)
Derivatives designated as hedging instruments
Fixed-to-variable interest rate contracts(a)(b)$7,500 Fair value hedgeMarch 2035
Variable-to-fixed interest rate contracts250 Cash flow hedgeJanuary 2023
Derivatives not designated as hedging instruments
Variable-to-fixed interest rate contracts1,250 Mark-to-MarketDecember 2023
(a)The principal amount of hedged senior notes consisted of $1,300 million included in “Current portion of debt” and $6,200 million included in “Long-term debt” on our accompanying consolidated balance sheet.
(b)During the year ended December 31, 2022, certain optional expedients as set forth in Topic 848 – Reference Rate Reform were elected on certain of these contracts to preserve fair value hedge accounting treatment. See Note 19 “Recent Accounting Pronouncements” for further information on Topic 848.

Foreign Currency Risk Management

We utilize foreign currency derivatives to hedge our exposure to variability in foreign exchange rates. The following table summarizes our outstanding foreign currency contracts as of December 31, 2022:
Notional amountAccounting treatmentMaximum term
(In millions)
Derivatives designated as hedging instruments
EUR-to-USD cross currency swap contracts(a)$543 Cash flow hedgeMarch 2027
(a)These swaps eliminate the foreign currency risk associated with our Euro-denominated debt.

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Impact of Derivative Contracts on Our Consolidated Financial Statements

The following table summarizes the fair values of our derivative contracts included in our accompanying consolidated balance sheets:
Fair Value of Derivative Contracts
  Derivatives
Asset 
Derivatives
Liability 
  December 31,December 31,
  2022202120222021
 LocationFair valueFair value
(In millions)
Derivatives designated as
hedging instruments
     
Energy commodity derivative contracts
Fair value of derivative contracts/(Fair value of derivative contracts)$150 $61 $(156)$(141)
 
Deferred charges and other assets/(Other long-term liabilities and deferred credits)
(91)(94)
Subtotal156 64 (247)(235)
Interest rate contracts
Fair value of derivative contracts/(Fair value of derivative contracts)— 101 (144)(3)
 
Deferred charges and other assets/(Other long-term liabilities and deferred credits)
39 284 (261)(15)
Subtotal
 
39 385 (405)(18)
Foreign currency contractsFair value of derivative contracts/(Fair value of derivative contracts)— 35 (3)(3)
Deferred charges and other assets/(Other long-term liabilities and deferred credits)
— (32)— 
Subtotal— 41 (35)(3)
Total
 
195 490 (687)(256)
Derivatives not designated as
 hedging instruments
     
Energy commodity derivative contracts
Fair value of derivative contracts/(Fair value of derivative contracts)80 11 (162)(31)
Deferred charges and other assets/(Other long-term liabilities and deferred credits)
23 (19)(6)
Subtotal103 12 (181)(37)
Interest rate contracts
Fair value of derivative contracts/(Fair value of derivative contracts)12 — — 
Total104 24 (181)(37)
Total derivatives $299 $514 $(868)$(293)

The following two tables summarize the fair value measurements of our derivative contracts based on the three levels established by the ASC. The tables also identify the impact of derivative contracts which we have elected to present on our accompanying consolidated balance sheets on a gross basis that are eligible for netting under master netting agreements.
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 Balance sheet asset fair value measurements by level
 
Level 1

Level 2

Level 3
Gross amountContracts available for nettingCash collateral held(a)Net amount
(In millions)
As of December 31, 2022   
Energy commodity derivative contracts(b)$115 $144 $— $259 $(186)$— $73 
Interest rate contracts— 40 — 40 — — 40 
As of December 31, 2021   
Energy commodity derivative contracts(b)$56 $20 $— $76 $(53)$(20)$
Interest rate contracts— 397 — 397 (9)— 388 
Foreign currency contracts— 41 — 41 (3)— 38 

Balance sheet liability
fair value measurements by level
Level 1Level 2Level 3Gross amountContracts available for nettingCash collateral posted(a)Net amount
(In millions)
As of December 31, 2022
Energy commodity derivative contracts(b)$(23)$(405)$— $(428)$186 $(30)$(272)
Interest rate contracts— (405)— (405)— — (405)
Foreign currency contracts— (35)— (35)— — (35)
As of December 31, 2021
Energy commodity derivative contracts(b)(15)(257)— (272)53 — (219)
Interest rate contracts— (18)— (18)— (9)
Foreign currency contracts— (3)— (3)— — 
(a)Any cash collateral paid or received is reflected in this table, but only to the extent that it represents variation margins. Any amount associated with derivative prepayments or initial margins that are not influenced by the derivative asset or liability amounts or those that are determined solely on their volumetric notional amounts are excluded from this table.
(b)Level 1 consists primarily of NYMEX natural gas futures.  Level 2 consists primarily of OTC WTI swaps, NGL swaps and crude oil basis swaps.

The following tables summarize the pre-tax impact of our derivative contracts in our accompanying consolidated statements of income and comprehensive income:
Derivatives in fair value hedging relationshipsLocationGain/(loss) recognized in income on derivatives and related hedged item
  Year Ended December 31,
  202220212020
(In millions)
Interest rate contractsInterest, net$(738)$(322)$335 
Hedged fixed rate debt(a)Interest, net$743 $326 $(343)
(a)As of December 31, 2022, the cumulative amount of fair value hedging adjustments to our hedged fixed rate debt was a decrease of $367 million included in “Debt fair value adjustments” on our accompanying consolidated balance sheets.
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Derivatives in cash flow hedging relationshipsGain/(loss) recognized in OCI on derivative(a)Location Gain/(loss) reclassified from Accumulated OCI into income(b)
Year EndedYear Ended
 December 31, December 31,
 202220212020 202220212020
(In millions)(In millions)
Energy commodity derivative
contracts
$(338)$(475)$240 Revenues—Commodity sales$(491)$(271)$222 
   Costs of sales144 20 (14)
Interest rate contracts(c)(8)Interest, net— — — 
Foreign currency contracts(73)(93)92 Other, net(68)(105)125 
Total$(404)$(563)$324 Total$(415)$(356)$333 
(a)We expect to reclassify an approximately $92 million loss associated with cash flow hedge price risk management activities included in our accumulated other comprehensive loss balance as of December 31, 2022 into earnings during the next twelve months (when the associated forecasted transactions are also expected to impact earnings); however, actual amounts reclassified into earnings could vary materially as a result of changes in market prices.
(b)During the years ended December 31, 2022, 2021 and 2020, we recognized approximate gains of $121 million, $41 million and no gains, respectively, associated with a write-down of hedged inventory. All other amounts reclassified were the result of the hedged forecasted transactions actually affecting earnings (i.e., when the forecasted sales and purchases actually occurred).

Derivatives not designated as accounting hedgesLocationGain/(loss) recognized in income on derivatives
 Year Ended December 31,
 202220212020
(In millions)
Energy commodity derivative contracts
Revenues—Commodity sales
$137 $(652)$(1)
Costs of sales
(190)152 25 
 
Earnings from equity investments(a)(11)(5)— 
Interest rate contractsInterest, net(10)12 — 
Total(b)$(74)$(493)$24 
(a)Amounts represent our share of an equity investee’s income (loss).
(b)The years ended December 31, 2022, 2021 and 2020 include approximate losses of $11 million, $479 million and $11 million, respectively, associated with natural gas, crude and NGL derivative contract settlements.

Credit Risks

In conjunction with certain derivative contracts, we are required to provide collateral to our counterparties, which may include posting letters of credit or placing cash in margin accounts.  As of December 31, 2022 and 2021, we had no outstanding letters of credit supporting our commodity price risk management program. As of December 31, 2022, we had cash margins of $1 million posted by our counterparties with us as collateral and reported within “Other current liabilities” on our accompanying consolidated balance sheet. As of December 31, 2021 we had cash margins of $14 million posted by our counterparties with us as collateral and reported within “Other current liabilities” on our accompanying consolidated balance sheet. The balance at December 31, 2022 represents the initial margin requirements of $29 million, offset by counterparty variation margin requirements of $30 million. We also use industry standard commercial agreements that allow for the netting of exposures associated with transactions executed under a single commercial agreement. Additionally, we generally utilize master netting agreements to offset credit exposure across multiple commercial agreements with a single counterparty.

We also have agreements with certain counterparties to our derivative contracts that contain provisions requiring the posting of additional collateral upon a decrease in our credit rating.  As of December 31, 2022, based on our current mark-to- market positions and posted collateral, we estimate that if our credit rating were downgraded one notch, we would not be required to post additional collateral. If we were downgraded two notches, we estimate that we would be required to post $144 million of additional collateral.

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15.  Revenue Recognition

Nature of Revenue by Segment

Natural Gas Pipelines Segment

We provide various types of natural gas transportation and storage services, natural gas and NGL sales contracts, and various types of gathering and processing services for producers, including receiving, compressing, transporting and re-delivering quantities of natural gas and/or NGLs made available to us by producers to a specified delivery location.

Natural Gas Transportation and Storage Contracts

The natural gas we receive under our transportation and storage contracts remains under the control of our customers. Under firm service contracts, the customer generally pays a two-part transaction price that includes (i) a fixed take-or-pay reservation fee and (ii) a fee-based per-unit rate for quantities of natural gas actually transported or injected into/withdrawn from storage. Under non-firm service contracts, generally described as interruptible service, the customer pays a transaction price on a fee-based per-unit rate for the quantities actually transported or injected into/withdrawn from storage.

Natural Gas and NGL Sales Contracts

Our sales and purchases of natural gas and NGL are primarily accounted for on a gross basis as natural gas sales or product sales, as applicable, and cost of sales. These customer contracts generally provide for the customer to nominate a specified quantity of commodity products to be delivered and sold to the customers at specified delivery points. The customer pays a transaction price typically based on a market indexed per-unit rate for the quantities sold.

Gathering and Processing Contracts

We provide various types of gathering and processing services for producers, including receiving, processing, compressing, transporting and re-delivering quantities of natural gas made available to us by producers to a specified delivery location. This integrated service can be firm if subject to a minimum volume commitment or acreage dedication or non-firm when offered on an as requested, non-guaranteed basis. In our gathering contracts we generally promise to provide the contracted integrated services each day over the life of the contract. The customer pays a transaction price typically based on a per-unit rate for the quantities actually gathered and/or processed, including amounts attributable to deficiency quantities associated with minimum volume contracts.

Products Pipelines Segment

We provide crude oil and refined petroleum transportation and storage services on a firm or non-firm basis. For our firm transportation service, the customer is obligated to pay for its minimum volume commitment amount, regardless of whether or not it flows volumes into our pipeline. The customer pays a transaction price typically based on a per-unit rate for quantities transported, including amounts attributable to deficiency quantities. Our firm storage service generally includes a fixed take-or-pay monthly reservation fee for the portion of storage capacity reserved by the customer and a per-unit rate for actual quantities injected into/withdrawn from storage. Under the non-firm transportation and storage service the customer typically pays a per-unit rate for actual quantities of product injected into/withdrawn from storage and/or transported.

We sell transmix, crude oil or other commodity products. The customer’s contracts generally include a specified quantity of commodity products to be delivered and sold to the customers at specified delivery points. The customer pays a transaction price typically based on a market indexed per-unit rate for the quantities sold.

Terminals Segment

We provide various types of liquid tank and bulk terminal services. These services are generally comprised of inbound, storage and outbound handling of customer products.

Liquids Tank Services

Firm Storage and Handling Contracts: We have liquids tank storage and handling service contracts that include a promised tank storage capacity provision and prepaid volume throughput of the stored product. In these contracts, the customers have fixed take-or-pay monthly obligation which generally include a per-unit rate for any quantities we handle at the request of the
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customer in excess of the prepaid volume throughput amount and also typically include per-unit rates for additional, ancillary services that may be periodically requested by the customer.

Firm Handling Contracts: For our firm handling service contracts, we typically promise to handle on a stand-ready basis throughput volumes up to the customer’s minimum volume commitment amount. The customer is obligated to pay for its minimum volume commitment amount, regardless of whether or not it used the handling service. The customer pays a transaction price typically based on a per-unit rate for volumes handled, including amounts attributable to deficiency quantities.

Bulk Services

Our bulk storage and handling contracts generally include inbound handling of our customers’ dry bulk material product (e.g., petcoke, metals, ores) into our storage facility and outbound handling of these products from our storage facility. These services are provided on both a firm basis, including amounts attributable to deficiency quantities, and non-firm basis where the customer pays a transaction price typically based on a per-unit rate for quantities handled on an as requested, non-guaranteed basis.

CO2 Segment

Our crude oil, NGL, CO2 and natural gas production customer sales contracts typically include a specified quantity and quality of commodity product to be delivered and sold to the customer at a specified delivery point. The customer pays a transaction price typically based on a market indexed per-unit rate for the quantities sold.

Disaggregation of Revenues

The following tables present our revenues disaggregated by revenue source and type of revenue for each revenue source:
Year Ended December 31, 2022
Natural Gas PipelinesProducts PipelinesTerminals
CO2
Corporate and EliminationsTotal
(In millions)
Revenues from contracts with customers(a)
Services
Firm services(b)$3,547 $207 $763 $$(3)$4,515 
Fee-based services926 962 426 46 — 2,360 
Total services4,473 1,169 1,189 47 (3)6,875 
Commodity sales
Natural gas sales6,266 — — 94 (20)6,340 
Product sales1,433 2,032 29 1,426 (7)4,913 
Total commodity sales7,699 2,032 29 1,520 (27)11,253 
Total revenues from contracts with customers12,172 3,201 1,218 1,567 (30)18,128 
Other revenues(c)
Leasing services(d)474 194 574 60 — 1,302 
Derivatives adjustments on commodity sales(26)(3)— (325)— (354)
Other66 26 — 32 — 124 
Total other revenues514 217 574 (233)— 1,072 
Total revenues$12,686 $3,418 $1,792 $1,334 $(30)$19,200 

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Year Ended December 31, 2021
Natural Gas PipelinesProducts PipelinesTerminals
CO2
Corporate and EliminationsTotal
(In millions)
Revenues from contracts with customers(a)
Services
Firm services(b)$3,402 $259 $751 $$(2)$4,411 
Fee-based services746 949 375 45 (1)2,114 
Total services4,148 1,208 1,126 46 (3)6,525 
Commodity sales
Natural gas sales6,463 — — 32 (15)6,480 
Product sales1,260 845 24 1,070 (50)3,149 
Total commodity sales7,723 845 24 1,102 (65)9,629 
Total revenues from contracts with customers11,871 2,053 1,150 1,148 (68)16,154 
Other revenues(c)
Leasing services(d)473 172 565 56 — 1,266 
Derivatives adjustments on commodity sales(700)(1)— (222)— (923)
Other65 21 — 27 — 113 
Total other revenues(162)192 565 (139)— 456 
Total revenues$11,709 $2,245 $1,715 $1,009 $(68)$16,610 

Year Ended December 31, 2020
Natural Gas PipelinesProducts PipelinesTerminals
CO2
Corporate and EliminationsTotal
(In millions)
Revenues from contracts with customers(a)
Services
Firm services(b)$3,345 $271 $756 $$(3)$4,370 
Fee-based services714 905 395 42 — 2,056 
Total services4,059 1,176 1,151 43 (3)6,426 
Commodity sales
Natural gas sales2,038 — — (7)2,032 
Product sales562 358 14 735 (30)1,639 
Total commodity sales2,600 358 14 736 (37)3,671 
Total revenues from contracts with customers6,659 1,534 1,165 779 (40)10,097 
Other revenues(c)
Leasing services(d)466 166 557 47 — 1,236 
Derivatives adjustments on commodity sales18 — — 203 — 221 
Other116 21 — — 146 
Total other revenues600 187 557 259 — 1,603 
Total revenues$7,259 $1,721 $1,722 $1,038 $(40)$11,700 
(a)Differences between the revenue classifications presented on the consolidated statements of income and the categories for the disaggregated revenues by type of revenue above are primarily attributable to revenues reflected in the “Other revenues” category above (see note (c)).
(b)Includes non-cancellable firm service customer contracts with take-or-pay or minimum volume commitment elements, including those contracts where both the price and quantity amount are fixed. Excludes service contracts with indexed-based pricing, which along with revenues from other customer service contracts are reported as Fee-based services.
(c)Amounts recognized as revenue under guidance prescribed in Topics of the ASC other than in Topic 606 were primarily from leases and derivative contracts. See Note 14 for additional information related to our derivative contracts.
(d)Our revenues from leasing services are predominantly comprised of specific assets that we lease to customers under operating leases where one customer obtains substantially all of the economic benefit from the asset and has the right to direct the use of that asset. These leases primarily consist of specific tanks, treating facilities, marine vessels and gas equipment and pipelines with separate control locations. We do not lease assets that qualify as sales-type or finance leases.

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Contract Balances

As of December 31, 2022 and 2021, our contract asset balances were $33 million and $39 million, respectively. Of the contract asset balance at December 31, 2021, $14 million was transferred to accounts receivable during the year ended December 31, 2022. As of December 31, 2022 and 2021, our contract liability balances were $204 million and $212 million, respectively. Of the contract liability balance at December 31, 2021, $90 million was recognized as revenue during the year ended December 31, 2022.

Revenue Allocated to Remaining Performance Obligations

The following table presents our estimated revenue allocated to remaining performance obligations for contracted revenue that has not yet been recognized, representing our “contractually committed” revenue as of December 31, 2022 that we will invoice or transfer from contract liabilities and recognize in future periods:
YearEstimated Revenue
(In millions)
2023$4,312 
20243,401 
20252,800 
20262,466 
20272,132 
Thereafter12,340 
Total$27,451 

Our contractually committed revenue, for purposes of the tabular presentation above, is generally limited to service or commodity sale customer contracts which have fixed pricing and fixed volume terms and conditions, generally including contracts with take-or-pay or minimum volume commitment payment obligations. Our contractually committed revenue amounts generally exclude, based on the following practical expedient that we elected to apply, remaining performance obligations for contracts with index-based pricing or variable volume attributes in which such variable consideration is allocated entirely to a wholly unsatisfied performance obligation.

16.  Reportable Segments
 
Our reportable business segments are:

Natural Gas Pipelines—the ownership and operation of (i) major interstate and intrastate natural gas pipeline and storage systems; (ii) natural gas gathering systems and natural gas processing and treating facilities; (iii) NGL fractionation facilities and transportation systems; and (iv) LNG regasification, liquefaction and storage facilities;

Products Pipelines—the ownership and operation of refined petroleum products, crude oil and condensate pipelines that primarily deliver, among other products, gasoline, diesel and jet fuel, crude oil and condensate to various markets, plus the ownership and/or operation of associated product terminals and petroleum pipeline transmix facilities;

Terminals—the ownership and/or operation of (i) liquids and bulk terminal facilities located throughout the U.S. that store and handle various commodities including gasoline, diesel fuel, renewable fuel stocks, chemicals, ethanol, metals and petroleum coke; and (ii) Jones Act-qualified tankers;

CO2—(i) the production, transportation and marketing of CO2 to oil fields that use CO2 as a flooding medium to increase recovery and production of crude oil from mature oil fields; (ii) ownership interests in and/or operation of oil fields and gasoline processing plants in West Texas; (iii) the ownership and operation of a crude oil pipeline system in West Texas; and (iv) the ownership and operation of RNG and LNG facilities in Indiana associated with our acquisition of Kinetrex in 2021 and the ownership and operation of GTE facilities in Michigan and Kentucky associated with our acquisition of NANR in 2022 (see Note 3).

We evaluate performance principally based on each segment’s EBDA, which excludes general and administrative expenses and corporate charges, interest expense, net, and income tax expense.  Our reportable segments are strategic business units that offer different products and services, and they are structured based on how our chief operating decision makers organize their
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operations for optimal performance and resource allocation.  Each segment is managed separately because each segment involves different products and services and marketing strategies.

We consider each period’s earnings before all non-cash DD&A expenses to be an important measure of business segment performance for our reporting segments.  We account for intersegment sales at market prices, while we account for asset transfers at book value.

During 2022, 2021 and 2020, we did not have revenues from any single external customer that exceeded 10% of our consolidated revenues.
 
Financial information by segment follows: 
Year Ended December 31,
202220212020
(In millions)
Revenues   
Natural Gas Pipelines   
Revenues from external customers$12,659 $11,644 $7,222 
Intersegment revenues27 65 37 
Products Pipelines3,418 2,245 1,721 
Terminals 
Revenues from external customers1,789 1,712 1,719 
Intersegment revenues
CO2
1,334 1,009 1,038 
Corporate and intersegment eliminations(30)(68)(40)
Total consolidated revenues$19,200 $16,610 $11,700 
 Year Ended December 31,
202220212020
(In millions)
Operating expenses(a)   
Natural Gas Pipelines$8,562 $7,000 $3,457 
Products Pipelines2,391 1,239 779 
Terminals853 793 762 
CO2
554 289 404 
Corporate and intersegment eliminations(9)(34)(4)
Total consolidated operating expenses$12,351 $9,287 $5,398 
 Year Ended December 31,
 202220212020
(In millions)
Other expense (income)(b)   
Natural Gas Pipelines$(13)$1,597 $1,009 
Products Pipelines(12)— 21 
Terminals(14)32 (50)
CO2
(1)(8)950 
Corporate(4)— 
Total consolidated other expense (income)$(39)$1,617 $1,930 
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 Year Ended December 31,
 202220212020
(In millions)
DD&A   
Natural Gas Pipelines$1,096 $1,099 $1,062 
Products Pipelines336 335 347 
Terminals458 440 438 
CO2
272 236 291 
Corporate24 25 26 
Total consolidated DD&A$2,186 $2,135 $2,164 
 Year Ended December 31,
 202220212020
(In millions)
Earnings from equity investments and amortization of excess cost of equity investments   
Natural Gas Pipelines$650 $435 $551 
Products Pipelines33 34 45 
Terminals14 15 22 
CO2
31 29 22 
Total consolidated equity earnings$728 $513 $640 
 Year Ended December 31,
 202220212020
(In millions)
Other, net-income (expense)   
Natural Gas Pipelines$(19)$216 $11 
Products Pipelines— 
Terminals13 
Corporate66 62 31 
Total consolidated other, net-income (expense)$55 $282 $56 
 Year Ended December 31,
 202220212020
(In millions)
Segment EBDA(c)   
Natural Gas Pipelines$4,801 $3,815 $3,483 
Products Pipelines1,107 1,064 977 
Terminals975 908 1,045 
CO2
819 760 (292)
Total Segment EBDA7,702 6,547 5,213 
DD&A(2,186)(2,135)(2,164)
Amortization of excess cost of equity investments(75)(78)(140)
General and administrative and corporate charges(593)(623)(653)
Interest, net(1,513)(1,492)(1,595)
Income tax expense(710)(369)(481)
Total consolidated net income$2,625 $1,850 $180 
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 Year Ended December 31,
 202220212020
(In millions)
Capital expenditures   
Natural Gas Pipelines$666 $570 $945 
Products Pipelines— 122 122 
Terminals552 332 433 
CO2
371 230 186 
Corporate32 27 21 
Total consolidated capital expenditures$1,621 $1,281 $1,707 

December 31,
 20222021
(In millions)
Investments  
Natural Gas Pipelines$6,993 $6,887 
Products Pipelines445 465 
Terminals128 137 
CO2
87 89 
Total consolidated investments               $7,653 $7,578 

December 31,
 20222021
(In millions)
Other intangibles, net  
Natural Gas Pipelines$439 $557 
Products Pipelines777 868 
Terminals38 51 
CO2
555 202 
Total consolidated other intangibles, net              $1,809 $1,678 

December 31,
 20222021
(In millions)
Assets  
Natural Gas Pipelines$47,978 $47,746 
Products Pipelines8,985 9,088 
Terminals8,357 8,513 
CO2
3,449 2,843 
Corporate assets(d)1,309 2,226 
Total consolidated assets                                                                       $70,078 $70,416 
(a)Includes costs of sales, operations and maintenance expenses, and taxes, other than income taxes.
(b)Includes (gain) loss on divestitures and impairments, net and other income, net.
(c)Includes revenues, earnings from equity investments, and other, net, less operating expenses, (gain) loss on divestitures and impairments, net and other income, net.
(d)Includes cash and cash equivalents, margin and restricted deposits, certain prepaid assets and deferred charges, including income tax related assets, risk management assets related to debt fair value adjustments, corporate headquarters in Houston, Texas and miscellaneous corporate assets (such as information technology, telecommunications equipment and legacy balances) not allocated to our reportable segments.

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We do not attribute interest and debt expense to any of our reportable business segments.  

Following is geographic information regarding the revenues and long-lived assets of our business:
 Year Ended December 31,
 202220212020
(In millions)
Revenues from external customers   
U.S.$19,036 $16,479 $11,625 
Mexico and other foreign164 131 75 
Total consolidated revenues from external customers$19,200 $16,610 $11,700 
December 31,
 202220212020
(In millions)
Long-term assets, excluding goodwill and other intangibles  
U.S.$44,425 $44,916 $46,384 
Mexico and other foreign75 78 81 
Canada
Total consolidated long-lived assets$44,501 $44,995 $46,466 

17.  Leases

Following are components of our lease cost:
Year Ended December 31,
202220212020
(In millions)
Operating leases$62 $60 $55 
Short-term and variable leases101 109 101 
Total lease cost$163 $169 $156 

Other information related to our operating leases are as follows:
Year Ended December 31,
202220212020
(In millions,
except lease term and discount rate)
Operating cash flows from operating leases$(132)$(137)$(131)
Investing cash flows from operating leases(31)(32)(25)
ROU assets obtained in exchange for operating lease obligations, net of retirements22 59 20 
Amortization of ROU assets50 47 46 
Weighted average remaining lease term9.8 years10.39 years11.56 years
Weighted average discount rate4.26 %3.95 %4.27 %

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Amounts recognized in the accompanying consolidated balance sheets are as follows:
December 31,
Lease Activity(a)Balance sheet location20222021
(In millions)
ROU assetsDeferred charges and other assets$287 $315 
Short-term lease liabilityOther current liabilities47 45 
Long-term lease liabilityOther long-term liabilities and deferred credits240 270 
(a)We have immaterial financing leases recorded as of December 31, 2022 and 2021.

Operating lease liabilities under non-cancellable leases (excluding short-term leases) as of December 31, 2022 are as follows:
YearCommitment
 (In millions)
2023$58 
202450 
202540 
202632 
202729 
Thereafter166 
Total lease payments375 
Less: Interest(88)
Present value of lease liabilities$287 

Short-term lease costs are not material to us and are anticipated to be similar to the current year short-term lease expense outlined in this disclosure.

18. Litigation and Environmental

We and our subsidiaries are parties to various legal, regulatory and other matters arising from the day-to-day operations of our businesses or certain predecessor operations that may result in claims against the Company. Although no assurance can be given, we believe, based on our experiences to date and taking into account established reserves and insurance, that the ultimate resolution of such items will not have a material adverse impact to our business. We believe we have meritorious defenses to the matters to which we are a party and intend to vigorously defend the Company. When we determine a loss is probable of occurring and is reasonably estimable, we accrue an undiscounted liability for such contingencies based on our best estimate using information available at that time. If the estimated loss is a range of potential outcomes and there is no better estimate within the range, we accrue the amount at the low end of the range. We disclose the following contingencies where an adverse outcome may be material or, in the judgment of management, we conclude the matter should otherwise be disclosed.

EPNG FERC Proceeding

On April 21, 2022, EPNG was notified by the FERC of the commencement of a rate proceeding against it pursuant to Section 5 of the Natural Gas Act. This proceeding sets the matter for hearing to determine whether EPNG’s current rates remain just and reasonable. A proceeding under Section 5 of the Natural Gas Act is prospective in nature such that a change in rates charged to customers, if any, would likely only occur after the FERC has issued a final order. On November 18, 2022, EPNG filed a Stipulation and Agreement (S&A) to establish base rates and rate reductions during the term of the S&A, including a cumulative 16% reduction on average across mainline rate zones, to be phased in over 3 years beginning January 1, 2023, and a rate moratorium until September 30, 2027. FERC approved the S&A without modification on January 31, 2023.

Gulf LNG Facility Disputes

On September 28, 2018, GLNG filed a lawsuit against Eni S.p.A. in the Supreme Court of the State of New York in New York County to enforce a Guarantee Agreement (Guarantee) entered into by Eni S.p.A. on December 10, 2007 in connection with a contemporaneous terminal use agreement entered into by its affiliate, Eni USA Gas Marketing LLC (Eni USA). The suit
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to enforce the Guarantee against Eni S.p.A. was filed after an arbitration tribunal delivered an award on June 29, 2018 which called for the termination of the terminal use agreement and payment of compensation by Eni USA to GLNG. In response to GLNG’s lawsuit to enforce the Guarantee, Eni S.p.A. filed counterclaims based on the terminal use agreement and a parent direct agreement with Gulf LNG Energy (Port), LLC. The foregoing counterclaims asserted by Eni S.p.A seek unspecified damages and involve the same substantive allegations which were dismissed with prejudice in previous separate arbitrations with Eni USA described above and with GLNG’s remaining customer Angola LNG Supply Services LLC (ALSS), a consortium of international oil companies including Eni S.p.A. On January 4, 2022, the trial court entered a decision granting Eni S.p.A’s motion for summary judgment on the claims asserted by GLNG to enforce the Guarantee. GLNG filed an interlocutory appeal of the decision, which remains pending. Pending resolution of GLNG’s appeal and further proceedings in the trial court, the foregoing counterclaims and other claims asserted by Eni S.p.A based on the terminal use agreement and parent direct agreement remain pending in the trial court. We vigorously dispute that the foregoing counterclaims and other claims asserted by Eni S.p.A. have any merit, particularly since they were dismissed with prejudice in previous arbitrations involving both Eni USA and ALSS. We intend to vigorously pursue our appeal to enforce the Guarantee and are seeking summary judgment on any remaining counterclaims or other claims asserted by Eni S.p.A.

Continental Resources, Inc. v. Hiland Partners Holdings, LLC

On December 8, 2017, Continental Resources, Inc. (CLR) filed a lawsuit in Garfield County, Oklahoma state court alleging among other claims that Hiland Partners Holdings, LLC (Hiland Partners) breached a Gas Purchase Agreement, dated November 12, 2010, as amended (GPA), by failing to receive and purchase all of CLR’s dedicated gas under the GPA produced in three counties in North Dakota.  CLR sought damages in excess of $276 million. While Hiland Partners denied all of the claims asserted in the lawsuit, the parties entered into a confidential settlement agreement on September 14, 2022, including an unconditional release and dismissal of the litigation with prejudice.

Freeport LNG Winter Storm Litigation

On September 13, 2021, Freeport LNG Marketing, LLC (Freeport) filed a lawsuit against Kinder Morgan Texas Pipeline LLC and Kinder Morgan Tejas Pipeline LLC in the 133rd District Court of Harris County, Texas (Case No. 2021-58787) alleging that defendants breached the parties’ base contract for sale and purchase of natural gas by failing to repurchase natural gas nominated by Freeport between February 10-22, 2021 during Winter Storm Uri. We deny that we were obligated to repurchase natural gas from Freeport given our declaration of force majeure during the storm and our compliance with emergency orders issued by the Railroad Commission of Texas providing heightened priority for the delivery of gas to human needs customers. Freeport alleges that it is owed approximately $104 million, plus attorney fees and interest. On October 24, 2022, the trial court granted our motion for summary judgment on all of Freeport’s claims. On November 21, 2022, Freeport filed a notice of intent to appeal the trial court’s decision. We believe that our declaration of force majeure was valid and we intend to vigorously defend this case.

Pension Plan Litigation

On February 22, 2021, Kinder Morgan Retirement Plan A participants Curtis Pedersen and Beverly Leutloff filed a purported class action lawsuit under the Employee Retirement Income Security Act of 1974 (ERISA). The named plaintiffs were hired initially by the ANR Pipeline Company (ANR) in the late 1970s. Following a series of corporate acquisitions, plaintiffs became participants in pension plans sponsored by the Coastal Corporation (Coastal), El Paso Corporation (El Paso) and our company by virtue of our acquisition of El Paso in 2012 and our assumption of certain of El Paso’s pension plan obligations. The lawsuit, which was filed initially in federal court in Michigan and then transferred to the U.S. District Court for the Southern District of Texas (Civil Action No. 4:21-3590), alleges that the series of foregoing transactions resulted in changes to plaintiffs’ retirement benefits which are now contested on a purported class-wide basis in the lawsuit. The complaint asserts six claims that fall within three primary theories of liability. Claims I, II, and III all seek the same plan modification as to how the plans calculate benefits for former participants in the Coastal plan. These claims challenge plan provisions which are alleged to constitute impermissible “backloading” or “cutback” of benefits. Claims IV and V allege that former participants in the ANR plans should be eligible for unreduced benefits at younger ages than the plans currently provide. Claim VI asserts that actuarial assumptions used to calculate reduced early retirement benefits for current or former ANR employees are outdated and therefore unreasonable. The complaint alleges that the purported class includes over 10,000 individuals. The lawsuit is in the early stages of discovery and no class has been certified. Plaintiffs seek to recover early retirement benefits as well as declaratory and injunctive relief, but have not pleaded, disclosed or otherwise specified a calculation of alleged damages. Accordingly, the extent of our potential liability for past or future benefits, if any, remains to be determined. We believe that none of the claims are valid and intend to vigorously defend this case.

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Pipeline Integrity and Releases

From time to time, despite our best efforts, our pipelines experience leaks and ruptures. These leaks and ruptures may cause explosions, fire, and damage to the environment, damage to property and/or personal injury or death. In connection with these incidents, we may be sued for damages caused by an alleged failure to properly mark the locations of our pipelines and/or to properly maintain our pipelines. Depending upon the facts and circumstances of a particular incident, state and federal regulatory authorities may seek civil and/or criminal fines and penalties.

Arizona Line 2000 Rupture

On August 15, 2021, the 30” EPNG Line 2000 natural gas transmission pipeline ruptured in a rural area in Coolidge, Arizona. The failure resulted in a fire which destroyed a home, resulting in two fatalities and one injury. The National Transportation Safety Board is investigating the incident. EPNG began the process of returning the impacted pipeline segment to service on February 6, 2023. While no litigation is pending at this time, we notified our insurers of the incident and do not expect that the resolution of claims will have a material adverse impact to our business.

General

As of December 31, 2022 and 2021, our total reserve for legal matters was $70 million and $231 million, respectively.

Environmental Matters

We and our subsidiaries are subject to environmental cleanup and enforcement actions from time to time. In particular, CERCLA generally imposes joint and several liability for cleanup and enforcement costs on current and predecessor owners and operators of a site, among others, without regard to fault or the legality of the original conduct, subject to the right of a liable party to establish a “reasonable basis” for apportionment of costs. Our operations are also subject to local, state and federal laws and regulations relating to protection of the environment. Although we believe our operations are in substantial compliance with applicable environmental laws and regulations, risks of additional costs and liabilities are inherent in pipeline, terminal and CO2 field and oil field operations, and there can be no assurance that we will not incur significant costs and liabilities. Moreover, it is possible that other developments could result in substantial costs and liabilities to us, such as increasingly stringent environmental laws, regulations and enforcement policies under the terms of authority of those laws, and claims for damages to property or persons resulting from our operations.

We are currently involved in several governmental proceedings involving alleged violations of local, state and federal environmental and safety regulations. As we receive notices of non-compliance, we attempt to negotiate and settle such matters where appropriate. These alleged violations may result in fines and penalties, but we do not believe any such fines and penalties will be material to our business, individually or in the aggregate. We are also currently involved in several governmental proceedings involving groundwater and soil remediation efforts under state or federal administrative orders or related remediation programs. We have established a reserve to address the costs associated with the remediation efforts.

In addition, we are involved with and have been identified as a potentially responsible party (PRP) in several federal and state Superfund sites. Environmental reserves have been established for those sites where our contribution is probable and reasonably estimable. In addition, we are from time to time involved in civil proceedings relating to damages alleged to have occurred as a result of accidental leaks or spills of refined petroleum products, crude oil, NGL, natural gas or CO2, including natural resource damage (NRD) claims.

PHMSA Enforcement Matter for KMLT Midwest Terminals

On July 11, 2022, Kinder Morgan Liquid Terminals (KMLT) received a Notice of Probable Violation (NOPV) from PHMSA relating to inspections conducted during 2021 at KMLT’s Cincinnati, Indianapolis, Dayton, Argo, O’Hare, and Wood River Terminals. The NOPV alleged violations of Department of Transportation regulations, proposed a penalty of approximately $455,000 and sought a compliance agreement relating to certain of the alleged violations. On February 3, 2023, PHMSA and KMLT entered into a Consent Agreement resolving the allegations in the NOPV. Also on February 3, 2023, PHMSA issued a Consent Order approving the Consent Agreement. We do not anticipate the costs to resolve this matter, including any costs to implement the Consent Agreement, will have a material adverse impact to our business.

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Portland Harbor Superfund Site, Willamette River, Portland, Oregon

On January 6, 2017, the EPA issued a Record of Decision (ROD) that established a final remedy and cleanup plan for an industrialized area on the lower reach of the Willamette River commonly referred to as the Portland Harbor Superfund Site (PHSS). The cost for the final remedy is estimated to be more than $2.8 billion and active cleanup is expected to take more than 10 years to complete. KMLT, KMBT, and some 90 other PRPs identified by the EPA are involved in a non-judicial allocation process to determine each party’s respective share of the cleanup costs related to the final remedy set forth by the ROD. We are participating in the allocation process on behalf of KMLT (in connection with its ownership or operation of two facilities) and KMBT (in connection with its ownership or operation of two facilities). Effective January 31, 2020, KMLT entered into separate Administrative Settlement Agreements and Orders on Consent (ASAOC) to complete remedial design for two distinct areas within the PHSS associated with KMLT’s facilities. The ASAOC obligates KMLT to pay a share of the remedial design costs for cleanup activities related to these two areas as required by the ROD. Our share of responsibility for the PHSS costs will not be determined until the ongoing non-judicial allocation process is concluded or a lawsuit is filed that results in a judicial decision allocating responsibility. At this time we anticipate the non-judicial allocation process will be complete in or around December 2024. Until the allocation process is completed, we are unable to reasonably estimate the extent of our liability for the costs related to the design of the proposed remedy and cleanup of the PHSS. Because costs associated with any remedial plan are expected to be spread over at least several years, we do not anticipate that our share of the costs of the remediation will have a material adverse impact to our business.

In addition to CERCLA cleanup costs, we are reviewing and will attempt to settle, if possible, NRD claims in the amount of approximately $5 million asserted by state and federal trustees following their natural resource assessment of the PHSS.

Lower Passaic River Study Area of the Diamond Alkali Superfund Site, New Jersey

EPEC Polymers, Inc. and EPEC Oil Company Liquidating Trust (collectively EPEC) are identified as PRPs in an administrative action under CERCLA known as the Lower Passaic River Study Area (Site) concerning the lower 17-mile stretch of the Passaic River in New Jersey. On March 4, 2016, the EPA issued a Record of Decision (ROD) for the lower eight miles of the Site. At that time the cleanup plan in the ROD was estimated to cost $1.7 billion. The cleanup is expected to take at least six years to complete once it begins. In addition, the EPA and numerous PRPs, including EPEC, engaged in an allocation process for the implementation of the remedy for the lower eight miles of the Site. That process was completed December 28, 2020 and certain PRPs, including EPEC, engaged in discussions with the EPA as a result thereof. On October 4, 2021, the EPA issued a ROD for the upper nine miles of the Site. At that time, the cleanup plan in the ROD was estimated to cost $440 million. No timeline for the cleanup has been established. On December 16, 2022, the United States Department of Justice (DOJ) and EPA announced a settlement and proposed consent decree with 85 PRPs, including EPEC, to resolve their collective liability at the Site. The total amount of the settlement is $150 million. Also on December 16, 2022, the DOJ on behalf of the EPA filed a Complaint against the 85 PRPs, including EPEC, a Notice of Lodging of Consent Decree, and a Consent Decree in the U.S. District Court for the District of New Jersey. We believe our share of the costs to resolve this matter, including our share of the settlement with EPA and the costs to remediate the Site, if any, will not have a material adverse impact to our business.

Louisiana Governmental Coastal Zone Erosion Litigation

Beginning in 2013, several parishes in Louisiana and the City of New Orleans filed separate lawsuits in state district courts in Louisiana against a number of oil and gas companies, including TGP and SNG. In these cases, the parishes and New Orleans, as Plaintiffs, allege that certain of the defendants’ oil and gas exploration, production and transportation operations were conducted in violation of the State and Local Coastal Resources Management Act of 1978, as amended (SLCRMA) and that those operations caused substantial damage to the coastal waters of Louisiana and nearby lands. The Plaintiffs seek, among other relief, unspecified money damages, attorneys’ fees, interest, and payment of costs necessary to restore the affected areas. There are more than 40 of these cases pending in Louisiana against oil and gas companies, one of which is against TGP and one of which is against SNG, both described further below.

On November 8, 2013, the Parish of Plaquemines, Louisiana filed a petition for damages in the state district court for Plaquemines Parish, Louisiana against TGP and 17 other energy companies, alleging that the defendants’ operations in Plaquemines Parish violated SLCRMA and Louisiana law, and caused substantial damage to the coastal waters and nearby lands. Plaquemines Parish seeks, among other relief, unspecified money damages, attorney fees, interest, and payment of costs necessary to restore the allegedly affected areas. In December 2013, the case was removed to the U.S. District Court for the Eastern District of Louisiana. In April 2015, the U.S. District Court ordered the case to be remanded to the state district court for Plaquemines Parish. In May 2018, the case was removed for a second time to the U.S. District Court. In May 2019, the U.S. District Court ordered the case to be remanded to the state district court. The case has been effectively stayed pending the
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resolution of jurisdictional issues in separate, consolidated cases to which TGP is not a party; The Parish of Plaquemines, et al. vs. Chevron USA, Inc. et al. consolidated with The Parish of Cameron, et al. v. BP America Production Company, et al. Those cases were removed to federal court and ordered to be remanded to the state district courts for Plaquemines and Cameron Parishes, respectively. The defendants to those consolidated cases pursued an appeal of the remand decisions to the U.S. Court of Appeals for the Fifth Circuit to determine whether there is federal officer jurisdiction. On October 17, 2022, the U.S. Court of Appeals ordered those consolidated cases to be remanded to the state district courts. On November 14, 2022, the defendants to those consolidated cases filed separate Petitions for Panel Rehearing, and for Rehearing En Banc. On November 29, 2022, the U.S. Court of Appeals denied both Petitions. On December 15, 2022, the case against TGP was remanded to the state district court. On January 30, 2023, the defendants to those consolidated cases filed a Petition for Writ of Certiorari with the U.S. Supreme Court seeking review of the decisions of the U.S. Court of Appeals. At this time, we are not able to reasonably estimate the extent of our potential liability, if any. We intend to vigorously defend this case.

On March 29, 2019, the City of New Orleans and Orleans Parish (collectively, Orleans) filed a petition for damages in the state district court for Orleans Parish, Louisiana against SNG and 10 other energy companies alleging that the defendants’ operations in Orleans Parish violated the SLCRMA and Louisiana law, and caused substantial damage to the coastal waters and nearby lands. Orleans seeks, among other relief, unspecified money damages, attorney fees, interest, and payment of costs necessary to restore the allegedly affected areas. In April 2019, the case was removed to the U.S. District Court for the Eastern District of Louisiana. In May 2019, Orleans moved to remand the case to the state district court. In January 2020, the U.S. District Court ordered the case to be stayed and administratively closed pending the resolution of issues in a separate case to which SNG is not a party; Parish of Cameron vs. Auster Oil & Gas, Inc., pending in U.S. District Court for the Western District of Louisiana; after which either party may move to re-open the case. On January 23, 2023, the City of New Orleans filed an Ex parte Motion to Reopen Case and Notice of Supplemental Authority asking the U.S. District Court to re-open the case. Until these and other issues are determined, we are not able to reasonably estimate the extent of our potential liability, if any. We intend to vigorously defend this case.

Products Pipeline Incident, Walnut Creek, California

On November 20, 2020, SFPP identified an issue on its Line Section 16 (LS-16) which transports petroleum products in California from Concord to San Jose. We shut down the pipeline and notified the appropriate regulatory agencies of a “threatened release” of gasoline. We investigated the issue over the next several days and on November 24, 2020, identified a crack in the pipeline and notified the regulatory agencies of a “confirmed release.” The damaged section of the pipeline was removed and replaced, and the pipeline resumed operations on November 26, 2020. We reported the estimated volume of gasoline released to be 8.1 Bbl. On December 2, 2020, complaints of gasoline odors were reported along the LS-16 pipeline corridor in Walnut Creek. A unified response was implemented by us along with the EPA, the California Office of Spill Prevention and Response, the California Fire Marshall, and the San Francisco Regional Water Quality Control Board. On December 8, 2020, we reported an updated estimated spill volume of up to 1,000 Bbl.

On October 28, 2021, we were informed by the California Attorney General it was contemplating criminal charges against us asserting the November 2020 discharge of gasoline affected waters of the State of California, and there was a failure to make timely notices of this discharge to appropriate state agencies. On December 16, 2021, we entered into a plea agreement with the State of California to resolve misdemeanor charges of the unintentional, non-negligent discharge of gasoline resulting from the release and the claimed failure to provide timely notices of the discharge to appropriate state agencies. Under the plea agreement, SFPP plead no-contest to two misdemeanors and paid approximately $2.5 million in fines, penalties, restitution, environmental improvement project funding, and for enforcement training in the State of California, and was placed on informal, unsupervised probation for a term of 18 months.

Since the November 2020 release, we have cooperated fully with federal and state agencies and have worked diligently to remediate the affected areas. We anticipate civil enforcement actions by federal and state agencies arising from the November 2020 release as well as ongoing monitoring and, where necessary, remediation under the oversight of the San Francisco Regional Water Quality Control Board until site conditions demonstrate no further actions are required. We do not anticipate the costs to resolve those enforcement matters, including the costs to monitor and further remediate the site, will have a material adverse impact to our business.

General

Although it is not possible to predict the ultimate outcomes, we believe that the resolution of the environmental matters set forth in this note, and other matters to which we and our subsidiaries are a party, will not have a material adverse effect on our business. As of December 31, 2022 and 2021, we have accrued a total reserve for environmental liabilities in the amount of
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$221 million and $243 million, respectively. In addition, as of both December 31, 2022 and 2021, we had recorded a receivable of $12 million for expected cost recoveries that have been deemed probable.

19. Recent Accounting Pronouncements

Accounting Standards Updates

Reference Rate Reform (Topic 848)

On March 12, 2020, the FASB issued ASU No. 2020-04, “Reference Rate Reform – Facilitation of the Effects of Reference Rate Reform on Financial Reporting.” This ASU provides temporary optional expedients and exceptions to GAAP guidance on contract modifications and hedge accounting to ease the financial reporting burdens of the expected market transition from LIBOR and other interbank offered rates to alternative reference rates, such as the SOFR. Entities can elect not to apply certain modification accounting requirements to contracts affected by reference rate reform, if certain criteria are met. An entity that makes this election would not have to remeasure the contracts at the modification date or reassess a previous accounting determination. Entities can also elect various optional expedients that would allow them to continue applying hedge accounting for hedging relationships affected by reference rate reform, if certain criteria are met.

On January 7, 2021, the FASB issued ASU No. 2021-01, “Reference Rate Reform (Topic 848): Scope.” This ASU clarifies that all derivative instruments affected by changes to the interest rates used for discounting, margining or contract price alignment (the “Discounting Transition”) are in the scope of Topic 848 and therefore qualify for the available temporary optional expedients and exceptions. As such, entities that employ derivatives that are the designated hedged item in a hedge relationship where perfect effectiveness is assumed can continue to apply hedge accounting without de-designating the hedging relationship to the extent such derivatives are impacted by the Discounting Transition.

On December 21, 2022, the FASB issued ASU No. 2022-06, “Reference Rate Reform (Topic 848): Deferral of the Sunset Date of Topic 848.” This ASU defers the sunset date of Topic 848 from December 31, 2022, to December 31, 2024, after which entities will no longer be permitted to apply the optional expedients and exceptions in Topic 848.

The guidance was effective upon issuance.

During the year ended December 31, 2022 we amended certain of our existing fixed-to-variable interest rate swap agreements, which were designated as fair value hedges, to transition the variable leg of such agreements from LIBOR to SOFR. These agreements contain a combined notional principal amount of $4,425 million and convert a portion of our fixed rate debt to variable rates through March 2035. Concurrent with these amendments, we elected certain of the optional expedients provided in Topic 848 which allow us to maintain our prior designation of fair value hedge accounting to these agreements. As we continue to amend our interest rate swap agreements to transition from LIBOR to SOFR, we will assess whether such amendments qualify for any of the optional expedients in Topic 848 and, should they qualify, whether we wish to elect any such optional expedients. See Note 14 Risk Management—Interest Rate Risk Management” for more information on our interest rate risk management activities.

Item 9.  Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.

None.
Item 9A. Controls and Procedures.

Conclusion Regarding the Effectiveness of Disclosure Controls and Procedures

As of December 31, 2022, our management, including our Chief Executive Officer and Chief Financial Officer, has evaluated the effectiveness of the design and operation of our disclosure controls and procedures pursuant to Rule 13a-15(b) under the Securities Exchange Act of 1934.  There are inherent limitations to the effectiveness of any system of disclosure controls and procedures, including the possibility of human error and the circumvention or overriding of the controls and procedures.  Accordingly, even effective disclosure controls and procedures can only provide reasonable assurance of achieving their control objectives.  Based upon and as of the date of the evaluation, our Chief Executive Officer and our Chief Financial Officer concluded that the design and operation of our disclosure controls and procedures were effective to provide reasonable assurance that information required to be disclosed in the reports we file or submit under the Securities Exchange Act of 1934 is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms,
129


and is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.

Management’s Report on Internal Control Over Financial Reporting

Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Exchange Act Rule 13a-15(f).  Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements.  Projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.  Under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, we conducted an assessment of the effectiveness of our internal control over financial reporting based on the framework in Internal Control – Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission.  Based on this assessment, our management concluded that our internal control over financial reporting was effective as of December 31, 2022.

The effectiveness of our internal control over financial reporting as of December 31, 2022, has been audited by PricewaterhouseCoopers LLP, an independent registered public accounting firm, as stated in their audit report, which appears herein.

Changes in Internal Control Over Financial Reporting

There has been no change in our internal control over financial reporting during the fourth quarter of 2022 that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

Item 9B.  Other Information.

None.

Item 9C. Disclosure Regarding Foreign Jurisdictions that Prevent Inspections.

Not Applicable.

PART III

Item 10.  Directors, Executive Officers and Corporate Governance. 
The information required by this item is incorporated by reference from KMI’s definitive proxy statement for the 2023 Annual Meeting of Stockholders, which shall be filed no later than April 30, 2023.

Item 11. Executive Compensation.
The information required by this item is incorporated by reference from KMI’s definitive proxy statement for the 2023 Annual Meeting of Stockholders, which shall be filed no later than April 30, 2023.

Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.

The information required by this item is incorporated by reference from KMI’s definitive proxy statement for the 2023 Annual Meeting of Stockholders, which shall be filed no later than April 30, 2023.

Item 13. Certain Relationships and Related Transactions, and Director Independence.
The information required by this item is incorporated by reference from KMI’s definitive proxy statement for the 2023 Annual Meeting of Stockholders, which shall be filed no later than April 30, 2023.  

Item 14.  Principal Accounting Fees and Services.

The information required by this item is incorporated by reference from KMI’s definitive proxy statement for the 2023 Annual Meeting of Stockholders, which shall be filed no later than April 30, 2023.
130


PART IV

Item 15.  Exhibits, Financial Statement Schedules.

(a)Documents Filed as Part of the Report

(1) Financial Statements

See Part II, Item 8. “Financial Statements and Supplementary Data—Index to Financial Statements” set forth on Page 68.

(2) Financial Statement Schedules

Financial statement schedules are omitted because they are not applicable or the required information is contained in the consolidated financial statements or notes thereto.

(3)Exhibits

Exhibit NumberDescription
3.1*
3.2*
4.1*
4.2*
4.3*
4.4*
4.5*
4.6*
4.7*
4.8*
4.9*
4.10*
4.11*
4.12*
131


4.13*
4.14*
4.15*
4.16*
4.17*
4.18*
4.19*
4.20*
4.21*
4.22*
4.23*
4.24*
4.25*
4.26*
132


4.27*
4.28*
4.29*
4.30*
4.31*
4.32*
4.33*
4.34*
4.35*
4.36*
4.37Certain instruments with respect to long-term debt of KMI and its consolidated subsidiaries which relate to debt that does not exceed 10% of the total assets of KMI and its consolidated subsidiaries are omitted pursuant to Item 601(b) (4) (iii) (A) of Regulation S-K, 17 C.F.R. sec. #229.601. KMI hereby agrees to furnish supplementally to the Securities and Exchange Commission a copy of each such instrument upon request.
4.38*
4.39*
10.1*
10.2*
10.3*
10.4*
10.5*
10.6*
133


10.7*
10.8*
10.9*
10.10*
10.11*
10.12
10.13
10.14
21.1
22.1
23.1
31.1
31.2
32.1
32.2
101
Interactive data files pursuant to Rule 405 of Regulation S-T formatted in iXBRL (Inline Extensible Business Reporting Language): (i) our Consolidated Statements of Income for the years ended December 31, 2022, 2021, and 2020; (ii) our Consolidated Statements of Comprehensive Income for the years ended December 31, 2022, 2021, and 2020; (iii) our Consolidated Balance Sheets as of December 31, 2022 and 2021; (iv) our Consolidated Statements of Cash Flows for the years ended December 31, 2022, 2021, and 2020; (v) our Consolidated Statements of Stockholders’ Equity as of and for the years ended December 31, 2022, 2021, and 2020; and (vi) the notes to our Consolidated Financial Statements.
104Cover Page Interactive Data File pursuant to Rule 406 of Regulation S-T formatted in iXBRL (Inline Extensible Business Reporting Language) and contained in Exhibit 101.
_______
*Asterisk indicates exhibits incorporated by reference as indicated; all other exhibits are filed herewith, except as noted otherwise.

Item 16.  Form 10-K Summary.

Not Applicable.
134


SIGNATURES
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
 
  
KINDER MORGAN, INC.
Registrant
  
 /s/ David P. Michels
 David P. Michels
Vice President and Chief Financial Officer
Date:February 8, 2023  

135


Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons in the capacities and on the dates indicated.
SignatureTitleDate
/s/ DAVID P. MICHELSVice President and Chief Financial Officer (principal financial officer and principal accounting officer)February 8, 2023
David P. Michels
/s/ STEVEN J. KEANChief Executive Officer (principal executive officer); DirectorFebruary 8, 2023
Steven J. Kean
/s/ RICHARD D. KINDERExecutive ChairmanFebruary 8, 2023
Richard D. Kinder
/s/ KIMBERLY A. DANGPresident; DirectorFebruary 8, 2023
Kimberly A. Dang
/s/ TED A. GARDNERDirectorFebruary 8, 2023
Ted A. Gardner
/s/ ANTHONY W. HALL, JR.DirectorFebruary 8, 2023
Anthony W. Hall, Jr.
/s/ GARY L. HULTQUISTDirectorFebruary 8, 2023
Gary L. Hultquist
/s/ RONALD L. KUEHN, JR.DirectorFebruary 8, 2023
Ronald L. Kuehn, Jr.
/s/ DEBORAH A. MACDONALDDirectorFebruary 8, 2023
Deborah A. Macdonald
/s/ MICHAEL C. MORGANDirectorFebruary 8, 2023
Michael C. Morgan
/s/ ARTHUR C. REICHSTETTERDirectorFebruary 8, 2023
Arthur C. Reichstetter
/s/ C. PARK SHAPERDirectorFebruary 8, 2023
C. Park Shaper
/s/ WILLIAM A. SMITHDirectorFebruary 8, 2023
William A. Smith
/s/ JOEL V. STAFFDirectorFebruary 8, 2023
Joel V. Staff
/s/ ROBERT F. VAGTDirectorFebruary 8, 2023
Robert F. Vagt
/s/ PERRY M. WAUGHTALDirectorFebruary 8, 2023
Perry M. Waughtal
136
Exhibit 10.12
EXECUTION VERSION

AMENDMENT NO. 1 TO CREDIT AGREEMENT AND EXTENSION
AMENDMENT NO. 1 TO THE REVOLVING CREDIT AGREEMENT AND EXTENSION, dated as of December 15, 2022 (this “Agreement”), among Kinder Morgan, Inc., a Delaware corporation (the “Company”), the Guarantors, the Lenders party hereto and Barclays Bank, PLC, as administrative agent (the “Administrative Agent”), which shall amend that certain Credit Agreement, dated as of August 20, 2021 (as amended, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”, as amended hereby, the “Amended Credit Agreement”), by and among the Company, the Lenders from time to time party thereto and the Administrative Agent and the other parties thereto.
W I T N E S S E T H:
WHEREAS, the Company, the Lenders and the Administrative Agent are parties to the Existing Credit Agreement;
WHEREAS, the Company has requested that (a) each Lender extend such Lender’s Maturity Date for an additional 365 days from August 20, 2026 (the “Existing Maturity Date”) to August 20, 2027 (the “Extended Maturity Date”) pursuant to Section 2.22 of the Existing Credit Agreement (giving effect to the waivers included in this Agreement as to certain requirements set forth therein) and (b) the other amendments reflected in this Agreement be effected, in each case as of the Amendment Effective Date (as defined below);
WHEREAS, (a) each existing Commitment extended in accordance with the terms of this Agreement will be an “Extended Commitment” (with each existing Commitment not so extended, a “Non-Extended Commitment”) and (b) each existing Loan extended in accordance with the terms of this Agreement will be an “Extending Loan” (with each existing Loan not so extended, a “Non-Extending Loan”);
WHEREAS, each Lender party hereto whose name is set forth on Schedule I hereto under the heading “Extending Lenders” is willing to consent to the extension of the maturity date of all of its Commitments and Loans to the Extended Maturity Date upon the terms and conditions set forth herein (each such consenting Lender, a “Extending Lender”), and each Lender whose name is set forth on Schedule I hereto under the heading “Non-Extending Lenders” is not willing to consent to the extension of the maturity date of all of its Commitments and Loans to the Extended Maturity Date (each such non-consenting Lender, a “Non-Extending Lender”);

WHEREAS, each Lender party hereto is willing to consent to the amendments to the Existing Credit Agreement described in Sections 2 and 3 below, upon the terms and conditions set forth herein;

NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1.  Defined Terms. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Amended Credit Agreement.
SECTION 2.  Maturity Date Extension.
(a)Extension. On the Amendment Effective Date (as defined below), each Extending Lender agrees that all of its existing Commitment and Loans will be modified to become an Extended


2
Commitment and Extending Loans, respectively, of like amount, and that the Maturity Date for such Extended Commitments and Extending Loans will be the Extended Maturity Date. The existing Commitments and Loans of each Non-Extending Lender will remain outstanding as Non-Extended Commitments and Non-Extending Loans, respectively, and the Maturity Date of such Non-Extended Commitments and Non-Extended Loans will remain the Existing Maturity Date. Subject to Section 2(a)(iv) below, the initial Interest Period applicable to each Non-Extending Loan and Extending Loan that is a Eurodollar Loan (as defined in the Existing Credit Agreement) (prior to giving effect to this Agreement) or ABR Loan will be the then-current Interest Period (as defined in the Existing Credit Agreement) applicable to such existing Loan from which it is converted with no conversion into a different Interest Period, or payment or prepayment of such Loan being deemed to have occurred solely due to this Agreement or the transactions described herein. Each existing Loan of an Extending Lender that is a Eurodollar Loan (prior to giving effect to this Agreement) or ABR Loan will be converted into an Extending Loan of the same Type and with the same Interest Period in existence immediately prior to the Amendment Effective Date.
(b)Other Extension Matters. The parties hereto acknowledge and agree to the following:
i.Following the Amendment Effective Date, the Obligations with respect to Letters of Credit shall continue to be held ratably among the lenders under the Amended Credit Agreement, but on the Existing Maturity Date, the Obligations with respect to Letters of Credit under the Amended Credit Agreement held by any Non-Extending Lender shall be ratably reallocated, to the extent of the unused Commitments of the Extending Lenders, to such Extending Lenders (without regard to whether the conditions set forth in Section 3.02 of the Existing Credit Agreement can then be satisfied) and the Borrowers shall cash collateralize the balance of such Obligations with respect to Letters of Credit under the Amended Credit Agreement in accordance with Section 2.20 of the Existing Credit Agreement.
ii.On the Existing Maturity Date applicable to Loans of any Non-Extending Lender, the Borrowers shall repay any outstanding Loans of each Non-Extending Lender that has not been replaced as provided in Sections 2.22(c) and 2.18(b) of the Existing Credit Agreement (and pay any additional amounts required pursuant to the Existing Credit Agreement).
iii.Lenders party hereto, constituting the Required Lenders, hereby waive the timing, notice and minimum extension requirements set forth in Section 2.22 of the Existing Credit Agreement.
iv.For the avoidance of doubt and notwithstanding anything to the contrary herein, in the Existing Credit Agreement or in the Amended Credit Agreement, (a) Eurodollar Loans outstanding under the Existing Credit Agreement immediately prior to the Amendment Effective Date may, in any event, remain outstanding as Eurodollar Loans pursuant to the terms of the Existing Credit Agreement and shall be deemed to have been borrowed, continued or converted, as applicable, pursuant to, and shall be subject to, the terms of the Existing Credit Agreement until the last day of the Interest Period (prior to giving effect to this Agreement) applicable thereto that is in effect on the Amendment Effective Date and (b) on the last day of such Interest Period (prior to giving effect to this Agreement), such Eurodollar Loans shall be converted to either SOFR Loans or ABR Loans under the Amended Credit Agreement, as specified by the Borrower in the applicable notice of conversion and, in the case of SOFR Loans, with the Interest Period specified


3
therein by the Borrower to be applicable thereto. If the Borrower fails to provide such notice of conversion, such outstanding Eurodollar Loans shall be automatically converted on the last day of the Interest Period applicable thereto to SOFR Loans with an Interest Period of one month.
SECTION 3.  Amendments to Existing Credit Agreement. Effective as of the Amendment Effective Date (as defined below),
(a)The Existing Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the underlined text (indicated textually in the same manner as the following example: underlined text) as set forth in the pages of the Amended Credit Agreement attached as Exhibit A hereto.
(b)Exhibit 2.03 of the Existing Credit Agreement is hereby amended and restated to be in the form of Annex A hereto.
(c)Exhibit 2.07 of the Existing Credit Agreement is hereby amended and restated to be in the form of Annex B hereto.
(d)Exhibit 2.10 of the Existing Credit Agreement is hereby amended and restated to be in the form of Annex C hereto.
SECTION 4.  Conditions to Effectiveness. This Agreement shall become effective on the first date on which each of the following conditions precedent has been satisfied or waived (the date on which such conditions shall have been so satisfied or waived, the “Amendment Effective Date”):
(a)Counterparts. The Administrative Agent (or its counsel) shall have received from the Borrower, the Guarantors, the Administrative Agent, each Lender party to the Existing Credit Agreement and each Extending Lender either (i) a counterpart of this Agreement duly executed by such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy or other electronic transmission (e.g., “pdf” or “tif” via electronic mail) of a signed signature page (whether signed manually or electronically) of this Agreement) that such party has signed a counterpart of this Agreement;

(b)Officer’s Certificate. The Administrative Agent shall have received a certificate, signed by a Responsible Officer of the Company and dated the Amendment Effective Date stating that the representations and warranties contained in Section 5 hereof are true and correct in all material respects (provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects);

(c)Consent Fee. The Company shall have paid to the Administrative Agent, for the account of each Extending Lender that submits its consent hereto to the Administrative Agent (by delivering an executed signature page to this Agreement that is not subject to any “escrow” conditions other than the satisfaction of the conditions precedent to this Agreement or by releasing such signature page from “escrow” prior to the effectiveness of this Agreement) prior to 3:00 p.m. New York City time on December 9, 2022, a consent fee of 0.04% on the aggregate amount of such Extending Lender’s Extended Commitment; and

(d)Fees and Expenses. The Administrative Agent shall have received on or before the Amendment Effective Date all reasonable and documented fees and expenses required to be paid


4
to the Administrative Agent in connection with the preparation and negotiation of this Agreement pursuant to and in accordance with the terms of Section 9.03 of the Credit Agreement, provided that such fees and expenses have been invoiced at least three Business Days prior to the Amendment Effective Date.

The Administrative Agent shall notify the Company and the Lenders of the Amendment Effective Date, and such notice shall be conclusive and binding.
SECTION 5.  Representations and Warranties. The Company hereby represents to the Administrative Agent and each Lender, as follows:
(a)The execution, delivery and performance by the Company of this Agreement have been duly authorized by all necessary corporate or other organizational action. No approval, consent, exemption, authorization, license or exemption of or registration, declaration or filing with any Governmental Authority, is necessary for the valid execution and delivery of, or the incurrence and performance by the Company of its obligations under this Agreement, except those that have been obtained and such matters relating to performance as would ordinarily be done in the ordinary course of business after the Amendment Effective Date. This Agreement has been duly executed and delivered by the Company. Each of this Agreement and the Amended Credit Agreement constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to applicable Debtor Relief Laws and general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(b)After giving effect to this Agreement, the representations and warranties contained in Article IV of the Existing Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the Amendment Effective Date (provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date (provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects as of such earlier date), and except that the representations and warranties contained in subsections (a) and (b) of Section 4.07 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 5.01 of the Existing Credit Agreement; and
(c)At the time of and immediately after giving effect to this Agreement, no Default or Event of Default has occurred and is continuing.
SECTION 6.  Effect on the Loan Documents.
(a)Except as specifically amended herein or hereby, all Loan Documents shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. The Company hereby agrees, with respect to each Loan Document to which it is a party, that all of its obligations, liabilities and indebtedness under such Loan Document shall remain in full force and effect on a continuous basis in accordance with their terms after giving effect to this Agreement.
(b)Upon the Amendment Effective Date, each reference in the Existing Credit Agreement to “this Agreement,” “herein,” “hereto,” “hereunder,” “hereof,” or in the other Loan Documents to the


5
“Credit Agreement”, or, in each case, words of like import shall mean and be a reference to the Amended Credit Agreement, as amended and modified by this Agreement.
(c)Except as expressly set forth in this Agreement, the execution, delivery and effectiveness of this Agreement shall not 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.
(d)The Company and the other parties hereto acknowledge and agree that this Agreement shall constitute a Loan Document.
SECTION 7.  Ratification by Guarantors. Each of the Guarantors acknowledges that its consent to this Agreement is not required, but each of the undersigned nevertheless does hereby agree and consent to this Agreement and to the documents and agreements referred to herein. Each of the Guarantors agrees and acknowledges that (i) notwithstanding the effectiveness of this Agreement, such Guarantor’s guarantee shall remain in full force and effect without modification thereto and (ii) nothing herein shall in any way limit any of the terms or provisions of such Guarantor’s guarantee, the Guaranty Agreement or any other Loan Document executed by such Guarantor (as the same may be amended from time to time), all of which are hereby ratified, confirmed and affirmed in all respects as of the Amendment Effective Date. Each of the Guarantors hereby agrees and acknowledges that no other agreement, instrument, consent or document shall be required to give effect to this Section 7. Each of the Guarantors hereby further acknowledges that the Borrower, the Administrative Agent and any Lender may from time to time enter into any further amendments, modifications, terminations and/or waivers of any provision of the Loan Documents without notice to or consent from such Guarantor and without affecting the validity or enforceability of such Guarantor’s guarantee or giving rise to any reduction, limitation, impairment, discharge or termination of such Guarantor’s guarantee.
SECTION 8.  GOVERNING LAW; WAIVER OF JURY TRIAL; SUBMISSION TO JURISDICTION. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT SHALL BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY AND ASSETS, UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS WITH RESPECT TO ANY SUCH ACTION OR PROCEEDING. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT.
SECTION 9.  Amendments; Execution in Counterparts; Electronic Signatures.
(a)This Agreement may not be amended nor may any provision hereof be waived except in accordance with Section 9.02 of the Amended Credit Agreement.
(b)This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to


6
constitute one and the same instrument. Delivery of an executed signature page of this Agreement by email or facsimile transmission shall be effective as delivery of a manually executed counterpart hereof.
(c)The words “delivery”, “execute,” “execution,” “signed,” “signature,” and words of like import in this Agreement and any document executed in connection herewith shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary neither the Administrative Agent nor any Lender is under any obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Administrative Agent or such Lender pursuant to procedures approved by it and provided further without limiting the foregoing, upon the request of any party, any electronic signature shall be promptly followed by such manually executed counterpart.

[Remainder of page intentionally left blank.]



IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written.
KINDER MORGAN, INC.

By: /s/ Christopher A. Graeter
Name: Christopher A. Graeter
Title: Vice President and Treasurer


        
        



MATERIAL SUBSIDIARIES:

EL PASO NATURAL GAS COMPANY, L.L.C.
HILAND PARTNERS HOLDINGS LLC
KINDER MORGAN ENERGY PARTNERS, L.P.
By Kinder Morgan GP LLC, its general partner
KINDER MORGAN GP LLC
KINDER MORGAN LIQUIDS TERMINALS LLC
KINDER MORGAN OPERATING LLC “A”
KINDER MORGAN OPERATING LLC “C”
KINDER MORGAN OPERATING LLC “D”
KINDER MORGAN PORTLAND HOLDINGS LLC
KINDER MORGAN PORTLAND INTERMEDIATE HOLDINGS II LLC
KINDER MORGAN PORTLAND OPERATING LLC
KINDER MORGAN TEXAS PIPELINE LLC
TEJAS GAS, LLC
TEJAS NATURAL GAS, LLC
TENNESSEE GAS PIPELINE COMPANY, L.L.C.
as Guarantors
By:    /s/ Christopher A. Graeter
    Name: Christopher A. Graeter
Title: Vice President and Treasurer



        
    [First Amendment – Signature Page]



IMMATERIAL SUBSIDIARIES:

AGNES B CRANE, LLC
AMERICAN PETROLEUM TANKERS II LLC
AMERICAN PETROLEUM TANKERS III LLC
AMERICAN PETROLEUM TANKERS IV LLC
AMERICAN PETROLEUM TANKERS IX LLC
AMERICAN PETROLEUM TANKERS LLC
AMERICAN PETROLEUM TANKERS PARENT LLC
AMERICAN PETROLEUM TANKERS V LLC
AMERICAN PETROLEUM TANKERS VI LLC
AMERICAN PETROLEUM TANKERS VII LLC
AMERICAN PETROLEUM TANKERS VIII LLC
AMERICAN PETROLEUM TANKERS X LLC
AMERICAN PETROLEUM TANKERS XI LLC
APT FLORIDA LLC
APT INTERMEDIATE HOLDCO LLC
APT NEW INTERMEDIATE HOLDCO LLC
APT PENNSYLVANIA LLC
APT SUNSHINE STATE LLC
ARLINGTON STORAGE COMPANY, LLC
BETTY LOU LLC
CAMINO REAL GAS GATHERING COMPANY LLC
CAMINO REAL GATHERING COMPANY, L.L.C.
CANTERA GAS COMPANY LLC
CDE PIPELINE LLC
CENTRAL FLORIDA PIPELINE LLC
CHEYENNE PLAINS GAS PIPELINE COMPANY, L.L.C.
CIG GAS STORAGE COMPANY LLC
CIG PIPELINE SERVICES COMPANY, L.L.C.
COLORADO INTERSTATE GAS COMPANY, L.L.C.
COLORADO INTERSTATE ISSUING CORPORATION
COPANO DOUBLE EAGLE LLC
COPANO ENERGY FINANCE CORPORATION
COPANO ENERGY SERVICES/UPPER GULF COAST LLC
COPANO ENERGY, L.L.C.
COPANO FIELD SERVICES GP, L.L.C.
COPANO FIELD SERVICES/NORTH TEXAS, L.L.C.
COPANO FIELD SERVICES/SOUTH TEXAS LLC
COPANO FIELD SERVICES/UPPER GULF COAST LLC
COPANO LIBERTY, LLC
COPANO NGL SERVICES (MARKHAM), L.L.C.
COPANO NGL SERVICES LLC
COPANO PIPELINES GROUP, L.L.C.
COPANO PIPELINES/NORTH TEXAS, L.L.C.
COPANO PIPELINES/ROCKY MOUNTAINS, LLC
COPANO PIPELINES/SOUTH TEXAS LLC
COPANO PIPELINES/UPPER GULF COAST LLC
COPANO PROCESSING LLC
COPANO RISK MANAGEMENT LLC
COPANO TERMINALS LLC
        
    [First Amendment – Signature Page]



COPANO/WEBB-DUVAL PIPELINE LLC
CPNO SERVICES LLC
DAKOTA BULK TERMINAL LLC.
DELTA TERMINAL SERVICES LLC
EAGLE FORD GATHERING LLC
EL PASO CHEYENNE HOLDINGS, L.L.C.
EL PASO CITRUS HOLDINGS, INC.
EL PASO CNG COMPANY, L.L.C.
EL PASO ENERGY SERVICE COMPANY, L.L.C.
EL PASO LLC
EL PASO MIDSTREAM GROUP LLC
EL PASO NORIC INVESTMENTS III, L.L.C.
EL PASO RUBY HOLDING COMPANY, L.L.C.
EL PASO TENNESSEE PIPELINE CO., L.L.C.
ELBA EXPRESS COMPANY, L.L.C.
ELIZABETH RIVER TERMINALS LLC
EMORY B CRANE, LLC
EP RUBY LLC
EPBGP CONTRACTING SERVICES LLC
EPTP ISSUING CORPORATION
FRANK L. CRANE, LLC
GENERAL STEVEDORES GP, LLC
GENERAL STEVEDORES HOLDINGS LLC
HARRAH MIDSTREAM LLC
HBM ENVIRONMENTAL LLC
HILAND CRUDE, LLC
HPH OKLAHOMA GATHERING LLC
ICPT, L.L.C
INDEPENDENT TRADING & TRANSPORTATION COMPANY I, L.L.C.
JV TANKER CHARTERER LLC
KINDER MORGAN 2-MILE LLC
KINDER MORGAN ADMINISTRATIVE SERVICES TAMPA LLC
KINDER MORGAN ALTAMONT LLC
KINDER MORGAN ARLINGTON RNG LLC
KINDER MORGAN BALTIMORE TRANSLOAD TERMINAL LLC
KINDER MORGAN BATTLEGROUND OIL LLC
KINDER MORGAN BORDER PIPELINE LLC
KINDER MORGAN BULK TERMINALS LLC
KINDER MORGAN CARBON DIOXIDE TRANSPORTATION COMPANY
KINDER MORGAN CO2 COMPANY LLC
KINDER MORGAN COMMERCIAL SERVICES LLC
KINDER MORGAN CONTRACTING SERVICES LLC
KINDER MORGAN CRUDE & CONDENSATE LLC
KINDER MORGAN CRUDE MARKETING LLC
KINDER MORGAN CRUDE OIL PIPELINES LLC
KINDER MORGAN CRUDE TO RAIL LLC
KINDER MORGAN CUSHING LLC
        
    [First Amendment – Signature Page]



KINDER MORGAN DALLAS FORT WORTH RAIL TERMINAL LLC
KINDER MORGAN DEEPROCK NORTH HOLDCO LLC
KINDER MORGAN ENDEAVOR LLC
KINDER MORGAN ENERGY TRANSITION VENTURES LLC
KINDER MORGAN EP MIDSTREAM LLC
KINDER MORGAN FINANCE COMPANY LLC
KINDER MORGAN FREEDOM PIPELINE LLC
KINDER MORGAN GALENA PARK WEST LLC
KINDER MORGAN IMT HOLDCO LLC
KINDER MORGAN KEYSTONE GAS STORAGE LLC
KINDER MORGAN KMAP LLC
KINDER MORGAN LAS VEGAS LLC
KINDER MORGAN LINDEN TRANSLOAD TERMINAL LLC
KINDER MORGAN LIQUIDS TERMINALS ST. GABRIEL LLC
KINDER MORGAN LOUISIANA PIPELINE HOLDING LLC
KINDER MORGAN LOUISIANA PIPELINE LLC
KINDER MORGAN MARINE SERVICES LLC
KINDER MORGAN MATERIALS SERVICES, LLC
KINDER MORGAN MID ATLANTIC MARINE SERVICES LLC
KINDER MORGAN NATGAS O&M LLC
KINDER MORGAN NGPL HOLDINGS LLC
KINDER MORGAN NORTH TEXAS PIPELINE LLC
KINDER MORGAN OPERATING LLC “B”
KINDER MORGAN PECOS LLC
KINDER MORGAN PECOS VALLEY LLC
KINDER MORGAN PETCOKE GP LLC
KINDER MORGAN PETCOKE LP LLC
KINDER MORGAN PETCOKE, L.P.
By Kinder Morgan Petcoke GP LLC, its general partner
KINDER MORGAN PETROLEUM TANKERS LLC
KINDER MORGAN PIPELINE LLC
KINDER MORGAN PORT MANATEE TERMINAL LLC
KINDER MORGAN PORT SUTTON TERMINAL LLC
KINDER MORGAN PORT TERMINALS USA LLC
KINDER MORGAN PORTLAND BULK LLC
KINDER MORGAN PORTLAND INTERMEDIATE HOLDINGS I LLC
KINDER MORGAN PORTLAND JET LINE LLC
KINDER MORGAN PORTLAND LIQUIDS TERMINALS LLC
KINDER MORGAN PRODUCTION COMPANY LLC
KINDER MORGAN PRODUCTS TERMINALS LLC
KINDER MORGAN RAIL SERVICES LLC
KINDER MORGAN RANGER LLC
KINDER MORGAN RESOURCES II LLC
KINDER MORGAN RESOURCES III LLC
        
    [First Amendment – Signature Page]



KINDER MORGAN RNG HOLDCO LLC
KINDER MORGAN SCURRY CONNECTOR LLC
KINDER MORGAN SEVEN OAKS LLC
KINDER MORGAN SHREVEPORT RNG LLC
KINDER MORGAN SNG OPERATOR LLC
KINDER MORGAN SOUTHEAST TERMINALS LLC
KINDER MORGAN TANK STORAGE TERMINALS LLC
KINDER MORGAN TEJAS PIPELINE LLC
KINDER MORGAN TERMINALS WILMINGTON LLC
KINDER MORGAN TERMINALS, INC.
KINDER MORGAN TEXAS TERMINALS, L.P.
By General Stevedores GP, LLC, its general partner
KINDER MORGAN TRANSMIX COMPANY, LLC
KINDER MORGAN TREATING LP
By KM Treating GP LLC, its general partner
KINDER MORGAN UTICA LLC
KINDER MORGAN VEHICLE SERVICES LLC
KINDER MORGAN VICTORIA RNG LLC
KINDER MORGAN VIRGINIA LIQUIDS TERMINALS LLC
KINDER MORGAN WINK PIPELINE LLC
KINDERHAWK FIELD SERVICES LLC
KINETREX ENERGY TRANSPORTATION, LLC
KINETREX HOLDCO, INC.
KM CRANE LLC
KM DECATUR LLC
KM EAGLE GATHERING LLC
KM GAS MARKETING LLC (F/K/A EL PASO MARKETING COMPANY, L.L.C.)
KM GATHERING LLC
KM KASKASKIA DOCK LLC
KM LIQUIDS MARKETING LLC (f/k/a COPANO LIQUIDS MARKETING LLC)
KM LIQUIDS TERMINALS LLC
KM NORTH CAHOKIA LAND LLC
KM NORTH CAHOKIA SPECIAL PROJECT LLC
KM NORTH CAHOKIA TERMINAL PROJECT LLC
KM SHIP CHANNEL SERVICES LLC
KM TREATING GP LLC
KM TREATING PRODUCTION LLC
KM UTOPIA OPERATOR LLC
KMBT LEGACY HOLDINGS LLC (F/K/A Kinder Morgan River Terminals LLC)
KMBT LLC
KMGP SERVICES COMPANY, INC.
KN TELECOMMUNICATIONS, INC.
KNIGHT POWER COMPANY LLC
LIBERTY HIGH BTU LLC
LNG INDY, LLC
LOMITA RAIL TERMINAL LLC
MILWAUKEE BULK TERMINALS LLC
MJR OPERATING LLC
        
    [First Amendment – Signature Page]



MOJAVE PIPELINE COMPANY, L.L.C.
MOJAVE PIPELINE OPERATING COMPANY, L.L.C.
NORTH AMERICAN BIO-FUELS, L.L.C.
NORTH AMERICAN NATURAL RESOURCES, LLC
NORTH AMERICAN NATURAL RESOURCES-SBL, LLC
NORTH AMERICAN-CENTRAL, LLC
PADDY RYAN CRANE, LLC
PALMETTO PRODUCTS PIPE LINE LLC
PI 2 PELICAN STATE LLC
PINNEY DOCK & TRANSPORT LLC
PRAIRIE VIEW HIGH BTU LLC
QUEEN CITY TERMINALS LLC
RAHWAY RIVER LAND LLC
RIVER TERMINAL PROPERTIES, L.P.
By River Terminals Properties GP LLC, its general partner
RIVER TERMINALS PROPERTIES GP LLC
RNG INDY LLC
SCISSORTAIL ENERGY, LLC
SNG PIPELINE SERVICES COMPANY, L.L.C.
SOUTHERN DOME, LLC
SOUTHERN GULF LNG COMPANY, L.L.C.
SOUTHERN LIQUEFACTION COMPANY LLC
SOUTHERN LNG COMPANY, L.L.C.
SOUTHERN OKLAHOMA GATHERING LLC
SOUTHTEX TREATERS LLC
SOUTHWEST FLORIDA PIPELINE LLC
SRT VESSELS LLC
STAGECOACH ENERGY SOLUTIONS LLC
STAGECOACH GAS SERVICES LLC
STAGECOACH OPERATING SERVICES LLC
STAGECOACH PIPELINE & STORAGE COMPANY LLC
STEVEDORE HOLDINGS, L.P.
By Kinder Morgan Petcoke GP LLC, its general partner
TENNESSEE GAS PIPELINE ISSUING CORPORATION
TEXAN TUG LLC
TGP PIPELINE SERVICES COMPANY, L.L.C.
TRANSCOLORADO GAS TRANSMISSION COMPANY LLC
TRANSLOAD SERVICES, LLC
TWIN BRIDGES HIGH BTU LLC
TWIN TIER PIPELINE LLC
UTICA MARCELLUS TEXAS PIPELINE LLC
WESTERN PLANT SERVICES LLC
WYOMING INTERSTATE COMPANY, L.L.C.
as Guarantors

By:    /s/ Christopher A. Graeter
    Name: Christopher A. Graeter
    Title: Vice President and Treasurer

        
    [First Amendment – Signature Page]



BARCLAYS BANK PLC,
as the Administrative Agent, a Lender [and an Extending Lender

By: /s/ Sydney G. Dennis
Name: Sydney G. Dennis
Title: Director
        
    [First Amendment – Signature Page]




JPMorgan Chase Bank, N.A.,
as a Lender

By: /s/ Stephanie Balette
Name: Stephanie Balette
Title: Authorized Officer

Please select below whether you are an Extending Lender or a Non-Extending Lender:
XExtending Lender
Non-Extending Lender


[First Amendment – Signature Page]
        




WELLS FARGO BANK, NATIONAL ASSOCIATION,
as a Lender

By: /s/ Brandon Kast
Name: Brandon Kast
Title: Director

Please select below whether you are an Extending Lender or a Non-Extending Lender:
XExtending Lender
Non-Extending Lender






CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK BRANCH,
as a Lender

By: /s/ Jacob W. Lewis
Name: Jacob W. Lewis
Title: Authorized Signatory

By: /s/ Trudy Nelson
Name: Trudy Nelson
Title: Authorized Signatory


Please select below whether you are an Extending Lender or a Non-Extending Lender:
XExtending Lender
Non-Extending Lender






BMO Capital Markets,
as a Lender

By: /s/ Jason Lang
Name: Jason Lang
Title: Director

Please select below whether you are an Extending Lender or a Non-Extending Lender:
XExtending Lender
Non-Extending Lender






THE BANK OF NOVA SCOTIA, HOUSTON BRANCH,
as a Lender

By: /s/ Joe Lattanzi
Name: Joe Lattanzi
Title: Managing Director

Please select below whether you are an Extending Lender or a Non-Extending Lender:
XExtending Lender
Non-Extending Lender






CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,
as a Lender

By: /s/ Dixon Schultz
Name: Dixon Schultz
Title: Managing Director

By: /s/ Nimisha Srivastav
Name: Nimisha Srivastav
Title: Director


Please select below whether you are an Extending Lender or a Non-Extending Lender:
XExtending Lender
Non-Extending Lender






CITIBANK, N.A.,
as a Lender

By: /s/ Gabriel Juarez
Name: Gabriel Juarez
Title: Vice President

Please select below whether you are an Extending Lender or a Non-Extending Lender:
XExtending Lender
Non-Extending Lender






Morgan Stanley Senior Funding, Inc.,
as a Lender

By: /s/ Michael King
Name: Michael King
Title: Vice President

Please select below whether you are an Extending Lender or a Non-Extending Lender:
XExtending Lender
Non-Extending Lender






Bank of America, N.A.,
as a Lender

By: /s/ Tommy Nguyen
Name: Tommy Nguyen
Title: Vice President

Please select below whether you are an Extending Lender or a Non-Extending Lender:
XExtending Lender
Non-Extending Lender






PNC BANK, NATIONAL ASSOCIATION,
as a Lender

By: /s/ Kyle T. Helfrich
Name: Kyle T. Helfrich
Title: Senior Vice President

Please select below whether you are an Extending Lender or a Non-Extending Lender:
XExtending Lender
Non-Extending Lender






ROYAL BANK OF CANADA,
as a Lender

By: /s/ Jason S. York
Name: Jason S. York
Title: Authorized Signatory

Please select below whether you are an Extending Lender or a Non-Extending Lender:
XExtending Lender
Non-Extending Lender






Sumitomo Mitsui Banking Corporation,
as a Lender

By: /s/ Jeffrey Cobb
Name: Jeffrey Cobb
Title: Director

Please select below whether you are an Extending Lender or a Non-Extending Lender:
XExtending Lender
Non-Extending Lender






ING Capital LLC,
as a Lender

By: /s/ Juli Bieser
Name: Juli Bieser
Title: Managing Director

By: /s/ Lauren Gutterman
Name: Lauren Gutterman
Title: Vice President


Please select below whether you are an Extending Lender or a Non-Extending Lender:
XExtending Lender
Non-Extending Lender






Credit Suisse AG, New York Branch,
as a Lender

By: /s/ Komal Shah
Name: Komal Shah
Title: Authorized Signatory

By: /s/ Michael Wagner
Name: Michael Wagner
Title: Authorized Signatory


Please select below whether you are an Extending Lender or a Non-Extending Lender:
XExtending Lender
Non-Extending Lender






TRUIST BANK,
as a Lender

By: /s/ Farhan Iqbal
Name: Farhan Iqbal
Title: Director

Please select below whether you are an Extending Lender or a Non-Extending Lender:
XExtending Lender
Non-Extending Lender






The Toronto-Dominion Bank, New York Branch,
as a Lender

By: /s/ Liana Chernysheva
Name: Liana Chernysheva
Title: Authorized Signatory

Please select below whether you are an Extending Lender or a Non-Extending Lender:
XExtending Lender
Non-Extending Lender






MIZUHO BANK, LTD.,
as a Lender

By: /s/ Edward Sacks
Name: Edward Sacks
Title: Executive Director

Please select below whether you are an Extending Lender or a Non-Extending Lender:
XExtending Lender
Non-Extending Lender






REGIONS BANK,
as a Lender

By: /s/ David Valentine
Name: David Valentine
Title: Managing Director

Please select below whether you are an Extending Lender or a Non-Extending Lender:
XExtending Lender
Non-Extending Lender






INTESA SANPAOLO S.p.A., New York Branch,
as a Lender

By: /s/ Alessandro Toigo
Name: Alessandro Toigo
Title: Head of Corporate Desk

By: /s/ Jennifer Feldman Facciola
Name: Jennifer Feldman Facciola
Title: Business Director


Please select below whether you are an Extending Lender or a Non-Extending Lender:
XExtending Lender
Non-Extending Lender






MUFG BANK, Ltd.,
as a Lender

By: /s/ Christopher Facenda
Name: Christopher Facenda
Title: Authorized Signatory

Please select below whether you are an Extending Lender or a Non-Extending Lender:
XExtending Lender
Non-Extending Lender






SCHEDULE I
Extending Loan Commitment
Extending LenderExtended Commitment
Barclays Bank, PLC$ 194,000,000.00
JPMorgan Chase Bank, N.A.$ 194,000,000.00
Bank of America, N.A.$ 194,000,000.00
The Bank of Nova Scotia$ 194,000,000.00
BMO Capital Markets$ 194,000,000.00
Citibank, N.A.$ 194,000,000.00
Mizuho Bank, Ltd.$ 194,000,000.00
MUFG$ 194,000,000.00
PNC Bank, National Association$ 194,000,000.00
Royal Bank of Canada$ 194,000,000.00
Wells Fargo Bank, National Association$ 194,000,000.00
Credit Suisse AG$ 194,000,000.00
Canadian Imperial Bank of Commerce, New York Branch$ 144,000,000.00
Credit Agricole$ 144,000,000.00
Sumitomo Mitsui Banking Corporation$ 144,000,000.00
TD Securities (USA) LLC$ 144,000,000.00
Truist Bank$ 144,000,000.00
ING Capital$ 113,000,000.00
Intesa Sanpaolo S.p.A, New York Branch$ 113,000,000.00
Morgan Stanley Senior Funding, Inc.$ 113,000,000.00
Regions Bank$ 113,000,000.00
TOTAL…………………………………………….$ 3,500,000,000.00





EXHIBIT A
Amended Credit Agreement
[See Attached]



ANNEX A
EXHIBIT 2.03
FORM OF BORROWING REQUEST
Dated __________
Barclays Bank PLC
745 Seventh Avenue, 8th Floor
New York, NY 10019
Attention:  Robert Walsh
Email:  Robert.xa.walsh@barclays.com / ltmny@Barclays.com
Phone:  212-526-6047
Ladies and Gentlemen:
This Borrowing Request is delivered to you by Kinder Morgan, Inc. (the “Borrower”), a Delaware corporation, under Section 2.03 of the Revolving Credit Agreement, dated as of August 20, 2021 (as further restated, amended, modified, supplemented and in effect, the “Credit Agreement”), by and among the Borrower, the Lenders party thereto, Barclays Bank PLC, as Administrative Agent, and the other agents named therein.
1.    The Borrower hereby requests that the Lenders make a [Committed] [Swingline]/1 Loan or Loans in the aggregate principal amount of $______________./2
2.    The Borrower hereby requests that the [Committed] [Swingline] Loan or Loans be made on the following Business Day: ________________./3
3.    The Borrower hereby requests that the Borrowing be [an ABR Borrowing] [a SOFR Borrowing]. /4
4.    In the case of a SOFR Borrowing, the initial Interest Period shall be [one month] [three months] [six months].
5.    The Borrower hereby requests that the funds from the requested Loan or Loans be disbursed to the following bank account: ______________________________.
6.    After giving effect to the requested Loan or Loans, the aggregate Credit Exposures outstanding as of the date hereof (including the requested Loans) does not exceed the maximum amount permitted to be outstanding pursuant to the terms of the Credit Agreement.

1     Items 3 and 4 are not completed for Swingline Loans.
2    Complete with an amount in accordance with Section 2.03 of the Credit Agreement.
3    Complete with a Business Day in accordance with Section 2.03 of the Credit Agreement.
4     If no election as to Type of Borrowing is made for a Committed Loan, the Requested Borrowing shall be an ABR Borrowing.
-1-    Revolving Credit Facility


7.    The representations and warranties set forth in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date hereof (unless such representation and warranty expressly relates to an earlier date).
8.    No Default or Event of Default has occurred and is continuing on the date hereof or would result after giving effect to the Loans requested hereby.
9.    All capitalized undefined terms used herein have the meanings assigned thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Borrowing Request this _____ day of _______________, ______.
KINDER MORGAN, INC.,
as the Borrower
By:
Name:
Title
-2-    Revolving Credit Facility


ANNEX B
EXHIBIT 2.07
FORM OF INTEREST ELECTION REQUEST
Date: [__________], 20[__]

Barclays Bank PLC
745 Seventh Avenue, 8th Floor
New York, NY 10019
Attention:  Robert Walsh
Email:  Robert.xa.walsh@barclays.com / ltmny@Barclays.com
Phone:  212-526-6047
    Re:     Kinder Morgan, Inc. – Interest Election Request

Ladies and Gentlemen:

    Reference is made to the Revolving Credit Agreement, dated as of August 20, 2021 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Kinder Morgan, Inc., a Delaware corporation (the “Borrower”), the Lenders party thereto from time to time, Barclays Bank PLC as Administrative Agent, and the other parties thereto from time to time. Capitalized terms used but not otherwise defined in this Interest Election Request shall have the meanings assigned to such terms in the Credit Agreement.

    1.    Interest Election Request. This Interest Election Request relates to the Borrower’s election to (i) continue a SOFR Borrowing, (ii) convert a SOFR Borrowing or (iii) convert a Base Rate Borrowing on ___________ (the “Interest Election Date”), as indicated below (check each that applies):
             Continuation of SOFR Borrowing.

        Pursuant to Section 2.07 of the Credit Agreement, this Interest Election Request confirms our written election on the date hereof to continue the following outstanding Borrowing comprised of SOFR Loans on the Interest Election Date, as follows:
    
(A)Expiration date of current Interest Period:
(B)Aggregate amount
of outstanding Borrowing:
(C)Aggregate amount to be continued as SOFR Loans:
(D)Elected Interest Period:
    

             Conversion of SOFR Borrowing.

    

-1-    Revolving Credit Facility


    Pursuant to Section 2.07 of the Credit Agreement, this Interest Election Request confirms our written election on the date hereof to convert the following outstanding Borrowing comprised of SOFR Loans to Borrowing(s) comprised of ABR Loans on the Interest Election Date, as follows:

        
(A)Expiration date of current Interest Period:
(B)Aggregate amount
of outstanding Borrowing:
(C)Aggregate amount to be converted to ABR Loans:
            
             Conversion of Base Rate Borrowing.

        Pursuant to Section 2.07 of the Credit Agreement, this Interest Election Request confirms our written election on the date hereof that the following outstanding Borrowing comprised of ABR Loans be converted to a Borrowing comprised of SOFR Loans on the Interest Election Date, as follows:

                
(A)Date of Conversion:
(B)Aggregate amount
of outstanding Borrowing:
(C)Aggregate amount to be converted to SOFR Loans:
(D)Elected Interest Period:

    2.     Certifications. The Borrower hereby represents and warrants to the Lenders that, as of the date of this Interest Election Request and after giving effect to the continuations or conversions being requested under Section 1 hereof, no Default or Event of Default has occurred and is continuing.

[Signature page follows]



-2-    Revolving Credit Facility


IN WITNESS WHEREOF, the undersigned has executed this Interest Election Request this _____ day of ___________________, ____.
KINDER MORGAN, INC.,
as the Borrower
By:
Name:
Title

-3-    Revolving Credit Facility


ANNEX C
EXHIBIT 2.10
FORM OF NOTICE OF PREPAYMENT
Date: _______, ____
To:     Barclays Bank PLC
400 Jefferson Park
Whippany, NJ 07981
Attn: Zbigniew Pecak
Phone: 212-526-9715
Email: jasmin.vazquezdones@barclays.com, 12145455230@tls.ldsprod.com and Zbigniew.pecak@barclays.com

Ladies and Gentlemen:
Reference is made to that certain Revolving Credit Agreement, dated as of August 20, 2021 (as may be amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time in accordance with its terms, the “Credit Agreement”; the terms defined therein being used herein as therein defined), among Kinder Morgan, Inc., a Delaware corporation (the “Borrower”), the Lenders party thereto from time to time, Barclays Bank PLC, as Administrative Agent, and the other parties thereto. All capitalized terms used but not defined herein have the meanings assigned in the Credit Agreement.
This Prepayment Notice is delivered to you pursuant to Section 2.10 of the Agreement. The Borrower hereby gives notice of a prepayment of Loans as follows:
1.(select Class of Loans)
☐ Committed Loans
☐ Swingline Loans
2.    (select Type(s) of Loans)
☐ ABR Loans in the aggregate principal amount of $________.
☐ SOFR Loans with an Interest Period ending ______, 202_ in the aggregate principal amount of $________.
3.    On __________, 202_ (a Business Day).
IN WITNESS WHEREOF, the undersigned have executed this Prepayment Notice this _____ day of _______________, _____.
KINDER MORGAN, INC.,
as the Borrower





By:
Name:
Title
-5-    Revolving Credit Facility

        Execution Version
Exhibit A
$3,500,000,000
REVOLVING CREDIT AGREEMENT
dated as of
August 20, 2021
(as amended by Amendment No. 1 to Credit Agreement and Extension, dated as of December 15, 2022)
among
KINDER MORGAN, INC.,
as the Borrower,
THE LENDERS PARTY HERETO
and
BARCLAYS BANK PLC,
as the Administrative Agent
___________________________________
JPMORGAN CHASE BANK, N.A.,
as the Syndication Agent,
and
BANK OF AMERICA, N.A.,
BANK OF MONTREAL,
CITIBANK, N.A.,
CREDIT SUISSE AG, NEW YORK BRANCH,
MIZUHO BANK, LTD.,
MUFG BANK, LTD.,
PNC BANK, NATIONAL ASSOCIATION,
ROYAL BANK OF CANADA,
THE BANK OF NOVA SCOTIA, HOUSTON BRANCH and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as the Documentation Agents,
_______________________________________________
BARCLAYS BANK PLC,
JPMORGAN CHASE BANK, N.A.,
BMO CAPITAL MARKETS,
CITIBANK, N.A.,
CREDIT SUISSE SECURITIES (USA) LLC,
BOFA SECURITIES, INC.,
MIZUHO BANK, LTD.,
MUFG BANK, LTD.,
PNC CAPITAL MARKETS LLC,
RBC CAPITAL MARKETS,
THE BANK OF NOVA SCOTIA, HOUSTON BRANCH and
WELLS FARGO SECURITIES, LLC,
as the Joint Lead Arrangers and the Joint Book Runners
 


        
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS1
SECTION 1.01Defined Terms1
SECTION 1.02Classification of Loans and Borrowings
2728
SECTION 1.03Accounting Terms; Changes in GAAP
2728
SECTION 1.04Interpretation28
SECTION 1.05Rates
2829
ARTICLE II THE CREDITS29
SECTION 2.01Commitments29
SECTION 2.02Loans and Borrowings
2930
SECTION 2.03Requests for Borrowings
2930
SECTION 2.04Swingline Loans
3031
SECTION 2.05Letters of Credit
3132
SECTION 2.06Funding of Borrowings38
SECTION 2.07Interest Elections
3839
SECTION 2.08Termination and Reduction of Commitments; Mandatory Prepayments
3940
SECTION 2.09Repayment of Loans; Evidence of Debt
4041
SECTION 2.10Voluntary Prepayment of Loans
4142
SECTION 2.11Fees
4243
SECTION 2.12Interest
4344
SECTION 2.13Alternate Rate of Interest44
SECTION 2.14Increased Costs45
SECTION 2.15Break Funding Payments46
SECTION 2.16Taxes47
SECTION 2.17Payments Generally; Pro Rata Treatment; Sharing of Set-offs50
SECTION 2.18Mitigation of Obligations; Replacement of Lenders52
SECTION 2.19Defaulting Lenders53
SECTION 2.20Cash Collateral55
SECTION 2.21Accordion Facilities
5655
SECTION 2.22Extension of Maturity Date56
SECTION 2.23Benchmark Replacement58
ARTICLE III CONDITIONS PRECEDENT
5859
SECTION 3.01Conditions Precedent to the Closing Date
5859
SECTION 3.02Conditions Precedent to Each Credit Event
6061
ARTICLE IV REPRESENTATIONS AND WARRANTIES
6061
    i    Revolving Credit Facility


SECTION 4.01Organization and Qualification
6162
SECTION 4.02Authorization, Validity, Etc
6162
SECTION 4.03Governmental Consents, Etc
6162
SECTION 4.04No Breach or Violation of Agreements or Restrictions, Etc
6162
SECTION 4.05Properties
6162
SECTION 4.06Litigation and Environmental Matters
6162
SECTION 4.07Financial Statements
6263
SECTION 4.08Disclosure
6263
SECTION 4.09Investment Company Act
6364
SECTION 4.10ERISA
6364
SECTION 4.11Tax Returns and Payments
6364
SECTION 4.12Compliance with Laws and Agreements
6465
SECTION 4.13Purpose of Loans
6465
SECTION 4.14Foreign Assets Control Regulations, etc.
6465
SECTION 4.15Solvency.
6465
ARTICLE V AFFIRMATIVE COVENANTS
6465
SECTION 5.01Financial Statements and Other Information
6465
SECTION 5.02Existence, Conduct of Business
6768
SECTION 5.03Payment of Obligations
6768
SECTION 5.04Maintenance of Properties; Insurance
6768
SECTION 5.05Books and Records; Inspection Rights
6768
SECTION 5.06Compliance with Laws
6869
SECTION 5.07Use of Proceeds
6869
SECTION 5.08Additional Guarantors
6869
ARTICLE VI NEGATIVE COVENANTS
6869
SECTION 6.01Indebtedness of Non-Guarantor Subsidiaries
6869
SECTION 6.02Liens
6970
SECTION 6.03Fundamental Changes
7071
SECTION 6.04Restricted Payments
7071
SECTION 6.05Transactions with Affiliates
7071
SECTION 6.06Restrictive Agreements
7172
SECTION 6.07Ratio of Consolidated Net Indebtedness to Consolidated EBITDA
7172
SECTION 6.08Use of Proceeds
7172
ARTICLE VII EVENTS OF DEFAULT
7273
SECTION 7.01Events of Default and Remedies
7273
ARTICLE VIII THE ADMINISTRATIVE AGENT
7475
ii
Revolving Credit Facility


SECTION 8.01Appointment and Authority
7475
SECTION 8.02Rights as a Lender
7475
SECTION 8.03Exculpatory Provisions
7475
SECTION 8.04Reliance by Administrative Agent
7576
SECTION 8.05Delegation of Duties
7576
SECTION 8.06Resignation of Administrative Agent
7677
SECTION 8.07Non-Reliance on Administrative Agent and Other Lenders
7778
SECTION 8.08INDEMNIFICATION
7778
SECTION 8.09No Reliance on Agents or other Lenders
7778
SECTION 8.10Duties of the Syndication Agent, Documentation Agents, Arrangers
7879
SECTION 8.11Certain ERISA Matters
7879
SECTION 8.12Erroneous Payments.
7980
ARTICLE IX MISCELLANEOUS
8081
SECTION 9.01Notices, Etc.
8081
SECTION 9.02Waivers; Amendments; Releases
8283
SECTION 9.03Payment of Expenses, Indemnities, etc.
8384
SECTION 9.04Successors and Assigns Generally
8687
SECTION 9.05Assignments by Lenders
8687
SECTION 9.06Survival; Reinstatement
9091
SECTION 9.07Counterparts; Integration; Effectiveness; Electronic Execution
9091
SECTION 9.08Severability
9091
SECTION 9.09Right of Setoff
9192
SECTION 9.10Governing Law; Jurisdiction; Consent to Service of Process
9192
SECTION 9.11WAIVER OF JURY TRIAL
9293
SECTION 9.12Confidentiality
9293
SECTION 9.13Interest Rate Limitation
9394
SECTION 9.14EXCULPATION PROVISIONS
9394
SECTION 9.15U.S. Patriot Act
9495
SECTION 9.16No Advisory or Fiduciary Responsibility
9495
SECTION 9.17Headings
9596
SECTION 9.18Acknowledgement and Consent to Bail-In of Affected Institutions
9596
iii
Revolving Credit Facility


SCHEDULES:
Schedule 1.01Commitments
Schedule 1.01AExcluded Subsidiaries
Schedule 1.01BExisting Letters of Credit
Schedule 1.01CExisting LC Subsidiaries
Schedule 6.01Existing Non-Guarantor Indebtedness
Schedule 6.05Existing Transactions with Affiliates
Schedule 6.06Existing Restrictive Agreements
EXHIBITS:
Exhibit 1.01-AForm of Assignment and Acceptance
Exhibit 1.01-BForm of Guaranty Agreement
Exhibit 1.01-CForm of Committed Note
Exhibit 1.01-DForm of Swingline Note
Exhibit 2.03 Form of Borrowing Request
Exhibit 2.05Form of Letter of Credit Request
Exhibit 2.07 Form of Interest Election Request
Exhibit 2.10 Form of Notice of Prepayment
Exhibit 2.16-AForm of U.S. Tax Compliance Certificate
Exhibit 2.16-BForm of U.S. Tax Compliance Certificate
Exhibit 2.16-CForm of U.S. Tax Compliance Certificate
Exhibit 2.16-DForm of U.S. Tax Compliance Certificate
Exhibit 2.21Form of New Loan Increase Joinder
Exhibit 5.01 Form of Compliance Certificate
iv
Revolving Credit Facility

        
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT, dated as of August 20, 2021 (this “Agreement”) is among:
(a)    Kinder Morgan, Inc., a Delaware corporation (the “Borrower”);
(b)     the banks, financial institutions and other lenders listed on the signature pages hereof under the caption “Lenders” (the “Lenders” and together with each other Person that becomes a Lender pursuant to Section 2.21(b), Section 2.22(c) or Section 9.05, collectively, the “Lenders”); and
(c)    Barclays Bank PLC, individually as a Lender and as the administrative agent for the Lenders (in such latter capacity together with any other Person that becomes Administrative Agent pursuant to Section 8.08, the “Administrative Agent”).
PRELIMINARY STATEMENTS
The Borrower has requested that the Lenders extend credit to the Borrower in the form of Loans (as defined below) in an aggregate principal amount of $3,500,000,000 to be used by Borrower and its subsidiaries to refinance, in part, that certain revolving credit agreement, dated as of November 16, 2018 (as amended from time to time, the “Existing Credit Agreement”) among the Borrower, the lenders party thereto from time to time and Barclays Bank PLC, as administrative agent and for working capital and general corporate purposes, and the Lenders have indicated their willingness to lend on the terms and subject to the conditions set forth herein (the transactions set forth in this paragraph, the “Transactions”).
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01    Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest at a rate determined by reference to the Alternate Base Rate.
“ABR Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.
Active Arranger Fee Letter” has the meaning specified in Section 2.11(c).
Adjusted LIBO Rate” means, with respect to any Eurodollar Loan for any Interest Period for such Loan, a rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by the Administrative Agent to be equal to the product of (i) the Eurodollar Rate for such Loan for such Interest Period multiplied by (ii) the Reserve Requirement for such Loan for such Interest Period. In no case shall the Adjusted LIBO Rate be less than zero.
“Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted Term SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to be the Floor.
1
Revolving Credit Facility


Administrative Agent” has the meaning specified in the introduction to this Agreement.
Administrative Agent Fee Letter” has the meaning specified in Section 2.11(c).
Administrative Questionnaire” means an Administrative Questionnaire in the form supplied by the Administrative Agent.
Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
Affiliate” of any Person means (i) any Person directly or indirectly controlled by, controlling or under common control with such first Person, (ii) any director or officer of such first Person or of any Person referred to in clause (i) above and (iii) if any Person in clause (i) above is an individual, any member of the immediate family (including parents, siblings, spouse and children) of such individual and any trust whose principal beneficiary is such individual or one or more members of such immediate family and any Person who is controlled by any such member or trust. For purposes of this definition, any Person that owns directly or indirectly 25% or more of the securities having ordinary voting power for the election of directors or other governing body of a corporation or 25% or more of the partnership or other ownership interests of any other Person (other than as a limited partner of such other Person) will be deemed to “control” (including, with its correlative meanings, “controlled by” and “under common control with”) such corporation or other Person. In no event shall the Administrative Agent or any Lender be deemed to an Affiliate of the Borrower of any of its Subsidiaries.
Affiliated Entities” means unconsolidated Subsidiaries of the Borrower and Persons not otherwise constituting Subsidiaries of the Borrower in which the Borrower has an equity investment.
Agreement” has the meaning specified in the introduction to this Agreement (subject, however, to Section 1.04(e) hereof).
Alternate Base Rate” means, for any day, a fluctuating rate per annum equal to the greatest of (a) the Federal Funds Effective Rate in effect on such day plus ½ of 1%, (b) the Prime Rate in effect for such day, and (c) the Adjusted LIBO Rate for a Eurodollar Loan with a one monthTerm SOFR for a one-month Interest Period that beginsin effect on such day (and if such day is not a Business Day, the immediately preceding Business Day) plus 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBOTerm SOFR Rate shall be effective from the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBOTerm SOFR Rate, respectively.
Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or any of its Subsidiaries from time to time concerning or relating to bribery or corruption.
Applicable Commitment Fee Rate” means, at any time and from time to time, the percentage per annum equal to the applicable percentage set forth below for the corresponding Performance Level at such time:
Performance Level
Applicable Commitment
Fee Rate
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Revolving Credit Facility


I0.100%
II0.125%
III0.150%
IV0.200%
V0.250%
The Applicable Commitment Fee Rate shall be determined by reference to the Performance Level in effect from time to time and any change in the Applicable Commitment Fee Rate shall be effective from the effective date of the change in the applicable Performance Level giving rise thereto.
Applicable Margin” means, as to any ABR Borrowing or any EurodollarSOFR Borrowing, as the case may be, at any time and from time to time, a percentage per annum equal to the applicable percentage set forth below for the corresponding Performance Level at such time:
Performance Level
EurodollarSOFR Borrowings
Applicable
Margin Percentage
ABR Borrowings
Applicable
Margin Percentage
I1.000%0.100%
II1.125%0.125%
III1.250%0.250%
IV1.500%0.500%
V1.750%0.750%

The Applicable Margin shall be determined by reference to the Performance Level in effect from time to time, and any change in the Applicable Margin shall be effective from the effective date of any change in the applicable Performance Level giving rise thereto.
Applicable Anniversary” has the meaning specified in Section 2.22(a).
Applicable Percentage” means at any time, for each Lender, the percentage obtained by dividing (a) such Lender’s Commitment by (b) the amount of the Total Commitment, provided that at any time when the Total Commitment shall have been terminated, each Lender’s Applicable Percentage shall be the percentage obtained by dividing (a) such Lender’s Credit Exposure by (b) the aggregate Credit Exposure of all Lenders.
Application” has the meaning specified in Section 2.05(e).
Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
3
Revolving Credit Facility


Arrangers” means Barclays Bank PLC, J.P. Morgan Securities LLC, BofA Securities, Inc., BMO Capital Markets, Citibank, N.A., Credit Suisse Securities (USA) LLC, Mizuho Bank, Ltd., MUFG Bank, Ltd., PNC Capital Markets, LLC, RBC Capital Markets, The Bank of Nova Scotia, Houston Branch and Wells Fargo Securities LLC, as joint lead arrangers and joint book runners.
Assignment and Acceptance” means an assignment and acceptance entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.05), and accepted by the Administrative Agent, in the form of Exhibit 1.01-A or any other form approved by the Administrative Agent.
Auto-Extension Letter of Credit” has the meaning specified in Section 2.05(f).
Availability Period” means the period from the Closing Date to the earlier of (i) the Maturity Date or (ii) the date of termination of the Total Commitment.
Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if the then-currentsuch Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an Interest Periodinterest period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark pursuant to this Agreement, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.23(d).
Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
Benchmark” means, initially, the EurodollarTerm SOFR Reference Rate; provided that if a replacement of the Benchmark Transition Event has occurred pursuant to Section 2.13with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate. Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof pursuant to Section 2.23(a).
Benchmark Replacement” means, for any Available Tenor:
(1) For purposes of clause (i) of Section 2.13(b), the first alternative set forth below that can be determined by the Administrative Agent:
(a) the sum of: (i) Term SOFR and (ii) 0.11448% (11.448 basis points) for an Available Tenor of one-month's duration, 0.26161% (26.161 basis points) for an Available Tenor
4
Revolving Credit Facility


of three-months’ duration, and 0.42826% (42.826 basis points) for an Available Tenor of six-months’ duration, or
(b) the sum of: (i) Daily Simple SOFR and (ii) the spread adjustment selected or recommended by the Relevant Governmental Body for the replacement of the tenor of the Eurodollar Rate with a SOFR-based rate having approximately the same length as the interest payment period specified in clause (a) of this Section; and
(2) For purposes of clause (ii) of Section 2.13(b)“Benchmark Replacement” means, with respect to any Benchmark Transition Event, the sum of: (a) the alternate benchmark rate and (b) an adjustment (which may be a positive or negative value or zero), in each case, that has been selected by the Administrative Agent and the Borrower as the replacement for such Available Tenor of such Benchmark giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for U.S. dollar-denominated for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities at such time and (b) the related Benchmark Replacement Adjustment;
provided that, if thesuch Benchmark Replacement as so determined pursuant to clause (1) or (2) above would be less than the Floor, thesuch Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.
Benchmark Replacement Conforming Changes” means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “ABR,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
5
Revolving Credit Facility


“Benchmark Replacement Date” means a date and time determined by the Administrative Agent in consultation with the Borrower, which date shall be no later than the earliest to occur of the following events with respect to the then-current Benchmark:
(a)    in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(b)    in the case of clause (c) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
(a)    a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
Benchmark Transition Event” means, with respect to any then-current Benchmark other than the Eurodollar Rate, the occurrence of(b)    a public statement or publication of information by or on behalf of the administrator of the then-current Benchmark, thethe regulatory supervisor for the administrator of such Benchmark, the Board of Governors of the (or the published component used in the calculation thereof), the Federal Reserve SystemBoard, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark, announcing or stating that (a) such (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease on a specified date to provide all Available Tenors of such Benchmark, (or such component thereof) permanently or indefinitely,; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark or (b) all Available Tenors of such Benchmark are or will no longer be representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored.(or such component thereof); or
(c)    a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation
6
Revolving Credit Facility


thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Start Date” means, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication).
“Benchmark Unavailability Period” means, the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.23 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.23.
Beneficial Ownership Certification” means a certification regarding beneficial ownership or control as required by the Beneficial Ownership Regulation, which certification shall be substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association.
Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
Benefit Arrangement” means at any time an employee benefit plan within the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and which is maintained or otherwise contributed to by any member of the ERISA Group.
Benefit Plan” means any of (a) an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code to which Section 4975 of the Code applies, and (c) any Person whose assets include (for purposes of the Plan Asset Regulations or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
Board” means the Board of Governors of the Federal Reserve System of the United States of America.
Board of Directors” means, with respect to any Person, the Board of Directors of such Person or any committee of the Board of Directors of such Person duly authorized to act on behalf of the Board of Directors of such Person.
Bond Letter of Credit” means irrevocable letter of credit No. S113181 issued by First Union National Bank (now Wells Fargo) in the original face amount of $24,128,548 for the account of the OLP “B” and for the benefit of Trustee.
7
Revolving Credit Facility


Bonds” means the Port Facility Refunding Revenue Bonds (Enron Transportation Services, L.P. Project) Series 1994 in the original aggregate principal amount of $23,700,000, as issued by the Jackson-Union Regional Port District.
Borrower” has the meaning specified in the introduction to this Agreement.
Borrower Debt Rating” means, with respect to the Borrower as of any date of determination, the rating that has been most recently announced by each of S&P or Moody’s for any non-credit enhanced, unsecured long-term senior debt issued or to be issued by the Borrower. For purposes of the foregoing:
(a)    if, at any time, neither S&P nor Moody’s shall have in effect a Borrower Debt Rating, the Applicable Margin or the Applicable Commitment Fee Rate, as the case may be, shall be set in accordance with Performance Level V under the definition of “Applicable Margin or “Applicable Commitment Fee Rate”, as the case may be;
(b)    if the ratings established by S&P and Moody’s shall fall within different Performance Levels, the Applicable Margin or the Applicable Commitment Fee Rate, as the case may be, shall be based upon the higher rating; provided, however, that, if the lower of such ratings is two or more Performance Levels below the higher of such ratings, the Applicable Margin or the Applicable Commitment Fee Rate, as the case may be, shall be based upon the rating that is one Performance Level higher than the lower rating;
(c)    if any rating established by S&P or Moody’s shall be changed, such change shall be effective as of the date on which such change is announced publicly by the rating agency making such change;
(d)    if S&P or Moody’s shall change the basis on which ratings are established by it, each reference to the Borrower Debt Rating announced by S&P or Moody’s shall refer to the then equivalent rating by S&P or Moody’s, as the case may be.
Borrowing” means (a) a borrowing comprised of Committed Loans of the same Type, made, converted or continued on the same date and, in the case of EurodollarSOFR Loans, as to which a single Interest Period is in effect or (b) a Swingline Loan.
Borrowing Date” means the Business Day upon which any Letter of Credit is to be issued or any Loans are to be made available to the Borrower.
Borrowing Request” has the meaning specified in Section 2.03(a).
Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in Houston, Texas or New York, New York are authorized or required by law to remain closed; provided that, when used in connection with a rate of interest determined by reference to the Eurodollar Rate, the term “Business Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market..
Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
8
Revolving Credit Facility


Capital Stock” means, with respect to any Person, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents (however designated) of such Person’s equity, including (a) all common stock and preferred stock, any limited or general partnership interest and any limited liability company member interest, (b) beneficial interests in trusts, and (c) any other interest or participation that confers upon a Person the right to receive a share of the profits and losses of, or distribution of assets of, the issuing Person.
Cash Collateralize” means, solely for purposes of Sections 2.05(f), 2.19 and 2.20, to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the Issuing Banks or Lenders, as collateral for their respective LC Exposure, cash or deposit account balances or, if the Administrative Agent and each applicable Issuing Bank shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent and each applicable Issuing Bank. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
Cash Equivalents” means (a) securities issued or unconditionally guaranteed by the United States government or any agency or instrumentality thereof, in each case having maturities of not more than 24 months from the date of acquisition thereof; (b) securities issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof or any political subdivision of any such state or any public instrumentality thereof having maturities of not more than 24 months from the date of acquisition thereof and, at the time of acquisition, having an investment grade rating generally obtainable from either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, then from another nationally recognized rating service); (c) commercial paper issued by any Lender or any bank holding company owning any Lender; (d) commercial paper maturing no more than 12 months after the date of creation thereof and, at the time of acquisition, having a rating of at least A-2 or P-2 from either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized rating service); (e) domestic and Eurodollar Rate certificates of deposit or bankers’ acceptances maturing no more than two years after the date of acquisition thereof issued by any Lender or any other bank having combined capital and surplus of not less than $250,000,000 in the case of domestic banks and $100,000,000 (or the equivalent in dollars thereof) in the case of foreign banks; (f) repurchase agreements with a term of not more than 30 days for underlying securities of the type described in clauses (a), (b) and (e) above entered into with any bank meeting the qualifications specified in clause (e) above or securities dealers of recognized national standing; (g) marketable short-term money market and similar funds (i) either having assets in excess of $250,000,000 or (ii) having a rating of at least A-2 or P-2 from either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized rating service); (h) shares of investment companies that are registered under the Investment Company Act of 1940 and substantially all the investments of which are one or more of the types of securities described in clauses (a) through (g) above; and (i) in the case of investments by any Foreign Subsidiary, other customarily utilized high-quality investments in the country where such Foreign Subsidiary is located.
Certain Items” means such items that are required to be included in the calculation of Net Income in accordance with GAAP that either (i) are non-cash or (ii) by their nature are separately identifiable from the Borrower and the Subsidiaries’ normal business operations and are likely to occur only sporadically, and are reflected as such in the Annual Report on Form 10-K of the Borrower or in the Quarterly Report on Form 10-Q of the Borrower, in each case filed with the SEC. For the avoidance of doubt, Certain Items will be unadjusted for noncontrolling interests related thereto.
CFC” means a Person that is a “controlled foreign corporation” within the meaning of Section 957 of the Code.
9
Revolving Credit Facility


Change in Control” means and will be deemed to have occurred if (a) any person, entity or “group” (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended) shall at any time have acquired direct or indirect beneficial ownership of a percentage of the voting power of the outstanding Voting Stock of the Borrower that exceeds 50% of the voting power of all the outstanding Voting Stock of the Borrower; or (b) Continuing Directors shall not constitute at least a majority of the board of directors of the Borrower.
Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
Charges” has the meaning specified in Section 9.13.
Citi” means Citibank Global Markets Inc., Citibank, N.A., Citicorp North America Inc.,
and any of their affiliates.

Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Committed Loans or Swingline Loans.
Closing Date” means the date on which the conditions specified in Section 3.01 are satisfied (or waived in accordance with Section 9.02).
Code” means the Internal Revenue Code of 1986, as amended from time to time.
Commitment” means, with respect to each Lender, the commitment of such Lender to make Committed Loans pursuant to Section 2.01 and to acquire participations in Letters of Credit and Swingline Loans hereunder, expressed as an amount representing the maximum aggregate amount of such Lender’s Credit Exposure hereunder, as such commitment may be reduced or increased from time to time pursuant to the terms hereof. The initial amount of each Lender’s Commitment as of the Closing Date is set forth on Schedule 1.01, or in the Register maintained by the Administrative Agent pursuant to Section 9.05.
Commitment Fee” has the meaning specified in Section 2.11(a).
Committed Letter of Credit” has the meaning specified in Section 2.05(b).
Committed Loan” means a Loan made pursuant to Section 2.03(a).
Committed Note” means a promissory note of the Borrower payable to the order of each Lender, in substantially the form of Exhibit 1.01-C, together with all modifications, extensions, renewals and rearrangements thereof.
Communications” has the meaning specified in Section 9.01(a).
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Revolving Credit Facility


Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
Consolidated Assets” means, at the date of any determination thereof, the total assets of the Borrower and the Subsidiaries as set forth on a consolidated balance sheet of the Borrower and the Subsidiaries for their most recently completed fiscal quarter, prepared in accordance with GAAP.
Consolidated EBITDA” means, for any period (without duplication), the Net Income of the Borrower and the Subsidiaries for such period determined on a consolidated basis in accordance with GAAP, increased (a) (to the extent deducted in determining Net Income for such period) by the sum of (i) all book taxes of the Borrower and the Subsidiaries paid or accrued and reflected in the Annual Report on Form 10-K of the Borrower or in the Quarterly Report on Form 10-Q of the Borrower, in each case filed with the SEC, and the pro rata portion of book taxes attributable to Affiliated Entities (net of the consolidating joint venture partners’ share of such book taxes of such consolidating joint venture), for such period; (ii) Consolidated Interest Expense for such period, (iii) all DD&A of the Borrower and the Subsidiaries and the pro rata portion of DD&A attributable to Affiliated Entities (net of the consolidating joint venture partners’ share of such DD&A of such consolidating joint venture), for such period; (iv) Certain Items charges or losses, and (v) amortization, write-off or write-down of debt discount, capitalized interest and debt issuance costs and commissions, discounts and other fees, charges and expenses associated with any letters of credit or Indebtedness, including in connection with the repurchase or repayment thereof, including any premium and acceleration of fees or discounts and other expenses, minus (b) Certain Items of income or gain which were included in determining such consolidated Net Income for such period; provided, that Consolidated EBITDA shall be calculated after giving pro forma effect to acquisitions of any Person, property, business or asset (to the extent not subsequently sold, transferred, abandoned or otherwise disposed) and any sale, transfer, abandonment or other disposition of any Person, property, business or asset made by the Borrower or any Subsidiary during such period, as if the acquisition, sale, transfer, abandonment or other disposition had been effected on the first date of such period. In the case of any such acquisition of any Person, property, business or assets, any such pro forma adjustment shall be at the Borrower’s option, and in the case of any such sale, transfer, abandonment or other disposition of any Person, property, business or asset, the Borrower may elect not to reflect the pro forma effect of such sale, transfer, abandonment or other disposition in any calculation of Consolidated EBITDA to the extent not constituting a Material Disposition. For purposes hereof, “Material Disposition” means any sale, transfer, abandonment or other disposition (or series of dispositions) of any Person, property, business or asset made by the Borrower or any Subsidiary during such period which accounted for, in the aggregate, more than 2.5% of Consolidated EBITDA during such period (calculated prior to giving effect to such Material Disposition).
Consolidated Interest Expense” means, for any period, the Interest Expense of the Borrower and the Subsidiaries for such period determined on a consolidated basis in accordance with GAAP.
Consolidated Net Indebtedness” means, at the date of any determination thereof, (a) Indebtedness of the Borrower and the Subsidiaries determined on a consolidated basis in accordance with GAAP minus (b) (i) the aggregate cash included in the cash accounts listed on the consolidated balance sheet of the Borrower and the Subsidiaries as at such date and (ii) Cash Equivalents of the Borrower and the Subsidiaries as at such date, in the case of each of clauses (i) and (ii), to the extent the use thereof for application to payment of Indebtedness is not prohibited by any Requirement of Law or any contract to which the Borrower or any of the Subsidiaries is a party.
Consolidated Net Tangible Assets” means, at the date of any determination thereof, Consolidated Tangible Assets after deducting therefrom all current liabilities, excluding (i) any current liabilities that by their terms are extendable or renewable at the option of the obligor thereon to a time
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Revolving Credit Facility


more than 12 months after the time as of which the amount thereof is being computed; and (ii) current maturities of long-term debt, all as set forth, or on a pro forma basis would be set forth, on a consolidated balance sheet of the Borrower and the Subsidiaries for their most recently completed fiscal quarter, prepared in accordance with GAAP.
Consolidated Tangible Assets” means, at the date of any determination thereof, Consolidated Assets after deducting therefrom the value, net of any applicable reserves and accumulated amortization, of all goodwill, trade names, trademarks, patents and other like intangible assets, all as set forth, or on a pro forma basis would be set forth, on a consolidated balance sheet of the Borrower and the Subsidiaries for their most recently completed fiscal quarter, prepared in accordance with GAAP.
Continuing Director” means, at any date, an individual (a) who is a member of the board of directors of the Borrower on the Closing Date, (b) who, as at such date, has been a member of such board of directors for at least the twelve preceding months, or (c) who has been nominated to be a member of such board of directors by, or elected to such board of directors with the approval of, a majority of the other Continuing Directors then in office.
Credit Event” means the making of any Loan or the issuance or extension of any Letter of Credit or any extension of the Maturity Date pursuant to Section 2.22.
Credit Exposure” means, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lender’s Committed Loans and its LC Exposure and its Swingline Exposure at such time.
Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided, that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
DD&A” means depreciation, depletion and amortization (including amortization of goodwill) and the amortization of excess costs of equity investments, determined in accordance with GAAP.
Debtor Relief Laws” means the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.
Default” means any event or condition which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
Defaulting Lender” means, subject to Section 2.19(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within three Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any Issuing Bank, any Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, any Issuing Bank or
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Revolving Credit Facility


any Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) become subject of a Bail-In Action, or (iii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that, for the avoidance of doubt, a Lender shall not be a Defaulting Lender solely by virtue of (i) the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority, or (ii), in the case of a solvent Person, the precautionary appointment of an administrator, guardian, custodian or other similar official by a Governmental Authority under or based on the law of the country where such Person is subject to home jurisdiction supervision if applicable law requires that such appointment not be publicly disclosed, in each of such cases, so long as such ownership interest or such appointment does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.19(b)) upon delivery of written notice of such determination to the Borrower and each Lender.
Dividing Person” has the meaning assigned to such term in the definition of “Division”.
Division” means the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.
Division Successor” means any Person that, upon the consummation of a Division of a Dividing Person, holds all or any portion of the assets, liabilities and/or obligations previously held by such Dividing Person immediately prior to the consummation of such Division. A Dividing Person which retains any of its assets, liabilities and/or obligations after a Division shall be deemed a Division Successor upon the occurrence of such Division.
Documentation Agents” means Bank of America, N.A., Bank of Montreal, Citibank, N.A., Credit Suisse AG, New York Branch, Mizuho Bank, Ltd., MUFG Bank, Ltd., PNC Bank, National Association, Royal Bank of Canada, The Bank of Nova Scotia, Houston Branch and Wells Fargo Bank, National Association, as documentation agents.

dollars” or “$” refers to lawful money of the United States of America.
Domestic Subsidiary” means any Subsidiary of the Borrower organized under the laws of any jurisdiction within the United States.
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Revolving Credit Facility


Early Opt-in Effective Date” means, with respect to any Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Required Lenders.
Early Opt-in Election” means the occurrence of:
(1) a notification by the Administrative Agent to (or the request by the Borrower to the Administrative Agent to notify) each of the other parties hereto that at least ten currently outstanding U.S. dollar-denominated syndicated credit facilities for borrowers having a senior long-term unsecured debt rating without any third-party credit enhancement from S&P or Moody's of not lower than BBB- by S&P and Baa3 by Moody's contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and
(2) the joint election by the Administrative Agent and the Borrower to trigger a fallback from the Eurodollar Rate and the provision by the Administrative Agent of written notice of such election to the Lenders.
EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 9.05(a)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 9.05(a)(iii)).
Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, release or threatened release of any Hazardous Material or to health and safety matters.
ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.
ERISA Group” means the Borrower and all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with the Borrower, are treated as a single employer under Section 414 of the Code or Section 4001(a)(14) of ERISA.
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Revolving Credit Facility


EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest at a rate determined by reference to the Adjusted LIBO Rate.
Eurodollar Rate” means for any Interest Period as to any Eurodollar Loan, (i) the rate per annum determined by the Administrative Agent to be the offered rate which appears on the page of the Reuters Screen which displays the London interbank offered rate administered by ICE Benchmark Administration Limited (such page currently being the LIBOR01 page) (the “LIBO Rate”) for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in dollars, determined as of approximately 11:00 a.m. (London, England time), two Business Days prior to the commencement of such Interest Period, or (ii) in the event the rate referenced in the preceding clause (i) does not appear on such page or service or if such page or service shall cease to be available, the rate determined by the Administrative Agent to be the offered rate on such other page or other service which displays the LIBO Rate for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in Dollars, determined as of approximately 11:00 a.m. (London, England time) two Business Days prior to the commencement of such Interest Period; provided that if LIBO Rates are quoted under either of the preceding clauses (i) or (ii), but there is no such quotation for the Interest Period elected, the LIBO Rate shall be equal to the Interpolated Rate; and provided, further, that if any such rate determined pursuant to the preceding clauses (i) or (ii) is less than zero, the Eurodollar Rate will be deemed to be zero.
Event of Default” has the meaning specified in Section 7.01.
Exchange Act” means the Securities Exchange Act of 1934, as amended.
Excluded Subsidiary” means (i) any Subsidiary that is not a Wholly-owned Domestic Operating Subsidiary, (ii) any Domestic Subsidiary that is a Subsidiary of a CFC or any Domestic Subsidiary (including a disregarded entity for U.S. federal income Tax purposes) substantially all of whose assets (held directly or through Subsidiaries) consist of Capital Stock of one or more CFCs or Indebtedness of such CFCs, (iii) any Immaterial Subsidiary, (iv) any Subsidiary listed on Schedule 1.01A, (v) any other Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent (confirmed in writing by notice to the Borrower), the cost or other consequences (including any adverse Tax consequences) of providing a Guaranty shall be excessive in view of the benefits to be obtained by the Lenders therefrom, (vi) any not-for-profit Subsidiary, (vii) any Subsidiary that is prohibited by a Requirement of Law from providing a Guaranty of the Obligations, and (viii) any Subsidiary acquired by the Borrower and its Subsidiaries after the Closing Date to the extent, and so long as, the financing documentation governing any existing Indebtedness of such Subsidiary (other than Indebtedness created or incurred in anticipation of, or with the intent to circumvent the terms of, this Agreement) that is permitted to survive pursuant to Section 6.01 (and does survive) prohibits such Subsidiary from guaranteeing the Obligations; provided, that notwithstanding the foregoing, any Subsidiary that Guarantees any senior notes or senior debt securities issued by the Borrower shall not constitute an Excluded Subsidiary for so long as such Guarantee is in effect.
Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender,
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Revolving Credit Facility


U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment or becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 2.18(b) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.16, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.16(g) and (d) any U.S. federal withholding Taxes imposed under FATCA.
Existing Credit Agreement” has the meaning specified in the Preliminary Statements to this Agreement.
Existing LC Subsidiary” means OLP “B” and each other Subsidiary of the Borrower set forth on Schedule 1.01C for the account of which an Existing Letter of Credit has been issued.
Existing Letters of Credit” means the letters of credit issued or, in the case of the Bond Letter of Credit, deemed issued, under the Existing Credit Agreement and certain letters of credit issued under a bilateral facility, in each case, listed on Schedule 1.01B.
Existing Subsidiary Letters of Credit” means, collectively, (i) the Bond Letter of Credit and (ii) each other Existing Letter of Credit that has been issued for the account of an Existing LC Subsidiary.
Existing Subsidiary Letters of Credit Guaranteed Obligations” has the meaning specified in Section 2.05(n).
Existing Subsidiary Letters of Credit Guaranty” has the meaning specified in Section 2.05(n).
Extension Consenting Lender” has the meaning specified in Section 2.22(b).
Extension Date” has the meaning specified in Section 2.22(b).
Extension Non-Consenting Lender” has the meaning specified in Section 2.22(b).
FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, and any law, regulation, rule, promulgation, guidance notes, practices or official agreement implementing an intergovernmental agreement, treaty or convention with respect to the foregoing.
FCA” has the meaning specified in Section 2.13(b).
Federal Funds Effective Rate” means, for any day, the rate calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided, that if the Federal Funds Effective Rate for any day is less than zero, the Federal Funds Effective Rate for such day will be deemed to be zero.
16
Revolving Credit Facility


Fee Letters” means, collectively, the Administrative Agent Fee Letter, Active Arranger Fee Letter and Other Commitment Party Fee Letter.
Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the Eurodollar Rate.
“First Amendment Effective Date” means December 15, 2022, the date of effectiveness of that certain Amendment No. 1 to Credit Agreement and Extension.
“First Amendment Extending Lender” means each Lender party hereto whose name is set forth on Schedule I of that certain Amendment No. 1 to Credit Agreement and Extension under the heading “Extending Lenders.”
“First Amendment Non-Extending Lender” means each Lender party hereto whose name is set forth on Schedule I of that certain Amendment No. 1 to Credit Agreement and Extension under the heading “Non-Extending Lenders.”
“Floor” means 0.0%.
Foreign Lender” means any Lender that is not a U.S. Person.
Foreign Subsidiary” means any Subsidiary of the Borrower that is not a Domestic Subsidiary.
Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to any Issuing Bank, such Defaulting Lender’s Applicable Percentage of the outstanding LC Exposure with respect to Letters of Credit issued by such Issuing Bank other than LC Exposure as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof and (b) with respect to any Swingline Lender, such Defaulting Lender’s Applicable Percentage of outstanding Swingline Loans made by such Swingline Lender other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders.
Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
GAAP” means generally accepted accounting principles in the United States of America from time to time, including as set forth in the opinions, statements and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and the Financing Accounting Standards Board.
Governmental Authority” means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra national bodies such as the European Union or the European Central Bank).
Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or
17
Revolving Credit Facility


indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.
Guarantors” means each Person that guarantees the Obligations pursuant to the Guaranty.
Guaranty” means the Guaranty Agreement substantially in the form of Exhibit 1.01-B hereto.
Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
Hedging Agreement” means a financial instrument or security which is used as a cash flow or fair value hedge to manage the risk associated with a change in interest rates, foreign currency exchange rates or commodity prices.
Hybrid Securities” means any trust preferred securities, or deferrable interest subordinated debt with a maturity of at least 20 years, which provides for the optional or mandatory deferral of interest or distributions, issued by the Borrower, or any business trusts, limited liability companies, limited partnerships or similar entities (i) substantially all of the common equity, general partner or similar interests of which are owned (either directly or indirectly through one or more Wholly-owned Subsidiaries) at all times by the Borrower or any of the Subsidiaries, (ii) that have been formed for the purpose of issuing trust preferred securities or deferrable interest subordinated debt, and (iii) substantially all the assets of which consist of (A) subordinated debt of the Borrower or a Subsidiary, and (B) payments made from time to time on the subordinated debt.
IBA” has the meaning specified in Section 2.13(b).
Immaterial Subsidiary” means any Subsidiary that is not a Material Subsidiary.
Increased Amount Date” has the meaning specified in Section 2.21(a).
Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments (other than surety, performance and guaranty bonds), (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect of the deferred purchase price of property or services (excluding trade accounts payable incurred in the ordinary course of business), (e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed (determined as the lesser of the amount of the Indebtedness so secured and such property’s fair market value), (f) all Guarantees by such Person of Indebtedness of others (provided that in the event that any Indebtedness of the Borrower or any
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Revolving Credit Facility


Subsidiary shall be the subject of a Guarantee by one or more Subsidiaries or by the Borrower, as the case may be, the aggregate amount of the outstanding Indebtedness of the Borrower and the Subsidiaries in respect thereof shall be determined by reference to the primary Indebtedness so guaranteed, and without duplication by reason of the existence of any such guarantee), (g) all Capital Lease Obligations of such Person, (h) all obligations of such Person as an account party in respect of (i) the full face amount of all letters of credit (drawn or undrawn) supporting the exposure of such Person under Hedging Agreements and (ii) the drawn portion of all other letters of credit and letters of guaranty, (i) all obligations, contingent or otherwise, of such Person in respect of funded bankers’ acceptances and (j) Hybrid Securities. The Indebtedness of any Person shall include the Indebtedness of any other Person (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor: provided that Indebtedness shall not include (1) non-recourse debt, (2) performance guaranties, (3) monetary obligations or guaranties of monetary obligations of Person as lessees under leases that are in accordance with GAAP, recorded as operating leases (and giving effect to the proviso in Section 1.03), and (4) guarantees by such Person of obligations of others which are not obligations described in clauses (a) through (j) of this definition, and provided further, that where any such indebtedness or obligation of such Person is made jointly, or jointly and severally, with any third party or parties other than any Subsidiary of such Person, the amount thereof for the purpose of this definition only shall be the pro rata portion thereof payable by such Person, so long as such third party or parties have not defaulted on its or their joint and several portions thereof and can reasonably be expected to perform its or their obligations thereunder. For the avoidance of doubt, except as expressly provided in clause (h)(i) above, “Indebtedness” of a Person in respect of such letters of credit shall include, without duplication, only the principal amount of the unreimbursed obligations of such Person in respect of such letters of credit that have been drawn upon by the beneficiaries to the extent of the amount drawn, and shall include no other obligations in respect of such letters of credit.
Indemnified Parties” has the meaning specified in Section 9.03(b).
Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any Obligation and (b) to the extent not otherwise described in (a), Other Taxes.
Indemnity Matters” means, with respect to any Indemnified Party, all losses, liabilities, claims and damages (including reasonable legal fees and expenses).
Interest Election Request” has the meaning specified in Section 2.07(b).
Interest Expense” means (without duplication), with respect to any period for any Person (a) the aggregate amount of interest, whether expensed or capitalized, paid, accrued or scheduled to be paid during such period in respect of the Indebtedness of such Person including (i) the interest portion of any deferred payment obligation; (ii) the portion of any rental obligation in respect of Capital Lease Obligations allocable to interest expenses; and (iii) any non-cash interest payments or accruals, all determined in accordance with GAAP, less (b) Interest Income of such Person for such period.
Interest Income” means, with respect to any period for any Person, interest actually received by such Person during such period.
Interest Payment Date” means (a) with respect to any ABR Loan (including a Swingline Loan), the last Business Day of each March, June, September and December, and (b) with respect to any EurodollarSOFR Loan, the last Business Day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a EurodollarSOFR Borrowing with an Interest Period of more than
19
Revolving Credit Facility


three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period.
Interest Period” means with respect to any EurodollarSOFR Borrowing, the period commencing on the date of such Borrowing and ending (a) on the date that is one week thereafter or (b) on the numerically corresponding day in the calendar month that is one, two, three or six months thereafter (in each case, subject to availability thereof), in each case as the Borrower may elect; provided (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless, in the case of any EurodollarSOFR Borrowing, such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (ii) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period, (iii) no Interest Period shall end after the Stated Maturity Date and (iv) no two month Interest Periodtenor that has been removed from this definition pursuant to Section 2.23(d) shall be available for any Loans made or continued on or after October 31, 2021, and no one week Interest Period shall be available for any Loans made or continued on or after December 24, 2021specification in the applicable Borrowing Request or Interest Election Request. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and, in the case of a EurodollarSOFR Borrowing, thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
Interpolated Rate” means, in relation to the LIBO Rate, the rate which results from interpolating on a linear basis between:
(a) the applicable LIBO Rate for the longest period (for which that LIBO Rate is available) which is less than the Interest Period of that Loan; and
(b) the applicable LIBO Rate for the shortest period (for which that LIBO Rate is available) which exceeds the Interest Period of that Loan,
each as of approximately 11:00 a.m. (London, England time) two Business Days prior to the commencement of such Interest Period of that Loan.
IRS” means the United States Internal Revenue Service.
Issuing Banks” means Barclays Bank PLC, JPMorgan Chase Bank, N.A., Bank of America, N.A., Bank of Montreal, The Bank of Nova Scotia, Citi, Credit Suisse AG, Mizuho Bank, Ltd., MUFG Bank, Ltd., PNC Bank, National Association, Royal Bank of Canada and Wells Fargo in their capacities as issuers of Letters of Credit hereunder, and each other Lender as the Borrower may from time to time select as an Issuing Bank hereunder pursuant to Section 2.05; provided that such Lender has agreed to be an Issuing Bank and the Administrative Agent has consented to such selection.
Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority.
LC Disbursement” means a payment made by an Issuing Bank pursuant to a Letter of Credit.
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Revolving Credit Facility


LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Committed Letters of Credit and Uncommitted Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time.
LC Sublimit” means $500,000,000.
Lenders” has the meaning specified in the introduction to this Agreement. Unless context otherwise requires, the term “Lenders” includes the Swingline Lender.
Letter of Credit” means any Existing Letter of Credit or any letter of credit issued pursuant to this Agreement.
Letter of Credit Commitment” means, with respect to any Issuing Bank, the commitment of such Issuing Bank to issue Letters of Credit hereunder, expressed as an amount representing the maximum aggregate amount of the LC Exposure with respect to Letters of Credit issued by such Issuing Bank as such commitment may be reduced or terminated from time to time pursuant to Section 2.08. The initial amount of each Issuing Bank’s Letter of Credit Commitment is set forth on Schedule 1.01.
Letter of Credit Request” has the meaning specified in Section 2.05(e).
LIBO Rate” shall have the meaning ascribed thereto in the definition of “Eurodollar Rate”.
Lien” means, with respect to any asset (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset.
Loan Documents” mean, collectively, this Agreement, the Guaranty, the Notes, if any, the Applications, the Fee Letters and all other instruments and documents from time to time executed and delivered by the Borrower or the Guarantors in connection herewith and therewith.
Loan Party” means the Borrower and each Guarantor.
Loans” means advances made by the Lenders to the Borrower pursuant to this Agreement.
Material Adverse Effect” means, relative to any occurrence of whatever nature, a material adverse effect on (a) the business assets, liabilities or financial condition of the Borrower and the Subsidiaries taken as a whole, (b) the ability of the Borrower and the Guarantors, taken as a whole, to perform the Obligations or (c) the rights and remedies of the Administrative Agent, any Issuing Bank or any Lender against the Borrower or, taken as a whole, the Guarantors, under any material provision of this Agreement or any other Loan Document.
Material Subsidiary” means, as at any date of determination, any Subsidiary of the Borrower whose total tangible assets (for purposes of the below, when combined with the tangible assets of such Subsidiary’s Subsidiaries, after eliminating intercompany obligations) as at such date of determination are greater than or equal to 5% of Consolidated Tangible Assets as of the last day of the
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Revolving Credit Facility


fiscal quarter most recently ended for which financial statements have been delivered pursuant to Section 5.01(a) or (b) (the “Most Recent Financial Statement Date”), as the case may be; provided that if the aggregate total tangible assets of all Material Subsidiaries is less than 85% of Consolidated Tangible Assets as of the Most Recent Financial Statement Date, the Borrower shall designate Subsidiaries as “Material Subsidiaries” in writing to the Administrative Agent along with the delivery of the applicable financial statements pursuant to Section 5.01(a) or (b) such that the deficit described in this proviso ceases to exist.
Maturity Date” means the earlier of (a) the Stated Maturity Date and (b) the acceleration of the Obligations pursuant to Section 7.01.
Maximum Rate” has the meaning specified in Section 9.13.
Minimum Collateral Amount” means, solely for purposes of Sections 2.19 and 2.20, at any time, (i) with respect to Cash Collateral consisting of cash or deposit account balances, an amount equal to 100% of the Fronting Exposure of all Issuing Banks with respect to Letters of Credit issued and outstanding at such time and (ii) otherwise, an amount determined by the Administrative Agent and the Issuing Banks in their sole discretion.
Moody’s” means Moody’s Investors Service, Inc.
Most Recent Financial Statement Date” has the meaning specified in the definition of Material Subsidiary.
Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
Net Income” means with respect to any Person for any period that net income of such Person for such period determined in accordance with GAAP; provided that there shall be excluded, without duplication, from such net income (to the extent otherwise included therein), the following:
(a)    net extraordinary gains and losses (other than, in the case of losses, losses resulting from charges against net income to establish or increase reserves for potential environmental liabilities and reserves for exposure of such Person under rate cases);
(b)    net gains or losses in respect of dispositions of assets other than in the ordinary course of business;
(c)    any gains or losses attributable to write-ups or write-downs of assets; and
(d)    proceeds of any key man insurance, or any insurance on property, plant or equipment.
Net Worth” means, as to the Borrower at any date, the sum of the amount of shareholders’ equity of the Borrower determined as of such date in accordance with GAAP, provided there shall be excluded, without duplication, from such determination (to the extent otherwise included therein) the amount of accumulated other comprehensive gain or loss as of such date.
New Commitment” has the meaning specified in Section 2.21(a).
New Lender” has the meaning specified in Section 2.21(b).
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Revolving Credit Facility


New Loan” has the meaning specified in Section 2.21(b).
New Loan Increase Joinder” has the meaning specified in Section 2.21(c).
Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 9.02 and (ii) has been approved by the Required Lenders.
Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
Non-Extension Notice Date” has the meaning specified in Section 2.05(f).
Non-Guarantor Subsidiary” has the meaning specified in Section 6.01.
Non-Wholly-owned Subsidiary” means any Subsidiary that is not a Wholly-owned Subsidiary.
Note” means a Committed Note or a Swingline Note.
Notice of Default” has the meaning specified in Section 7.01(l).
Notice of Prepayment” has the meaning specified in Section 2.10(b).
Obligations” means collectively:
(a)    the payment of all indebtedness and liabilities by, and performance of all other obligations of, the Borrower in respect of the Loans;
(b)    all obligations of the Borrower under, with respect to and relating to the Letters of Credit, whether contingent or matured;
(c)    the payment of all other indebtedness and liabilities by and performance of all other obligations of the Borrower to the Administrative Agent, the Issuing Banks and the Lenders under, with respect to, and arising in connection with, the Loan Documents, and the payment of all indebtedness and liabilities of the Borrower to the Administrative Agent, the Issuing Banks and the Lenders for fees, costs, indemnification and expenses (including reasonable attorneys’ fees and expenses) under the Loan Documents;
(d)    the reimbursement of all sums advanced and costs and expenses incurred by the Administrative Agent under any Loan Document (whether directly or indirectly) in connection with the Obligations or any part thereof or any renewal, extension or change of or substitution for the Obligations or, any part thereof, whether such advances, costs and expenses were made or incurred at the request of the Borrower or the Administrative Agent; and
(e)    all renewals, extensions, amendments and changes of, or substitutions or replacements for, all or any part of the items described under clauses (a) through (d) above.
OLP “B”” means Kinder Morgan Operating LLC “B”, a Delaware limited partnership.
Operating Subsidiary” means any operating company that is a Subsidiary of the Borrower.
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Revolving Credit Facility


Other Commitment Party Fee Letter” has the meaning specified in Section 2.11(c).
Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or any Loan Document).
Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.18(b)).
Participant” has the meaning assigned to such term in Section 9.05(c).
Participant Register” has the meaning specified in Section 9.05(c).
Patriot Act” has the meaning specified in Section 9.15.
Payment” has the meaning specified in Section 8.12(a).
Payment Notice” has the meaning specified in Section 8.12(b).
Payment Recipient” has the meaning specified in Section 8.12(a).
PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
Performance Level” means a reference to one of Performance Level I, Performance Level II, Performance Level III, Performance Level IV or Performance Level V.
Performance Level I” means, at any date of determination, that the Borrower shall have a Borrower Debt Rating in effect on such date of at least A- by S&P or at least A3 by Moody’s.
Performance Level II” means, at any date of determination, (a) that the Performance Level does not meet the requirements of Performance Level I and (b) that the Borrower shall have a Borrower Debt Rating in effect on such date of at least BBB+ by S&P or at least Baa1 by Moody’s.
Performance Level III” means, at any date of determination, (a) that the Performance Level does not meet the requirements of Performance Level I or Performance Level II and (b) that the Borrower shall have a Borrower Debt Rating in effect on such date of at least BBB by S&P, or at least Baa2 by Moody’s.
Performance Level IV” means, at any date of determination, (a) that the Performance Level does not meet the requirements of Performance Level I, Performance Level II or Performance Level III and (b) that the Borrower shall have a Borrower Debt Rating in effect on such date of at least BBB- by S&P, or at least Baa3 by Moody’s.
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Revolving Credit Facility


Performance Level V” means, at any date of determination, that the Performance Level does not meet the requirements of Performance Level I, Performance Level II, Performance Level III, or Performance Level IV.
“Periodic Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.
Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any member of its ERISA Group is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
Plan Asset Regulations” means 29 CFR § 2510.3-101 et seq., as modified by Section 3(42) of ERISA, as amended from time to time.
Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent).
Principal Office” means the principal office of the Administrative Agent, presently located in New York, New York, or such other location as designated by the Administrative Agent from time to time.
PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
Recipient” means (a) the Administrative Agent, (b) any Lender and (c) any Issuing Bank, as applicable.
Register” has the meaning specified in Section 9.05(b).
Regulation D” means Regulation D of the Board, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
Regulation T” means Regulation T of the Board, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
Regulation U” means Regulation U of the Board, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
Regulation X” means Regulation X of the Board, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
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Revolving Credit Facility


Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
Relevant Governmental Body” means the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto.
Required Lenders” means, at any time, subject to the provisions of Section 9.02(b), Lenders having Credit Exposure and unused Commitments representing more than 50% of the sum of the total Credit Exposures and unused Commitments at such time.
Requirement of Law” means, as to any Person, any law, statute, code, ordinance, order, determination, rule, regulation, judgment, decree, injunction, franchise, permit, certificate, license, authorization or other directive or requirement (whether or not having the force of law), including Environmental Laws, energy regulations and occupational, safety and health standards or controls, or any applicable Laws of any Governmental Authority that are binding upon such Person or to which any Person is subject.
Reserve Requirement” means, for any day a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentage (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board or other Governmental Authority to which the Administrative Agent is subject with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board). Such reserve percentage shall include those imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulations. The Reserve Requirement shall be adjusted automatically on and as of the effective date of any change in any such reserve percentage.
Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
Responsible Officer” means, as used with respect to the Borrower, the Chairman, Vice Chairman, President, any Vice President, Chief Executive Officer, Chief Financial Officer, Controller or Treasurer of the Borrower.
Restricted Payment” means any dividend or distribution (whether in cash, securities or other property) with respect to any Capital Stock in the Borrower, or any payment (whether in cash, securities or other property), including any deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Capital Stock or any option or other right to acquire any such Capital Stock.
S&P” means Standard & Poor’s Ratings Group, a division of The McGraw-Hill Companies, Inc.
Sanctioned Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the time of this Agreementas of the First Amendment Effective Date, the so-called Donetsk People’s Republic region of Ukraine, the so-called Luhansk People’s Republic region of Ukraine, Crimea, Cuba, Iran, North Korea, and Syria).
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Revolving Credit Facility


Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b).
Sanctions” has the meaning specified in Section 4.14(a).
SEC” means the Securities and Exchange Commission or any Governmental Authority succeeding to its function.
SOFR” means a rate per annum equal to the secured overnight financing rate for such Business Day published by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate) on the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org (or any successor source for the secured overnight financing rate identified as such by the administrator of the secured overnight financing rate from time to time).
“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Borrowing” means, as to any Borrowing, the SOFR Loans comprising such Borrowing.
“SOFR Loan” means a Loan that bears interest at a rate based on Adjusted Term SOFR, other than pursuant to clause (c) of the definition of “Alternate Base Rate”.
Solvent” means, with respect to any Person as of any date, that as of such date, (a)(i) the sum of such Person’s indebtedness (including contingent liabilities) does not exceed the present fair saleable value of such Person’s present assets; (ii) such Person’s capital is not unreasonably small in relation to its business as contemplated on such date; and (iii) such Person has not incurred, and does not intend to incur, or believe that it will incur indebtedness (including current obligations) beyond its ability to pay principal and interest on such indebtedness as it becomes due (whether at maturity or otherwise); and (b) such Person is “solvent” within the meaning given that term and similar terms under applicable laws relating to fraudulent transfers and conveyances. For the purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).
Stated Maturity Date” means, for any Lender, August 20, 2026 subject to the extension thereof for such Lender pursuant to Section 2.22; provided, however, that the Stated Maturity Date of any Lender that is a Non-Consenting Lender to any requested extension pursuant to Section 2.22 shall be the Stated Maturity Date of such Lender in effect immediately prior to the applicable Extension Date for all purposes of this Agreement; for the avoidance of doubt, as of the First Amendment Effective Date, (x) with respect to each First Amendment Non-Extending Lender, August 20, 2026 and (y) with respect to each First Amendment Extending Lender, August 20, 2027.
Subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which
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Revolving Credit Facility


would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity that is, as of such date, otherwise controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent. Unless the context otherwise clearly requires, references in this Agreement to a “Subsidiary” or the “Subsidiaries” refer to a Subsidiary or the Subsidiaries of the Borrower.
Swingline Exposure” means, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall be its Applicable Percentage of the total Swingline Exposure at such time.
Swingline Lender” means Barclays Bank PLC, in its capacity as lender of Swingline Loans hereunder, or any other Lender acceptable to the Borrower and the Administrative Agent, acting in such capacity.
Swingline Loan” means a Loan made pursuant to Section 2.04(a).
Swingline Note” means a promissory note of the Company payable to the Swingline Lender in substantially the form of Exhibit 1.01-D, together with all modifications, extensions, renewals and replacements thereof.
Syndication Agent” means JPMorgan Chase Bank, N.A.
Taxes” means all present or future taxes, levies, imposts, duties, deductions, or withholdings (including backup withholding) assets, fees or other charges imposed by any Governmental Authority including any interest, additions to tax or penalties applicable thereto.
“Term SOFR” means,
(a) for any calculation with respect to a SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and
(b)    for any calculation with respect to an ABR Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “ABR Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any ABR Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was
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Revolving Credit Facility


published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such ABR SOFR Determination Day.
“Term SOFR Adjustment” means a percentage equal to 0.10% per annum.
“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion).
Term SOFR” means, for the applicable corresponding tenor, Reference Rate” means the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
Total Capitalization” means, as to the Borrower at any date, the sum of Consolidated Net Indebtedness (determined at such date) and the Net Worth (determined as at the end of the most recent fiscal quarter of the Borrower for which financial statements pursuant to Section 5.01(a) or Section 5.01(b), as applicable, have been delivered).
Total Commitment” means the sum of the Commitments of the Lenders.
Transactions” has the meaning specified in the Preliminary Statements.
Trustee” means The Bank of New York Mellon Trust Company, N.A., as the beneficiary of the Bond Letter of Credit and any successor beneficiary.
Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted LIBOTerm SOFR Rate or the Alternate Base Rate.
UK Financial Institutions” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
Uncommitted Letter of Credit” has the meaning specified in Section 2.05(b).
United States” and “U.S. each means United States of America.
“U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
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Revolving Credit Facility


U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
U.S. Tax Compliance Certificate” has the meaning specified in Section 2.16(g)(ii)(B)(3).
Voting Stock” means, with respect to any Person, securities of any class or classes of Capital Stock in such Person entitling holders thereof (whether at all times or only so long as no senior class of stock has voting power by reason of any contingency) to vote in the election of members of the Board of Directors or other governing body of such Person or its managing member or its general partner (or its managing general partner if there is more than one general partner).
Wells Fargo” means Wells Fargo Bank National Association.
Wholly-owned Domestic Operating Subsidiary” means any Wholly-owned Subsidiary that constitutes (i) a Domestic Subsidiary and (ii) an Operating Subsidiary.
Wholly-owned Subsidiary” means a Subsidiary of which all issued and outstanding Capital Stock (excluding in the case of a corporation, directors’ qualifying shares) is directly or indirectly owned by the Borrower.
Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
Withholding Agent” means the Administrative Agent and the Borrower.
Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
SECTION 1.02    Classification of Loans and Borrowings. For purposes of this Agreement, Loans and Borrowings may be classified and referred to by Type (e.g., a “EurodollarSOFR Loan” or “EurodollarSOFR Borrowing” or an “ABR Loan” or “ABR Borrowing”).
SECTION 1.03    Accounting Terms; Changes in GAAP. All accounting and financial terms used herein and not otherwise defined herein and the compliance with each covenant contained herein which relates to financial matters shall be determined in accordance with GAAP applied by the Borrower on a consistent basis, except to the extent that a deviation therefrom is expressly stated. Should there be a change in GAAP from that in effect on the Closing Date, such that any of the defined terms set forth in Section 1.01 and/or compliance with the covenants set forth in Article VI would then be calculated in a different manner or with different components or any of such covenants and/or defined terms used therein would no longer constitute meaningful criteria for evaluating the matters addressed thereby prior to such change in GAAP (a) the Borrower and the Required Lenders agree, within the 60-day period following any such change, to negotiate in good faith and enter into an amendment to this
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Revolving Credit Facility


Agreement in order to modify the defined terms set forth in Section 1.01 or the covenants set forth in Article VI, or both, in such respects as shall reasonably be deemed necessary by the Required Lenders that the criteria for evaluating the matters addressed by such covenants are substantially the same criteria as were effective prior to any such change in GAAP, and (b) the Borrower shall be deemed to be in compliance with such covenants during the 60-day period following any such change, or until the earlier date of execution of such amendment, if and to the extent that the Borrower would have been in compliance therewith under GAAP as in effect immediately prior to such change; provided, however, that for the avoidance of doubt, any lease that was accounted for by the Borrower or the Subsidiaries as an operating lease as of December 31, 2018 and any other lease entered into after December 31, 2018 by the Borrower or any Subsidiary shall be accounted for as an operating lease and not a capital lease to the extent that such lease would have been characterized as an operating lease as of such date.
SECTION 1.04    Interpretation. In this Agreement, unless a clear contrary intention appears:
(a)    the singular number includes the plural number and vice versa;
(b)    reference to any gender includes each other gender;
(c)    the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision;
(d)    reference to any Person includes such Person’s successors and assigns but, if applicable, only if such successors and assigns are permitted by this Agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity or individually; provided that nothing in this clause (d) is intended to authorize any assignment not otherwise permitted by this Agreement;
(e)    except as expressly provided to the contrary herein, reference to any agreement, document or instrument (including this Agreement) means such agreement, document or instrument as amended, supplemented or modified, or extended, renewed, refunded, substituted or replaced, and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof, and reference to any Note or other note or Indebtedness or other indebtedness includes any note or indebtedness issued pursuant hereto in extension or renewal or refunding thereof or in substitution or replacement therefor;
(f)    unless the context indicates otherwise, reference to any Article, Section, Schedule or Exhibit means such Article or Section hereof or such Schedule or Exhibit hereto;
(g)    the word “including” (and with correlative meaning “include”) means including, without limiting the generality of any description preceding such term;
(h)    with respect to the determination of any period of time, except as expressly provided to the contrary, the word “from” means “from and including” and the word “to” means “to but excluding”;
(i)    reference to any law, rule or regulation means such as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time; and
(j)    the words “asset” and “property” shall be construed to have the same meaning and effect and refer to any and all tangible and intangible assets and properties.
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Revolving Credit Facility


SECTION 1.05    Rates. The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, (a) the continuation of, administration of, submission of, calculation of or any other matter related to any Benchmark, anyABR, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or any component definition thereof or rates referencedreferred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, such BenchmarkABR, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Benchmark Replacement Conforming Changes. The Administrative Agent and its affiliates or other related entities may engage in transactions that affect the calculation of ABR, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain ABR, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR or any other Benchmark, or any component definition thereof or rates referred to in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

ARTICLE II
THE CREDITS
SECTION 2.01    Commitments.
Subject to the terms and conditions set forth herein, each Lender agrees to make Committed Loans in U.S. dollars to the Borrower from time to time during the Availability Period in an aggregate principal amount that will not result in (i) such Lender’s Credit Exposure exceeding such Lender’s Commitment or (ii) the sum of the total Credit Exposures exceeding the Total Commitment. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Committed Loans.
SECTION 2.02    Loans and Borrowings.
(a)    Each Committed Loan shall be made as part of a Borrowing consisting of Committed Loans denominated in U.S. dollars made by the Lenders, ratably in accordance with their Applicable Percentage of the Total Commitment on the date such Loan is made hereunder. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(b)    Subject to Section 2.13, each Borrowing (other than a Borrowing of Swingline Loans, which must be ABR Loans) shall be comprised entirely of ABR Loans or EurodollarSOFR Loans as the Borrower may request in accordance herewith. Each Lender at its option may make any EurodollarSOFR Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement.
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Revolving Credit Facility


(c)    At the commencement of each Interest Period for any EurodollarSOFR Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $3,000,000. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $1,000,000; provided that an ABR Borrowing may be in an aggregate amount that is equal to the entire unused balance of the Total Commitment or that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(h). Each Swingline Loan shall be in an amount that is an integral multiple of $100,000 and not less than $1,000,000.
(d)    There shall not at any time be more than a total of twelve EurodollarSOFR Borrowings outstanding.
(e)    Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Stated Maturity Date.
SECTION 2.03    Requests for Borrowings.
(a)    To request a Borrowing (other than a Borrowing of a Swingline Loan), the Borrower shall notify the Administrative Agent of such request (which request shall be in writing unless otherwise agreed to by the Administrative Agent) (a) in the case of a EurodollarSOFR Borrowing, not later than 11:00 a.m., New York, New York time, three Business Days before the date of the proposed Borrowing and (b) in the case of an ABR Borrowing, not later than 10:00 a.m., New York, New York, time, on the date of the proposed Borrowing. Each such Borrowing Request shall be irrevocable and shall be made by telecopy or electronic communication (e-mail) to the Administrative Agent of a written Borrowing Request in a form of Exhibit 2.03 (a “Borrowing Request”) and signed by the Borrower. Each such Borrowing Request shall specify the following information in compliance with Section 2.02:
(i)    the aggregate amount of the requested Borrowing;
(ii)    the date of such Borrowing, which shall be a Business Day;
(iii)    whether such Borrowing is to be an ABR Borrowing or a EurodollarSOFR Borrowing;
(iv)    in the case of a EurodollarSOFR Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”; and
(v)    the location and number of the Borrower’s account to which funds are to be disbursed, which shall comply with the requirements of Section 2.06;
If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested EurodollarSOFR Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in accordance with this Section 2.03, the Administrative Agent shall advise each Lender in writing of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.
(b)    To request a Borrowing of a Swingline Loan, the Borrower shall notify the Administrative Agent of such request (which request shall be in writing unless otherwise agreed by the Administrative Agent), not later than 12:00 noon, New York, New York, time, on the day of a proposed
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Revolving Credit Facility


Swingline Loan. Each such notice shall be irrevocable and shall specify (i) the requested date (which shall be a Business Day) of the Swingline Loan, (ii) the amount of the requested Swingline Loan and (iii) the number of the Borrower’s deposit account with the Swingline Lender to which funds are to be disbursed. The Administrative Agent (if not the Swingline Lender) will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the deposit account of the Borrower identified in the notice or otherwise agreed upon by the Borrower and the Swingline Lender from time to time by 3:00 p.m., New York, New York, time, on the requested date of such Swingline Loan.
SECTION 2.04    Swingline Loans.
(a)    Subject to the terms and conditions set forth herein, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date, to make a loan or loans (each a “Swingline Loan” and, collectively, the “Swingline Loans”) to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $50,000,000 or (ii) the sum of the total Credit Exposures exceeding the Total Commitment; provided that (A) each Swingline Loan shall be in a minimum amount of $1,000,000 and shall be repayable in full as provided in Section 2.09, and (B) the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b)    The Swingline Lender may by written notice given to the Administrative Agent not later than 12:00 noon, New York, New York, time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is irrevocable and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or Event of Default or reduction or termination of the Total Commitment, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent for the account of the Lenders and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent for the account of the Lenders; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
SECTION 2.05    Letters of Credit.
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Revolving Credit Facility


(a)    Existing Letters of Credit. The parties hereto acknowledge that on and after the Closing Date, each Existing Letter of Credit shall be a Letter of Credit issued by the Issuing Bank shown as the issuer thereof on Schedule 1.01B for the account of the relevant Existing LC Subsidiary in the case of the Existing Subsidiary Letters of Credit, and for the account of the Borrower in the case of all other Existing Letters of Credit. Any Letter of Credit issued by Wachovia Bank, National Association, or First Union National Bank shall be deemed to be a Letter of Credit issued by Wells Fargo. OLP “B” hereby pledges, assigns, transfers and delivers to Wells Fargo, as the Issuing Bank that has issued the Bond Letter of Credit, all its right, title and interest to all Bonds purchased with funds drawn under the Bond Letter of Credit (the “Pledged Bonds”), and hereby grants to such Issuing Bank a first lien on, and security interest in, its rights, title and interest in and to the Pledged Bonds, the interest thereon and all proceeds thereof or substitutions therefor, as collateral security for the prompt and complete payment when due of the amounts payable in respect of the Bond Letter of Credit. During such time as any Bonds are Pledged Bonds, the Issuing Bank that has issued the Bond Letter of Credit shall be entitled to exercise all of the rights of a holder of Bonds with respect to voting, consenting and directing the Trustee as if such Issuing Bank were the owner of such Bonds, and OLP “B” hereby grants and assigns to such Issuing Bank all such rights.
(b)    General. Subject to the terms and conditions set forth herein, the Borrower may request the issuance, amendment, renewal or extension of Letters of Credit from an Issuing Bank for its own account individually, for its own account and that of any Subsidiary as co-applicants, or, in the case of the Existing Subsidiary Letters of Credit, for the account of the relevant Existing LC Subsidiary, in a form reasonably acceptable to the Administrative Agent and such Issuing Bank, at any time and from time to time during the Availability Period. Subject to the terms and conditions set forth herein, such Issuing Bank shall have an obligation to issue a Letter of Credit (each such Letter of Credit, a “Committed Letter of Credit”), and to amend, renew or extend any Letter of Credit previously issued by it, under this Section 2.05 if, after giving effect to any such issuance, amendment, renewal or extension, (i) the LC Exposure for all Letters of Credit issued by such Issuing Bank would not exceed such Issuing Bank’s Letter of Credit Commitment at such time, (ii) the total LC Exposure would not exceed the LC Sublimit and (iii) the total Credit Exposure does not exceed the Total Commitment. In addition, at the request of the Borrower, an Issuing Bank may in its sole discretion agree to issue, amend, renew, or extend Letters of Credit for the account of the Borrower individually or for its own account and that of any Subsidiary (each such Letter of Credit, an “Uncommitted Letter of Credit”); provided, however, after giving effect to any such issuance, amendment, renewal or extension, (i) the total LC Exposure shall not exceed the LC Sublimit, and (ii) the total Credit Exposure shall not exceed the Total Commitment. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any Application or other agreement submitted by the Borrower to, or entered into by the Borrower with, the Issuing Bank thereof relating to any Letter of Credit, the terms and conditions of this Agreement shall control. All Letters of Credit issued and deemed issued under this Section 2.05 shall constitute utilization of the Total Commitment including the total Letter of Credit Commitments in an amount equal to the LC Exposure relating to such Letters of Credit. All Letters of Credit issued under this Agreement shall be denominated in U.S. dollars. In no event shall any Issuing Bank be required to issue any Letter of Credit other than a stand-by Letter of Credit.
(c)    No Issuing Bank shall be under any obligation to issue any Letter of Credit if:
(i)    any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing such Letter of Credit, or any Law applicable to such Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuing Bank shall prohibit, or request that such Issuing Bank refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital requirement (for which
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Revolving Credit Facility


such Issuing Bank is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such Issuing Bank in good faith deems material to it;
(ii)    the issuance of such Letter of Credit would violate one or more policies of such Issuing Bank applicable to letters of credit generally;
(iii)    except as otherwise agreed by the Administrative Agent and such Issuing Bank, such Letter of Credit is in an initial stated amount less than $10,000;
(iv)    such Letter of Credit is to be denominated in a currency other than U.S. dollars;
(v)    such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or
(vi)    any Lender is at such time a Defaulting Lender, unless such Issuing Bank has entered into arrangements, including reallocation of such Lender’s Applicable Percentage of the outstanding LC Exposure pursuant to Section 2.19(a)(iv) or the delivery of Cash Collateral, satisfactory to such Issuing Bank (in its sole discretion) with the Borrower or such Lender to eliminate such Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.19(a)(iv)) with respect to such Lender arising from either the Letter of Credit then proposed to be issued or such Letter of Credit and all other LC Exposure as to which such Issuing Bank has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(d)    No Issuing Bank shall be under any obligation to amend or extend any Letter of Credit if (A) such Issuing Bank would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment thereto.
(e)    Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication (e-mail), if arrangements for doing so have been approved by the designated Issuing Bank) to the designated Issuing Bank and the Administrative Agent not less than five Business Days (or such lesser number as may be otherwise acceptable to such Issuing Bank) in advance of the requested date of issuance, amendment, renewal or extension) a notice (a “Letter of Credit Request”) requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, the date of issuance, amendment, renewal or extension, the date on which such Letter of Credit is to expire (which shall comply with Section 2.05(f)), the amount of such Letter of Credit, the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. If requested by the Issuing Bank that has been requested to issue such Letter of Credit, the Borrower also shall submit a letter of credit application on such Issuing Bank’s standard form (an “Application”), appropriately completed and signed by a Responsible Officer of the Borrower and including agreed-upon draft language for such Letter of Credit reasonably acceptable to the applicable Issuing Bank, in connection with any request for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or extended only if, after giving effect to such issuance, amendment, renewal or extension, (i) at any time prior to the Stated Maturity Date (A) the sum of the total Credit Exposures at any time shall not exceed the Total Commitment, (B) the LC Exposure in respect of Committed Letters of Credit issued by any Issuing Bank shall not exceed the Letter of Credit Commitment of such Issuing Bank and (C) the total LC Exposure shall not exceed the LC Sublimit, and (ii) at any time on and after the Stated Maturity Date, no Lender shall have any Credit Exposure or LC Exposure. Upon the issuance,
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Revolving Credit Facility


amendment, renewal or extension of each Letter of Credit, the Issuing Bank that has issued such Letter of Credit will notify the Administrative Agent, who, in turn, will notify the Lenders, of the amount and type of such Letter of Credit that is issued, amended, renewed or extended pursuant to this Agreement.
(f)    Expiration Date. Each Letter of Credit (other than the Bond Letter of Credit) shall expire at or prior to the close of business on the earlier of (i) the date one year after the date of the issuance of such Letter of Credit (unless the Issuing Bank issuing such Letter of Credit otherwise agrees in its sole discretion) and (ii) five Business Days prior to the Stated Maturity Date (except to the extent Cash Collateralized or backstopped pursuant to arrangements satisfactory to the relevant Issuing Bank when required in accordance with Section 2.05(l)). If the Borrower so requests in any applicable Letter of Credit Request, the Issuing Bank may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the Issuing Bank to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Issuing Bank, the Borrower shall not be required to make a specific request to the Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the Issuing Bank to permit the extension of such Letter of Credit at any time to an expiry date not later than the five Business Days prior to the Stated Maturity Date; provided, however, that (i) the Issuing Bank shall not permit any such extension if the Issuing Bank has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (e) of this Section 2.05 or otherwise pursuant to the terms hereof) and (ii) an Issuing Bank may permit the extension of such Letter of Credit to an expiry date that is later than the five Business Days prior to the Stated Maturity Date (but in any case to a date that is no later than twelve months since the expiry date as of the last auto-extension), provided that such Letter of Credit is Cash Collateralized or otherwise backstopped pursuant to arrangements satisfactory to the relevant Issuing Bank when required in accordance with Section 2.05(l).
(g)    Participations. On the Closing Date, with respect to the Existing Letters of Credit and by the issuance of each other Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Banks or the Lenders, the Issuing Bank that has issued such Letter of Credit hereby grants to each Lender, and each Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of such Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed by the Borrower on the date due as provided in Section 2.05(h), or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is irrevocable and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or an Event of Default or reduction or termination of the Total Commitment, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
(h)    Reimbursement. If any Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative Agent (whether from its own funds or with the proceeds of Committed Loans) an amount equal to such LC Disbursement not later than 12:00 noon, New York, New York, time, on the Business Day immediately following the day that the Borrower receives notice of such LC Disbursement; provided
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that if the Borrower fails to make such payment when due, then, upon demand by such Issuing Bank sent to the Administrative Agent and each Lender before 10:00 a.m., New York, New York, time, each Lender shall pursuant to Section 2.06 on the same day make available to the Administrative Agent for delivery to such Issuing Bank, immediately available funds in an amount equal to such Lender’s Applicable Percentage of the amount of such payment by such Issuing Bank, and the funding of such amount shall be treated as the funding of an ABR Loan by such Lender to the Borrower. Notwithstanding anything herein or in any other Loan Document to the contrary, the funding obligations of the Lenders set forth in this Section 2.05(h) shall be binding regardless of whether or not a Default or an Event of Default shall exist or the other conditions precedent in Article III are satisfied at such time. If and to the extent any Lender fails to effect any payment due from it under this Section 2.05(h) to the Administrative Agent, then interest shall accrue on the obligation of such Lender to make such payment from the date such payment became due to the date such obligation is paid in full at a rate per annum equal to the Federal Funds Effective Rate. The failure of any Lender to pay its Applicable Percentage of any payment under any Letter of Credit shall not relieve any other Lender of its obligation hereunder to pay to the Administrative Agent its Applicable Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Lender shall be responsible for the failure of any other Lender to pay to the Administrative Agent such other Lender’s Applicable Percentage of any such payment.
(i)    Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as provided in Section 2.05(h) shall, to the extent permitted by law, be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of:
(i)    any lack of validity or enforceability of any Letter of Credit, this Agreement or any other Loan Document, or any term or provision herein or therein;
(ii)    any amendment or waiver of or any consent to departure from all or any of the provisions of any Letter of Credit, this Agreement or any other Loan Document;
(iii)    the existence of any claim, setoff, defense or other right that any Loan Party, any Affiliate of any Loan Party or any other Person may at any time have against the beneficiary under any Letter of Credit, any Issuing Bank, the Administrative Agent or any Lender or any other Person, whether in connection with this Agreement or any other related or unrelated agreement or transaction;
(iv)    any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect;
(v)    payment by any Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit; and
(vi)    any other act or omission to act or delay of any kind of the Issuing Banks, the Lenders, the Administrative Agent or any other Person or any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.05, constitute a legal or equitable discharge of either Borrower’s obligations hereunder.
Neither the Administrative Agent, the Lenders nor the Issuing Banks, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder, including any of the
38
Revolving Credit Facility


circumstances specified in clauses (i) through (vi) above, as well as any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of any Issuing Bank; provided that the foregoing shall not be construed to excuse any Issuing Bank from liability to the Borrower (or, in the case of the Existing Subsidiary Letters of Credit, the relevant Existing LC Subsidiary) to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by each Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by such Issuing Bank’s failure to exercise the agreed standard of care (as set forth below) in determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that each Issuing Bank shall have exercised the agreed standard of care in the absence of gross negligence, willful misconduct or unlawful conduct on the part of such Issuing Bank. Without limiting the generality of the foregoing, it is understood that each Issuing Bank may accept documents that appear on their face to be in substantial compliance with the terms of a Letter of Credit, without responsibility for further investigation, regardless of any notice or information to the contrary, and may make payment upon presentation of documents that appear on their face to be in substantial compliance with the terms of such Letter of Credit; provided that each Issuing Bank shall have the right, in its sole discretion, to decline to accept such documents and to make such payment if such documents are not in strict compliance with the terms of such Letter of Credit.
(j)    Disbursement Procedures. Each Issuing Bank shall, within the period stipulated by the terms and conditions of the applicable Letter of Credit, following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit issued by it. After such examination and provided drawing document(s) is/are compliant in accordance with clause (i) above, each Issuing Bank shall promptly notify the Administrative Agent and the Borrower and, in the case of the Existing Subsidiary Letters of Credit, the relevant Existing LC Subsidiary, by telephone (confirmed by telecopy) or by electronic communication (e-mail) of such demand for payment and whether such Issuing Bank has made or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse such Issuing Bank and the Lenders with respect to any such LC Disbursement.
(k)    Interim Interest. If any Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date specified in Section 2.05(h), the unpaid amount thereof shall bear interest, for each day from the date such LC Disbursement is made to the date that the Borrower reimburses such LC Disbursement (or all Lenders make the payments to the Administrative Agent contemplated by Section 2.05(h) and treated pursuant to said Section as constituting the funding of ABR Loans), at the rate per annum then applicable to ABR Committed Loans.
(l)    Cash Collateralization. If (i) any Event of Default shall occur and be continuing, on the Business Day that the Borrower receives notice from the Administrative Agent or the Required Lenders (or, if the maturity of the Loans has been accelerated, Lenders with LC Exposure representing greater than 51% of the total LC Exposure) demanding the deposit of cash collateral pursuant to this paragraph or (ii) any Letter of Credit remains outstanding on the fifth Business Day prior to the Stated Maturity Date, the Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders, an amount in cash equal to the LC Exposure as of such date plus any accrued and unpaid interest thereon; provided that the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or notice of any kind, upon (A) the occurrence of any event described in the foregoing clauses (i) or (ii) or (B) the occurrence of any Event of Default with respect to the Borrower described in clause (g) or (h) of Section 7.01. Such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the obligations of the Borrower under this Agreement and
39
Revolving Credit Facility


the other Loan Documents. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest earned on the investment of such deposits (which investments shall be made at the option and sole discretion of the Administrative Agent, but only in investments rated at least AA (or equivalent) by at least one nationally recognized rating agency) such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account and may, subject to the immediately preceding sentence be reinvested from time to time. Moneys in such account shall be applied by the Administrative Agent to reimburse each Issuing Bank for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of Lenders with LC Exposure representing greater than 51% of the total LC Exposure), be applied to satisfy other obligations of the Borrower under this Agreement and the other Loan Documents. If the Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three Business Days after all Events of Default have been cured or waived. If the Borrower is required to provide an amount of cash collateral hereunder as a result of any Letter of Credit remaining outstanding on the fifth Business Day prior to the Stated Maturity Date, then such cash collateral or portion thereof shall be released promptly following: (i) the elimination of the applicable LC Exposure, (ii) the Administrative Agent’s good faith determination that there exists excess cash collateral, or (iii) the extension of the Stated Maturity Date to a date that is more than five Business Days later than the expiry date of the applicable Letter of Credit.
(m)    Designation. In addition the Borrower and any Issuing Bank, with the written consent of the applicable Issuing Bank and notice to the Administrative Agent and the Lenders, may designate letters of credit issued by such Issuing Bank that were not originally issued under this Agreement as Letters of Credit issued hereunder, so long as, at the time of such designation, (i) the Borrower would have been able to deliver a Letter of Credit Request with respect to a Letter of Credit hereunder containing the same terms as such letter of credit that was so designated, (ii) such Issuing Bank would have been required to issue a Letter of Credit hereunder containing the same terms as such letter of credit that was so designated and (iii) all the conditions to a credit extension set forth in Section 3.02 have been met immediately prior to such designation. Upon such designation in accordance with the foregoing, such designated letter of credit of such Issuing Bank shall be deemed to be a Letter of Credit issued by such Issuing Bank hereunder.
(n)    Existing Subsidiary Letters of Credit Guaranty. Notwithstanding that each Existing Subsidiary Letter of Credit is in support of obligations of, and is for the account of, a Subsidiary, the Borrower shall be obligated to reimburse the Issuing Bank hereunder for any and all drawings under such Existing Subsidiary Letter of Credit in accordance with Section 2.05(h). Notwithstanding the foregoing, to the extent that the Borrower is not treated as the primary obligor for the reimbursement of such Existing Subsidiary Letter of Credit pursuant to the relevant documentation for such Existing Subsidiary Letter of Credit, the Debtor Relief Laws, any other applicable Laws or otherwise, the Borrower hereby absolutely, unconditionally and irrevocably guarantees (this “Existing Subsidiary Letters of Credit Guaranty”) the punctual payment and performance when due, whether at stated maturity, by acceleration or otherwise, of the obligations of the Existing LC Subsidiaries under the Existing Subsidiary Letters of Credit, whether for principal, interest (including interest accruing or becoming owing both prior to and subsequent to the commencement of any proceeding against or with respect to the Existing LC Subsidiaries under any Debtor Relief Laws, fees, commissions, expenses (including reasonable attorneys’ fees and expenses) or otherwise (all such obligations being the “Existing Subsidiary Letters of Credit Guaranteed Obligations”). The Borrower agrees to pay any and all expenses incurred by each Lender, the Issuing Bank and the Administrative Agent in enforcing this Existing Subsidiary Letters of Credit Guaranty against the Borrower. This Existing Subsidiary Letters of Credit Guaranty is an
40
Revolving Credit Facility


absolute, unconditional, present and continuing guaranty of payment and not of collectability and is in no way conditioned upon any attempt to collect from the Existing LC Subsidiaries or any other action, occurrence or circumstance whatsoever. The Borrower agrees that, to the maximum extent permitted by applicable law, the Existing Subsidiary Letters of Credit Guaranteed Obligations may be extended or renewed, and indebtedness thereunder repaid and reborrowed in whole or in part, without notice to or assent by the Borrower, and that it will remain bound upon this Existing Subsidiary Letters of Credit Guaranty notwithstanding any extension, renewal or other alteration of any Existing Subsidiary Letters of Credit Guaranteed Obligations, or any repayment and reborrowing of Loans. To the maximum extent permitted by applicable law, except as otherwise expressly provided in this Agreement or any other Loan Document to which the Borrower is a party, the obligations of the Borrower under this Existing Subsidiary Letters of Credit Guaranty shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms hereof under any circumstances whatsoever. The Borrower hereby waives promptness, diligence, notice of acceptance and any other notice with respect to any of the Existing Subsidiary Letters of Credit Guaranteed Obligations and this Existing Subsidiary Letters of Credit Guaranty and waives presentment, demand for payment, notice of intent to accelerate, notice of dishonor or nonpayment and any requirement that the Administrative Agent or any Lender institute suit, collection proceedings or take any other action to collect the Existing Subsidiary Letters of Credit Guaranteed Obligations, including any requirement that the Administrative Agent or any Lender exhaust any right or take any action against the Existing LC Subsidiaries or any other Person or any collateral (it being the intention of the Administrative Agent, the Lenders and the Borrower that this Existing Subsidiary Letters of Credit Guaranty is to be a guaranty of payment and not of collection). It shall not be necessary for the Administrative Agent or any Lender, in order to enforce any payment by the Borrower hereunder, to institute suit or exhaust its rights and remedies against the Existing LC Subsidiaries or any other Person, including others liable to pay any Existing Subsidiary Letters of Credit Guaranteed Obligations, or to enforce its rights against any security ever given to secure payment thereof. The Borrower hereby expressly waives to the maximum extent permitted by applicable law each and every right to which it may be entitled by virtue of the suretyship laws of the State of New York or any other state in which it may be located, including any and all rights it may have pursuant to Rule 31, Texas Rules of Civil Procedure, Section 17.001 of the Texas Civil Practice and Remedies Code and Chapter 34 of the Texas Business and Commerce Code.
SECTION 2.06    Funding of Borrowings.
(a)    Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 2:00 p.m., New York, New York time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders; provided that Swingline Loans shall be made as provided in Section 2.04. The Borrower hereby irrevocably authorizes the Administrative Agent to disburse the proceeds of each Borrowing requested pursuant to Section 2.03 in immediately available funds by crediting or wiring such proceeds to the deposit account of the Borrower identified in the Borrowing Request or otherwise agreed upon by the Borrower and the Administrative Agent from time to time; provided that ABR Committed Loans made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(g) and (h) shall be remitted by the Administrative Agent to the Issuing Bank that made such LC Disbursement.
(b)    Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing (or prior to 11:00 a.m., New York, New York, time, on such date in the case of an ABR Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s Applicable Percentage of such Borrowing, the Administrative Agent may assume that such Lender has made such Applicable Percentage of such Borrowing available on such date in accordance with Section 2.06(a) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its Applicable Percentage of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower
41
Revolving Credit Facility


severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from the date such amount is made available to the Borrower to the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, or (ii) in the case of the Borrower, the interest rate applicable to ABR Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
SECTION 2.07    Interest Elections.
(a)    Subject to Section 2.13, each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a EurodollarSOFR Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, subject to Section 2.13, the Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a EurodollarSOFR Borrowing, may elect Interest Periods therefor, all as provided in this Section 2.07. The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing. This Section 2.07 shall not apply to Swingline Borrowings, which may not be converted or continued.
(b)    To make an election pursuant to this Section 2.07, the Borrower shall notify the Administrative Agent of such election (which notification shall be in writing unless otherwise agreed to by the Administrative Agent) by the time that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such Interest Election Request shall be irrevocable and shall be made by telecopy or by electronic communication (e-mail) to the Administrative Agent of an Interest Election Request in the form of Exhibit 2.07 (an “Interest Election Request”).
(c)    Each Interest Election Request shall specify the following information in compliance with Section 2.02:
(i)    the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);
(ii)    the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(iii)    whether the resulting Borrowing is to be an ABR Borrowing or a EurodollarSOFR Borrowing; and
(iv)    if the resulting Borrowing is a EurodollarSOFR Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period”.
42
Revolving Credit Facility


If any such Interest Election Request requests a EurodollarSOFR Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.
(d)    Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender in writing of the details thereof and of such Lender’s portion of each resulting Borrowing.
(e)    If the Borrower fails to deliver a timely Interest Election Request with respect to a EurodollarSOFR Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if and so long as an Event of Default is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, then so long as an Event of Default has occurred and is continuing (i) no outstanding Borrowing may be converted to or continued as a EurodollarSOFR Borrowing, and (ii) unless repaid, each EurodollarSOFR Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.08    Termination and Reduction of Commitments; Mandatory Prepayments.
(a)    Unless previously terminated, the Total Commitment shall terminate on the Maturity Date.
(b)    The Borrower may at any time terminate, or from time to time reduce, the Total Commitment or the Letter of Credit Commitments, in whole or in part; provided that (i) each partial reduction of the Total Commitment or Letter of Credit Commitments shall be in an amount that is an integral multiple of $1,000,000 and not less than $5,000,000, (ii) the Borrower shall not terminate or reduce the Commitments if, after giving effect to any concurrent prepayment of the Loans in accordance with Section 2.10, the total Credit Exposures would exceed the Total Commitment and (iii) the Borrower shall not terminate or reduce the Letter of Credit Commitments if, after giving effect to such termination or reduction, (A) the total LC Exposure would exceed the total Letter of Credit Commitments as so reduced or (B) the LC Exposure of any Issuing Bank would exceed its Letter of Credit Commitment.
(c)    The Borrower shall notify the Administrative Agent of any election to terminate or reduce the Total Commitment or the Letter of Credit Commitments under Section 2.08(a) at least three Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section 2.08 shall be irrevocable; provided that a notice of termination of the Total Commitment or the Letter of Credit Commitments delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities or other event, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of the Total Commitment or the Letter of Credit Commitments shall be permanent. Except as expressly provided in Section 2.19, each reduction of the Total Commitment shall be made ratably among the Lenders in accordance with their Applicable Percentages.
SECTION 2.09    Repayment of Loans; Evidence of Debt.
(a)    The Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Committed Loan on the
43
Revolving Credit Facility


Maturity Date and (ii) to the Swingline Lender the then unpaid principal amount of each Swingline Loan not later than seven days after the date such Swingline Loan is made. In addition, if the total Credit Exposures exceeds the Total Commitment, the Borrower shall pay to the Administrative Agent for the account of each Lender an aggregate principal amount of Committed Loans or Swingline Loans sufficient to cause the total Credit Exposures not to exceed the Total Commitment; provided, however, if the repayment of the outstanding Committed Loans and/or Swingline Loans does not cause the total Credit Exposures, to be equal to or less than the Total Commitment, the Borrower shall deposit in an account with the Administrative Agent in the name of the Administrative Agent and for the benefit of the Lenders, an amount in cash equal to the amount by which the total Credit Exposures exceeds the Total Commitment, which cash deposit shall be held by the Administrative Agent for the payment of the Obligations of the Borrower under this Agreement and the other Loan Documents. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account other than any interest earned on the investment of such deposit (which investments shall be made at the option and sole discretion of the Administrative Agent, but only in investments rated at least AA (or equivalent) by at least one nationally recognized rating agency, unless an Event of Default shall have occurred and be continuing, and in any event at the Borrower’s risk and expense). Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to reimburse each Issuing Bank for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such time, or if the maturity of the Loans has been accelerated (but subject to the consent of the Lenders with LC Exposure representing greater than 51% of the total LC Exposure), be applied to satisfy other obligations of the Borrower under this Agreement and the other Loan Documents. At any time when the sum of the total Credit Exposures does not exceed the Total Commitment and so long as no Default under Section 7.01(b) or Event of Default shall then exist, upon the request of the Borrower the amount of such deposit (to the extent not applied as aforesaid) shall be returned to the Borrower within three Business Days after receipt of such request.
(b)    Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.
(c)    The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.
(d)    The entries made in the accounts maintained pursuant to Section 2.09(b) or (c) shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error or conflict therein shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement.
(e)    Any Lender may request that Loans made by it be evidenced by a Committed Note or a Swingline Note, as applicable. In such event, the Borrower shall prepare, execute and deliver to such Lender a Committed Note or a Swingline Note, as applicable. Thereafter, the Loans evidenced by such Committed Note and interest thereon shall at all times (including after assignment pursuant to Section 9.05) be represented by one or more Committed Notes in such forms payable to the payee named therein.
44
Revolving Credit Facility


SECTION 2.10    Voluntary Prepayment of Loans.
(a)    The Borrower shall have the right at any time and from time to time to prepay any Borrowing in whole or in part, subject to prior notice in accordance with Section 2.10(b).
(b)    The Borrower shall notify the Administrative Agent (or, in the case of prepayment of a Swingline Loan, the Swingline Lender) (which notice shall be made in writing by telecopy or electronic communication (e-mail) in the form of Exhibit 2.10 (a “Notice of Prepayment”)) of any prepayment hereunder (i) in the case of prepayment of a EurodollarSOFR Borrowing, not later than 11:00 a.m., New York, New York time, three Business Days before the date of prepayment, (ii) in the case of prepayment of an ABR Borrowing (other than Swingline Loans), not later than 11:00 a.m., New York, New York time, one Business Day prior to the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 11:00 a.m., New York, New York time on the date of the prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, Type and the principal amount of each Borrowing or portion thereof to be prepaid; provided that, if a notice of prepayment is given in connection with a conditional notice of termination of the Total Commitment as contemplated by Section 2.08, then such notice of prepayment may be revoked if such notice of termination of the Total Commitment is revoked in accordance with Section 2.08. Each partial prepayment shall be in an aggregate amount not less than, and shall be an integral multiple of, the amounts shown below with respect to the applicable Type of Loan or Borrowing:
Type of
Loan/Borrowing
Integral
Multiple of
Minimum
Aggregate Amount
EurodollarSOFR Borrowing
$1,000,000$3,000,000
ABR Borrowing$1,000,000$1,000,000
Swingline Loan$100,000$1,000,000

Promptly following receipt of any such notice relating to a Borrowing, the Administrative Agent shall advise the Lenders in writing of the contents thereof. If the Borrower fails to designate the Type of Borrowings to be prepaid, partial prepayments shall be applied first to the outstanding Swingline Loans until the outstanding principal amount of all Swingline Loans is repaid in full, then to the outstanding ABR Borrowings until the outstanding principal amount of all ABR Borrowings is repaid in full, and then to the outstanding principal amount of EurodollarSOFR Borrowings. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02. Each prepayment of a Borrowing shall be applied to the Loans included in the prepaid Borrowing in accordance with the Lenders’ Applicable Percentage of such Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
SECTION 2.11    Fees.
(a)    The Borrower agrees to pay to the Administrative Agent for the account of each Lender (other than a Defaulting Lender) a commitment fee (the “Commitment Fee”), which shall be equal to (a) the Applicable Commitment Fee Rate times (b) the daily average undrawn portion of the such Lender’s Commitment (it being understood that (i) such Lender’s Applicable Percentage of the face amount of Letters of Credit issued and outstanding shall be considered a drawn portion of such Lender’s Commitment for such purpose and (ii) such Lender’s Swingline Exposure shall be excluded from the drawn portion of such Lender’s Commitment for such purpose), during the period from the Closing Date
45
Revolving Credit Facility


to the later of (i) the date on which such Commitment terminates and (ii) the date on which the Loans are paid in full; provided that, if such Lender continues to have any Credit Exposure after its Commitment terminates, then such Commitment Fee shall continue to accrue on the daily amount of such Lender’s Credit Exposure from the date on which its Commitment terminates to the date on which such Lender ceases to have any Credit Exposure. Accrued Commitment Fees shall be payable in arrears on the last Business Day of March, June, September and December of each year and on the date on which the Commitments terminate and the date the Loans are paid in full, commencing on the first such date to occur after the Closing Date. All Commitment Fees shall be computed on the basis of a year of 365 or 366 days, as the case may be, and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).
(b)    The Borrower agrees to pay (i) to the Administrative Agent for the account of each Lender (other than a Defaulting Lender) a participation fee with respect to its participations in Letters of Credit which shall accrue at a rate per annum equal to the Applicable Margin for EurodollarSOFR Loans on the average daily amount of such Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Closing Date to but excluding the later of the date on which such Lender’s Commitment terminates and the date on which such Lender ceases to have any LC Exposure and (ii) to each Issuing Bank that has issued a Letter of Credit, a fronting fee which shall accrue a rate agreed to by the Borrower and such Issuing Bank (and notified to the Administrative Agent) on the average daily amount of the LC Exposure in respect of each such Letter of Credit from the date such Letter of Credit is issued to the date on which there ceases to be any LC Exposure with respect to such Letter of Credit. The Borrower also agrees to pay each Issuing Bank’s standard fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit issued by it or the processing of drawings thereunder. Accrued participation fees and fronting fees shall be payable in arrears on the last Business Day of March, June, September and December of each year, commencing on the first such date to occur after the Closing Date; provided that all such fees shall be payable on the date on which the Total Commitment terminates and any such fees accruing after the date on which the Total Commitment terminates shall be payable on demand. Any other fees payable to any Issuing Bank pursuant to this paragraph shall be payable within 10 days after demand. All participation fees shall be computed on the basis of a year of 360 days, as applicable, and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).
(c)    The Borrower agrees to pay, without duplication, to (i) the Administrative Agent and the Lenders, for their own accounts (or that of their applicable Affiliate), fees payable in the amounts and at the times specified in that letter agreement dated August 2, 2021 among the Borrower, Barclays Bank PLC and JPMorgan Chase Bank, N.A. (as from time to time amended, the “Active Arranger Fee Letter”), (ii) the Administrative Agent and the Lenders, for their own accounts (or that of their applicable Affiliate), fees payable in the amounts and at the times specified in that letter agreement dated August 2, 2021 among the Borrower, Bank of America, N.A., BofA Securities, Inc., Bank of Montreal, BMO Capital Markets, The Bank of Nova Scotia, Citi (as defined therein), Credit Suisse AG, Credit Suisse Loan Funding LLC, Mizuho Bank, Ltd., MUFG Bank, Ltd., PNC Bank, National Association, PNC Capital Markets LLC, Royal Bank of Canada, RBC Capital Markets, Wells Fargo Bank, N.A., Wells Fargo Securities, LLC (as from time to time amended, the “Other Commitment Party Fee Letter”) and (iii) the Administrative Agent, for its own account (or that of its applicable Affiliate), fees payable in amounts and at the times specified in that letter agreement dated August 2, 2021 among the Borrower and Barclays Bank PLC (the “Administrative Agent Fee Letter”).
(d)    All fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Administrative Agent (or to each Issuing Bank, in the case of fees payable to it) (for distribution, in the case of Commitment Fees and participation fees, to the Lenders). Except as required by law, fees paid shall not be refundable under any circumstance.
46
Revolving Credit Facility


SECTION 2.12    Interest.
(a)    The Loans comprising each ABR Borrowing shall bear interest at a rate per annum equal to the sum of Alternate Base Rate plus the Applicable Margin. Each Swingline Loan shall be an ABR Loan and shall bear interest at the Alternate Base Rate plus the Applicable Margin.
(b)    The Loans comprising each EurodollarSOFR Borrowing shall bear interest at the Adjusted LIBOTerm SOFR Rate for the Interest Period in effect for such Borrowing plus the Applicable Margin.
(c)    Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the rate otherwise applicable to such Loan as provided above or (ii) in the case of any other amount, 2% plus the Alternate Base Rate.
(d)    Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan; provided that (i) interest accrued pursuant to Section 2.12(c) shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Committed Loan prior to the end of the Availability Period), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment, (iii) in the event of any conversion of any EurodollarSOFR Committed Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion and (iv) all accrued interest shall be payable upon termination of the Total Commitment.
(e)    All interest hereunder shall be computed on the basis of a year of 360-day year, except that interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate, Adjusted LIBOTerm SOFR Rate or LIBOTerm SOFR Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.
SECTION 2.13    Alternate Rate of Interest.
(a) Subject to Section 2.23, if, on or If prior to the commencementfirst day of any Interest Period for a Eurodollar Borrowingany SOFR Loan:
(a)    (i) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate for such Interest Period;“Adjusted Term SOFR” cannot be determined pursuant to the definition thereof, or
(b)    the Required Lenders determine that for any reason in connection with any request for a SOFR Loan or a conversion thereto or a continuation thereof that Adjusted Term SOFR for any requested Interest Period with respect to a proposed SOFR Loan does not adequately and fairly reflect the cost to such Lenders of making and maintaining such Loan, and the Required Lenders have provided notice of such determination to the Administrative Agent,
the Administrative Agent will promptly so notify the Borrower and each Lender.
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Revolving Credit Facility


Upon notice thereof by the Administrative Agent to the Borrower, any obligation of the Lenders to make SOFR Loans, and any right of the Borrower to continue SOFR Loans or to convert ABR Loans to SOFR Loans, shall be suspended (to the extent of the affected SOFR Loans or affected Interest Periods) until the Administrative Agent (with respect to clause (b), at the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, (i) the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of SOFR Loans (to the extent of the affected SOFR Loans or affected Interest Periods) or, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans in the amount specified therein and (ii) any outstanding affected SOFR Loans will be deemed to have been converted into ABR Loans at the end of the applicable Interest Period. Upon any such conversion, the Borrower shall also pay accrued interest on the amount so converted, together with any additional amounts required pursuant to Section 2.14. Subject to Section 2.23, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that “Adjusted Term SOFR” cannot be determined pursuant to the definition thereof on any given day, the interest rate on ABR Loans shall be determined by the Administrative Agent without reference to clause (c) of the definition of “Alternate Base Rate” until the Administrative Agent revokes such determination.
(ii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders in writing as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders in writing that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective, and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing.
(b) Notwithstanding anything to the contrary herein or in any other Loan Document:
(i) Replacing the Eurodollar Rate. On March 5, 2021 the Financial Conduct Authority (“FCA”), the regulatory supervisor of the Eurodollar Rate's administrator (“IBA”), announced in a public statement the future cessation or loss of representativeness of overnight/spot next, 1-month, 3-month, 6-month and 12-month Eurodollar Rate tenor settings. On the earlier of (i) the date that all Available Tenors of the Eurodollar Rate have either permanently or indefinitely ceased to be provided by IBA or have been announced by the FCA pursuant to public statement or publication of information to be no longer representative and (ii) the Early Opt-in Effective Date, if the then-current Benchmark is the Eurodollar Rate, the Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any setting of such Benchmark on such day and all subsequent settings without any amendment to, or further action or consent of any other party to this Agreement or any other Loan Document. If the Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a quarterly basis.
(ii) Replacing Future Benchmarks. Upon the occurrence of a Benchmark Transition Event, the Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders
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Revolving Credit Facility


comprising the Required Lenders. At any time that the administrator of the then-current Benchmark has permanently or indefinitely ceased to provide such Benchmark or such Benchmark has been announced by the regulatory supervisor for the administrator of such Benchmark pursuant to public statement or publication of information to be no longer representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored, the Borrower may revoke any request for a borrowing of, conversion to or continuation of Loans to be made, converted or continued that would bear interest by reference to such Benchmark until the Borrower's receipt of notice from the Administrative Agent that a Benchmark Replacement has replaced such Benchmark, and, failing that, the Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to ABR Loans. During the period referenced in the foregoing sentence, the component of ABR based upon the Benchmark will not be used in any determination of ABR.
(iii) Benchmark Replacement Conforming Changes. In connection with the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.
(iv) Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Benchmark Replacement Conforming Changes. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section.
(v) Unavailability of Tenor of Benchmark. At any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR or the Eurodollar Rate), then the Administrative Agent may remove any tenor of such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) the Administrative Agent may reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settings.
SECTION 2.14    Increased Costs.
(a)    If any Change in Law shall:
(i)    impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or any Issuing Bank;
(ii)    subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its Loans, loan principal, Letters of Credit, Commitments, or other Obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
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Revolving Credit Facility


(iii)    impose on any Lender, any Issuing Bank or the Londonrelevant interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or EurodollarSOFR Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Loan or of maintaining its obligation to make any such Loan, or to increase the cost to such Lender, such Issuing Bank or such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of maintaining any obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender, Issuing Bank or other Recipient hereunder (whether of principal, interest or any other amount) then, upon request of such Lender, Issuing Bank or other Recipient, the Borrower will pay to such Lender or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, Issuing Bank or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b)    If any Lender or Issuing Bank determines that any Change in Law affecting such Lender or Issuing Bank or any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements, has or would have the effect of reducing the rate of return on such Lender’s or Issuing Bank’s capital or on the capital of such Lender’s or Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitment of such Lender or the Loans made by, or participations in Letters of Credit or Swingline Loans held by, such Lender, or the Letters of Credit issued by any Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company with respect to capital adequacy and/or liquidity requirements), then from time to time the Borrower will pay to such Lender or Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company for any such reduction suffered.
(c)    A certificate of a Lender or any Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or Issuing Bank or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section 2.14 and delivered to the Borrower, shall be conclusive absent manifest error. The Borrower shall pay such Lender or Issuing Bank, as the case may be, the amount shown as due on any such certificate within 10 Business Days after receipt thereof.
(d)    Failure or delay on the part of any Lender or any Issuing Bank to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or any Issuing Bank pursuant to this Section 2.14 for any increased costs or reductions incurred more than six months prior to the date that such Lender or such Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such Issuing Bank’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof).
SECTION 2.15    Break Funding Payments. In the event of (a) the payment of any principal of any EurodollarSOFR Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any EurodollarSOFR Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow (unless such failure was caused by the failure of a Lender to make such Loan), convert, continue or prepay any EurodollarSOFR Loan, or the failure to convert an ABR Loan to a EurodollarSOFR Loan, on the date specified in any notice delivered pursuant hereto (regardless of whether such notice is permitted to be revocable under
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Revolving Credit Facility


Section 2.08 and is revoked in accordance herewith), or (d) the assignment of any EurodollarSOFR Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.18, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event. In the case of a EurodollarSOFR Loan, the loss to any Lender attributable to any such event shall be deemed to include an amount determined by such Lender to be equal to the excess, if any, of (i) the amount of interest that such Lender would pay for a deposit equal to the principal amount of such Loan for the period from the date of such payment, conversion, failure or assignment to the last day of the then current Interest Period for such Loan (or, in the case of a failure to borrow, convert or continue, the duration of the Interest Period that would have resulted from such borrowing, conversion or continuation) if the interest rate payable on such deposit were equal to the Adjusted LIBOTerm SOFR Rate for such Interest Period, over (ii) the amount of interest that such Lender would earn on such principal amount for such period if such Lender were to invest such principal amount for such period at the interest rate that would be bid by such Lender (or an affiliate of such Lender) for dollar deposits from other banks in the Eurodollarinterbank market at the commencement of such period. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section 2.15 shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 Business Days after receipt thereof.
SECTION 2.16    Taxes.
(a)    Defined Terms. For purposes of this Section 2.16, the term “Requirement of Law” includes FATCA.
(b)    Payments Free of Taxes. Any and all payments by or on account of any obligation of the Borrower under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by a Requirement of Law. If any Requirement of Law (as determined in the good faith discretion of the Withholding Agent) requires the deduction or withholding of any Tax from any such payment by the Withholding Agent, then the Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Requirement of Law and, if such Tax is an Indemnified Tax, then the sum payable by the Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 2.16) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(c)    Payment of Other Taxes by the Borrower. Without duplication of any obligation under this Section 2.16, the Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable Requirement of Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(d)    Indemnification by the Borrower. Without duplication of any obligation under this Section 2.16, the Borrower shall indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided, however, the Borrower shall not be required to indemnify a Recipient pursuant to this Section 2.16(d) for any Indemnified Taxes unless such Recipient makes written demand on the Borrower for indemnification for such Indemnified Taxes no later than six months after the earlier of (i) the date on which such Recipient receives written demand from the relevant Governmental Authority for payment of such Indemnified Taxes or (ii) the date on which such Recipient
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Revolving Credit Facility


has made payment of such Indemnified Taxes. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(e)    Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 9.05(c) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (e).
(f)    Evidence of Payments. As soon as practicable after any payment of Taxes by the Borrower to a Governmental Authority pursuant to this Section 2.16, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(g)    Status of Lenders. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Requirement of Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in subsections (ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii)    Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Borrower,
(A)    any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding Tax;
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Revolving Credit Facility


(B)    any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:
(1)    in the case of a Foreign Lender claiming the benefits of an income Tax treaty to which the United States is a party (x) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such Tax treaty and (y) IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such Tax treaty;
(2)    executed copies of IRS Form W-8ECI;
(3)    in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit 2.16-A to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or
(4)    to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit 2.16-B or Exhibit 2.16-C, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit 2.16-D on behalf of each such direct and indirect partner;
(C)    any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of any other form prescribed by applicable Requirement of Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed and executed, together with such supplementary documentation as may be prescribed by applicable Requirement of Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D)    if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those
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Revolving Credit Facility


contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by Requirement of Law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable Requirement of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(h)    Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.16 (including by the payment of additional amounts pursuant to this Section 2.16), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(i)    On or before the date that any successor or replacement Administrative Agent becomes the Administrative Agent hereunder, it shall deliver to the Borrower two duly executed originals of either (i) IRS Form W-9 (or any applicable successor form) certifying that the Administrative Agent is not subject to backup withholding, or (ii) IRS Form W-8IMY (or any applicable successor form) establishing that the Administrative Agent will act as a withholding agent for any U.S. federal withholding tax imposed with respect to any payments made to Lenders under any Loan Document.
(j)    Survival. Each party’s obligations under this Section 2.16 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
SECTION 2.17    Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a)    The Borrower shall make each payment required to be made by the Borrower hereunder (whether of principal, interest or fees, or under Section 2.14, 2.15 or 2.16, or otherwise) prior to 12:00 noon, New York, New York time, on the date when due, in immediately available funds, without
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Revolving Credit Facility


set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its Principal Office, except payments made directly to an Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.14, 2.15, 2.16 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in dollars.
(b)    If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amount of principal and unreimbursed LC Disbursements then due to such parties.
(c)    If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided that:
(i)    if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii)    the provisions of this paragraph shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary thereof (as to which the provisions of this paragraph shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d)    Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Banks hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or such Issuing Bank, as the case may be, the
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Revolving Credit Facility


amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Banks, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such Issuing Bank with interest thereon, for each day from the date such amount is distributed to it to the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules or interbank compensation.
(e)    If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(b), 2.05(h), 2.06(b), 2.17(d) or 8.08, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under such Sections; in the case of each of (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
SECTION 2.18    Mitigation of Obligations; Replacement of Lenders.
(a)    Designation of a Different Lending Office. If any Lender requests compensation under Section 2.14, or requires the Borrower to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.16, then such Lender shall (at the request of the Borrower) use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.14 or 2.16, as the case may be, in the future, and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b)    Replacement of Lenders. If any Lender requests compensation under Section 2.14, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.16 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with Section 2.18(a), or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 9.05), all of its interests, rights (other than its existing rights to payments pursuant to Section 2.14 or Section 2.16) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:
(i)    the Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 9.05;
(ii)    such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in LC Disbursements, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 2.15) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);
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Revolving Credit Facility


(iii)    in the case of any such assignment resulting from a claim for compensation under Section 2.14 or payments required to be made pursuant to Section 2.16, such assignment will result in a reduction in such compensation or payments thereafter;
(iv)    such assignment does not conflict with applicable law; and
(v)    in the case of any assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
SECTION 2.19    Defaulting Lenders(a)    . (a) Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
(i)    Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 9.02.
(ii)    Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 9.09 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank or Swingline Lender hereunder; third, to Cash Collateralize the Issuing Banks’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20; fourth, as the Company may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the Issuing Banks’ future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.20; sixth, to the payment of any amounts owing to the Lenders, the Issuing Banks or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any Issuing Bank or the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or LC Disbursements in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 3.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and LC Disbursements owed to, all Non-Defaulting Lenders on a pro rata basis prior to
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Revolving Credit Facility


being applied to the payment of any Loans of, or LC Disbursements owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letter of Credit Commitments and Swingline Loans are held by the Lenders pro rata in accordance with the Commitments without giving effect to Section 2.19(a)(iv). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.19(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii)    (A) Each Defaulting Lender shall be entitled to receive a Commitment Fee for any period during which that Lender is a Defaulting Lender only to extent allocable to the sum of (1) the outstanding principal amount of the Loans funded by it, and (2) its Applicable Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.20.
(A)    Each Defaulting Lender shall be entitled to receive letter of credit fees under Section 2.11(b) for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Applicable Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.20.
(B)    With respect to any Commitment Fee or letter of credit fee under Section 2.11(b) not required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above, the Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s LC Exposure or Swingline Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to each Issuing Bank and Swingline Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such Issuing Bank’s or Swingline Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
(iv)    All or any part of such Defaulting Lender’s LC Exposure and Swingline Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that (x) the conditions set forth in Section 3.02 are satisfied at the time of such reallocation (and, unless the Borrower shall have otherwise notified the Administrative Agent at such time, the Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the aggregate Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Commitment. Subject to Section 9.18, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
(v)    If the reallocation described in clause (iv) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under law, (x) first, prepay Swingline Loans in an amount equal to the Swingline Lenders’ Fronting Exposure and (y) second, Cash Collateralize the Issuing Banks’ Fronting Exposure in accordance with the procedures set forth in Section 2.20.
(b)    If the Borrower, the Administrative Agent, the Swingline Lender and each Issuing Bank agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent
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Revolving Credit Facility


will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held pro rata by the Lenders in accordance with their respective Commitments (without giving effect to Section 2.19(a)(iv), whereupon, that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(c)    So long as any Lender is a Defaulting Lender, (i) the Swingline Lender shall not be required to fund any Swingline Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swingline Loan and (ii) no Issuing Bank shall be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.
SECTION 2.20    Cash Collateral.
At any time that there shall exist a Defaulting Lender, within one Business Day following the written request of the Administrative Agent or any Issuing Bank (with a copy to the Administrative Agent) the Borrower shall Cash Collateralize the Issuing Banks’ Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to Section 2.19(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less than the Minimum Collateral Amount.
(a)    The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to the Administrative Agent, for the benefit of the Issuing Banks, and agrees to maintain, a first priority security interest in all such Cash Collateral as security for the Defaulting Lenders’ LC Exposure, to be applied pursuant to clause (b) below. If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent and the Issuing Banks as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral provided by the Defaulting Lender).
(b)    Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under this Section 2.20 or Section 2.19 in respect of Letters of Credit shall be applied to the satisfaction of the Defaulting Lender’s LC Exposure (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.
(c)    Termination of Requirement. Cash Collateral (or the appropriate portion thereof) provided to reduce any Issuing Bank’s Fronting Exposure shall no longer be required to be held as Cash Collateral pursuant to this Section 2.20 following (i) the elimination of the applicable Fronting Exposure (including by the termination of Defaulting Lender status of the applicable Lender), or (ii) the determination by the Administrative Agent and each Issuing Bank that there exists excess Cash Collateral; provided that, subject to Section 2.19 the Person providing Cash Collateral and each Issuing Bank may agree that Cash Collateral shall be held to support future anticipated Fronting Exposure or
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Revolving Credit Facility


other obligations and provided further that to the extent that such Cash Collateral was provided by the Borrower, such Cash Collateral shall remain subject to the security interest granted pursuant to the Loan Documents.
SECTION 2.21    Accordion FacilitiesSECTION 2.22 .
(a)    Before the Maturity Date, the Borrower may by written notice to Administrative Agent elect to request the establishment of one or more increases in the Total Commitment (each increase to the Total Commitment, a “New Commitment” and, collectively, the “New Commitments”), in an aggregate amount not to exceed $1,000,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent; provided that any Lender offered or approached to provide all or a portion of the New Commitments may elect or decline, in its sole discretion, to provide a New Commitment. Such New Commitments shall become effective as of such Increased Amount Date; provided further that, (i) no Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Commitments; (ii) the Borrower shall make any payments required pursuant to this Agreement (including Section 2.15) to the Administrative Agent and the Lenders (other than any Defaulting Lender), in connection with the New Commitments, as applicable; (iii) the Administrative Agent, the Swingline Lender and the Issuing Banks shall have consented to such prospective lender (such consent not to be unreasonably withheld or delayed) and (iv) such New Commitment will be documented solely as an increase to the Total Commitment, without any change to the terms of revolving facility provided for herein. The proceeds of each New Commitment shall be used for working capital and general corporate purposes. For the avoidance of doubt, no Lender shall be obligated to provide any portion of the New Commitments.
(b)    On any Increased Amount Date on which New Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Commitments shall assign to each Lender with a New Commitment (each such Lender and each Eligible Assignee that agrees to an extension of the Maturity Date in accordance with Section 2.22(c), a “New Lender”) and each of the New Lenders shall purchase from each of the Lenders with Commitments, at the principal amount thereof (together with accrued interest), such interests in the Committed Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Committed Loans will be held by existing Lenders with Committed Loans and New Lenders ratably in accordance with their Commitments after giving effect to the addition of such New Commitments to the Total Commitment, (b) each New Commitment shall be deemed for all purposes a Commitment and each Loan made thereunder (a “New Loan”) shall be deemed, for all purposes, a Committed Loan and (c) each New Lender shall become a Lender with respect to the New Commitment and all matters relating thereto.
(c)    The New Commitments shall be effected by a joinder agreement (the “New Loan Increase Joinder”) substantially in the form of Exhibit 2.21 executed by the Borrower, the Administrative Agent and each Lender making such New Commitment, in form and substance reasonably satisfactory to each of them, and consented to by the Administrative Agent, the Issuing Banks and the Swingline Lender. Each New Loan Increase Joinder may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.21.
SECTION 2.22    Extension of Maturity DateSECTION 2.23 .
(a)    At least 60 days but not more than 90 days prior to any anniversary of the Closing Date (the “Applicable Anniversary”), the Borrower, by written notice to the Administrative
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Revolving Credit Facility


Agent, may request an extension of the Maturity Date in effect at such time by one year from its then scheduled expiration (which request may be conditioned on a minimum level of Commitments from Extension Consenting Lenders and New Lenders); provided that the Maturity Date shall not be extended more than twiceonce. The Administrative Agent shall promptly notify each Lender of such request, and each Lender shall in turn, in its sole discretion, not later than 30 days prior to the Applicable Anniversary, notify the Borrower and the Administrative Agent in writing as to whether such Lender will consent to such extension. If any Lender shall fail to notify the Administrative Agent and the Borrower in writing of its consent to any such request for extension of the Maturity Date at least 30 days prior to the Applicable Anniversary, such Lender shall be deemed to be an Extension Non-Consenting Lender with respect to such request. The Administrative Agent shall notify the Borrower not later than 25 days prior to the Applicable Anniversary of the decision of the Lenders regarding the Borrower’s request for an extension of the Maturity Date.
(b)    If all the Lenders consent in writing to any such request in accordance with Section 2.22(a), the Maturity Date in effect at such time shall, effective as at the Applicable Anniversary (the “Extension Date”), be extended for one year; provided that on each Extension Date the applicable conditions set forth in Section 3.02 shall be satisfied. If less than all of the Lenders consent in writing to any such request in accordance with Section 2.22(a), the Maturity Date in effect at such time shall, effective as at the applicable Extension Date and subject to Section 2.22(d), be extended as to those Lenders that so consented (each a “Extension Consenting Lender”) but shall not be extended as to any other Lender (each a “Extension Non-Consenting Lender”). To the extent that the Maturity Date is not extended as to any Lender pursuant to this Section 2.22 and the Commitment of such Lender is not assumed in accordance with Section 2.22(c) on or prior to the applicable Extension Date, the Commitment of such Extension Non-Consenting Lender shall automatically terminate in whole on such unextended Maturity Date without any further notice or other action by the Borrower, such Lender or any other Person; provided that such Extension Non-Consenting Lender’s rights under Sections 2.14, 2.16 and 9.03, and its obligations under Section 8.08, shall survive the Maturity Date for such Lender as to matters occurring prior to such date. It is understood and agreed that no Lender shall have any obligation whatsoever to agree to any request made by the Borrower for any requested extension of the Maturity Date.
(c)    If less than all of the Lenders consent to any such request pursuant to Section 2.22(a), the Administrative Agent shall promptly so notify the Extension Consenting Lenders, and each Extension Consenting Lender may, in its sole discretion, give written notice to the Administrative Agent not later than ten days prior to the Extension Date of the amount of the Extension Non-Consenting Lenders’ Commitments for which it is willing to accept an assignment. If the Extension Consenting Lenders notify the Administrative Agent that they are willing to accept assignments of Commitments in an aggregate amount that exceeds the amount of the Commitments of the Extension Non-Consenting Lenders, such Commitments shall be allocated among the Extension Consenting Lenders willing to accept such assignments in such amounts as are agreed between the Borrower and the Administrative Agent. If after giving effect to the assignments of Commitments described above there remains any Commitments of Extension Non-Consenting Lenders, the Borrower may arrange for one or more Extension Consenting Lenders or other Eligible Assignees as New Lenders to assume, effective as of the Extension Date, any Extension Non-Consenting Lender’s Commitment and all of the obligations of such Extension Non-Consenting Lender under this Agreement thereafter arising, without recourse to or warranty by, or expense to, such Extension Non-Consenting Lender; provided, however, that the amount of the Commitment of any such New Lender as a result of such substitution shall in no event be less than $20,000,000 unless the amount of the Commitment of such Extension Non-Consenting Lender is less than $20,000,000, in which case such New Lender shall assume all of such lesser amount; and provided further that:
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Revolving Credit Facility


(i)    any such Extension Consenting Lender or New Lender shall have paid to such Extension Non-Consenting Lender (A) the aggregate principal amount of, and any interest accrued and unpaid to the effective date of the assignment on, the outstanding Borrowings, if any, of such Extension Non-Consenting Lender plus (B) any accrued but unpaid facility fees owing to such Extension Non-Consenting Lender as of the effective date of such assignment;
(ii)    all additional costs reimbursements, expense reimbursements and indemnities payable to such Extension Non-Consenting Lender, and all other accrued and unpaid amounts owing to such Extension Non-Consenting Lender hereunder, as of the effective date of such assignment shall have been paid to such Extension Non-Consenting Lender;
(iii)    with respect to any such New Lender, the applicable processing and recordation fee required under Section 9.05 for such assignment shall have been paid; and
(iv)    each Issuing Bank shall have consented to any such assignment to a New Lender.
provided further that such Extension Non-Consenting Lender’s rights under Sections 2.14, 2.16 and 9.03, and its obligations under Section 8.08, shall survive such substitution as to matters occurring prior to the date of substitution. At least five Business Days prior to any Extension Date, (A) each such New Lender, if any, shall have delivered to the Borrower and the Administrative Agent an Assumption Agreement, duly executed by such New Lender, such Extension Non-Consenting Lender, the Borrower and the Administrative Agent and (B) any such Extension Consenting Lender shall have delivered confirmation in writing satisfactory to the Borrower and the Administrative Agent as to the increase in the amount of its Commitment. Upon the payment or prepayment of all amounts referred to in clauses (i), (ii) and (iii) of the immediately preceding sentence, each such Extension Consenting Lender or New Lender, as of the Extension Date, will be substituted for such Extension Non-Consenting Lender under this Agreement and shall be a Lender for all purposes of this Agreement, without any further acknowledgment by or the consent of the other Lenders, and the obligations of each such Extension Non-Consenting Lender hereunder shall, by the provisions hereof, be released and discharged.
(d)    If (after giving effect to any assignments or assumptions pursuant to Section 2.22(c)) Lenders having Commitments equal to more than 50% of the Commitments in effect immediately prior to the Extension Date consent in writing to a requested extension (whether by execution or delivery of an Assumption Agreement or otherwise) not later than one Business Day prior to such Extension Date, the Administrative Agent shall so notify the Borrower, and, subject to the satisfaction of the applicable conditions in Section 3.02, the Maturity Date for each Extension Consenting Lender and each New Lender then in effect shall be extended for the additional one year period as described in Section 2.22(b); provided that the Maturity Date for each Extension Non-Consenting Lender shall not be so extended. Promptly following each Extension Date, the Administrative Agent shall notify the Lenders (including, without limitation, each New Lender) of the extension of the scheduled Maturity Date in effect immediately prior thereto and shall thereupon record in the Register the relevant information with respect to each such Extension Consenting Lender and each such New Lender. On and after each Extension Date, the Applicable Percentage of each Lender’s participation in Letter of Credit Commitments shall be calculated after giving effect to the Commitments of the Lenders after the occurrence of such Extension Date.
SECTION 2.23    Benchmark Replacement.
(a)    Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event, the Administrative Agent and the Borrower may amend this Agreement to replace the then-current Benchmark with a
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Revolving Credit Facility


Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 2.23(a) will occur prior to the applicable Benchmark Transition Start Date.
(b)    Benchmark Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(c)    Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Benchmark Replacement Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will notify the Borrower of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.23(d) and (y) the commencement of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.23, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.23.
(d)    Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may, in consultation with the Borrower, modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may, in consultation with the Borrower, modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(e)    Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any pending request for a SOFR Borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an
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Revolving Credit Facility


Available Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01    Conditions Precedent to the Closing Date. This Agreement and the obligations of the Lenders to make Loans hereunder and the obligations of the Issuing Banks to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied or waived in accordance with Section 9.02:
(a)    The Administrative Agent shall have received the following, each dated as of the Closing Date (or, in the case of clause (vi) below, as of a recent date):
(i)    this Agreement executed by each party hereto;
(ii)    the Guaranty executed by each party thereto;
(iii)    a certificate of an officer and of the secretary or an assistant secretary of the Borrower and each Guarantor, certifying, inter alia (A) true and complete copies of each of the certificate of incorporation or other appropriate organizational document, as amended and in effect, of such Person, the bylaws or similar organizational document, as amended and in effect, of such Person and the resolutions adopted by the Board of Directors or similar governing body of such Person (1) authorizing the execution, delivery and performance by such Person of this Agreement and each other Loan Document to which such Person is or will be a party, (2) approving this Agreement and each other Loan Document to which such Person is or will be a party and (3) authorizing officers of such Person to execute and deliver this Agreement and each other Loan Document to which such Person is or will be a party and any related documents and (B) the incumbency and specimen signatures of the officers of such Person executing any documents on its behalf; provided, that there shall be no requirement to deliver such certificates for any Guarantor that is not a Material Subsidiary;
(iv)    a certificate of a Responsible Officer of the Borrower certifying as to the satisfaction of the conditions in Sections 3.01(b) and (e);
(v)    signed opinions addressed to the Administrative Agent and the Lenders from legal counsel to the Borrower and the Guarantors covering the matters reasonably requested by the Administrative Agent; provided, that there shall be no requirement to deliver opinions of legal counsel for any Guarantor that is not a Material Subsidiary; and
(vi)    certificates of appropriate officials as to the existence and good standing of the Borrower and each Guarantor.
(b)    There shall not have occurred any change, effect, event or occurrence since December 31, 2020 that, individually or in the aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect.
(c)    The Administrative Agent shall have received evidence that (i) Commitments (as defined in the Existing Credit Agreement) under the Existing Credit Agreement have been, or substantially concurrently with the Closing Date will be, permanently reduced on a pro rata basis among the Lenders to an aggregate amount not to exceed $500 million, (ii) the Letter of Credit Commitments (as defined in the Existing Credit Agreement) under the Existing Credit Agreement have been terminated, or
64
Revolving Credit Facility


substantially concurrently with the Closing Date will be terminated and (iii) the Borrower’s ability to borrow Swingline Loans (as defined in the Existing Credit Agreement) under the Existing Credit Agreement has been terminated, or substantially concurrently with the Closing Date will be terminated.
(d)    The conditions precedent set forth in Sections 3.02(b) and (d) shall have theretofore been satisfied or waived in accordance with Section 9.02.
(e)    (i) The Administrative Agent shall have received (for distribution to the Lenders so requesting) at least three business days prior to the Closing Date all documentation and other information about the Borrower and Guarantors as required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, to the extent reasonably requested by any Lender to the Administrative Agent and conveyed by the Administrative Agent to the Borrower in writing at least 10 days prior to the Closing Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Closing Date, any Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).
(f)    All fees required to be paid on the Closing Date pursuant to the Fee Letters referenced in Section 2.11(c) and all reasonable out-of-pocket expenses required to be paid on the Closing Date, to the extent invoiced at least two Business Days prior to the Closing Date shall have been paid.
The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date in writing promptly upon such conditions precedent being satisfied (or waived in accordance with Section 9.02), and such notice shall be conclusive and binding.
SECTION 3.02    Conditions Precedent to Each Credit Event. Except with respect to Committed Loans made by the Lenders pursuant to Section 2.05(h), the obligations of (i) the Lenders to make Loans hereunder (ii) the obligations of the Issuing Banks to issue or extend any Letter of Credit under this Agreement and (iii) each extension of the Maturity Date pursuant to Section 2.22 is subject to the satisfaction or waiver in accordance with Section 9.02 of the following conditions precedent:
(a)    The conditions precedent set forth in Section 3.01 shall have theretofore been satisfied or waived in accordance with Section 9.02;
(b)    The representations and warranties set forth in Article IV and in the other Loan Documents shall be true and correct in all material respects as of, and as if such representations and warranties were made on, the Borrowing Date of the proposed Loan or Letter of Credit, as the case may be (unless such representation and warranty expressly relates to an earlier date), and by the Borrower’s delivery of a Borrowing Request, the Borrower shall be deemed to have certified to the Administrative Agent and the Lenders that such representations and warranties are true and correct in all material respects;
(c)    The Company shall have complied with the provisions of Section 2.03, Section 2.04 or Section 2.05, as the case may be;
(d)    No Default or Event of Default shall have occurred and be continuing or would result from such Credit Event; and
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Revolving Credit Facility


(e)    A Borrowing Request shall have been delivered in accordance with the terms of Section 2.03.
The acceptance by the Borrower of the benefits of each Credit Event shall constitute a representation and warranty by the Borrower to each of the Lenders that all of the conditions specified in this Section 3.02 above exist as of that time.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
On the Closing Date and on each Borrowing Date, the Borrower makes the following representations and warranties to the Administrative Agent and the Lenders:
SECTION 4.01    Organization and Qualification. The Borrower and each of the Material Subsidiaries (a) is a corporation, partnership or limited liability company duly organized or formed, validly existing and in good standing under the laws of the state of its incorporation, organization or formation, (b) has all requisite corporate, partnership, limited liability company or other power and all material governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted and (c) is duly qualified to do business and is in good standing in every jurisdiction in which the failure to be so qualified would, individually or together with all such other failures of the Borrower and the Subsidiaries, have a Material Adverse Effect.
SECTION 4.02    Authorization, Validity, Etc. The Borrower and each Guarantor has all requisite corporate (or other organizational) power and authority to execute and deliver, and to incur and perform its obligations under this Agreement and under the other Loan Documents to which it is a party and, in the case of the Borrower, to make the Borrowings hereunder, and all such actions have been duly authorized by all necessary proceedings on its behalf. This Agreement and the other Loan Documents have been duly and validly executed and delivered by or on behalf of the Borrower (and, on the Closing Date, with respect to the Guaranty, each Guarantor) party thereto and constitute valid and legally binding agreements of the Borrower and each Guarantor, as applicable, enforceable against the Borrower or the Guarantor in accordance with the respective terms thereof, except (a) as may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer, fraudulent conveyance or other similar laws relating to or affecting the enforcement of creditors’ rights generally, and by general principles of equity (including principles of good faith, reasonableness, materiality and fair dealing) which may, among other things, limit the right to obtain equitable remedies (regardless of whether considered in a proceeding in equity or at law) and (b) as to the enforceability of provisions for indemnification for violation of applicable securities laws, limitations thereon arising as a matter of law or public policy.
SECTION 4.03    Governmental Consents, Etc. No authorization, consent, approval, license or exemption of or registration, declaration or filing with any Governmental Authority, is necessary for the valid execution and delivery of, or the incurrence and performance by the Borrower or each Guarantor of its obligations under, any Loan Document to which it is a party, except those that have been obtained and such matters relating to performance as would ordinarily be done in the ordinary course of business after the Closing Date.
SECTION 4.04    No Breach or Violation of Agreements or Restrictions, Etc. Neither the execution and delivery of, nor the incurrence and performance by any Loan Party of its obligations under, the Loan Documents to which it is a party, nor the extensions of credit contemplated by the Loan Documents, will (a) breach or violate any applicable Requirement of Law, (b) result in any breach or violation of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien upon any of its
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Revolving Credit Facility


property or assets (other than Liens created or contemplated by this Agreement) pursuant to the terms of, any indenture, mortgage, deed of trust, agreement or other instrument to which it or any of the Subsidiaries is party or by which any of its properties or assets, or those of any of the Subsidiaries is bound or to which it is subject, except for breaches, violations and defaults under clauses (a) and (b) that neither individually nor in the aggregate could reasonably be expected to result in a Material Adverse Effect, or (c) violate any provision of the organizational documents of such Loan Party.
SECTION 4.05    Properties. Each of the Borrower and the Material Subsidiaries has good title to, or valid leasehold or other interests in, all its real and personal property material to its business free of all Liens securing Indebtedness except for such Liens permitted under Section 6.02.
SECTION 4.06    Litigation and Environmental Matters. (a) Except as disclosed in the most recent Annual Report on Form 10-K delivered by the Borrower to the Lenders, there is no action, suit or proceeding by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Borrower, threatened against or affecting the Borrower or any of the Material Subsidiaries as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect.
(a)    Except as disclosed in the most recent Annual Report on Form 10-K delivered by the Borrower to the Lenders, the associated liabilities and costs of the Borrower’s compliance with Environmental Laws (including any capital or operating expenditures required for clean-up or closure of properties currently or previously owned, any capital or operating expenditures required to achieve or maintain compliance with environmental protection standards imposed by Environmental Laws or as a condition of any license, permit or contract, any related constraints on operating activities, including any periodic or permanent shutdown of any facility or reduction in the level of or change in the nature of operations conducted thereat, any costs or liabilities in connection with off-site disposal of wastes or Hazardous Materials, and any actual or potential liabilities to third parties, including employees, and any related costs and expenses) are unlikely to result in a Material Adverse Effect.
SECTION 4.07    Financial Statements.
(a)    The consolidated balance sheet of the Borrower and the Subsidiaries as at December 31, 2020 and the related consolidated statements of income, comprehensive income, shareholders’ equity and cash flows of the Borrower and the Subsidiaries for the fiscal year ended on said date, with the opinion thereon of PricewaterhouseCoopers LLP and set forth in the Borrower’s 2020 Annual Report on Form 10-K, as filed with the SEC, fairly present, in all material respects, the consolidated financial position of the Borrower and the Subsidiaries as of such date and their consolidated results of operations and cash flows for such fiscal year in accordance with GAAP.
(b)    The unaudited consolidated balance sheets of the Borrower and the Subsidiaries as at March 31, 2021 and June 30, 2021 and the related consolidated statements of income and cash flows of the Borrower and the Subsidiaries for the three month period ended on such date and set forth in the Borrower’s Quarterly Report on Form 10-Q for its fiscal quarter then ended, as filed with the SEC, fairly present, in all material respects, the consolidated financial position of the Borrower and the Subsidiaries as of such date and their consolidated results of their operations cash flows for the applicable time period ended on said date (subject to the absence of footnotes and to normal year-end and audit adjustments), in accordance with GAAP applied on a basis consistent with the financial statements referred to in Section 4.07(a).
(c)    On the Closing Date and since the date of the Annual Report on Form 10-K delivered by the Borrower to the Lenders with respect to the fiscal year ended December 31, 2020, there
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Revolving Credit Facility


has been no material adverse change in the business, assets, liabilities or financial condition of the Borrower and the Subsidiaries, taken as a whole.
SECTION 4.08    Disclosure.
(a)    As of the Closing Date only, information heretofore furnished by the Borrower to the Administrative Agent or any Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby, when taken as a whole, true and accurate in all material respects on the date as of which such information is stated or certified. The reports, financial statements, certificates or other written information furnished by or on behalf of the Borrower to the Administrative Agent or any Lender in connection with the syndication or negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished) on or prior to the Closing Date, when taken as a whole, do not contain any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to any projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time (it being recognized, however, that projections as to future events are not to be viewed as facts and that the actual results during the period or periods covered by any projects may materially different from the projected results).
(b)    As of the Closing Date, to the knowledge of the Borrower, the information included in the Beneficial Ownership Certification provided on or prior to the Closing Date to any Lender in connection with this Agreement is true and correct in all respects.
SECTION 4.09    Investment Company Act. The Borrower is not, and no Loan Party is required to register as, an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.
SECTION 4.10    ERISA. Each member of the ERISA Group has fulfilled its obligations under the minimum funding standards of ERISA and the Code with respect to each Plan and is in compliance in all material respects with the presently applicable provisions of ERISA and the Code with respect to each Plan, except where the failure to so fulfill such obligations and such noncompliance individually, or together with all such failures to fulfill such obligations and all such noncompliance, could not reasonably be expected to result in a Material Adverse Effect. No member of the ERISA Group has (i) sought a waiver of the minimum funding standard under Section 412 of the Code in respect of any Plan, (ii) failed to make any contribution or payment to any Plan or Multiemployer Plan or in respect of any Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement, which has resulted or could result in the imposition of a Lien or the posting of a bond or other security under ERISA or the Code or (iii) incurred any liability under Title IV of ERISA other than a liability to the PBGC for premiums under Section 4007 of ERISA, which waiver, failure, amendment or liability individually, or collectively with all such waivers, failures, amendments or liabilities, could reasonably be expected to result in a Material Adverse Effect. Except where the failure to so fulfill such obligations and such noncompliance could individually, or together with all such failures to fulfill such obligations and all such noncompliance could reasonably be expected to result in a Material Adverse Effect, (i) no “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder, has occurred with respect to a Plan (other than an event for which the 30 day notice period is waived),. (ii) neither the Borrower nor any member of its ERISA Group has received any notice from the PBGC or a plan administrator relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan and (iii) neither the Borrower or any members of its ERISA Group has any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan, nor has the Borrower, any members of its ERISA Group, or any Multiemployer Plan from the Borrower or member of its ERISA
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Revolving Credit Facility


Group received any notice concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent within the meaning of Title IV of ERISA.
SECTION 4.11    Tax Returns and Payments. The Borrower and the Material Subsidiaries have caused to be filed all federal income Tax returns and other material Tax returns, statements and reports (or obtained extensions with respect thereto) which are required to be filed and have paid or deposited or made adequate provision in accordance with GAAP for the payment of all Taxes (including estimated Taxes shown on such returns, statements and reports) which are shown to be due pursuant to such returns, except for Taxes being contested in good faith by appropriate proceedings for which adequate reserves in accordance with GAAP have been created on the books of the Borrower and the Subsidiaries and where the failure to pay such Taxes (individually or in the aggregate for the Borrower and the Subsidiaries) would not have a Material Adverse Effect.
SECTION 4.12    Compliance with Laws and Agreements. Each of the Borrower and the Material Subsidiaries is in compliance with all laws, regulations and orders of any Governmental Authority applicable to it or its property and all indentures, agreements and other instruments binding upon it or its property, except where the failure to do so, individually or in the aggregate for the Borrower and the Material Subsidiaries, could not reasonably be expected to result in a Material Adverse Effect.
SECTION 4.13    Purpose of Loans.
(a)    All proceeds of the Loans will be used for the purposes set forth in Section 5.07.
(b)    Neither the Borrower nor any agent acting on its behalf has taken or will take any action which might cause this Agreement or any other Loan Document to violate Regulation T, Regulation U, Regulation X, or any other regulation of the Board or to violate the Exchange Act. Margin stock does not constitute more than 25% of the assets of the Borrower, or of the Borrower and the Subsidiaries on a consolidated basis, and the Borrower does not intend or foresee that it will ever do so.
SECTION 4.14    Foreign Assets Control Regulations, etc. (a) To the extent applicable, neither any Letter of Credit nor any part of the proceeds of the Loans will (i) be used to violate in any material respect the Trading with the Enemy Act, as amended, or (ii) be used, directly or indirectly or made available to any subsidiary, joint venture partner or any other Person to fund or support any activities or business of or with any Person, or in any country or territory, that, at the time of such funding or extension, is, or whose government is, at the time of making such Loans or extension of such Letters of Credit, the subject of any economic or financial sanctions or trade embargoes administered or enforced by the U.S. Government, including any enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control or the U.S. Department of State (collectively, “Sanctions”).
(b)    Neither the Borrower nor any Subsidiary, nor, to the knowledge of the Borrower, any director, officer, employee, agent, affiliate or representative of the Borrower or any Subsidiary is a Person that is, or is owned or controlled by, a Sanctioned Person. The Borrower and the Subsidiaries are in compliance, in all material respects, with the Patriot Act.
(c)    Neither any Letter of Credit nor any part of the proceeds of the Loans will be used, directly or indirectly, for any payments to any person in violation of any Anti-Corruption Laws or anti-money laundering laws, to the extent the Anti-Corruption Laws or anti-money laundering laws, as applicable, apply to the Borrower or one of the Subsidiaries.
SECTION 4.15    Solvency. On the Closing Date, after giving effect to the Transactions, the Borrower and its Subsidiaries, on a consolidated basis, are Solvent.
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Revolving Credit Facility


ARTICLE V
AFFIRMATIVE COVENANTS
From the Closing Date until the Commitments have expired or been terminated and principal of and interest on each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit shall have expired or terminated (or other arrangements satisfactory to the applicable Issuing Bank made with respect thereto) and all LC Disbursements shall have been reimbursed, the Borrower covenants and agrees with the Lenders that:
SECTION 5.01    Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent:
(a)    within ten days after the date in each fiscal year on which the Borrower is required to file its Annual Report on Form 10-K with the SEC or, if earlier, 100 days after the end of each fiscal year (i) such Annual Report, and (ii) its audited consolidated balance sheet and the related consolidated statements of income, comprehensive income, operations, shareholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures as of the end of and for the previous fiscal year, all reported on by, and accompanied by an opinion (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of their audit) of, PricewaterhouseCoopers LLP, or other independent public accountants of recognized national standing to the effect that such consolidated financial statements present fairly in all material respects the financial position, results of operations and cash flows of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP; provided, however, that (x) the Borrower shall be deemed to have furnished said Annual Report on Form 10-K for purposes of clause (i) if it shall have timely made the same available on “EDGAR” and/or on its home page on the worldwide web (at the date of this Agreement located at http://www.kindermorgan.com) and complied with the last grammatical paragraph of this Section 5.01 in respect thereof, and (y) if said Annual Report contains such consolidated balance sheet and such consolidated statements of results of income, comprehensive income, shareholders’ equity and cash flows, and the report thereon of such independent public accountants (without qualification or exception, and to the effect, as specified above), the Borrower shall not be required to comply with clause (ii);
(b)    within five days after each date in each fiscal year on which the Borrower is required to file a Quarterly Report on Form 10-Q with the SEC or, if earlier, 50 days after the end of each fiscal quarter (i) such Quarterly Report, and (ii) its consolidated balance sheet and the related consolidated statements of income and cash flows as of the end of and for the fiscal quarter to which said Quarterly Report relates and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures as of the end and for the corresponding period or periods of the previous fiscal year, all certified by a Responsible Officer as presenting fairly in all material respects the financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided, however, that (x) the Borrower shall be deemed to have furnished said Quarterly Report for purposes of clause (i) if it shall have timely made the same available on “EDGAR” and/or on its home page on the worldwide web (at the date of this Agreement located at http://www.kindermorgan.com) and complied with the last grammatical paragraph of this Section 5.01 in respect thereof, and (y) if said Quarterly Report contains such consolidated balance sheet and consolidated statements of income and cash flows, and such certifications, the Borrower shall not be required to comply with clause (ii);
(c)    simultaneously with the delivery of each set of financial statements referred to in clauses (a) and (b) above, a certificate in substantially the form of Exhibit 5.01 signed by an authorized financial or accounting officer of the Borrower (i) setting forth in reasonable detail the calculations required to establish whether the Borrower was in compliance with the requirements of Section 6.07, (ii)
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Revolving Credit Facility


(A) in the case of the first set of financial statements delivered following the Closing Date, setting forth a list of the Material Subsidiaries, and (B) in the case of each set of financial statements delivered thereafter, an update of any change in the list of the Material Subsidiaries or stating that there has been no such change, and (iii) stating whether any Default or Event of Default exists on the date of such certificate and, if any Default or Event of Default then exists, setting forth the details thereof and the action which the Borrower is taking or proposes to take with respect thereto;
(d)    prompt written notice of the following:
(i)    the occurrence of any Default or Event of Default;
(ii)    any other development that results in, or could reasonably be expected to result in, a Material Adverse Effect; and
(iii)    any change in the information provided in the Beneficial Ownership Certification delivered to such Lender that would result in a change to the list of beneficial owners identified in such certification;
(each notice delivered under this Section 5.01(d) to be accompanied by a statement of a Responsible Officer setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto);
(e)    without duplication of any other requirement of this Section 5.01, promptly upon the mailing thereof to the public shareholders of the Borrower generally, copies of all financial statements, reports and proxy statements so mailed;
(f)    promptly upon the filing thereof with the SEC, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent) and reports on Form 8-K which the Borrower shall have filed with the SEC;
(g)    if and when any member of the ERISA Group (i) gives or is required to give notice to the PBGC of any “reportable event (as defined in Section 4043 of ERISA) (other than such event as to which the 30-day notice requirement is waived) with respect to any Plan which would reasonably be expected to constitute grounds for a termination of such Plan under Title IV of ERISA, or knows that the plan administrator of any Plan has given or is required to give notice of any such reportable event, a copy of the notice of such reportable event given or required to be given to the PBGC; (ii) receives notice of complete or partial material Withdrawal Liability under Title IV of ERISA or notice that any Multiemployer Plan is insolvent, is in “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305 of ERISA) or has been terminated, a copy of such notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent to terminate, impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of such notice; (iv) fails to satisfy, or applies for a waiver of the minimum funding standard under Section 412 of the Code, a copy of such application; (v) gives notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and other information filed with the PBGC; (vi) gives notice of withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) fails to make any payment or contribution to any Plan or Multiemployer Plan or in respect of any Benefit Arrangement or makes any amendment to any Plan or Benefit Arrangement which has resulted or could result in the imposition of a Lien or the posting of a bond or other security, a certificate of the chief financial officer or the chief accounting officer of the Borrower setting forth details as to such occurrence and action, if any, which the Borrower or applicable member of the ERISA Group is required or proposes to take; and
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Revolving Credit Facility


(h)    (x) from time to time such other information (other than projections) regarding the business, affairs or financial condition of the Borrower or any Subsidiary as the Required Lenders or the Administrative Agent may reasonably request and (y) promptly following any request therefor, information and documentation reasonably requested by the Administrative Agent for distribution to the Lenders so requesting for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation.
Information required to be delivered pursuant to Section 5.01(a), 5.01(b) or 5.01(f) above shall be deemed to have been delivered on the date on which the Borrower provides notice to the Administrative Agent and the Lenders that such information has been posted on “EDGAR” or the Borrower’s website or another website identified in such notice and accessible by the Administrative Agent and the Lenders without charge (and the Borrower hereby agrees to provide such notice); provided that such notice may be included in a certificate delivered pursuant to Section 5.01(c).
SECTION 5.02    Existence, Conduct of Business. The Borrower will, and will cause each of the Material Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges and franchises material to the conduct of its business, except where the failure to do so (individually or collectively with all such failures) could not reasonably expected to have a Material Adverse Effect; provided that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.03.
SECTION 5.03    Payment of Obligations. The Borrower will, and will cause each of the Material Subsidiaries to, pay, before the same shall become delinquent or in default, its Indebtedness and Tax liabilities but excluding Indebtedness (other than the Obligations) that is not in excess of $150,000,000, except where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings, (b) the Borrower or such Material Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP or (c) the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.04    Maintenance of Properties; Insurance.
(a)    The Borrower will keep, and will cause each Material Subsidiary to keep, all property material to the conduct its business (taken as a whole) in good working order and condition, ordinary wear and tear excepted, in the reasonable judgment of the Borrower.
(b)    The Borrower will maintain or cause to be maintained with, in the good faith judgment of the Borrower, financially sound and reputable insurers, or through self-insurance, insurance with respect to its properties and business and the properties and businesses of the Subsidiaries against loss or damage of the kinds customarily insured against by business enterprises of established reputation engaged in the same or similar business and similarly situated, of such types and in such amounts as are customarily carried under similar circumstances by such other corporations. Such insurance may include self-insurance or be subject to co-insurance, deductibility or similar clauses which, in effect, result in self-insurance of certain losses, provided that such self-insurance is in accord with the approved practices of business enterprises of established reputation similarly situated and adequate insurance reserves are maintained in connection with such self-insurance, and, notwithstanding the foregoing provisions of this Section 5.04 the Borrower or any Subsidiary may effect workers’ compensation or similar insurance in respect of operations in any state or other jurisdiction any through an insurance fund operated by such state or other jurisdiction or by causing to be maintained a system or systems of self-insurance in accord with applicable laws.
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Revolving Credit Facility


SECTION 5.05    Books and Records; Inspection Rights. The Borrower will, and will cause each of the Material Subsidiaries to, keep, in accordance with GAAP, books of record and account. The Borrower will, and will cause each of the Material Subsidiaries to, permit any representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice during normal business hours, and, if the Borrower shall so request, in the presence of a Responsible Officer or an appointee of a Responsible Officer, at the expense of the Administrative Agent or such Lender (unless an Event of Default exists, in which event the expense shall be that of the Borrower) to visit and inspect its properties, to examine and make extracts from its books and records (subject to compliance with confidentiality agreements and applicable copyright law), and to discuss its affairs, finances and condition with its officers, all at such times, and as often, as reasonably requested, but unless an Event of Default exists, no more frequently than once during each calendar year.
SECTION 5.06    Compliance with Laws. The Borrower will, and will cause each of the Material Subsidiaries to, comply with all Requirements of Law applicable to it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. The Borrower will maintain in effect and enforce policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.
SECTION 5.07    Use of Proceeds. The proceeds of the Loans will be used for working capital and other general corporate purposes.
SECTION 5.08    Additional Guarantors. The Borrower shall cause each Subsidiary (including, without limitation, any Division Successor) (other than any Excluded Subsidiary) formed or otherwise purchased or acquired on or after the Closing Date (including each Subsidiary that ceases to constitute an Excluded Subsidiary after the Closing Date) to execute a supplement to the Guaranty and become a Guarantor within 45 days of the occurrence of the applicable event specified in this Section 5.08 (or such longer period of time as the Administrative Agent shall reasonably agree).
ARTICLE VI
NEGATIVE COVENANTS
From the Closing Date until the Commitments have expired or terminated and principal of and interest on each Loan and all fees payable hereunder have been paid in full and all Letters of Credit have expired or terminated (or other arrangements satisfactory to the applicable Issuing Bank made with respect thereto) and all LC Disbursements shall have been reimbursed, the Borrower covenants and agrees with the Lenders that:
SECTION 6.01    Indebtedness of Non-Guarantor Subsidiaries. The Borrower will not permit any Subsidiary that is not a Guarantor (each a “Non-Guarantor Subsidiary”) to create, incur or assume Indebtedness other than the following:
(a)    Indebtedness existing as of the Closing Date and set forth on Schedule 6.01 and any Indebtedness incurred to refund, extend, refinance or otherwise replace such Indebtedness; provided that the principal amount of such Indebtedness does not exceed the principal amount of Indebtedness refinanced (plus the amount of penalties, premiums, fees, accrued interest and reasonable expenses and other obligations incurred therewith) at the time of the refinancing;
(b)    Indebtedness owing to the Borrower or its Subsidiaries;
(c)    Indebtedness that is (or was) secured by Liens permitted pursuant to Section 6.02(b) or (c) and any Indebtedness incurred to refund, extend, refinance or otherwise replace such
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Revolving Credit Facility


Indebtedness; provided, that the principal amount of such Indebtedness does not exceed the principal amount of Indebtedness refinanced (plus the amount of penalties, premiums, fees, accrued interest and reasonable expenses and other obligations incurred therewith) at the time of refinancing;
(d)    (i) Indebtedness attaching to any property or asset prior to the acquisition thereof by any Non-Guarantor Subsidiary or of, or attaching to any property or asset of, any Person that becomes a Non-Guarantor Subsidiary after the date hereof prior to the time such Person becomes a Non-Guarantor Subsidiary, in each case, outstanding prior to the acquisition of such property or asset or such Person becoming a Non-Guarantor Subsidiary; provided that such Indebtedness was not incurred in contemplation of or in connection with such acquisition or such Person becoming a Non-Guarantor Subsidiary, as the case may be and (ii) and any Indebtedness incurred to refund, extend, refinance or otherwise replace such Indebtedness (plus the amount of penalties, premiums, fees, accrued interest and reasonable expenses and other obligations incurred therewith);
(e)    Indebtedness of Foreign Subsidiaries; and
(f)    Indebtedness of Non-Wholly-owned Subsidiaries.
SECTION 6.02    Liens. The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Lien securing Indebtedness on any property or asset now owned or hereafter acquired by it except:
(a)    Liens existing as of the Closing Date (including any replacement, extension or renewal of any such Lien permitted upon or in the same assets (other than after acquired property that is affixed or incorporated into the property covered by such Lien) theretofore subject to such Lien or the replacement, extension or renewal (without increase in the amount or change in any direct or contingent obligor except to the extent otherwise permitted hereunder) of the Indebtedness secured thereby);
(b)    Liens securing (A) Capital Lease Obligations, or (B) Indebtedness incurred to finance the acquisition, construction, expansion or improvement of any fixed or capital assets of the Borrower or its Subsidiaries; provided that (x) such Liens attach at all times only to the assets so financed except for accessions to such property, improvements thereof and general intangibles relating thereto, and the proceeds and the products thereof and (y) individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender;
(c)    Liens existing on any property or asset prior to the acquisition thereof by the Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary, in each case, pursuant to security documents in effect prior to the acquisition of such property or asset or such Person becoming a Subsidiary (“Existing Security Documents”), and securing Indebtedness whose incurrence, for purposes of this Agreement, by virtue of acquisition of such property or asset, or by virtue of such Person so becoming a Subsidiary, would not result in a violation of Section 6.07; provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other property or assets of the Borrower or any Subsidiary except to the extent such Lien attaches to such property or assets pursuant to Existing Security Documents, (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be, and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof. For purposes of this Section 6.02(c), the Indebtedness so secured shall be deemed to have been incurred on the last day of the fiscal quarter then most recently ended;
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Revolving Credit Facility


(d)    Liens, not otherwise permitted by the foregoing clauses (a) and (b), securing Indebtedness in an aggregate amount not exceeding, as of the last day of the fiscal quarter most recently ended, 15% of Consolidated Net Tangible Assets; and
(e)    Liens encumbering the equity interests or other investments owned by the Borrower or any of its Subsidiary in any joint venture (i) securing obligations (other than Indebtedness) of the Borrower or such Subsidiary under the joint venture agreement for such joint venture, (ii) in the nature of customary voting, equity transfer, redemptive rights or similar terms (other than Liens securing Indebtedness) under any such agreement, or (iii) securing Indebtedness of such joint venture.
SECTION 6.03    Fundamental Changes. The Borrower will not, and will not permit any Material Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (including pursuant to a Division and whether in one transaction or in a series of transactions) all (or substantially all) of its assets, or all or substantially all of the stock of or other equity interest in any of the Material Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, unless: (a) at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing; and (b) (i) the Borrower or a Material Subsidiary is the surviving entity or the recipient of the assets so sold, transferred, leased or otherwise disposed of in any such sale, transfer, lease or other disposition of assets, provided, that no such merger, consolidation, sale, transfer, lease or other disposition shall have the effect of releasing the Borrower from any of the Obligations or (ii) such merger, consolidation, sale, transfer, lease or other disposition, when taken together with all other consolidations, mergers or sales of assets by the Borrower or any Material Subsidiary since the Closing Date, shall not result in the disposition by the Borrower and the Material Subsidiaries of assets in an amount that would constitute all or substantially all of the consolidated assets of the Borrower and the Material Subsidiaries.
SECTION 6.04    Restricted Payments. The Borrower will not declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment except (a) so long as both before and after the making of such Restricted Payment, no Event of Default shall have occurred and be continuing, (b) any Capital Stock split, Capital Stock reverse split, dividend of Borrower Capital Stock or similar transaction will not constitute a Restricted Payment, and (c) acquisitions by officers, directors and employees of the Borrower of equity interests in the Borrower through cashless exercise of options pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements.
SECTION 6.05    Transactions with Affiliates. The Borrower will conduct, and cause each of the Subsidiaries to conduct, all transactions with any of its Affiliates (other than the Borrower or the Subsidiaries) on terms that are substantially as favorable to the Borrower or such Subsidiary as it would obtain in a comparable arm’s-length transaction with a Person that is not an Affiliate, provided that the foregoing shall be deemed to be satisfied with respect to any transaction that is approved by a majority of the independent members of the Borrower’s board of directors, or of a committee thereof consisting solely of independent directors, and provided, further that the foregoing restrictions shall not apply to:
(a)    the payment of (i) customary fees for management, consulting and financial services rendered to the Borrower and the Subsidiaries and (ii) customary investment banking fees paid for services rendered to the Borrower and the Subsidiaries in connection with divestitures, acquisitions, financings and other transactions;
(b)    transactions permitted by Section 6.04;
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Revolving Credit Facility


(c)    the payment of any fees or expenses incurred or paid by the Borrower or any of its Subsidiaries in connection with the Transactions, this Agreement and the other Loan Documents and the transactions contemplated hereby and thereby;
(d)    the issuance of Capital Stock of the Borrower to the management of the Borrower or any of its Subsidiaries in connection with the Transactions or pursuant to arrangements described in clause (f) of this Section 6.05;
(e)    loans, advances, provision of credit support and other investments by (or to) the Borrower and the Subsidiaries;
(f)    employment and severance arrangements among the Borrower and the Subsidiaries and their respective officers and employees in the ordinary course of business;
(g)    payments by the Borrower and the Subsidiaries pursuant to tax sharing agreements among the Borrower and the Subsidiaries on customary terms to the extent attributable to the ownership or operation of the Borrower and the Subsidiaries;
(h)    the payment of customary fees and reasonable out of pocket costs to, and indemnities provided on behalf of, directors, managers, consultants, officers and employees of the Borrower and the Subsidiaries in the ordinary course of business to the extent attributable to the ownership or operation of the Borrower and the Subsidiaries; and
(i)    transactions pursuant to agreements set forth on Schedule 6.05 or any amendment thereto to the extent such an amendment is not adverse, taken as a whole, to the Lenders in any material respect.
SECTION 6.06    Restrictive Agreements. The Borrower will not, and will not permit any of the Material Subsidiaries that are not Guarantors to, directly or indirectly, enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon the ability of any non-Guarantor Material Subsidiary to pay dividends or other distributions with respect to any shares of its Capital Stock or to make or repay loans (including subordinate loans) or advances to the Borrower or any Guarantor, provided that the foregoing shall not apply to (a) restrictions and conditions imposed by law or by this Agreement, (b) customary restrictions and conditions contained in agreements relating to the sale of all or substantially all of the Capital Stock or assets of a Subsidiary pending such sale, provided such restrictions and conditions apply only to the Subsidiary that is to be sold and such sale is permitted hereunder, (c) restrictions and conditions existing on the date hereof identified on Schedule 6.06 (but shall apply to any extension or renewal of, or any amendment or modification expanding the scope of, any such restriction or condition) and (d) restrictions or conditions contained in, or existing by reason of, any agreement or instrument relating to any Subsidiary at the time such Subsidiary was merged or consolidated with or into, or acquired by, the Borrower or a Subsidiary or became a Subsidiary and not created in contemplation thereof.
SECTION 6.07    Ratio of Consolidated Net Indebtedness to Consolidated EBITDA. Commencing with the last day of the first full fiscal quarter following the Closing Date and on the last day of each fiscal quarter ended thereafter, the Borrower will not permit the ratio of Consolidated Net Indebtedness to Consolidated EBITDA for the most recent four full fiscal quarters ended as of the last day of such applicable fiscal quarter, to exceed 5.50:1.00.
For purposes of this Section 6.07, Hybrid Securities up to an aggregate amount of 5% of Total Capitalization (after giving effect to the following exclusion) shall be excluded from Consolidated Net Indebtedness.
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Revolving Credit Facility


SECTION 6.08    Use of Proceeds. The Borrower will not request any Borrowing or Letter of Credit, and the Borrower shall not use, and shall procure that its Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Borrowing or Letter of Credit (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws or applicable anti-money laundering laws, (B) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (C) in any manner that would result in the violation of any Sanctions applicable to any party hereto.
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01    Events of Default and Remedies. If any of the following events (“Events of Default”) shall occur and be continuing:
(a)    the principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b)    any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paid, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Days;
(c)    any representation or warranty made or, for purposes of Article III, deemed made by or on behalf of the Borrower herein, at the direction of the Borrower or by any Loan Party in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;
(d)    the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 (with respect to the Borrower’s existence) or 5.07 or in Article VI;
(e)    any Loan Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a), Section 7.01(b) or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to the Borrower by the Administrative Agent or any Lender or, (ii) a Responsible Officer of the Borrower becomes aware of such failure;
(f)    other than as specified in Section 7.01(a) or (b), (i) the Borrower or any Subsidiary fails to make (whether as primary obligor or as guarantor or other surety) any payment of principal of, or interest or premium, if any, on any item or items of Indebtedness (other than as specified in Section 7.01(a) or Section 7.01(b)) or any payment in respect of any Hedging Agreement, in each case when the same becomes due and payable (whether by scheduled maturity, required payment or prepayment, acceleration, demand or otherwise), beyond any period of grace provided with respect thereto (not to exceed 30 days); provided that the aggregate outstanding principal amount of all Indebtedness or payment obligations in respect of all Hedging Agreements as to which such a payment default shall occur and be continuing is equal to or exceeds $150,000,000, or (ii) the Borrower or any Subsidiary fails to duly observe, perform or comply with any agreement with any Person or any term or condition of any instrument, if such failure, either individually or in the aggregate, shall have resulted in
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Revolving Credit Facility


the acceleration of the payment of Indebtedness with an aggregate face amount which is equal to or exceeds $150,000,000; provided that this Section 7.01(f) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, so long as such Indebtedness is paid in full when due;
(g)    an involuntary case shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Material Subsidiary or its debts, or of a substantial part of its assets, under any Debtor Relief Laws or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Material Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(h)    the Borrower or any Material Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, winding-up, reorganization or other relief under any Debtor Relief Laws, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in Section 7.01(g), (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Material Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(i)    the Borrower or any Material Subsidiary shall become unable, admit in writing or fail generally to pay its debts as they become due;
(j)    one or more judgments for the payment of money in an aggregate amount in excess of $150,000,000 shall be rendered against the Borrower, any Subsidiary or any combination thereof and the same shall (x) not be covered by insurance and (y) remain undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Subsidiary to enforce any such judgment;
(k)    a Change in Control shall occur;
(l)    any member of the ERISA Group shall fail to pay when due an amount which it shall have become liable to pay under Title IV of ERISA; or notice of intent to terminate a Plan shall be filed under Title IV of ERISA by any member of the ERISA Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer any Plan; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Plan must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause one or more members of the ERISA Group to incur a current payment obligation; and in each of the foregoing instances such condition could reasonably be expected to result in a Material Adverse Effect;
then, and in any such event, and at any time thereafter (but for the avoidance of doubt, in each case, not prior to the Closing Date) if any Event of Default shall then be continuing, the Administrative Agent, may, and upon the written request of the Required Lenders shall, by written notice (including notice sent by telecopy or electronic mail) to the Borrower (a “Notice of Default”) take any or all of the following actions, without prejudice to the rights of the Administrative Agent, any Lender or other holder of any of the Obligations to enforce its claims against the Borrower (provided that, if an Event of Default specified
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Revolving Credit Facility


in Section 7.01(g) or Section 7.01(h) shall occur with respect to the Borrower or any Material Subsidiary, the actions described in clauses (i), (ii) and (v) below shall occur automatically without the giving of any Notice of Default): (i) declare the Total Commitment terminated, whereupon the Commitments of the Lenders shall forthwith terminate immediately and any accrued Commitment Fees shall forthwith become due and payable without any other notice of any kind; (ii) declare the principal of and any accrued interest in respect of all Loans, and all the other Obligations owing hereunder and under the other Loan Documents, to be, whereupon the same shall become, forthwith due and payable without presentment, demand, notice of demand or of dishonor and nonpayment, protest, notice of protest, notice of intent to accelerate, declaration or notice of acceleration or any other notice of any kind, all of which are hereby waived by the Borrower; (iii) exercise any rights or remedies under the Loan Documents; (iv) terminate any Letter of Credit which may be terminated in accordance with its terms (whether by the giving of written notice to the beneficiary or otherwise); and (v) direct the Borrower to comply, and the Borrower agrees that upon receipt of such notice (or upon the occurrence of an Event of Default specified in Section 7.01(g) or Section 7.01(h)) it will comply, with the provisions of Section 2.05(l).
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.01    Appointment and Authority. Each of the Lenders and the Issuing Banks hereby irrevocably appoints Barclays Bank PLC to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks and, except as specifically provided in Section 8.06(a) and (b), the Borrower shall not have rights as a third-party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.
SECTION 8.02    Rights as a Lender. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for, and generally engage in any kind of business with, the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
SECTION 8.03    Exculpatory Provisions.
(a)    The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent:
(i)    shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing;
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Revolving Credit Facility


(ii)    shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and
(iii)    shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.
(b)    The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 9.02 and 9.03) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until notice describing such Default is given to the Administrative Agent in writing by the Borrower, a Lender or an Issuing Bank.
(c)    The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default or the enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article III or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
SECTION 8.04    Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making or extension of a Loan or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or Issuing Bank prior to the making or extension of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
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Revolving Credit Facility


SECTION 8.05    Delegation of Duties. The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub agents appointed by the Administrative Agent. The Administrative Agent and any such sub agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub agent and to the Related Parties of the Administrative Agent and any such sub agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub agents.
SECTION 8.06    Resignation of Administrative Agent.
(a)    The Administrative Agent may at any time give notice of its resignation to the Lenders, the Issuing Banks and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right to appoint a successor, subject to (so long as no Default or Event of Default exists) the prior written consent of the Borrower (which consent will not be unreasonably withheld or delayed), which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to), subject to (so long as no Default or Event of Default exists) the prior written consent of the Borrower (which consent will not be unreasonably withheld), on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent meeting the qualifications set forth above. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.
(b)    If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Borrower and such Person remove such Person as Administrative Agent and, subject to (so long as no Default or Event of Default exists) the prior written consent of the Borrower (which consent will not be unreasonably withheld or delayed), appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.
(c)    With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the Issuing Banks under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (2) except for any indemnity payments owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and Issuing Bank directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than any rights to indemnity payments owed to the retiring or removed Administrative
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Revolving Credit Facility


Agent), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent.
SECTION 8.07    Non-Reliance on Administrative Agent and Other Lenders.
(a)    Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
(b)    Each Lender acknowledges that Simpson Thacher & Bartlett LLP is acting in this transaction as special legal counsel to the Administrative Agent only. Each Lender and Issuing Bank will consult with its own legal counsel to the extent it deems necessary with this Agreement and the other Loan Documents and the matters contemplated herein and therein.
SECTION 8.08    INDEMNIFICATION. THE LENDERS AGREE TO INDEMNIFY THE ADMINISTRATIVE AGENT, THE ARRANGERS, THE SYNDICATION AGENT AND THE DOCUMENTATION AGENTS RATABLY IN ACCORDANCE WITH THEIR APPLICABLE PERCENTAGES FOR THE INDEMNITY MATTERS AS DESCRIBED IN SECTION 9.03 TO THE EXTENT NOT INDEMNIFIED OR REIMBURSED BY THE BORROWER UNDER SECTION 9.03, BUT WITHOUT LIMITING THE OBLIGATIONS OF THE BORROWER UNDER SAID SECTION 9.03 AND FOR ANY AND ALL OTHER LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS OF ANY KIND AND NATURE WHATSOEVER WHICH MAY BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST THE ADMINISTRATIVE AGENT, ANY ARRANGER, THE SYNDICATION AGENT OR ANY DOCUMENTATION AGENT IN ANY WAY RELATING TO OR ARISING OUT OF: (A) THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT CONTEMPLATED BY OR REFERRED TO HEREIN OR THE TRANSACTIONS CONTEMPLATED HEREBY, BUT EXCLUDING, UNLESS A DEFAULT OR AN EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING, NORMAL ADMINISTRATIVE COSTS AND EXPENSES INCIDENT TO THE PERFORMANCE OF ITS AGENCY DUTIES, IF ANY, HEREUNDER OR UNDER ANY SUCH OTHER LOAN DOCUMENT OR (B) THE ENFORCEMENT OF ANY OF THE TERMS OF THIS AGREEMENT OR OF ANY OTHER LOAN DOCUMENT; WHETHER OR NOT ANY OF THE FOREGOING SPECIFIED IN THIS SECTION 8.08 ARISES FROM THE SOLE OR CONCURRENT NEGLIGENCE OF THE ADMINISTRATIVE AGENT, ANY ARRANGER, THE SYNDICATION AGENT OR ANY DOCUMENTATION AGENT, AS THE CASE MAY BE; PROVIDED THAT NO LENDER SHALL BE LIABLE FOR ANY OF THE FOREGOING TO THE EXTENT THEY ARISE FROM THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR UNLAWFUL CONDUCT OF THE ADMINISTRATIVE AGENT, ANY ARRANGER, THE SYNDICATION AGENT OR ANY DOCUMENTATION AGENT AS DETERMINED BY A
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Revolving Credit Facility


COURT OF COMPETENT JURISDICTION IN A FINAL AND NONAPPEALABLE JUDGMENT.
SECTION 8.09     No Reliance on Agents or other Lenders. Each Lender acknowledges and agrees that it has, independently and without reliance on the Administrative Agent, any Arranger, the Syndication Agent, any Documentation Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own credit analysis of the Borrower and its Subsidiaries and its decision to enter into this Agreement, and that it will, independently and without reliance upon the Administrative Agent, any Arranger, the Syndication Agent, any Documentation Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own analysis and decisions in taking or not taking action under this Agreement. None of the Administrative Agent, the Arrangers, the Syndication Agent or the Documentation Agents shall be required to keep itself informed as to the performance or observance by the Borrower of this Agreement, the other Loan Documents or any other document referred to or provided for herein or to inspect the properties or books of the Borrower. Except for notices, reports and other documents and information expressly required to be furnished to the Lenders by the Administrative Agent hereunder, none of the Administrative Agent, the Arrangers, the Syndication Agent or the Documentation Agents shall have any duty or responsibility to provide any Lender with any credit or other information concerning the affairs, financial condition or business of the Borrower (or any of its Affiliates) which may come into the possession of the Administrative Agent, any Arranger, the Syndication Agent, any Documentation Agent or any of their respective Affiliates. In this regard, each Lender acknowledges that Simpson Thacher & Bartlett LLP is acting in this transaction as special counsel to the Administrative Agent only. Each Lender will consult with its own legal counsel to the extent that it deems necessary in connection with this Agreement and other Loan Documents and the matters contemplated herein and therein.
SECTION 8.10     Duties of the Syndication Agent, Documentation Agents, Arrangers. Notwithstanding the indemnity of the Syndication Agent, the Documentation Agents and the Arrangers contained in Section 8.08 and in Section 9.03, nothing contained in this Agreement shall be construed to impose any obligation or duty whatsoever on any Person named on the cover of this Agreement or elsewhere in this Agreement as a Syndication Agent, a Documentation Agent, an Arranger, a “lead arranger” or a “bookrunner”, other than those applicable to all Lenders as such.
SECTION 8.11    Certain ERISA Matters.
(a)    Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and the Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:
(i)    such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit or the Commitments or this Agreement,
(ii)    the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption
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Revolving Credit Facility


for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
(iii)    (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or
(iv)    such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
(b)    In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and the Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that none of the Administrative Agent or the Joint Leader Arrangers or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement (including in connection with the reservation ofor exercise orof any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).
(c)    The Administrative Agent and the Joint Leader Arrangers hereby inform the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans, the Letters of Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.
SECTION 8.01    Erroneous Payments.
(a)    Each Lender (and each Participant of the foregoing, by its acceptance of a participation) hereby acknowledges and agrees that if the Administrative Agent notifies such Lender that the Administrative Agent has determined in its sole discretion that any funds (or any portion thereof) received
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Revolving Credit Facility


by such Lender (any of the foregoing, a “Payment Recipient”) from the Administrative Agent (or any of its Affiliates) were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Payment Recipient) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) and demands the return of such Payment, such Payment Recipient shall promptly, but in no event later than two Business Days thereafter, return to the Administrative Agent the amount of any such Payment as to which such a demand was made. A notice of the Administrative Agent to any Payment Recipient under this Section shall be conclusive, absent manifest error.
(b)    Without limitation of clause (a) above, each Payment Recipient further acknowledges and agrees that if such Payment Recipient receives a Payment from the Administrative Agent (or any of its Affiliates) (x) that is in an amount, or on a date different from the amount and/or date specified in a notice of payment sent by the Administrative Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, it understands and agrees at the time of receipt of such Payment that an error has been made (and that it is deemed to have knowledge of such error) with respect to such Payment. Each Payment Recipient agrees that, in each such case, it shall promptly notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in no event later than two Business Days thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made.
(c)    Any Payment required to be returned by a Payment Recipient under this Section shall be made in same day funds in the currency so received, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. Each Payment Recipient hereby agrees that it shall not assert and, to the fullest extent permitted by applicable law, hereby waives, any right to retain such Payment, and any claim, counterclaim, defense or right of set-off or recoupment or similar right to any demand by the Administrative Agent for the return of any Payment received, including without limitation any defense based on “discharge for value” or any similar doctrine.
(d)    The Borrower and each other Loan Party hereby agrees that (x) in the event an erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party except, in each case, to the extent such erroneous Payment is, and with respect to the amount of such erroneous Payment that is, comprised of funds of the Borrower or any other Loan Party.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01    Notices, Etc.
(a)    All notices, consents, requests, approvals, demands and other communications (collectively “Communications”) provided for herein shall be in writing (including facsimile Communications) and mailed, telecopied or delivered:
(i)    if to the Borrower, to it at:
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Revolving Credit Facility


1001 Louisiana Street, Suite 1000
Houston, Texas 77002
Attention: Chris Graeter
Telecopy No.: (713) 336-4074;
With a copy to:
1001 Louisiana Street, Suite 1000
Houston, Texas 77002
Attention: General Counsel
Telecopy No.: (713) 495-2877;
(ii)    if to the Administrative Agent, to it at
c/o   Barclays Bank PLC
745 Seventh Avenue, 8th Floor
New York, NY 10019
Attention: Robert Walsh
Email: Robert.xa.walsh@barclays.com / ltmny@Barclays.com
Phone: 212-526-6047

(iii)    if to the Swingline Lender, to it at
c/o   Barclays Bank PLC
400 Jefferson Park
Whippany, NJ 07981
Attention: Sarah Wright
Email: Sarah.Wright@barclays.com / 12145455230@tls.ldsprod.com
Phone: 201-499-2138

(i)     if to any other Lender or to any Issuing Bank, to it at its address (or telecopy number) set forth in the Administrative Questionnaire delivered by such Person to the Administrative Agent or in the Assignment and Acceptance executed by such Person;
or, in the case of any party hereto, such other address or telecopy number as such party may hereafter specify for such purpose by notice to the other parties.
(b)    Communications to the Lenders hereunder may be delivered or furnished by electronic communications (including electronic mail and internet or intranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.
(c)    Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses
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Revolving Credit Facility


(i) and (ii) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.
(d)    Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto.
(e)    Platform.
(i)    The Borrower agrees that the Administrative Agent may, but shall not be obligated to, make the Communications available to the Lenders and the Issuing Banks by posting the Communications on Debt Domain, Intralinks, Syndtrak or a substantially similar electronic transmission system (the “Platform”).
The Platform is provided “as is” and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Electronic Communications (as defined below). No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender, any Issuing Bank or any other Person or entity for damages of any kind, including, without limitation, direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of the Borrower or the Administrative Agent’s transmission of communications through the Platform. “Electronic Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of the Borrower pursuant to any Loan Document or the transactions contemplated therein which is distributed to the Administrative Agent, any Lender or any Issuing Bank by means of electronic communications pursuant to this Section, including through the Platform.
SECTION 9.02    Waivers; Amendments; Releases.
(a)    No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising, and no course of dealing with respect to, any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. No notice to or demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances. No waiver of any provision of this Agreement or consent to any departure therefrom shall in any event be effective unless the same shall be permitted by Section 9.02(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b)    No provision of this Agreement or any other Loan Document (other than each Fee Letter, which may be amended by the parties thereto) provision may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrower (or to the extent another Loan Party and not the Borrower is party thereto, such Loan Party) and the Required Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders; provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of such Lender, other than increases of Commitments as provided in Section 2.21 and extensions of
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Revolving Credit Facility


Commitments as provided in Section 2.22, (ii) reduce the principal amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender affected thereby (for the avoidance of doubt, any amendment imposing an alternative interest rate basis in accordance with Section 2.13(b) shall become effective as provided in Section 2.13(b)), (iii) postpone the scheduled date of payment of the principal amount of any Loan or LC Disbursement, or any interest thereon, or any fees or other amounts payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender affected thereby, other than extensions of the Maturity Date as provided in Section 2.22, (iv) change Section 2.17(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby, without the written consent of each Lender, (v) amend Section 2.19 or 2.20 without the consent of the Administrative Agent, the Swingline Lender and the Issuing Banks in addition to the consent of the Required Lenders, (vi) release all or substantially all of the value of the Guarantees under the Guaranty or change any of the provisions of this Section 9.02(b), or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender; provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, the Swingline Lender or any Issuing Bank hereunder without the prior written consent of the Administrative Agent, the Swingline Lender or such Issuing Bank, as the case may be. Except as provided herein, during such period as a Lender is a Defaulting Lender, to the fullest extent permitted by applicable law, such Lender will not be entitled to vote in respect of amendments and waivers hereunder and the Commitment and the outstanding Loans or other extensions of credit of such Lender hereunder will not be taken into account in determining whether the Required Lenders or all of the Lenders, as required, have approved any such amendment or waiver (and the definition of “Required Lenders” will automatically be deemed modified accordingly for the duration of such period); provided that any such amendment or waiver referred to in clauses (i) through (vi) or the first of this Section 9.02(b) above or that would alter the terms set forth in such proviso shall require the consent of such Defaulting Lender.
Notwithstanding the foregoing, the Administrative Agent and the Borrower may amend any Loan Document to correct any obvious errors, mistakes, omissions, defects or inconsistencies and such amendment shall become effective without any further consent of any other party to such Loan Document other than the Administrative Agent and the Borrower.
(c)    Notwithstanding the provisions of Section 9.02(b), amendments to this Agreement pursuant to Section 2.21(c) and Section 2.22 may be effected without the consent of any Lenders other than the Administrative Agent, the Issuing Banks, the Swingline Lender and each Lender making a New Commitment or extending a Commitment.
(d)    The Lenders hereby irrevocably agree that any Guarantor shall be automatically released from the Guarantee upon consummation of any transaction not prohibited hereunder resulting in such Subsidiary ceasing to constitute a Subsidiary or upon any Subsidiary becoming an Excluded Subsidiary, provided that with respect to any Excluded Subsidiary that is a Guarantor on the Closing Date or that has become a Guarantor after the Closing Date at the request of the Borrower, such Excluded Subsidiary shall be automatically released from the Guaranty upon written notice thereof from a Responsible Officer of the Borrower to the Administrative Agent certifying that (i) such Excluded Subsidiary is an Excluded Subsidiary and (ii) on such date, or concurrently with such release, such Excluded Subsidiary shall be automatically released as a guarantor under the Cross Guarantee Agreement, dated as of November 26, 2014 (as amended, restated, supplemented or otherwise modified from time to time) entered by the Borrower and the other signatories party thereto, and is not a guarantor of the Bonds or any other material Indebtedness of the Borrower or any Subsidiary. The Lenders hereby authorize the Administrative Agent to execute and deliver any instruments, documents, and agreements necessary or
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desirable to evidence and confirm the release of any Guarantor pursuant to the foregoing provisions of this paragraph, all without the further consent or joinder of any Lender.
SECTION 9.03    Payment of Expenses, Indemnities, etc. The Borrower agrees:
(a)    to pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, in connection with the syndication of the credit facility provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof, (ii) all reasonable out-of-pocket expenses incurred by any Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the Administrative Agent, any Issuing Bank or any Lender, including the fees, charges and disbursements of any counsel for the Administrative Agent, any Issuing Bank or any Lender, in connection with the enforcement or protection of its rights in connection with this Agreement, including its rights under this Section, or in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b)    TO INDEMNIFY THE ADMINISTRATIVE AGENT, EACH ISSUING BANK, EACH ARRANGER, THE SYNDICATION AGENT, EACH DOCUMENTATION AGENT AND EACH LENDER AND EACH OF THEIR AFFILIATES AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, ATTORNEYS, ACCOUNTANTS AND EXPERTS (“INDEMNIFIED PARTIES”) FROM, HOLD EACH OF THEM HARMLESS AGAINST AND PROMPTLY UPON DEMAND PAY OR REIMBURSE EACH OF THEM FOR, THE INDEMNITY MATTERS WHICH MAY BE REASONABLY INCURRED BY OR ASSERTED AGAINST OR INVOLVE ANY OF THEM (WHETHER OR NOT ANY OF THEM IS DESIGNATED A PARTY THERETO AND WHETHER OR NOT THE CLAIM IS BROUGHT BY THE BORROWER OR A THIRD PARTY) AS A RESULT OF, ARISING OUT OF OR IN ANY WAY RELATED TO (I) ANY ACTUAL OR PROPOSED USE BY THE BORROWER OF THE PROCEEDS OF ANY OF THE LOANS OR ANY LETTER OF CREDIT, (II) THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY OR THEREBY, (III) THE OPERATIONS OF THE BUSINESS OF THE BORROWER AND THE SUBSIDIARIES, (IV) THE FAILURE OF THE BORROWER OR ANY SUBSIDIARY TO COMPLY WITH THE TERMS OF THIS AGREEMENT, OR WITH ANY REQUIREMENT OF LAW, (V) ANY INACCURACY OF ANY REPRESENTATION OR ANY BREACH OF ANY WARRANTY OF THE BORROWER SET FORTH IN ANY OF THE LOAN DOCUMENTS, (VI) THE ISSUANCE, EXECUTION AND DELIVERY OR TRANSFER OF OR PAYMENT OR FAILURE TO PAY UNDER ANY LETTER OF CREDIT, (VII) THE PAYMENT OF A DRAWING UNDER ANY LETTER OF CREDIT NOTWITHSTANDING THE NON-COMPLIANCE, NON-DELIVERY OR OTHER IMPROPER PRESENTATION OF THE MANUALLY EXECUTED DRAFT(S) AND CERTIFICATION(S), OR (VIII) ANY OTHER ASPECT OF THE LOAN DOCUMENTS, INCLUDING THE REASONABLE FEES AND DISBURSEMENTS OF COUNSEL AND ALL OTHER EXPENSES INCURRED IN CONNECTION WITH INVESTIGATING, DEFENDING OR PREPARING TO DEFEND ANY SUCH ACTION, SUIT, PROCEEDING (INCLUDING ANY INVESTIGATIONS, LITIGATION OR INQUIRIES) OR CLAIM AND INCLUDING ALL INDEMNITY MATTERS ARISING BY REASON OF THE ORDINARY NEGLIGENCE OF ANY INDEMNIFIED PARTY, BUT EXCLUDING ALL INDEMNITY MATTERS ARISING SOLELY (I) BY REASON OF CLAIMS BETWEEN THE LENDERS OR ANY LENDER AND THE ADMINISTRATIVE AGENT, ANY ARRANGER, THE SYNDICATION AGENT, ANY DOCUMENTATION AGENT, OR A LENDER’S SHAREHOLDERS AGAINST THE ADMINISTRATIVE AGENT OR LENDER (OTHER THAN CLAIMS IN ITS ROLE AS AGENT OR
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Revolving Credit Facility


ARRANGER) OR (II) BY REASON OF THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR UNLAWFUL CONDUCT ON THE PART OF THE INDEMNIFIED PARTY SEEKING INDEMNIFICATION AS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL AND NONAPPEALABLE JUDGMENT. FOR THE AVOIDANCE OF DOUBT, THIS SECTION 9.03(B) SHALL NOT APPLY WITH RESPECT TO TAXES OTHER THAN ANY TAXES THAT REPRESENT LOSSES, CLAIMS, DAMAGES, ETC. ARISING FROM ANY NON-TAX CLAIM.
(c)    TO INDEMNIFY AND HOLD HARMLESS FROM TIME TO TIME THE INDEMNIFIED PARTIES FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, COST RECOVERY ACTIONS, ADMINISTRATIVE ORDERS OR PROCEEDINGS, DAMAGES AND LIABILITIES TO WHICH ANY SUCH PERSON MAY BECOME SUBJECT (I) UNDER ANY ENVIRONMENTAL LAW APPLICABLE TO THE BORROWER OR ANY SUBSIDIARY OR ANY OF THEIR PROPERTIES OR ASSETS, INCLUDING THE TREATMENT OR DISPOSAL OF HAZARDOUS MATERIALS ON ANY OF THEIR PROPERTIES OR ASSETS, (II) AS A RESULT OF THE BREACH OR NON-COMPLIANCE BY THE BORROWER OR ANY SUBSIDIARY WITH ANY ENVIRONMENTAL LAW APPLICABLE TO THE BORROWER OR ANY SUBSIDIARY, (III) DUE TO PAST OWNERSHIP BY THE BORROWER OR ANY SUBSIDIARY OF ANY OF THEIR PROPERTIES OR ASSETS OR PAST ACTIVITY ON ANY OF THEIR PROPERTIES OR ASSETS WHICH, THOUGH LAWFUL AND FULLY PERMISSIBLE AT THE TIME, COULD RESULT IN PRESENT LIABILITY, (IV) THE PRESENCE, USE, RELEASE, STORAGE, TREATMENT OR DISPOSAL OF HAZARDOUS MATERIALS ON OR AT ANY OF THE PROPERTIES OWNED OR OPERATED BY THE BORROWER OR ANY SUBSIDIARY, OR (V) ANY OTHER ENVIRONMENTAL, HEALTH OR SAFETY CONDITION IN CONNECTION WITH THE LOAN DOCUMENTS (EXPRESSLY INCLUDING ANY SUCH CLAIM, DAMAGE LOSS, LIABILITY, COST, PENALTY, FEE OR EXPENSE ATTRIBUTABLE TO THE ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE OF SUCH INDEMNIFIED PARTY, BUT EXCLUDING ANY SUCH CLAIM, DAMAGE, LOSS, LIABILITY, COST, PENALTY, FEE OR EXPENSE RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNIFIED PARTY AS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL AND NONAPPEALABLE JUDGMENT). FOR THE AVOIDANCE OF DOUBT, THIS SECTION 9.03(C) SHALL NOT APPLY WITH RESPECT TO TAXES OTHER THAN ANY TAXES THAT REPRESENT LOSSES, CLAIMS, DAMAGES, ETC. ARISING FROM ANY NON-TAX CLAIM.
(d)    No Indemnified Party may settle any claim to be indemnified without the consent of the indemnitor, such consent not to be unreasonably withheld; provided that the indemnitor may not reasonably withhold consent to any settlement that an Indemnified Party proposes, if the indemnitor does not have the financial ability to pay all its obligations outstanding and asserted against the indemnitor at that time, including the maximum potential claims against the Indemnified Party to be indemnified pursuant to this Section 9.03.
(e)    In the case of any indemnification hereunder, the Indemnified Party, as appropriate, shall give notice to the Borrower of any such claim or demand being made against the Indemnified Party and the Borrower shall have the non-exclusive right to join in the defense against any such claim or demand; provided that if the Borrower provides a defense, the Indemnified Party shall bear its own cost of defense unless there is a conflict between the Borrower and such Indemnified Party.
(f)    THE FOREGOING INDEMNITIES SHALL EXTEND TO THE INDEMNIFIED PARTIES NOTWITHSTANDING THE SOLE OR CONCURRENT NEGLIGENCE OF EVERY KIND OR CHARACTER WHATSOEVER, WHETHER ACTIVE OR PASSIVE, WHETHER AN AFFIRMATIVE ACT OR AN OMISSION, INCLUDING, ALL TYPES OF NEGLIGENT CONDUCT IDENTIFIED IN THE RESTATEMENT (SECOND) OF TORTS OF ONE
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OR MORE OF THE INDEMNIFIED PARTIES OR BY REASON OF STRICT LIABILITY IMPOSED WITHOUT FAULT ON ANY ONE OR MORE OF THE INDEMNIFIED PARTIES. TO THE EXTENT THAT AN INDEMNIFIED PARTY IS FOUND TO HAVE COMMITTED AN ACT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR ENGAGED IN UNLAWFUL CONDUCT (AS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL AND NONAPPEALABLE JUDGMENT), THIS CONTRACTUAL OBLIGATION OF INDEMNIFICATION SHALL CONTINUE BUT SHALL ONLY EXTEND TO THE PORTION OF THE CLAIM THAT IS DEEMED TO HAVE OCCURRED BY REASON OF EVENTS OTHER THAN THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR UNLAWFUL CONDUCT OF THE INDEMNIFIED PARTY (AS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL AND NONAPPEALABLE JUDGMENT).
(g)    The Borrower’s obligations under this Section 9.03 shall survive any termination of this Agreement, the payment of the Loans and the expiration of the Letters of Credit and shall continue thereafter in full force and effect.
(h)    To the extent that the Borrower fails to pay any amount required to be paid by it to the Administrative Agent, the Swingline Lender or any Issuing Bank under this Section 9.03, each Lender severally agrees to pay to the Administrative Agent, the Swingline Lender or such Issuing Bank, as the case may be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent, the Swingline Lender or such Issuing Bank in its capacity as such.
(i)    The Borrower shall pay any amounts due under this Section 9.03 within 30 days of the receipt by the Borrower of notice of the amount due.
(j)    To the fullest extent permitted by applicable law, no party shall assert, and each party hereby waives, any claim against any other party, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof; provided, however, that the foregoing limitation shall not be deemed to impair or affect the indemnification obligations of the Borrower under the Loan Documents. No Indemnified Party referred to in paragraph (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
SECTION 9.04    Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender, and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of Section 9.05(a), (ii) by way of participation in accordance with the provisions of Section 9.05(c), or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 9.05(d) (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 9.05(c) and, to the extent
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expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
SECTION 9.05    Assignments by Lenders.
(a)    Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, Letter of Credit Commitment and the Loans at the time owing to it); provided that any such assignment shall be subject to the following conditions:
(i)    (A)    in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and/or the Loans at the time owing to it or contemporaneous assignments to related Approved Funds that equal at least the amount specified in paragraph (a)(i)(B) of this Section; and
(B)    in any case not described in the proviso to paragraph (a)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Acceptance, as of the Trade Date) shall not be less than $5,000,000, unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, however, in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned.
(ii)    Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned.
(iii)    No consent shall be required for any assignment except to the extent required by paragraph (a)(i)(B) of this Section and, in addition:
(A)    the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (x) an Event of Default has occurred and is continuing at the time of such assignment or (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund, provided that the Borrower’s consent shall not be required during the primary syndication of the credit facility evidenced by this Agreement;
(B)    the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments if such assignment is to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender; and
(C)    the consent of each Issuing Bank and the Swingline Lender (such consents not to be unreasonably withheld or delayed) shall be required for any assignment.
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Revolving Credit Facility


(iv)    The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500; provided that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
(v)    No such assignment shall be made to (A) the Borrower or any of the Borrower’s Affiliates or Subsidiaries or (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B).
(vi)    No such assignment shall be made to a natural Person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person).
(vii)    In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, each Issuing Bank, the Swingline Lender and each other Lender hereunder (and interest and fees accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swingline Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (b) of this Section, from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 2.14, 2.15 and 9.03 and with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section.
(b)    Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee, if any, referred to in
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Section 9.05(a) and any written consent to such assignment required by Section 9.05(a), the Administrative Agent shall accept such Assignment and Acceptance and record the information contained therein in the Register (as defined below). No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph. The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices in New York, New York a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender (with respect to its own interest only), at any reasonable time and from time to time upon reasonable prior notice.
(c)    Any Lender may at any time, without the consent of, or notice to, the Borrower, the Administrative Agent, the Swingline Lender or the Issuing Banks, sell participations to any Person (other than a natural Person, a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the Borrower, the Administrative Agent, the Issuing Banks and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 8.08 with respect to any payments made by such Lender to its Participant(s).
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first proviso Section 9.02(b) that affects such Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.14, 2.15 and 2.16 (subject to the requirements and limitations therein, including the requirements under Section 2.16 (it being understood that the documentation required under Section 2.16 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (a) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 2.18 as if it were an assignee under paragraph (a) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 2.14 and 2.16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 2.18 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.09 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.17 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s
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Revolving Credit Facility


interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d)    Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or any central bank having jurisdiction over such Lender; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.06    Survival; Reinstatement.
(a)    All covenants, agreements, representations and warranties made by the Borrower herein and in the certificates or other instruments delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent, any Issuing Bank or any Lender may have had notice or knowledge of any Default or Event of Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding or so long as the Commitments have not expired or terminated. The provisions of Sections 2.14, 2.15, 2.16 and 9.03 and Article VIII shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement or any provision hereof.
(b)    To the extent that any payments on the Obligations are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, debtor in possession, receiver or other Person under any bankruptcy law, common law or equitable cause, then to such extent, the Obligations so satisfied shall be revived and continue as if such payment or proceeds had not been received.
SECTION 9.07    Counterparts; Integration; Effectiveness; Electronic Execution.
(a)    This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement, the other Loan Documents and the Fee Letters constitute the entire contract among the parties hereto relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 3.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Agreement.
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Revolving Credit Facility


(b)    The words “execution,” “signed,” “signature,” and words of like import in any Loan Document or any Assignment and Acceptance shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
SECTION 9.08    Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 9.09    Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender, each Issuing Bank and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held, and other obligations (in whatever currency) at any time owing, by such Lender, such Issuing Bank or any such Affiliate, to or for the credit or the account of a Loan Party against any and all of the obligations of a Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender, such Issuing Bank or their respective Affiliates, irrespective of whether or not such Lender, Issuing Bank or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Loan Parties may be contingent or unmatured or are owed to a branch, office or Affiliate of such Lender or Issuing Bank different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.19 pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the Issuing Banks and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, each Issuing Bank and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, such Issuing Bank or their respective Affiliates may have. Each Lender and Issuing Bank agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of each Lender under this Section 9.09 are in addition to other rights and remedies (including other rights of setoff) which such Lender may have.
SECTION 9.10    Governing Law; Jurisdiction; Consent to Service of Process. (a) This Agreement and the other Loan Documents shall be construed in accordance with and governed by the laws of the State of New York.
(b)    ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY AND ASSETS, UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS WITH RESPECT TO ANY SUCH ACTION OR PROCEEDING. THE
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Revolving Credit Facility


BORROWER HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS C T CORPORATION SYSTEM, WITH OFFICES ON THE DATE HEREOF AT 111 8TH AVENUE, NEW YORK, NEW YORK 10011, AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE AND ACCEPT FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, THE BORROWER AGREES TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT IN NEW YORK, NEW YORK ON THE TERMS AND FOR THE PURPOSES OF THIS PROVISION SATISFACTORY TO THE ADMINISTRATIVE AGENT. THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO IT AT ITS ADDRESS PROVIDED IN SECTION 9.01, SUCH SERVICE TO BECOME EFFECTIVE THIRTY DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(c)    THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (b) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE RIGHT TO PLEAD OR CLAIM, AND AGREES NOT TO PLEAD OR CLAIM, THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(d)    EACH PARTY HERETO HEREBY (i) IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; (ii) CERTIFIES THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OR AGENT OR COUNSEL FOR ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS, AND (iii) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION 9.10.
SECTION 9.11    WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
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INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12    Confidentiality. Each of the Administrative Agent, the Issuing Banks and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to their Affiliates, to their and their Affiliates’ directors, officers and employees and agents, including accountants, legal counsel and other advisors who have been informed of the confidential nature of the information provided, (b) disclosures in connection with any pledge or assignment permitted under Section 9.05(d) and, to the extent requested by any regulatory authority, including any self-regulatory authority such as the National Association of Insurance Commissioners or any similar organization, or any nationally recognized rating agency that requires access to information about a Lender’s investment portfolio, (c) to the extent a Lender reasonably believes it is required by applicable laws or regulations or by any subpoena or similar legal process (and, to the extent not prohibited under applicable law), such Lender will provide prompt notice thereof to the Borrower), (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an understanding with such Person that such Person will comply with this Section 9.12, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective party (or its Related Parties) to any swap, derivative, or other transaction under which payments are to be made by reference to the Borrower, and its obligations under this Agreement or the payments hereunder, (g) with the consent of the Borrower or (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section 9.12 or (ii) becomes available to the Administrative Agent, any Issuing Bank or any Lender from a source other than the Borrower (unless such source is actually known by the individual providing the information to be bound by a confidentiality agreement or other legal or contractual obligation of confidentiality with respect to such information). In addition, the Administrative Agent and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and service providers to the Administrative Agent and the Lenders in connection with the administration of this Agreement, the other Loan Documents, and the Commitments. For the purposes of this Section 9.12, “Information” means all information received from the Borrower relating to the Borrower or its business, other than any such information that is known to a Lender, publicly known or otherwise available to the Administrative Agent or any Lender other than through disclosure (a) by the Borrower, or (b) from a source actually known to a Lender to be bound by a confidentiality agreement or other legal or contractual obligation of confidentiality with respect to such information. Any Person required to maintain the confidentiality of Information as provided in this Section 9.12 shall be considered to have complied with its obligation to do so if such Person maintains the confidentiality of such Information in accordance with procedures adopted in good faith to protect confidential Information of third parties delivered to a lender.
SECTION 9.13    Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable law, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section 9.13 shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated
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amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.
SECTION 9.14    EXCULPATION PROVISIONS. EACH OF THE PARTIES HERETO SPECIFICALLY AGREES THAT IT HAS A DUTY TO READ THIS AGREEMENT, THE NOTES AND (IN THE CASE OF THE BORROWER AND THE ADMINISTRATIVE AGENT) THE FEE LETTERS AND AGREES THAT IT IS CHARGED WITH NOTICE AND KNOWLEDGE OF THE TERMS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS; THAT IT HAS IN FACT READ THIS AGREEMENT AND IS FULLY INFORMED AND HAS FULL NOTICE AND KNOWLEDGE OF THE TERMS, CONDITIONS AND EFFECTS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS; THAT IT HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL OF ITS CHOICE THROUGHOUT THE NEGOTIATIONS PRECEDING ITS EXECUTION OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS; AND HAS RECEIVED THE ADVICE OF ITS ATTORNEY IN ENTERING INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS; AND THAT IT RECOGNIZES THAT CERTAIN OF THE TERMS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS RESULT IN ONE PARTY ASSUMING THE LIABILITY INHERENT IN SOME ASPECTS OF THE TRANSACTION AND RELIEVING THE OTHER PARTY OF ITS RESPONSIBILITY FOR SUCH LIABILITY. EACH PARTY HERETO AGREES AND COVENANTS THAT IT WILL NOT CONTEST THE VALIDITY OR ENFORCEABILITY OF ANY EXCULPATORY PROVISION OF THIS AGREEMENT ON THE BASIS THAT THE PARTY HAD NO NOTICE OR KNOWLEDGE OF SUCH PROVISION OR THAT THE PROVISION IS NOT “CONSPICUOUS.”
SECTION 9.15    U.S. Patriot Act. Each Lender that is subject to the requirements of the USA PATRIOT ACT (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”) and the Beneficial Ownership Regulation hereby notifies the Loan Parties that pursuant to the requirements of the Patriot Act and the Beneficial Ownership Regulation, it is required to obtain, verify, and record information that identifies the Loan Parties, which information includes the name and address of the Loan Parties and other information that will allow such Lender to identify the Loan Parties in accordance with the Patriot Act and the Beneficial Ownership Regulation.
SECTION 9.16    No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby, the Borrower acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) the credit facility provided for hereunder and any related arranging or other services in connection therewith (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document) are an arm’s-length commercial transaction between the Borrower, on the one hand, and the Administrative Agent, the Arrangers, the Syndication Agent, the Documentation Agents, the Issuing Banks and the Lenders, on the other hand, and the Borrower is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents (including any amendments, waiver or other modification hereof or thereof); (ii) in connection with the process leading to such transaction, the Administrative Agent, the Arrangers, the Syndication Agent, the Documentation Agents, the Issuing Banks and the Lenders are and have been acting solely as principals and are not the financial advisors, agents or fiduciaries, for the Borrower or any of its Affiliates, stockholders, creditors or employees or any other Person; (iii) the Administrative Agent, the Arrangers, Syndication Agent, the Documentation Agents, the Issuing Banks and the Lenders have not assumed and will not assume an advisory, agency or fiduciary responsibility in favor of the Borrower with respect to any of the transactions contemplated hereby or the process leading thereto, including with respect to any amendment, waiver or other modification hereof or of any other Loan Document (irrespective of whether the Administrative Agent, any Arranger, the Syndication Agent, any Documentation Agent, any Issuing Bank or any Lender advised or is currently advising the Borrower or any of its Affiliates on other matters) and the Administrative Agent, the Arrangers, the Syndication Agent, the Documentation Agents, the
99
Revolving Credit Facility


Issuing Banks and the Lenders have no obligation to the Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; (iv) the Administrative Agent, the Arrangers, the Syndication Agent, the Documentation Agents, the Issuing Banks, the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and its Affiliates, and the Administrative Agent, the Arrangers, the Syndication Agent, the Documentation Agents, the Issuing Banks and the Lenders have no obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) the Administrative Agent, the Arrangers, the Syndication Agent, the Documentation Agents, the Issuing Banks and the Lenders have not provided and will not provide any legal, accounting, regulatory or Tax advice with respect to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and the Loan Parties have consulted its own legal, accounting, regulatory and Tax advisors to the extent it has deemed appropriate. Each Loan Parties hereby waive and release, to the fullest extent permitted by law, any claims that it may have against the Administrative Agent, the Arrangers, the Syndication Agent, the Documentation Agents, the Issuing Banks or the Lenders with respect to any breach or alleged breach of agency or fiduciary duty.
SECTION 9.17    Headings. Section headings herein are included herein for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.
SECTION 9.18    Acknowledgement and Consent to Bail-In of Affected Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)    the application of any Write-Down and Conversion Powers by an the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(a)    the effects of any Bail-In Action on any such liability, including, if applicable:
(i)    a reduction in full or in part or cancellation of any such liability;
(ii)    a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii)    the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.
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100
Revolving Credit Facility


The parties hereto have caused this Agreement to be duly executed as of the date and year first above written.
KINDER MORGAN, INC.,
as the Borrower
By:     __________________________________
Name:    
Title:

[Revolving Credit Agreement]


BARCLAYS BANK PLC,
as the Administrative Agent and as a Lender
By:     __________________________________
Name:    
Title:

[Revolving Credit Agreement]


JPMORGAN CHASE BANK, N.A.,
as a Lender
By:     __________________________________
Name:    
Title:

[Revolving Credit Agreement]


[                                                        ],
as a Lender
By:     __________________________________
Name:    
Title:
[Revolving Credit Agreement]


Acknowledged and agreed, solely for the purpose of Section 2.05(a):
KINDER MORGAN OPERATING LLC “B”
By:     Kinder Morgan G.P., Inc.,
    its General Partner
By:     Kinder Morgan Management, LLC,
    its Delegate
By:     __________________________________
Name:    
Title:




[Revolving Credit Agreement]
Exhibit 10.13
EXECUTION VERSION

AMENDMENT NO. 2 TO CREDIT AGREEMENT
AMENDMENT NO. 2 TO THE REVOLVING CREDIT AGREEMENT, dated as of December 15, 2022 (this “Agreement”), among Kinder Morgan, Inc., a Delaware corporation (the “Company”), the Guarantors, the Lenders party hereto and Barclays Bank, PLC, as administrative agent (the “Administrative Agent”), which shall amend that certain Credit Agreement, dated as of November 16, 2018 (as amended, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”, as amended hereby, the “Amended Credit Agreement”), by and among the Company, the Lenders from time to time party thereto and the Administrative Agent and the other parties thereto.
W I T N E S S E T H:
WHEREAS, the Company, the Lenders and the Administrative Agent are parties to the Existing Credit Agreement;
WHEREAS, each Lender party hereto is willing to consent to the amendments to the Existing Credit Agreement described in Section 2 below, upon the terms and conditions set forth herein;

NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1.  Defined Terms. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Amended Credit Agreement.
SECTION 2.  Amendments to Existing Credit Agreement.
(a)Effective as of the Amendment Effective Date (as defined below), the definition of “Consolidated EBITDA” in the Existing Credit Agreement is hereby amended to add the following at the end thereof:
“In the case of any such acquisition of any Person, property, business or assets, any such pro forma adjustment shall be at the Borrower’s option, and in the case of any such sale, transfer, abandonment or other disposition of any Person, property, business or asset, the Borrower may elect not to reflect the pro forma effect of such sale, transfer, abandonment or other disposition in any calculation of Consolidated EBITDA to the extent not constituting a Material Disposition. For purposes hereof, “Material Disposition” means any sale, transfer, abandonment or other disposition (or series of dispositions) of any Person, property, business or asset made by the Borrower or any Subsidiary during such period which accounted for, in the aggregate, more than 2.5% of Consolidated EBITDA during such period (calculated prior to giving effect to such Material Disposition).”
(b)Effective as of the SOFR Amendment Effective Date (as defined below), the Existing Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the underlined text (indicated textually in the same


2
manner as the following example: underlined text) as set forth in the pages of the Amended Credit Agreement attached as Exhibit A hereto.
(c)Effective as of the SOFR Amendment Effective Date (as defined below), Exhibit 2.03 of the Existing Credit Agreement is hereby amended and restated to be in the form of Annex A hereto.
(d)Effective as of the SOFR Amendment Effective Date (as defined below), Exhibit 2.07 of the Existing Credit Agreement is hereby amended and restated to be in the form of Annex B hereto.
(e)Effective as of the SOFR Amendment Effective Date (as defined below), Exhibit 2.10 of the Existing Credit Agreement is hereby amended and restated to be in the form of Annex C hereto.
SECTION 3.  Conditions to Effectiveness of Section 2(a). This Agreement and the provisions of Section 2(a) shall become effective on the first date on which each of the following conditions precedent has been satisfied or waived (the date on which such conditions shall have been so satisfied or waived, the “Amendment Effective Date”):
(a)Counterparts. The Administrative Agent (or its counsel) shall have received from the Borrower, the Guarantors, the Administrative Agent and the Lenders party to the Existing Credit Agreement constituting the “Required Lenders” either (i) a counterpart of this Agreement duly executed by such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy or other electronic transmission (e.g., “pdf” or “tif” via electronic mail) of a signed signature page (whether signed manually or electronically) of this Agreement) that such party has signed a counterpart of this Agreement;

(b)Officer’s Certificate. The Administrative Agent shall have received a certificate, signed by a Responsible Officer of the Company and dated the Amendment Effective Date stating that the representations and warranties contained in Section 5 hereof are true and correct in all material respects (provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects);

(c)Fees and Expenses. The Administrative Agent shall have received on or before the Amendment Effective Date all reasonable and documented fees and expenses required to be paid to the Administrative Agent in connection with the preparation and negotiation of this Agreement pursuant to and in accordance with the terms of Section 9.03 of the Credit Agreement, provided that such fees and expenses have been invoiced at least three Business Days prior to the Amendment Effective Date.

The Administrative Agent shall notify the Company and the Lenders of the Amendment Effective Date, and such notice shall be conclusive and binding.
SECTION 4.  Conditions to Effectiveness of Section 2(b), 2(c), 2(d) and 2(e). The provisions of Section 2(b), 2(c), 2(d) and 2(e) shall become effective on the first date on which each of the following conditions precedent has been satisfied or waived (the date on which such conditions shall have been so satisfied or waived, the “SOFR Amendment Effective Date”):
(a)The Amendment Effective Date shall have occurred; and



3
(b)Counterparts. The Administrative Agent (or its counsel) shall have received from each Lender party to the Existing Credit Agreement either (i) a counterpart of this Agreement duly executed by such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy or other electronic transmission (e.g., “pdf” or “tif” via electronic mail) of a signed signature page (whether signed manually or electronically) of this Agreement) that such party has signed a counterpart of this Agreement.

SECTION 5.  Representations and Warranties. The Company hereby represents to the Administrative Agent and each Lender, as follows:
(a)The execution, delivery and performance by the Company of this Agreement have been duly authorized by all necessary corporate or other organizational action. No approval, consent, exemption, authorization, license or exemption of or registration, declaration or filing with any Governmental Authority, is necessary for the valid execution and delivery of, or the incurrence and performance by the Company of its obligations under this Agreement, except those that have been obtained and such matters relating to performance as would ordinarily be done in the ordinary course of business after the Amendment Effective Date and the SOFR Amendment Effective Date. This Agreement has been duly executed and delivered by the Company. Each of this Agreement and the Amended Credit Agreement constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to applicable Debtor Relief Laws and general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(b)After giving effect to this Agreement, the representations and warranties contained in Article IV of the Existing Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the Amendment Effective Date and the SOFR Amendment Effective Date (provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date (provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects as of such earlier date), and except that the representations and warranties contained in subsections (a) and (b) of Section 4.07 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 5.01 of the Existing Credit Agreement; and
(c)At the time of and immediately after giving effect to this Agreement, no Default or Event of Default has occurred and is continuing.
SECTION 6.  Effect on the Loan Documents.
(a)Except as specifically amended herein or hereby, all Loan Documents shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. The Company hereby agrees, with respect to each Loan Document to which it is a party, that all of its obligations, liabilities and indebtedness under such Loan Document shall remain in full force and effect on a continuous basis in accordance with their terms after giving effect to this Agreement.
(b)Upon the Amendment Effective Date, each reference in the Existing Credit Agreement to “this Agreement,” “herein,” “hereto,” “hereunder,” “hereof,” or in the other Loan Documents to the “Credit Agreement”, or, in each case, words of like import shall mean and be a reference to the Existing


4
Credit Agreement, as amended and modified by Section 2(a) of this Agreement. Upon the SOFR Amendment Effective Date each reference in the Existing Credit Agreement to “this Agreement,” “herein,” “hereto,” “hereunder,” “hereof,” or in the other Loan Documents to the “Credit Agreement”, or, in each case, words of like import shall mean and be a reference to the Amended Credit Agreement.
(c)Except as expressly set forth in this Agreement, the execution, delivery and effectiveness of this Agreement shall not 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.
(d)The Company and the other parties hereto acknowledge and agree that this Agreement shall constitute a Loan Document.
SECTION 7.  Ratification by Guarantors. Each of the Guarantors acknowledges that its consent to this Agreement is not required, but each of the undersigned nevertheless does hereby agree and consent to this Agreement and to the documents and agreements referred to herein. Each of the Guarantors agrees and acknowledges that (i) notwithstanding the effectiveness of this Agreement, such Guarantor’s guarantee shall remain in full force and effect without modification thereto and (ii) nothing herein shall in any way limit any of the terms or provisions of such Guarantor’s guarantee, the Guaranty Agreement or any other Loan Document executed by such Guarantor (as the same may be amended from time to time), all of which are hereby ratified, confirmed and affirmed in all respects as of the Amendment Effective Date and as of SOFR Amendment Effective Date. Each of the Guarantors hereby agrees and acknowledges that no other agreement, instrument, consent or document shall be required to give effect to this Section 7. Each of the Guarantors hereby further acknowledges that the Borrower, the Administrative Agent and any Lender may from time to time enter into any further amendments, modifications, terminations and/or waivers of any provision of the Loan Documents without notice to or consent from such Guarantor and without affecting the validity or enforceability of such Guarantor’s guarantee or giving rise to any reduction, limitation, impairment, discharge or termination of such Guarantor’s guarantee.
SECTION 8.  GOVERNING LAW; WAIVER OF JURY TRIAL; SUBMISSION TO JURISDICTION. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT SHALL BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY AND ASSETS, UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS WITH RESPECT TO ANY SUCH ACTION OR PROCEEDING. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT.
SECTION 9.  Amendments; Execution in Counterparts; Electronic Signatures.
(a)This Agreement may not be amended nor may any provision hereof be waived except in accordance with Section 9.02 of the Amended Credit Agreement.
(b)This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to


5
constitute one and the same instrument. Delivery of an executed signature page of this Agreement by email or facsimile transmission shall be effective as delivery of a manually executed counterpart hereof.
(c)The words “delivery”, “execute,” “execution,” “signed,” “signature,” and words of like import in this Agreement and any document executed in connection herewith shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary neither the Administrative Agent nor any Lender is under any obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Administrative Agent or such Lender pursuant to procedures approved by it and provided further without limiting the foregoing, upon the request of any party, any electronic signature shall be promptly followed by such manually executed counterpart.

[Remainder of page intentionally left blank.]



IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written.
KINDER MORGAN, INC.

By: /s/ Christopher A. Graeter
Name: Christopher A. Graeter
Title: Vice President and Treasurer

        
    [Second Amendment – Signature Page]    



MATERIAL SUBSIDIARIES:

EL PASO NATURAL GAS COMPANY, L.L.C.
HILAND PARTNERS HOLDINGS LLC
KINDER MORGAN ENERGY PARTNERS, L.P.
By Kinder Morgan GP LLC, its general partner
KINDER MORGAN GP LLC
KINDER MORGAN LIQUIDS TERMINALS LLC
KINDER MORGAN OPERATING LLC “A”
KINDER MORGAN OPERATING LLC “C”
KINDER MORGAN OPERATING LLC “D”
KINDER MORGAN PORTLAND HOLDINGS LLC
KINDER MORGAN PORTLAND INTERMEDIATE HOLDINGS II LLC
KINDER MORGAN PORTLAND OPERATING LLC
KINDER MORGAN TEXAS PIPELINE LLC
TEJAS GAS, LLC
TEJAS NATURAL GAS, LLC
TENNESSEE GAS PIPELINE COMPANY, L.L.C.
as Guarantors
By:    /s/ Christopher A. Graeter
    Name: Christopher A. Graeter
Title: Vice President and Treasurer



        
    [Second Amendment – Signature Page]



IMMATERIAL SUBSIDIARIES:

AGNES B CRANE, LLC
AMERICAN PETROLEUM TANKERS II LLC
AMERICAN PETROLEUM TANKERS III LLC
AMERICAN PETROLEUM TANKERS IV LLC
AMERICAN PETROLEUM TANKERS IX LLC
AMERICAN PETROLEUM TANKERS LLC
AMERICAN PETROLEUM TANKERS PARENT LLC
AMERICAN PETROLEUM TANKERS V LLC
AMERICAN PETROLEUM TANKERS VI LLC
AMERICAN PETROLEUM TANKERS VII LLC
AMERICAN PETROLEUM TANKERS VIII LLC
AMERICAN PETROLEUM TANKERS X LLC
AMERICAN PETROLEUM TANKERS XI LLC
APT FLORIDA LLC
APT INTERMEDIATE HOLDCO LLC
APT NEW INTERMEDIATE HOLDCO LLC
APT PENNSYLVANIA LLC
APT SUNSHINE STATE LLC
ARLINGTON STORAGE COMPANY, LLC
BETTY LOU LLC
CAMINO REAL GAS GATHERING COMPANY LLC
CAMINO REAL GATHERING COMPANY, L.L.C.
CANTERA GAS COMPANY LLC
CDE PIPELINE LLC
CENTRAL FLORIDA PIPELINE LLC
CHEYENNE PLAINS GAS PIPELINE COMPANY, L.L.C.
CIG GAS STORAGE COMPANY LLC
CIG PIPELINE SERVICES COMPANY, L.L.C.
COLORADO INTERSTATE GAS COMPANY, L.L.C.
COLORADO INTERSTATE ISSUING CORPORATION
COPANO DOUBLE EAGLE LLC
COPANO ENERGY FINANCE CORPORATION
COPANO ENERGY SERVICES/UPPER GULF COAST LLC
COPANO ENERGY, L.L.C.
COPANO FIELD SERVICES GP, L.L.C.
COPANO FIELD SERVICES/NORTH TEXAS, L.L.C.
COPANO FIELD SERVICES/SOUTH TEXAS LLC
COPANO FIELD SERVICES/UPPER GULF COAST LLC
COPANO LIBERTY, LLC
COPANO NGL SERVICES (MARKHAM), L.L.C.
COPANO NGL SERVICES LLC
COPANO PIPELINES GROUP, L.L.C.
COPANO PIPELINES/NORTH TEXAS, L.L.C.
COPANO PIPELINES/ROCKY MOUNTAINS, LLC
COPANO PIPELINES/SOUTH TEXAS LLC
COPANO PIPELINES/UPPER GULF COAST LLC
COPANO PROCESSING LLC
COPANO RISK MANAGEMENT LLC
COPANO TERMINALS LLC
        
    [Second Amendment – Signature Page]



COPANO/WEBB-DUVAL PIPELINE LLC
CPNO SERVICES LLC
DAKOTA BULK TERMINAL LLC.
DELTA TERMINAL SERVICES LLC
EAGLE FORD GATHERING LLC
EL PASO CHEYENNE HOLDINGS, L.L.C.
EL PASO CITRUS HOLDINGS, INC.
EL PASO CNG COMPANY, L.L.C.
EL PASO ENERGY SERVICE COMPANY, L.L.C.
EL PASO LLC
EL PASO MIDSTREAM GROUP LLC
EL PASO NORIC INVESTMENTS III, L.L.C.
EL PASO RUBY HOLDING COMPANY, L.L.C.
EL PASO TENNESSEE PIPELINE CO., L.L.C.
ELBA EXPRESS COMPANY, L.L.C.
ELIZABETH RIVER TERMINALS LLC
EMORY B CRANE, LLC
EP RUBY LLC
EPBGP CONTRACTING SERVICES LLC
EPTP ISSUING CORPORATION
FRANK L. CRANE, LLC
GENERAL STEVEDORES GP, LLC
GENERAL STEVEDORES HOLDINGS LLC
HARRAH MIDSTREAM LLC
HBM ENVIRONMENTAL LLC
HILAND CRUDE, LLC
HPH OKLAHOMA GATHERING LLC
ICPT, L.L.C
INDEPENDENT TRADING & TRANSPORTATION COMPANY I, L.L.C.
JV TANKER CHARTERER LLC
KINDER MORGAN 2-MILE LLC
KINDER MORGAN ADMINISTRATIVE SERVICES TAMPA LLC
KINDER MORGAN ALTAMONT LLC
KINDER MORGAN ARLINGTON RNG LLC
KINDER MORGAN BALTIMORE TRANSLOAD TERMINAL LLC
KINDER MORGAN BATTLEGROUND OIL LLC
KINDER MORGAN BORDER PIPELINE LLC
KINDER MORGAN BULK TERMINALS LLC
KINDER MORGAN CARBON DIOXIDE TRANSPORTATION COMPANY
KINDER MORGAN CO2 COMPANY LLC
KINDER MORGAN COMMERCIAL SERVICES LLC
KINDER MORGAN CONTRACTING SERVICES LLC
KINDER MORGAN CRUDE & CONDENSATE LLC
KINDER MORGAN CRUDE MARKETING LLC
KINDER MORGAN CRUDE OIL PIPELINES LLC
KINDER MORGAN CRUDE TO RAIL LLC
KINDER MORGAN CUSHING LLC
        
    [Second Amendment – Signature Page]



KINDER MORGAN DALLAS FORT WORTH RAIL TERMINAL LLC
KINDER MORGAN DEEPROCK NORTH HOLDCO LLC
KINDER MORGAN ENDEAVOR LLC
KINDER MORGAN ENERGY TRANSITION VENTURES LLC
KINDER MORGAN EP MIDSTREAM LLC
KINDER MORGAN FINANCE COMPANY LLC
KINDER MORGAN FREEDOM PIPELINE LLC
KINDER MORGAN GALENA PARK WEST LLC
KINDER MORGAN IMT HOLDCO LLC
KINDER MORGAN KEYSTONE GAS STORAGE LLC
KINDER MORGAN KMAP LLC
KINDER MORGAN LAS VEGAS LLC
KINDER MORGAN LINDEN TRANSLOAD TERMINAL LLC
KINDER MORGAN LIQUIDS TERMINALS ST. GABRIEL LLC
KINDER MORGAN LOUISIANA PIPELINE HOLDING LLC
KINDER MORGAN LOUISIANA PIPELINE LLC
KINDER MORGAN MARINE SERVICES LLC
KINDER MORGAN MATERIALS SERVICES, LLC
KINDER MORGAN MID ATLANTIC MARINE SERVICES LLC
KINDER MORGAN NATGAS O&M LLC
KINDER MORGAN NGPL HOLDINGS LLC
KINDER MORGAN NORTH TEXAS PIPELINE LLC
KINDER MORGAN OPERATING LLC “B”
KINDER MORGAN PECOS LLC
KINDER MORGAN PECOS VALLEY LLC
KINDER MORGAN PETCOKE GP LLC
KINDER MORGAN PETCOKE LP LLC
KINDER MORGAN PETCOKE, L.P.
By Kinder Morgan Petcoke GP LLC, its general partner
KINDER MORGAN PETROLEUM TANKERS LLC
KINDER MORGAN PIPELINE LLC
KINDER MORGAN PORT MANATEE TERMINAL LLC
KINDER MORGAN PORT SUTTON TERMINAL LLC
KINDER MORGAN PORT TERMINALS USA LLC
KINDER MORGAN PORTLAND BULK LLC
KINDER MORGAN PORTLAND INTERMEDIATE HOLDINGS I LLC
KINDER MORGAN PORTLAND JET LINE LLC
KINDER MORGAN PORTLAND LIQUIDS TERMINALS LLC
KINDER MORGAN PRODUCTION COMPANY LLC
KINDER MORGAN PRODUCTS TERMINALS LLC
KINDER MORGAN RAIL SERVICES LLC
KINDER MORGAN RANGER LLC
KINDER MORGAN RESOURCES II LLC
KINDER MORGAN RESOURCES III LLC
        
    [Second Amendment – Signature Page]



KINDER MORGAN RNG HOLDCO LLC
KINDER MORGAN SCURRY CONNECTOR LLC
KINDER MORGAN SEVEN OAKS LLC
KINDER MORGAN SHREVEPORT RNG LLC
KINDER MORGAN SNG OPERATOR LLC
KINDER MORGAN SOUTHEAST TERMINALS LLC
KINDER MORGAN TANK STORAGE TERMINALS LLC
KINDER MORGAN TEJAS PIPELINE LLC
KINDER MORGAN TERMINALS WILMINGTON LLC
KINDER MORGAN TERMINALS, INC.
KINDER MORGAN TEXAS TERMINALS, L.P.
By General Stevedores GP, LLC, its general partner
KINDER MORGAN TRANSMIX COMPANY, LLC
KINDER MORGAN TREATING LP
By KM Treating GP LLC, its general partner
KINDER MORGAN UTICA LLC
KINDER MORGAN VEHICLE SERVICES LLC
KINDER MORGAN VICTORIA RNG LLC
KINDER MORGAN VIRGINIA LIQUIDS TERMINALS LLC
KINDER MORGAN WINK PIPELINE LLC
KINDERHAWK FIELD SERVICES LLC
KINETREX ENERGY TRANSPORTATION, LLC
KINETREX HOLDCO, INC.
KM CRANE LLC
KM DECATUR LLC
KM EAGLE GATHERING LLC
KM GAS MARKETING LLC (F/K/A EL PASO MARKETING COMPANY, L.L.C.)
KM GATHERING LLC
KM KASKASKIA DOCK LLC
KM LIQUIDS MARKETING LLC (f/k/a COPANO LIQUIDS MARKETING LLC)
KM LIQUIDS TERMINALS LLC
KM NORTH CAHOKIA LAND LLC
KM NORTH CAHOKIA SPECIAL PROJECT LLC
KM NORTH CAHOKIA TERMINAL PROJECT LLC
KM SHIP CHANNEL SERVICES LLC
KM TREATING GP LLC
KM TREATING PRODUCTION LLC
KM UTOPIA OPERATOR LLC
KMBT LEGACY HOLDINGS LLC (F/K/A Kinder Morgan River Terminals LLC)
KMBT LLC
KMGP SERVICES COMPANY, INC.
KN TELECOMMUNICATIONS, INC.
KNIGHT POWER COMPANY LLC
LIBERTY HIGH BTU LLC
LNG INDY, LLC
LOMITA RAIL TERMINAL LLC
MILWAUKEE BULK TERMINALS LLC
MJR OPERATING LLC
        
    [Second Amendment – Signature Page]



MOJAVE PIPELINE COMPANY, L.L.C.
MOJAVE PIPELINE OPERATING COMPANY, L.L.C.
NORTH AMERICAN BIO-FUELS, L.L.C.
NORTH AMERICAN NATURAL RESOURCES, LLC
NORTH AMERICAN NATURAL RESOURCES-SBL, LLC
NORTH AMERICAN-CENTRAL, LLC
PADDY RYAN CRANE, LLC
PALMETTO PRODUCTS PIPE LINE LLC
PI 2 PELICAN STATE LLC
PINNEY DOCK & TRANSPORT LLC
PRAIRIE VIEW HIGH BTU LLC
QUEEN CITY TERMINALS LLC
RAHWAY RIVER LAND LLC
RIVER TERMINAL PROPERTIES, L.P.
By River Terminals Properties GP LLC, its general partner
RIVER TERMINALS PROPERTIES GP LLC
RNG INDY LLC
SCISSORTAIL ENERGY, LLC
SNG PIPELINE SERVICES COMPANY, L.L.C.
SOUTHERN DOME, LLC
SOUTHERN GULF LNG COMPANY, L.L.C.
SOUTHERN LIQUEFACTION COMPANY LLC
SOUTHERN LNG COMPANY, L.L.C.
SOUTHERN OKLAHOMA GATHERING LLC
SOUTHTEX TREATERS LLC
SOUTHWEST FLORIDA PIPELINE LLC
SRT VESSELS LLC
STAGECOACH ENERGY SOLUTIONS LLC
STAGECOACH GAS SERVICES LLC
STAGECOACH OPERATING SERVICES LLC
STAGECOACH PIPELINE & STORAGE COMPANY LLC
STEVEDORE HOLDINGS, L.P.
By Kinder Morgan Petcoke GP LLC, its general partner
TENNESSEE GAS PIPELINE ISSUING CORPORATION
TEXAN TUG LLC
TGP PIPELINE SERVICES COMPANY, L.L.C.
TRANSCOLORADO GAS TRANSMISSION COMPANY LLC
TRANSLOAD SERVICES, LLC
TWIN BRIDGES HIGH BTU LLC
TWIN TIER PIPELINE LLC
UTICA MARCELLUS TEXAS PIPELINE LLC
WESTERN PLANT SERVICES LLC
WYOMING INTERSTATE COMPANY, L.L.C.
as Guarantors

By:    /s/ Christopher A. Graeter
    Name: Christopher A. Graeter
Title: Vice President and Treasurer

        
    [Second Amendment – Signature Page]



BARCLAYS BANK PLC,
as the Administrative Agent and a Lender

By: /s/ Sydney G. Dennis
Name: Sydney G. Dennis
Title: Director

        
    [Second Amendment – Signature Page]




REGIONS BANK,
as a Lender

By: /s/ David Valentine
Name: David Valentine
Title: Managing Director


[Second Amendment – Signature Page]
        



NATIONAL BANK OF CANADA,
as a Lender

By: /s/ Tara Yates
Name: Tara Yates
Title: Authorized Signatory


By: /s/ Mark Williamson
Name: Mark Williamson
Title: Authorized Signatory




JPMorgan Chase Bank, N.A.,
as a Lender

By: /s/ Stephanie Balette
Name: Stephanie Balette
Title: Authorized Officer




WELLS FARGO BANK, NATIONAL ASSOCIATION,
as a Lender

By: /s/ Brandon Kast
Name: Brandon Kast
Title: Director




CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK BRANCH,
as a Lender

By: /s/ Jacob W. Lewis
Name: Jacob W. Lewis
Title: Authorized Signatory

By: /s/ Trudy Nelson
Name: Trudy Nelson
Title: Authorized Signatory




BMO Capital Markets,
as a Lender

By: /s/ Jason Lang
Name: Jason Lang
Title: Director




THE BANK OF NOVA SCOTIA, HOUSTON BRANCH,
as a Lender

By: /s/ Joe Lattanzi
Name: Joe Lattanzi
Title: Managing Director




CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,
as a Lender

By: /s/ Dixon Schultz
Name: Dixon Schultz
Title: Managing Director

By: /s/ Nimisha Srivastav
Name: Nimisha Srivastav
Title: Director





Commerzbank AG, New York Branch,
as a Lender

By: /s/ Mathew Ward
Name: Mathew Ward
Title: Managing Director

By: /s/ Robert Sullivan
Name: Robert Sullivan
Title: Vice President





CITIBANK, N.A.,
as a Lender

By: /s/ Gabriel Juarez
Name: Gabriel Juarez
Title: Vice President




Bank of America, N.A.,
as a Lender

By: /s/ Tommy Nguyen
Name: Tommy Nguyen
Title: Vice President





PNC BANK, NATIONAL ASSOCIATION,
as a Lender

By: /s/ Kyle T. Helfrich
Name: Kyle T. Helfrich
Title: Senior Vice President





ROYAL BANK OF CANADA,
as a Lender

By: /s/ Jason S. York
Name: Jason S. York
Title: Authorized Signatory




Sumitomo Mitsui Banking Corporation,
as a Lender

By: /s/ Jeffrey Cobb
Name: Jeffrey Cobb
Title: Director




Morgan Stanley Senior Funding, Inc.,
as a Lender

By: /s/ Michael King
Name: Michael King
Title: Vice President




Morgan Stanley Bank, N.A.
as a Lender

By: /s/ Michael King
Name: Michael King
Title: Authorized Signatory




Credit Suisse AG, Cayman Islands Branch,
as a Lender

By: /s/ Komal Shah
Name: Komal Shah
Title: Authorized Signatory

By: /s/ Michael Wagner
Name: Michael Wagner
Title: Authorized Signatory




TRUIST BANK,
as a Lender

By: /s/ Farhan Iqbal
Name: Farhan Iqbal
Title: Director




Société Générale,
as a Lender

By: /s/ Shelley Yu
Name: Shelley Yu
Title: Director




The Toronto-Dominion Bank, New York Branch,
as a Lender

By: /s/ Liana Chernysheva
Name: Liana Chernysheva
Title: Authorized Signatory




MUFG BANK, LTD.,
as a Lender

By: /s/ Christopher Facenda
Name: Christopher Facenda
Title: Authorized Signatory




INTESA SANPAOLO S.p.A., New York Branch,
as a Lender

By: /s/ Alessandro Toigo
Name: Alessandro Toigo
Title: Head of Corporate Desk

By: /s/ Jennifer Feldman
Name: Jennifer Feldman
Title: Business Director





MIZUHO BANK, LTD.,
as a Lender

By: /s/ Edward Sacks
Name: Edward Sacks
Title: Executive Director




ING Capital LLC,
as a Lender

By: /s/ Juli Bieser
Name: Juli Bieser
Title: Managing Director

By: /s/ Lauren Gutterman
Name: Lauren Gutterman
Title: Vice President





EXHIBIT A
Amended Credit Agreement
[See Attached]



ANNEX A
EXHIBIT 2.03
FORM OF BORROWING REQUEST
Dated __________
Barclays Bank PLC,
400 Jefferson Park
Whippany, NJ 07981
Attn: Jasmin Vazquez Dones
Phone: 201-499-3142
Email: jasmin.vazquezdones@barclays.com and 12145455230@tls.ldsprod.com

Ladies and Gentlemen:
This Borrowing Request is delivered to you by Kinder Morgan, Inc. (the “Borrower”), a Delaware corporation, under Section 2.03 of the Revolving Credit Agreement, dated as of November 16, 2018 (as further restated, amended, modified, supplemented and in effect, the “5-Year Credit Agreement”), by and among the Borrower, the Lenders party thereto, Barclays Bank PLC, as Administrative Agent, and the other agents named therein.
1.    The Borrower hereby requests that the Lenders make a [Committed] [Swingline]/1 Loan or Loans in the aggregate principal amount of $______________./2
2.    The Borrower hereby requests that the [Committed] [Swingline] Loan or Loans be made on the following Business Day: ________________./3
3.    The Borrower hereby requests that the Borrowing be [an ABR Borrowing] [a SOFR Borrowing]. /4
4.    In the case of a SOFR Borrowing, the initial Interest Period shall be [one month] [three months] [six months].
5.    The Borrower hereby requests that the funds from the requested Loan or Loans be disbursed to the following bank account: ______________________________.
6.    After giving effect to the requested Loan or Loans, the aggregate Credit Exposures outstanding as of the date hereof (including the requested Loans) does not exceed the maximum amount permitted to be outstanding pursuant to the terms of the 5-Year Credit Agreement.

1     Items 3 and 4 are not completed for Swingline Loans.
2    Complete with an amount in accordance with Section 2.03 of the 5-Year Credit Agreement.
3    Complete with a Business Day in accordance with Section 2.03 of the 5-Year Credit Agreement.
4     If no election as to Type of Borrowing is made for a Committed Loan, the Requested Borrowing shall be an ABR Borrowing.
    -1-    5-Year Credit Facility


7.    The representations and warranties set forth in the 5-Year Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date hereof (unless such representation and warranty expressly relates to an earlier date).
8.    No Default or Event of Default has occurred and is continuing on the date hereof or would result after giving effect to the Loans requested hereby.
9.    All capitalized undefined terms used herein have the meanings assigned thereto in the 5-Year Credit Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Borrowing Request this _____ day of _______________, ______.
KINDER MORGAN, INC.,
as the Borrower
By:
Name:
Title
    -2-    5-Year Credit Facility


ANNEX B
EXHIBIT 2.07
FORM OF INTEREST ELECTION REQUEST
Date: [__________], 20[__]

Barclays Bank PLC, Barclays Bank PLC
400 Jefferson Park
Whippany, NJ 07981
Attn: Jasmin Vazquez Dones
Phone: 201-499-3142
Email: jasmin.vazquezdones@barclays.com and 12145455230@tls.ldsprod.com

    Re:     Kinder Morgan, Inc. – Interest Election Request

Ladies and Gentlemen:

    Reference is made to the Revolving Credit Agreement, dated as of November 16, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “5-Year Credit Agreement”), among Kinder Morgan, Inc., a Delaware corporation (the “Borrower”), the Lenders party thereto from time to time, Barclays Bank PLC as Administrative Agent, and the other parties thereto from time to time. Capitalized terms used but not otherwise defined in this Interest Election Request shall have the meanings assigned to such terms in the 5-Year Credit Agreement.

    1.    Interest Election Request. This Interest Election Request relates to the Borrower’s election to (i) continue a SOFR Borrowing, (ii) convert a SOFR Borrowing or (iii) convert a Base Rate Borrowing on ___________ (the “Interest Election Date”), as indicated below (check each that applies):

             Continuation of SOFR Borrowing.

        Pursuant to Section 2.07 of the 5-Year Credit Agreement, this Interest Election Request confirms our written election on the date hereof to continue the following outstanding Borrowing comprised of SOFR Loans on the Interest Election Date, as follows:
    
(A)Expiration date of current Interest Period:
(B)Aggregate amount of outstanding Borrowing:
(C)Aggregate amount to be continued as SOFR Loans:
(D)Elected Interest Period:

             Conversion of SOFR Borrowing.

    -1-    5-Year Credit Facility



        Pursuant to Section 2.07 of the 5-Year Credit Agreement, this Interest Election Request confirms our written election on the date hereof to convert the following outstanding Borrowing comprised of SOFR Loans to Borrowing(s) comprised of ABR Loans on the Interest Election Date, as follows:

(A)Expiration date of current Interest Period:
(B)Aggregate amount
of outstanding Borrowing:
(C)Aggregate amount to be converted to ABR Loans:
        
             Conversion of Base Rate Borrowing.

        Pursuant to Section 2.07 of the 5-Year Credit Agreement, this Interest Election Request confirms our written election on the date hereof that the following outstanding Borrowing comprised of ABR Loans be converted to a Borrowing comprised of SOFR Loans on the Interest Election Date, as follows:

(A)Date of Conversion:
(B)Aggregate amount
of outstanding Borrowing:
(C)Aggregate amount to be converted to SOFR Loans:
(D)Elected Interest Period:

            

    2.     Certifications. The Borrower hereby represents and warrants to the Lenders that, as of the date of this Interest Election Request and after giving effect to the continuations or conversions being requested under Section 1 hereof, no Default or Event of Default has occurred and is continuing.

[Signature page follows]



    -2-    5-Year Credit Facility


IN WITNESS WHEREOF, the undersigned has executed this Interest Election Request this _____ day of ___________________, ____.
KINDER MORGAN, INC.,
as the Borrower
By:
Name:
Title

    -3-    5-Year Credit Facility


ANNEX C
EXHIBIT 2.10
FORM OF NOTICE OF PREPAYMENT
Date: _______, ____
To:     Barclays Bank PLC,
    
400 Jefferson Park
Whippany, NJ 07981
Attn: Zbigniew Pecak
Phone: 212-526-9715
Email: jasmin.vazquezdones@barclays.com, 12145455230@tls.ldsprod.com and Zbigniew.pecak@barclays.com

Ladies and Gentlemen:
Reference is made to that certain Revolving Credit Agreement, dated as of November 16, 2018 (as may be amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time in accordance with its terms, the “5-Year Credit Agreement”; the terms defined therein being used herein as therein defined), among Kinder Morgan, Inc., a Delaware corporation (the “Borrower”), the Lenders party thereto from time to time, Barclays Bank PLC, as Administrative Agent, and the other parties thereto. All capitalized terms used but not defined herein have the meanings assigned in the 5-Year Credit Agreement.
This Prepayment Notice is delivered to you pursuant to Section 2.10 of the Agreement. The Borrower hereby gives notice of a prepayment of Loans as follows:
1.(select Class of Loans)
☐ Committed Loans
☐ Swingline Loans
2.    (select Type(s) of Loans)
☐ ABR Loans in the aggregate principal amount of $________.
☐ SOFR Loans with an Interest Period ending ______, 202_ in the aggregate principal amount of $________.
3.    On __________, 202_ (a Business Day).
IN WITNESS WHEREOF, the undersigned have executed this Prepayment Notice this _____ day of _______________, _____.






KINDER MORGAN, INC.,
as the Borrower
By:
Name:
Title

    -5-    5-Year Credit Facility

    Exhibit A
$500,000,000
REVOLVING CREDIT AGREEMENT
dated as of
November 16, 2018
(as amended by Amendment No. 1 to Credit Agreement and Extension, dated as of August 20, 2021 and by Amendment No. 2 to Credit Agreement dated as of December 15, 2022)
among
KINDER MORGAN, INC.,
as the Borrower,
THE LENDERS PARTY HERETO
and
BARCLAYS BANK PLC,
as the Administrative Agent
___________________________________
JPMORGAN CHASE BANK, N.A.,
as the Syndication Agent,
and
BARCLAYS BANK PLC,
JPMORGAN CHASE BANK, N.A.,
BANK OF AMERICA, N.A.,
BMO HARRIS BANK N.A.,
CITIGROUP GLOBAL MARKETS INC.,
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,
MIZUHO BANK, LTD.,
MUFG BANK, LTD.,
ROYAL BANK OF CANADA,
THE BANK OF NOVA SCOTIA, HOUSTON BRANCH and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as the Documentation Agents,
_______________________________________________
BARCLAYS BANK PLC,
JPMORGAN SECURITIES LLC,
BMO CAPITAL MARKETS CORP.,
CITIGROUP GLOBAL MARKETS INC.,
CREDIT SUISSE SECURITIES (USA) LLC,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
MIZUHO BANK, LTD.,
MUFG BANK, LTD.,
RBC CAPITAL MARKETS,
THE BANK OF NOVA SCOTIA, HOUSTON BRANCH and
WELLS FARGO SECURITIES, LLC,
as the Joint Lead Arrangers and the Joint Book Runners
 


        
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS1
SECTION 1.01Defined Terms1
SECTION 1.02Classification of Loans and Borrowings27
SECTION 1.03Accounting Terms; Changes in GAAP27
SECTION 1.04Interpretation28
SECTION 1.05Rates
2829
ARTICLE II THE CREDITS29
SECTION 2.01Commitments29
SECTION 2.02Loans and Borrowings29
SECTION 2.03Requests for Borrowings
2930
SECTION 2.04Swingline Loans
3031
SECTION 2.05Letters of Credit
3132
SECTION 2.06Funding of Borrowings38
SECTION 2.07Interest Elections
3839
SECTION 2.08Termination and Reduction of Commitments; Mandatory Prepayments
3940
SECTION 2.09Repayment of Loans; Evidence of Debt40
SECTION 2.10Voluntary Prepayment of Loans41
SECTION 2.11Fees42
SECTION 2.12Interest43
SECTION 2.13Alternate Rate of Interest44
SECTION 2.14Increased Costs45
SECTION 2.15Break Funding Payments46
SECTION 2.16Taxes
4746
SECTION 2.17Payments Generally; Pro Rata Treatment; Sharing of Set-offs50
SECTION 2.18Mitigation of Obligations; Replacement of Lenders
5251
SECTION 2.19Defaulting Lenders
5352
SECTION 2.20Cash Collateral
5554
SECTION 2.21Accordion Facilities55
SECTION 2.22Benchmark Replacement56
ARTICLE III CONDITIONS PRECEDENT
5657
SECTION 3.01Conditions Precedent to the Closing Date
5657
SECTION 3.02Conditions Precedent to Each Credit Event58
ARTICLE IV REPRESENTATIONS AND WARRANTIES
5859
SECTION 4.01Organization and Qualification
5859
    i    Revolving Credit Facility


SECTION 4.02Authorization, Validity, Etc59
SECTION 4.03Governmental Consents, Etc59
SECTION 4.04No Breach or Violation of Agreements or Restrictions, Etc
5960
SECTION 4.05Properties
5960
SECTION 4.06Litigation and Environmental Matters
5960
SECTION 4.07Financial Statements60
SECTION 4.08Disclosure
6061
SECTION 4.09Investment Company Act61
SECTION 4.10ERISA61
SECTION 4.11Tax Returns and Payments
6061
SECTION 4.12Compliance with Laws and Agreements
6061
SECTION 4.13Purpose of Loans
6061
SECTION 4.14Foreign Assets Control Regulations, etc.62
SECTION 4.15Solvency.
6263
ARTICLE V AFFIRMATIVE COVENANTS
6263
SECTION 5.01Financial Statements and Other Information
6263
SECTION 5.02Existence, Conduct of Business
6465
SECTION 5.03Payment of Obligations65
SECTION 5.04Maintenance of Properties; Insurance65
SECTION 5.05Books and Records; Inspection Rights
6566
SECTION 5.06Compliance with Laws
6566
SECTION 5.07Use of Proceeds66
SECTION 5.08Additional Guarantors66
ARTICLE VI NEGATIVE COVENANTS66
SECTION 6.01Indebtedness of Non-Guarantor Subsidiaries66
SECTION 6.02Liens67
SECTION 6.03Fundamental Changes
6768
SECTION 6.04Restricted Payments68
SECTION 6.05Transactions with Affiliates68
SECTION 6.06Restrictive Agreements69
SECTION 6.07Ratio of Consolidated Net Indebtedness to Consolidated EBITDA
6970
SECTION 6.08Use of Proceeds
6970
ARTICLE VII EVENTS OF DEFAULT
6970
SECTION 7.01Events of Default and Remedies
6970
ARTICLE VIII THE ADMINISTRATIVE AGENT72
SECTION 8.01Appointment and Authority72
ii
Revolving Credit Facility


SECTION 8.02Rights as a Lender72
SECTION 8.03Exculpatory Provisions
7273
SECTION 8.04Reliance by Administrative Agent73
SECTION 8.05Delegation of Duties
7374
SECTION 8.06Resignation of Administrative Agent
7374
SECTION 8.07Non-Reliance on Administrative Agent and Other Lenders
7475
SECTION 8.08INDEMNIFICATION75
SECTION 8.09No Reliance on Agents or other Lenders
7576
SECTION 8.10Duties of the Syndication Agent, Documentation Agents, Arrangers76
SECTION 8.11Certain ERISA Matters76
SECTION 8.12Erroneous Payments.
7778
ARTICLE IX MISCELLANEOUS
7879
SECTION 9.01Notices, Etc.
7879
SECTION 9.02Waivers; Amendments; Releases80
SECTION 9.03Payment of Expenses, Indemnities, etc.
8182
SECTION 9.04Successors and Assigns Generally
8485
SECTION 9.05Assignments by Lenders
8485
SECTION 9.06Survival; Reinstatement
8788
SECTION 9.07Counterparts; Integration; Effectiveness; Electronic Execution88
SECTION 9.08Severability
8889
SECTION 9.09Right of Setoff
8889
SECTION 9.10Governing Law; Jurisdiction; Consent to Service of Process
8990
SECTION 9.11WAIVER OF JURY TRIAL
9091
SECTION 9.12Confidentiality
9091
SECTION 9.13Interest Rate Limitation
9192
SECTION 9.14EXCULPATION PROVISIONS
9192
SECTION 9.15U.S. Patriot Act92
SECTION 9.16No Advisory or Fiduciary Responsibility92
SECTION 9.17Headings
9293
SECTION 9.18Acknowledgement and Consent to Bail-In of Affected Institutions
9293



iii
Revolving Credit Facility


SCHEDULES:
Schedule 1.01        Commitments
Schedule 1.01A        Excluded Subsidiaries
Schedule 1.01B        Existing Letters of Credit
Schedule 1.01C        Existing LC Subsidiaries
Schedule 6.01        Existing Non-Guarantor Indebtedness
Schedule 6.05        Existing Transactions with Affiliates
Schedule 6.06        Existing Restrictive Agreements

EXHIBITS:
Exhibit 1.01-A        Form of Assignment and Acceptance
Exhibit 1.01-B        Form of Guaranty Agreement
Exhibit 1.01-C        Form of Committed Note
Exhibit 1.01-D        Form of Swingline Note
Exhibit 2.03         Form of Borrowing Request
Exhibit 2.05        Form of Letter of Credit Request
Exhibit 2.07         Form of Interest Election Request
Exhibit 2.10         Form of Notice of Prepayment
Exhibit 2.16-A        Form of U.S. Tax Compliance Certificate
Exhibit 2.16-B        Form of U.S. Tax Compliance Certificate
Exhibit 2.16-C        Form of U.S. Tax Compliance Certificate
Exhibit 2.16-D        Form of U.S. Tax Compliance Certificate
Exhibit 2.21        Form of New Loan Increase Joinder
Exhibit 5.01         Form of Compliance Certificate

iv
Revolving Credit Facility

        
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT, dated as of November 16, 2018 (this “Agreement”) is among:
(a)    Kinder Morgan, Inc., a Delaware corporation (the “Borrower”);
(b)     the banks, financial institutions and other lenders listed on the signature pages hereof under the caption “Lenders” (the “Lenders” and together with each other Person that becomes a Lender pursuant to Section 2.21(b) or Section 9.05, collectively, the “Lenders”); and
(c)    Barclays Bank PLC, individually as a Lender and as the administrative agent for the Lenders (in such latter capacity together with any other Person that becomes Administrative Agent pursuant to Section 8.08, the “Administrative Agent”).
PRELIMINARY STATEMENTS
The Borrower has requested that the Lenders extend credit to the Borrower in the form of Loans (as defined below) in an aggregate principal amount of $4,000,000,000 (the “Transactions”) to be used by Borrower and its subsidiaries for working capital and general corporate purposes, and the Lenders have indicated their willingness to lend on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01    Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest at a rate determined by reference to the Alternate Base Rate.
Adjusted LIBO Rate” means, with respect to any Eurodollar Loan for any Interest Period for such Loan, a rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by the Administrative Agent to be equal to the product of (i) the Eurodollar Rate for such Loan for such Interest Period multiplied by (ii) the Reserve Requirement for such Loan for such Interest Period. In no case shall the Adjusted LIBO Rate be less than zero.
“ABR Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.
“Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted Term SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to be the Floor.
Administrative Agent” has the meaning specified in the introduction to this Agreement.
Administrative Agent Fee Letter” has the meaning specified in Section 2.11(c).
1
Revolving Credit Facility


Administrative Questionnaire” means an Administrative Questionnaire in the form supplied by the Administrative Agent.
Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
Affiliate” of any Person means (i) any Person directly or indirectly controlled by, controlling or under common control with such first Person, (ii) any director or officer of such first Person or of any Person referred to in clause (i) above and (iii) if any Person in clause (i) above is an individual, any member of the immediate family (including parents, siblings, spouse and children) of such individual and any trust whose principal beneficiary is such individual or one or more members of such immediate family and any Person who is controlled by any such member or trust. For purposes of this definition, any Person that owns directly or indirectly 25% or more of the securities having ordinary voting power for the election of directors or other governing body of a corporation or 25% or more of the partnership or other ownership interests of any other Person (other than as a limited partner of such other Person) will be deemed to “control” (including, with its correlative meanings, “controlled by” and “under common control with”) such corporation or other Person. In no event shall the Administrative Agent or any Lender be deemed to an Affiliate of the Borrower of any of its Subsidiaries.
Affiliated Entities” means unconsolidated Subsidiaries of the Borrower and Persons not otherwise constituting Subsidiaries of the Borrower in which the Borrower has an equity investment.
Agreement” has the meaning specified in the introduction to this Agreement (subject, however, to Section 1.04(e) hereof).
Alternate Base Rate” means, for any day, a fluctuating rate per annum equal to the greatest of (a) the Federal Funds Effective Rate in effect on such day plus ½ of 1%, (b) the Prime Rate in effect for such day, and (c) the Adjusted LIBO RateTerm SOFR for a Eurodollar Loan with a one month Interest Period that beginsin effect on such day (and if such day is not a Business Day, the immediately preceding Business Day) plus 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBOTerm SOFR Rate shall be effective from the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBOTerm SOFR Rate, respectively.
Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or any of its Subsidiaries from time to time concerning or relating to bribery or corruption.
Applicable Commitment Fee Rate” means, at any time and from time to time, the percentage per annum equal to the applicable percentage set forth below for the corresponding Performance Level at such time:
Performance Level
Applicable Commitment
Fee Rate
I0.100%
II0.125%
III0.150%
2
Revolving Credit Facility


IV0.200%
V0.250%
VI0.300%
The Applicable Commitment Fee Rate shall be determined by reference to the Performance Level in effect from time to time and any change in the Applicable Commitment Fee Rate shall be effective from the effective date of the change in the applicable Performance Level giving rise thereto.
Applicable Margin” means, as to any ABR Borrowing or any EurodollarSOFR Borrowing, as the case may be, at any time and from time to time, a percentage per annum equal to the applicable percentage set forth below for the corresponding Performance Level at such time:
Performance Level
EurodollarSOFR Borrowings
Applicable
Margin Percentage
ABR Borrowings
Applicable
Margin Percentage
I1.000%0.100%
II1.125%0.125%
III1.250%0.250%
IV1.500%0.500%
V1.750%0.750%
VI2.000%1.000%

The Applicable Margin shall be determined by reference to the Performance Level in effect from time to time, and any change in the Applicable Margin shall be effective from the effective date of any change in the applicable Performance Level giving rise thereto.
Applicable Percentage” means at any time, for each Lender, the percentage obtained by dividing (a) such Lender’s Commitment by (b) the amount of the Total Commitment, provided that at any time when the Total Commitment shall have been terminated, each Lender’s Applicable Percentage shall be the percentage obtained by dividing (a) such Lender’s Credit Exposure by (b) the aggregate Credit Exposure of all Lenders.
Application” has the meaning specified in Section 2.05(e).
Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
Arrangers” means Barclays Bank PLC, J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated (or any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred
3
Revolving Credit Facility


following the date of this Agreement), BMO Capital Markets Corp., Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Mizuho Bank, Ltd., MUFG Bank, Ltd., RBC Capital Markets, The Bank of Nova Scotia, Houston Branch and Wells Fargo Securities LLC, as joint lead arrangers and joint book runners.
Assignment and Acceptance” means an assignment and acceptance entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.05), and accepted by the Administrative Agent, in the form of Exhibit 1.01-A or any other form approved by the Administrative Agent.
Auto-Extension Letter of Credit” has the meaning specified in Section 2.05(f).
Availability Period” means the period from the Closing Date to the earlier of (i) the Maturity Date or (ii) the date of termination of the Total Commitment.
Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if the then-currentsuch Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an Interest Periodinterest period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark pursuant to this Agreement, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.22(d).
Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
Benchmark” means, initially, the EurodollarTerm SOFR Reference Rate; provided that if a replacement of the Benchmark Transition Event has occurred pursuant to Section 2.13with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate. Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof pursuant to Section 2.22(a).
Benchmark Replacement” means, for any Available Tenor:
(1) For purposes of clause (i) of Section 2.13(b), the first alternative set forth below that can be determined by the Administrative Agent:
(a) the sum of: (i) Term SOFR and (ii) 0.11448% (11.448 basis points) for an Available Tenor of one-month's duration, 0.26161% (26.161 basis points) for an Available Tenor of three-months’ duration, and 0.42826% (42.826 basis points) for an Available Tenor of six-months’ duration, or
4
Revolving Credit Facility


(b) the sum of: (i) Daily Simple SOFR and (ii) the spread adjustment selected or recommended by the Relevant Governmental Body for the replacement of the tenor of the Eurodollar Rate with a SOFR-based rate having approximately the same length as the interest payment period specified in clause (a) of this Section; and
(2) For purposes of clause (ii) of Section 2.13(b)“Benchmark Replacement” means, with respect to any Benchmark Transition Event, the sum of: (a) the alternate benchmark rate and (b) an adjustment (which may be a positive or negative value or zero), in each case, that has been selected by the Administrative Agent and the Borrower as the replacement for such Available Tenor of such Benchmark giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for U.S. dollar-denominated for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities at such time and (b) the related Benchmark Replacement Adjustment;
provided that, if thesuch Benchmark Replacement as so determined pursuant to clause (1) or (2) above would be less than the Floor, thesuch Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.
Benchmark Replacement Conforming Changes” means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “ABR,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Replacement Date” means a date and time determined by the Administrative Agent in consultation with the Borrower, which date shall be no later than the earliest to occur of the following events with respect to the then-current Benchmark:
5
Revolving Credit Facility


(a)    in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(b)    in the case of clause (c) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
(a)    a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
Benchmark Transition Event” means, with respect to any then-current Benchmark other than the Eurodollar Rate, the occurrence of(b)    a public statement or publication of information by or on behalf of the administrator of the then-current Benchmark, thethe regulatory supervisor for the administrator of such Benchmark, the Board of Governors of the (or the published component used in the calculation thereof), the Federal Reserve SystemBoard, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark, announcing or stating that (a) such (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease on a specified date to provide all Available Tenors of such Benchmark, (or such component thereof) permanently or indefinitely,; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark or (b) all Available Tenors of such Benchmark are or will no longer be representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored.(or such component thereof); or
(c)    a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth
6
Revolving Credit Facility


above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Start Date” means, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication).
“Benchmark Unavailability Period” means, the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.22 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.22.
Beneficial Ownership Certification” means a certification regarding beneficial ownership or control as required by the Beneficial Ownership Regulation, which certification shall be substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association.
Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
Benefit Arrangement” means at any time an employee benefit plan within the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and which is maintained or otherwise contributed to by any member of the ERISA Group.
Benefit Plan” means any of (a) an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code to which Section 4975 of the Code applies, and (c) any Person whose assets include (for purposes of the Plan Asset Regulations or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
Board” means the Board of Governors of the Federal Reserve System of the United States of America.
Board of Directors” means, with respect to any Person, the Board of Directors of such Person or any committee of the Board of Directors of such Person duly authorized to act on behalf of the Board of Directors of such Person.
Bond Letter of Credit” means irrevocable letter of credit No. S113181 issued by First Union National Bank (now Wells Fargo) in the original face amount of $24,128,548 for the account of the OLP “B” and for the benefit of Trustee.
Bonds” means the Port Facility Refunding Revenue Bonds (Enron Transportation Services, L.P. Project) Series 1994 in the original aggregate principal amount of $23,700,000, as issued by the Jackson-Union Regional Port District.
Borrower” has the meaning specified in the introduction to this Agreement.
7
Revolving Credit Facility


Borrower Debt Rating” means, with respect to the Borrower as of any date of determination, the rating that has been most recently announced by each of S&P or Moody’s for any non-credit enhanced, unsecured long-term senior debt issued or to be issued by the Borrower. For purposes of the foregoing:
(a)    if, at any time, neither S&P nor Moody’s shall have in effect a Borrower Debt Rating, the Applicable Margin or the Applicable Commitment Fee Rate, as the case may be, shall be set in accordance with Performance Level VI under the definition of “Applicable Margin or “Applicable Commitment Fee Rate”, as the case may be;
(b)    if the ratings established by S&P and Moody’s shall fall within different Performance Levels, the Applicable Margin or the Applicable Commitment Fee Rate, as the case may be, shall be based upon the higher rating; provided, however, that, if the lower of such ratings is two or more Performance Levels below the higher of such ratings, the Applicable Margin or the Applicable Commitment Fee Rate, as the case may be, shall be based upon the rating that is one Performance Level higher than the lower rating;
(c)    if any rating established by S&P or Moody’s shall be changed, such change shall be effective as of the date on which such change is announced publicly by the rating agency making such change;
(d)    if S&P or Moody’s shall change the basis on which ratings are established by it, each reference to the Borrower Debt Rating announced by S&P or Moody’s shall refer to the then equivalent rating by S&P or Moody’s, as the case may be.
Borrowing” means (a) a borrowing comprised of Committed Loans of the same Type, made, converted or continued on the same date and, in the case of EurodollarSOFR Loans, as to which a single Interest Period is in effect or (b) a Swingline Loan.
Borrowing Date” means the Business Day upon which any Letter of Credit is to be issued or any Loans are to be made available to the Borrower.
Borrowing Request” has the meaning specified in Section 2.03(a).
Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in Houston, Texas or New York, New York are authorized or required by law to remain closed; provided that, when used in connection with a rate of interest determined by reference to the Eurodollar Rate, the term “Business Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market..
Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
Capital Stock” means, with respect to any Person, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents (however designated) of such Person’s equity, including (a) all common stock and preferred stock, any limited or general partnership interest and any limited liability company member interest, (b) beneficial interests in trusts, and (c) any other interest or participation that confers upon a Person the right to receive a share of the profits and losses of, or distribution of assets of, the issuing Person.
8
Revolving Credit Facility


Cash Collateralize” means, solely for purposes of Sections 2.05(f), 2.19 and 2.20, to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the Issuing Banks or Lenders, as collateral for their respective LC Exposure, cash or deposit account balances or, if the Administrative Agent and each applicable Issuing Bank shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent and each applicable Issuing Bank. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
Cash Equivalents” means (a) securities issued or unconditionally guaranteed by the United States government or any agency or instrumentality thereof, in each case having maturities of not more than 24 months from the date of acquisition thereof; (b) securities issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof or any political subdivision of any such state or any public instrumentality thereof having maturities of not more than 24 months from the date of acquisition thereof and, at the time of acquisition, having an investment grade rating generally obtainable from either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, then from another nationally recognized rating service); (c) commercial paper issued by any Lender or any bank holding company owning any Lender; (d) commercial paper maturing no more than 12 months after the date of creation thereof and, at the time of acquisition, having a rating of at least A-2 or P-2 from either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized rating service); (e) domestic and Eurodollar Rate certificates of deposit or bankers’ acceptances maturing no more than two years after the date of acquisition thereof issued by any Lender or any other bank having combined capital and surplus of not less than $250,000,000 in the case of domestic banks and $100,000,000 (or the equivalent in dollars thereof) in the case of foreign banks; (f) repurchase agreements with a term of not more than 30 days for underlying securities of the type described in clauses (a), (b) and (e) above entered into with any bank meeting the qualifications specified in clause (e) above or securities dealers of recognized national standing; (g) marketable short-term money market and similar funds (i) either having assets in excess of $250,000,000 or (ii) having a rating of at least A-2 or P-2 from either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized rating service); (h) shares of investment companies that are registered under the Investment Company Act of 1940 and substantially all the investments of which are one or more of the types of securities described in clauses (a) through (g) above; and (i) in the case of investments by any Foreign Subsidiary, other customarily utilized high-quality investments in the country where such Foreign Subsidiary is located.
Certain Items” means such items that are required to be included in the calculation of Net Income in accordance with GAAP that either (i) are non-cash or (ii) by their nature are separately identifiable from the Borrower and the Subsidiaries’ normal business operations and are likely to occur only sporadically, and are reflected as such in the Annual Report on Form 10-K of the Borrower or in the Quarterly Report on Form 10-Q of the Borrower, in each case filed with the SEC. For the avoidance of doubt, Certain Items will be unadjusted for noncontrolling interests related thereto.
CFC” means a Person that is a “controlled foreign corporation” within the meaning of Section 957 of the Code.
Change in Control” means and will be deemed to have occurred if (a) any person, entity or “group” (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended) shall at any time have acquired direct or indirect beneficial ownership of a percentage of the voting power of the outstanding Voting Stock of the Borrower that exceeds 50% of the voting power of all the outstanding Voting Stock of the Borrower; or (b) Continuing Directors shall not constitute at least a majority of the board of directors of the Borrower.
9
Revolving Credit Facility


Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
Charges” has the meaning specified in Section 9.13.
Citi” means Citibank Global Markets Inc., Citibank, N.A., Citicorp North America Inc.,
and any of their affiliates.

Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Committed Loans or Swingline Loans.
Closing Date” means the date on which the conditions specified in Section 3.01 are satisfied (or waived in accordance with Section 9.02).
Code” means the Internal Revenue Code of 1986, as amended from time to time.
Commitment” means, with respect to each Lender, the commitment of such Lender to make Committed Loans pursuant to Section 2.01 and to acquire participations in Letters of Credit and Swingline Loans hereunder, expressed as an amount representing the maximum aggregate amount of such Lender’s Credit Exposure hereunder, as such commitment may be reduced or increased from time to time pursuant to the terms hereof. The amount of each Lender’s Commitment as of the First Amendment Effective Date is set forth on Schedule 1.01, or in the Register maintained by the Administrative Agent pursuant to Section 9.05.
Commitment Fee” has the meaning specified in Section 2.11(a).
Committed Letter of Credit” has the meaning specified in Section 2.05(b).
Committed Loan” means a Loan made pursuant to Section 2.03(a).
Committed Note” means a promissory note of the Borrower payable to the order of each Lender, in substantially the form of Exhibit 1.01-C, together with all modifications, extensions, renewals and rearrangements thereof.
Communications” has the meaning specified in Section 9.01(a).
Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
Consolidated Assets” means, at the date of any determination thereof, the total assets of the Borrower and the Subsidiaries as set forth on a consolidated balance sheet of the Borrower and the Subsidiaries for their most recently completed fiscal quarter, prepared in accordance with GAAP.
10
Revolving Credit Facility


Consolidated EBITDA” means, for any period (without duplication), the Net Income of the Borrower and the Subsidiaries for such period determined on a consolidated basis in accordance with GAAP, increased (a) (to the extent deducted in determining Net Income for such period) by the sum of (i) all book taxes of the Borrower and the Subsidiaries paid or accrued and reflected in the Annual Report on Form 10-K of the Borrower or in the Quarterly Report on Form 10-Q of the Borrower, in each case filed with the SEC, and the pro rata portion of book taxes attributable to Affiliated Entities (net of the consolidating joint venture partners’ share of such book taxes of such consolidating joint venture), for such period; (ii) Consolidated Interest Expense for such period, (iii) all DD&A of the Borrower and the Subsidiaries and the pro rata portion of DD&A attributable to Affiliated Entities (net of the consolidating joint venture partners’ share of such DD&A of such consolidating joint venture), for such period; (iv) Certain Items charges or losses, and (v) amortization, write-off or write-down of debt discount, capitalized interest and debt issuance costs and commissions, discounts and other fees, charges and expenses associated with any letters of credit or Indebtedness, including in connection with the repurchase or repayment thereof, including any premium and acceleration of fees or discounts and other expenses, minus (b) Certain Items of income or gain which were included in determining such consolidated Net Income for such period; provided, that Consolidated EBITDA shall be calculated after giving pro forma effect to acquisitions of any Person, property, business or asset (to the extent not subsequently sold, transferred, abandoned or otherwise disposed) and any sale, transfer, abandonment or other disposition of any Person, property, business or asset made by the Borrower or any Subsidiary during such period, as if the acquisition, sale, transfer, abandonment or other disposition had been effected on the first date of such period. In the case of any such acquisition of any Person, property, business or assets, any such pro forma adjustment shall be at the Borrower’s option, and in the case of any such sale, transfer, abandonment or other disposition of any Person, property, business or asset, the Borrower may elect not to reflect the pro forma effect of such sale, transfer, abandonment or other disposition in any calculation of Consolidated EBITDA to the extent not constituting a Material Disposition. For purposes hereof, “Material Disposition” means any sale, transfer, abandonment or other disposition (or series of dispositions) of any Person, property, business or asset made by the Borrower or any Subsidiary during such period which accounted for, in the aggregate, more than 2.5% of Consolidated EBITDA during such period (calculated prior to giving effect to such Material Disposition).
Consolidated Interest Expense” means, for any period, the Interest Expense of the Borrower and the Subsidiaries for such period determined on a consolidated basis in accordance with GAAP.
Consolidated Net Indebtedness” means, at the date of any determination thereof, (a) Indebtedness of the Borrower and the Subsidiaries determined on a consolidated basis in accordance with GAAP minus (b) (i) the aggregate cash included in the cash accounts listed on the consolidated balance sheet of the Borrower and the Subsidiaries as at such date and (ii) Cash Equivalents of the Borrower and the Subsidiaries as at such date, in the case of each of clauses (i) and (ii), to the extent the use thereof for application to payment of Indebtedness is not prohibited by any Requirement of Law or any contract to which the Borrower or any of the Subsidiaries is a party.
Consolidated Net Tangible Assets” means, at the date of any determination thereof, Consolidated Tangible Assets after deducting therefrom all current liabilities, excluding (i) any current liabilities that by their terms are extendable or renewable at the option of the obligor thereon to a time more than 12 months after the time as of which the amount thereof is being computed; and (ii) current maturities of long-term debt, all as set forth, or on a pro forma basis would be set forth, on a consolidated balance sheet of the Borrower and the Subsidiaries for their most recently completed fiscal quarter, prepared in accordance with GAAP.
Consolidated Tangible Assets” means, at the date of any determination thereof, Consolidated Assets after deducting therefrom the value, net of any applicable reserves and accumulated
11
Revolving Credit Facility


amortization, of all goodwill, trade names, trademarks, patents and other like intangible assets, all as set forth, or on a pro forma basis would be set forth, on a consolidated balance sheet of the Borrower and the Subsidiaries for their most recently completed fiscal quarter, prepared in accordance with GAAP.
Continuing Director” means, at any date, an individual (a) who is a member of the board of directors of the Borrower on the First Amendment Effective Date, (b) who, as at such date, has been a member of such board of directors for at least the twelve preceding months, or (c) who has been nominated to be a member of such board of directors by, or elected to such board of directors with the approval of, a majority of the other Continuing Directors then in office.
Credit Event” means the making of any Loan or the issuance or extension of any Letter of Credit.
Credit Exposure” means, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lender’s Committed Loans and its LC Exposure and its Swingline Exposure at such time.
Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided, that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
DD&A” means depreciation, depletion and amortization (including amortization of goodwill) and the amortization of excess costs of equity investments, determined in accordance with GAAP.
Debtor Relief Laws” means the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.
Default” means any event or condition which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
Defaulting Lender” means, subject to Section 2.19(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within three Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any Issuing Bank, any Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, any Issuing Bank or any Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its
12
Revolving Credit Facility


prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) become subject of a Bail-In Action, or (iii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that, for the avoidance of doubt, a Lender shall not be a Defaulting Lender solely by virtue of (i) the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority, or (ii), in the case of a solvent Person, the precautionary appointment of an administrator, guardian, custodian or other similar official by a Governmental Authority under or based on the law of the country where such Person is subject to home jurisdiction supervision if applicable law requires that such appointment not be publicly disclosed, in each of such cases, so long as such ownership interest or such appointment does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.19(b)) upon delivery of written notice of such determination to the Borrower and each Lender.
Dividing Person” has the meaning assigned to such term in the definition of “Division”.
Division” means the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.
Division Successor” means any Person that, upon the consummation of a Division of a Dividing Person, holds all or any portion of the assets, liabilities and/or obligations previously held by such Dividing Person immediately prior to the consummation of such Division. A Dividing Person which retains any of its assets, liabilities and/or obligations after a Division shall be deemed a Division Successor upon the occurrence of such Division.
Documentation Agents” means Barclays Bank PLC, JPMorgan Chase Bank, N.A., Bank of America, N.A., BMO Harris Bank N.A., Citigroup Global Markets Inc., Credit Suisse AG, Cayman Islands Branch, Mizuho Bank, Ltd., MUFG Bank, Ltd., Royal Bank of Canada, The Bank of Nova Scotia, Houston Branch and Wells Fargo Bank, National Association, as documentation agents.

dollars” or “$” refers to lawful money of the United States of America.
Domestic Subsidiary” means any Subsidiary of the Borrower organized under the laws of any jurisdiction within the United States.
Early Opt-in Effective Date” means, with respect to any Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Required Lenders.
Early Opt-in Election” means the occurrence of:
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Revolving Credit Facility


(1) a notification by the Administrative Agent to (or the request by the Borrower to the Administrative Agent to notify) each of the other parties hereto that at least ten currently outstanding U.S. dollar-denominated syndicated credit facilities for borrowers having a senior long-term unsecured debt rating without any third-party credit enhancement from S&P or Moody's of not lower than BBB- by S&P and Baa3 by Moody's contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and
(2) the joint election by the Administrative Agent and the Borrower to trigger a fallback from the Eurodollar Rate and the provision by the Administrative Agent of written notice of such election to the Lenders.
EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 9.05(a)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 9.05(a)(iii)).
Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, release or threatened release of any Hazardous Material or to health and safety matters.
ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.
ERISA Group” means the Borrower and all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with the Borrower, are treated as a single employer under Section 414 of the Code or Section 4001(a)(14) of ERISA.
EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest at a rate determined by reference to the Adjusted LIBO Rate.
Eurodollar Rate” means for any Interest Period as to any Eurodollar Loan, (i) the rate per annum determined by the Administrative Agent to be the offered rate which appears on the page of
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Revolving Credit Facility


the Reuters Screen which displays the London interbank offered rate administered by ICE Benchmark Administration Limited (such page currently being the LIBOR01 page) (the “LIBO Rate”) for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in dollars, determined as of approximately 11:00 a.m. (London, England time), two Business Days prior to the commencement of such Interest Period, or (ii) in the event the rate referenced in the preceding clause (i) does not appear on such page or service or if such page or service shall cease to be available, the rate determined by the Administrative Agent to be the offered rate on such other page or other service which displays the LIBO Rate for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in Dollars, determined as of approximately 11:00 a.m. (London, England time) two Business Days prior to the commencement of such Interest Period; provided that if LIBO Rates are quoted under either of the preceding clauses (i) or (ii), but there is no such quotation for the Interest Period elected, the LIBO Rate shall be equal to the Interpolated Rate; and provided, further, that if any such rate determined pursuant to the preceding clauses (i) or (ii) is less than zero, the Eurodollar Rate will be deemed to be zero.
Event of Default” has the meaning specified in Section 7.01.
Exchange Act” means the Securities Exchange Act of 1934, as amended.
Excluded Subsidiary” means (i) any Subsidiary that is not a Wholly-owned Domestic Operating Subsidiary, (ii) any Domestic Subsidiary that is a Subsidiary of a CFC or any Domestic Subsidiary (including a disregarded entity for U.S. federal income Tax purposes) substantially all of whose assets (held directly or through Subsidiaries) consist of Capital Stock of one or more CFCs or Indebtedness of such CFCs, (iii) any Immaterial Subsidiary, (iv) any Subsidiary listed on Schedule 1.01A, (v) any other Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent (confirmed in writing by notice to the Borrower), the cost or other consequences (including any adverse Tax consequences) of providing a Guaranty shall be excessive in view of the benefits to be obtained by the Lenders therefrom, (vi) any not-for-profit Subsidiary, (vii) any Subsidiary that is prohibited by a Requirement of Law from providing a Guaranty of the Obligations, and (viii) any Subsidiary acquired by the Borrower and its Subsidiaries after the Closing Date to the extent, and so long as, the financing documentation governing any existing Indebtedness of such Subsidiary (other than Indebtedness created or incurred in anticipation of, or with the intent to circumvent the terms of, this Agreement) that is permitted to survive pursuant to Section 6.01 (and does survive) prohibits such Subsidiary from guaranteeing the Obligations; provided, that notwithstanding the foregoing, any Subsidiary that Guarantees any senior notes or senior debt securities issued by the Borrower shall not constitute an Excluded Subsidiary for so long as such Guarantee is in effect.
Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment or becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 2.18(b) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.16, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.16(g) and (d) any U.S. federal withholding Taxes imposed under FATCA.
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Revolving Credit Facility


Executive Summary” means the Confidential Information Memorandum relating to this Agreement and the Transactions dated October 2018.
Existing Credit Agreement” means the Revolving Credit Agreement, dated as of September 19, 2014 (as amended, restated or otherwise modified), among the Borrower, the banks and other financial institutions party thereto as lenders and Barclays Bank, PLC as administrative agent.
Existing LC Subsidiary” means OLP “B” and each other Subsidiary of the Borrower set forth on Schedule 1.01C for the account of which an Existing Letter of Credit has been issued.
Existing Letters of Credit” means the letters of credit issued or, in the case of the Bond Letter of Credit, deemed issued, under the Existing Credit Agreement and certain letters of credit issued under a bilateral facility, in each case, listed on Schedule 1.01B.
Existing Subsidiary Letters of Credit” means, collectively, (i) the Bond Letter of Credit and (ii) each other Existing Letter of Credit that has been issued for the account of an Existing LC Subsidiary.
Existing Subsidiary Letters of Credit Guaranteed Obligations” has the meaning specified in Section 2.05(n).
Existing Subsidiary Letters of Credit Guaranty” has the meaning specified in Section 2.05(n).
FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, and any law, regulation, rule, promulgation, guidance notes, practices or official agreement implementing an intergovernmental agreement, treaty or convention with respect to the foregoing.
FCA” has the meaning specified in Section 2.13(b).
Federal Funds Effective Rate” means, for any day, the rate calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided, that if the Federal Funds Effective Rate for any day is less than zero, the Federal Funds Effective Rate for such day will be deemed to be zero.
Fee Letter” has the meaning specified in Section 2.11(c).
Fee Letters” means, collectively, the Administrative Agent Fee Letter and the Fee Letter.
First Amendment Effective Date” means August 20, 2021.
Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the Eurodollar Rate0.0%.
Foreign Lender” means any Lender that is not a U.S. Person.
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Revolving Credit Facility


Foreign Subsidiary” means any Subsidiary of the Borrower that is not a Domestic Subsidiary.
Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to any Issuing Bank, such Defaulting Lender’s Applicable Percentage of the outstanding LC Exposure with respect to Letters of Credit issued by such Issuing Bank other than LC Exposure as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof and (b) with respect to any Swingline Lender, such Defaulting Lender’s Applicable Percentage of outstanding Swingline Loans made by such Swingline Lender other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders.
Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
GAAP” means generally accepted accounting principles in the United States of America from time to time, including as set forth in the opinions, statements and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and the Financing Accounting Standards Board.
Governmental Authority” means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra national bodies such as the European Union or the European Central Bank).
Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.
Guarantors” means each Person that guarantees the Obligations pursuant to the Guaranty.
Guaranty” means the Guaranty Agreement substantially in the form of Exhibit 1.01-B hereto.
Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
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Revolving Credit Facility


Hedging Agreement” means a financial instrument or security which is used as a cash flow or fair value hedge to manage the risk associated with a change in interest rates, foreign currency exchange rates or commodity prices.
Hybrid Securities” means any trust preferred securities, or deferrable interest subordinated debt with a maturity of at least 20 years, which provides for the optional or mandatory deferral of interest or distributions, issued by the Borrower, or any business trusts, limited liability companies, limited partnerships or similar entities (i) substantially all of the common equity, general partner or similar interests of which are owned (either directly or indirectly through one or more Wholly-owned Subsidiaries) at all times by the Borrower or any of the Subsidiaries, (ii) that have been formed for the purpose of issuing trust preferred securities or deferrable interest subordinated debt, and (iii) substantially all the assets of which consist of (A) subordinated debt of the Borrower or a Subsidiary, and (B) payments made from time to time on the subordinated debt.
IBA” has the meaning specified in Section 2.13(b).
Immaterial Subsidiary” means any Subsidiary that is not a Material Subsidiary.
Increased Amount Date” has the meaning specified in Section 2.21(a).
Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments (other than surety, performance and guaranty bonds), (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect of the deferred purchase price of property or services (excluding trade accounts payable incurred in the ordinary course of business), (e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed (determined as the lesser of the amount of the Indebtedness so secured and such property’s fair market value), (f) all Guarantees by such Person of Indebtedness of others (provided that in the event that any Indebtedness of the Borrower or any Subsidiary shall be the subject of a Guarantee by one or more Subsidiaries or by the Borrower, as the case may be, the aggregate amount of the outstanding Indebtedness of the Borrower and the Subsidiaries in respect thereof shall be determined by reference to the primary Indebtedness so guaranteed, and without duplication by reason of the existence of any such guarantee), (g) all Capital Lease Obligations of such Person, (h) all obligations of such Person as an account party in respect of (i) the full face amount of all letters of credit (drawn or undrawn) supporting the exposure of such Person under Hedging Agreements and (ii) the drawn portion of all other letters of credit and letters of guaranty, (i) all obligations, contingent or otherwise, of such Person in respect of funded bankers’ acceptances and (j) Hybrid Securities. The Indebtedness of any Person shall include the Indebtedness of any other Person (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor: provided that Indebtedness shall not include (1) non-recourse debt, (2) performance guaranties, (3) monetary obligations or guaranties of monetary obligations of Person as lessees under leases that are in accordance with GAAP, recorded as operating leases (and giving effect to the proviso in Section 1.03), and (4) guarantees by such Person of obligations of others which are not obligations described in clauses (a) through (j) of this definition, and provided further, that where any such indebtedness or obligation of such Person is made jointly, or jointly and severally, with any third party or parties other than any Subsidiary of such Person, the amount thereof for the purpose of this definition only shall be the pro rata portion thereof payable by such Person, so long as such third party or parties have not defaulted on its or their joint and several portions thereof and can reasonably be expected to perform its or their obligations thereunder. For the avoidance of doubt, except
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Revolving Credit Facility


as expressly provided in clause (h)(i) above, “Indebtedness” of a Person in respect of such letters of credit shall include, without duplication, only the principal amount of the unreimbursed obligations of such Person in respect of such letters of credit that have been drawn upon by the beneficiaries to the extent of the amount drawn, and shall include no other obligations in respect of such letters of credit.
Indemnified Parties” has the meaning specified in Section 9.03(b).
Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any Obligation and (b) to the extent not otherwise described in (a), Other Taxes.
Indemnity Matters” means, with respect to any Indemnified Party, all losses, liabilities, claims and damages (including reasonable legal fees and expenses).
Interest Election Request” has the meaning specified in Section 2.07(b).
Interest Expense” means (without duplication), with respect to any period for any Person (a) the aggregate amount of interest, whether expensed or capitalized, paid, accrued or scheduled to be paid during such period in respect of the Indebtedness of such Person including (i) the interest portion of any deferred payment obligation; (ii) the portion of any rental obligation in respect of Capital Lease Obligations allocable to interest expenses; and (iii) any non-cash interest payments or accruals, all determined in accordance with GAAP, less (b) Interest Income of such Person for such period.
Interest Income” means, with respect to any period for any Person, interest actually received by such Person during such period.
Interest Payment Date” means (a) with respect to any ABR Loan (including a Swingline Loan), the last Business Day of each March, June, September and December, and (b) with respect to any EurodollarSOFR Loan, the last Business Day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a EurodollarSOFR Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period.
Interest Period” means with respect to any EurodollarSOFR Borrowing, the period commencing on the date of such Borrowing and ending (a) on the date that is one week thereafter or (b) on the numerically corresponding day in the calendar month that is one, two, three or six months thereafter (in each case, subject to availability thereof), in each case as the Borrower may elect; provided (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless, in the case of any EurodollarSOFR Borrowing, such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (ii) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period, (iii) no Interest Period shall end after the Stated Maturity Date and (iv) no two month Interest Periodtenor that has been removed from this definition pursuant to Section 2.22(d) shall be available for any Loans made or continued on or after October 31, 2021, and no one week Interest Period shall be available for any Loans made or continued on or after December 24, 2021specification in the applicable Borrowing Request or Interest Election Request. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and, in the case of a EurodollarSOFR Borrowing, thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
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Revolving Credit Facility


Interpolated Rate” means, in relation to the LIBO Rate, the rate which results from interpolating on a linear basis between:
(a) the applicable LIBO Rate for the longest period (for which that LIBO Rate is available) which is less than the Interest Period of that Loan; and
(b) the applicable LIBO Rate for the shortest period (for which that LIBO Rate is available) which exceeds the Interest Period of that Loan,
each as of approximately 11:00 a.m. (London, England time) two Business Days prior to the commencement of such Interest Period of that Loan.
IRS” means the United States Internal Revenue Service.
Issuing Banks” means Barclays Bank PLC, JPMorgan Chase Bank, N.A., Bank of America, N.A., Citi and Wells Fargo in their capacities as issuers of Letters of Credit hereunder, and each other Lender as the Borrower may from time to time select as an Issuing Bank hereunder pursuant to Section 2.05; provided that such Lender has agreed to be an Issuing Bank and the Administrative Agent has consented to such selection.
Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority.
LC Disbursement” means a payment made by an Issuing Bank pursuant to a Letter of Credit.
LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Committed Letters of Credit and Uncommitted Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time.
LC Sublimit” means $0.
Lenders” has the meaning specified in the introduction to this Agreement. Unless context otherwise requires, the term “Lenders” includes the Swingline Lender.
Letter of Credit” means any Existing Letter of Credit or any letter of credit issued pursuant to this Agreement.
Letter of Credit Commitment” means, with respect to any Issuing Bank, the commitment of such Issuing Bank to issue Letters of Credit hereunder, expressed as an amount representing the maximum aggregate amount of the LC Exposure with respect to Letters of Credit issued by such Issuing Bank as such commitment may be reduced or terminated from time to time pursuant to Section 2.08. The initial amount of each Issuing Bank’s Letter of Credit Commitment is set forth on Schedule 1.01.
Letter of Credit Request” has the meaning specified in Section 2.05(e).
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Revolving Credit Facility


LIBO Rate” shall have the meaning ascribed thereto in the definition of “Eurodollar Rate”.
Lien” means, with respect to any asset (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset.
Loan Documents” mean, collectively, this Agreement, the Guaranty, the Notes, if any, the Applications, the Fee Letters and all other instruments and documents from time to time executed and delivered by the Borrower or the Guarantors in connection herewith and therewith.
Loan Party” means the Borrower and each Guarantor.
Loans” means advances made by the Lenders to the Borrower pursuant to this Agreement.
Material Adverse Effect” means, relative to any occurrence of whatever nature, a material adverse effect on (a) the business assets, liabilities or financial condition of the Borrower and the Subsidiaries taken as a whole, (b) the ability of the Borrower and the Guarantors, taken as a whole, to perform the Obligations or (c) the rights and remedies of the Administrative Agent, any Issuing Bank or any Lender against the Borrower or, taken as a whole, the Guarantors, under any material provision of this Agreement or any other Loan Document.
Material Subsidiary” means, as at any date of determination, any Subsidiary of the Borrower whose total tangible assets (for purposes of the below, when combined with the tangible assets of such Subsidiary’s Subsidiaries, after eliminating intercompany obligations) as at such date of determination are greater than or equal to 5% of Consolidated Tangible Assets as of the last day of the fiscal quarter most recently ended for which financial statements have been delivered pursuant to Section 5.01(a) or (b) (the “Most Recent Financial Statement Date”), as the case may be; provided that if the aggregate total tangible assets of all Material Subsidiaries is less than 85% of Consolidated Tangible Assets as of the Most Recent Financial Statement Date, the Borrower shall designate Subsidiaries as “Material Subsidiaries” in writing to the Administrative Agent along with the delivery of the applicable financial statements pursuant to Section 5.01(a) or (b) such that the deficit described in this proviso ceases to exist.
Maturity Date” means the earlier of (a) the Stated Maturity Date and (b) the acceleration of the Obligations pursuant to Section 7.01.
Maximum Rate” has the meaning specified in Section 9.13.
Minimum Collateral Amount” means, solely for purposes of Sections 2.19 and 2.20, at any time, (i) with respect to Cash Collateral consisting of cash or deposit account balances, an amount equal to 100% of the Fronting Exposure of all Issuing Banks with respect to Letters of Credit issued and outstanding at such time and (ii) otherwise, an amount determined by the Administrative Agent and the Issuing Banks in their sole discretion.
Moody’s” means Moody’s Investors Service, Inc.
Most Recent Financial Statement Date” has the meaning specified in the definition of Material Subsidiary.
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Revolving Credit Facility


Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
Net Income” means with respect to any Person for any period that net income of such Person for such period determined in accordance with GAAP; provided that there shall be excluded, without duplication, from such net income (to the extent otherwise included therein), the following:
(a)    net extraordinary gains and losses (other than, in the case of losses, losses resulting from charges against net income to establish or increase reserves for potential environmental liabilities and reserves for exposure of such Person under rate cases);
(b)    net gains or losses in respect of dispositions of assets other than in the ordinary course of business;
(c)    any gains or losses attributable to write-ups or write-downs of assets; and
(d)    proceeds of any key man insurance, or any insurance on property, plant or equipment.
Net Worth” means, as to the Borrower at any date, the sum of the amount of shareholders’ equity of the Borrower determined as of such date in accordance with GAAP, provided there shall be excluded, without duplication, from such determination (to the extent otherwise included therein) the amount of accumulated other comprehensive gain or loss as of such date.
New Commitment” has the meaning specified in Section 2.21(a).
New Lender” has the meaning specified in Section 2.21(b).
New Loan” has the meaning specified in Section 2.21(b).
New Loan Increase Joinder” has the meaning specified in Section 2.21(c).
Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 9.02 and (ii) has been approved by the Required Lenders.
Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
Non-Extension Notice Date” has the meaning specified in Section 2.05(f).
Non-Guarantor Subsidiary” has the meaning specified in Section 6.01.
Non-Wholly-owned Subsidiary” means any Subsidiary that is not a Wholly-owned Subsidiary.
Note” means a Committed Note or a Swingline Note.
Notice of Default” has the meaning specified in Section 7.01(l).
Notice of Prepayment” has the meaning specified in Section 2.10(b).
Obligations” means collectively:
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Revolving Credit Facility


(a)    the payment of all indebtedness and liabilities by, and performance of all other obligations of, the Borrower in respect of the Loans;
(b)    all obligations of the Borrower under, with respect to and relating to the Letters of Credit, whether contingent or matured;
(c)    the payment of all other indebtedness and liabilities by and performance of all other obligations of the Borrower to the Administrative Agent, the Issuing Banks and the Lenders under, with respect to, and arising in connection with, the Loan Documents, and the payment of all indebtedness and liabilities of the Borrower to the Administrative Agent, the Issuing Banks and the Lenders for fees, costs, indemnification and expenses (including reasonable attorneys’ fees and expenses) under the Loan Documents;
(d)    the reimbursement of all sums advanced and costs and expenses incurred by the Administrative Agent under any Loan Document (whether directly or indirectly) in connection with the Obligations or any part thereof or any renewal, extension or change of or substitution for the Obligations or, any part thereof, whether such advances, costs and expenses were made or incurred at the request of the Borrower or the Administrative Agent; and
(e)    all renewals, extensions, amendments and changes of, or substitutions or replacements for, all or any part of the items described under clauses (a) through (d) above.
OLP “B”” means Kinder Morgan Operating LLC “B”, a Delaware limited partnership.
Operating Subsidiary” means any operating company that is a Subsidiary of the Borrower.
Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or any Loan Document).
Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.18(b)).
Participant” has the meaning assigned to such term in Section 9.05(c).
Participant Register” has the meaning specified in Section 9.05(c).
Patriot Act” has the meaning specified in Section 9.15.
Payment” has the meaning specified in Section 8.12(a).
Payment Notice” has the meaning specified in Section 8.12(b).
Payment Recipient” has the meaning specified in Section 8.12(a).
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Revolving Credit Facility


PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
Performance Level” means a reference to one of Performance Level I, Performance Level II, Performance Level III, Performance Level IV, Performance Level V or Performance Level VI.
Performance Level I” means, at any date of determination, that the Borrower shall have a Borrower Debt Rating in effect on such date of at least A- by S&P or at least A3 by Moody’s.
Performance Level II” means, at any date of determination, (a) that the Performance Level does not meet the requirements of Performance Level I and (b) that the Borrower shall have a Borrower Debt Rating in effect on such date of at least BBB+ by S&P or at least Baa1 by Moody’s.
Performance Level III” means, at any date of determination, (a) that the Performance Level does not meet the requirements of Performance Level I or Performance Level II and (b) that the Borrower shall have a Borrower Debt Rating in effect on such date of at least BBB by S&P, or at least Baa2 by Moody’s.
Performance Level IV” means, at any date of determination, (a) that the Performance Level does not meet the requirements of Performance Level I, Performance Level II or Performance Level III and (b) that the Borrower shall have a Borrower Debt Rating in effect on such date of at least BBB- by S&P, or at least Baa3 by Moody’s.
Performance Level V” means, at any date of determination, (a) that the Performance Level does not meet the requirements of Performance Level I, Performance Level II, Performance Level III or Performance Level IV and (b) that the Borrower shall have a Borrower Debt Rating in effect on such date of at least BB+ by S&P, or at least Ba1 by Moody’s.
Performance Level VI” means, at any date of determination, that the Performance Level does not meet the requirements of Performance Level I, Performance Level II, Performance Level III, Performance Level IV or Performance Level V.
Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any member of its ERISA Group is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
Plan Asset Regulations” means 29 CFR § 2510.3-101 et seq., as modified by Section 3(42) of ERISA, as amended from time to time.
Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent).
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Revolving Credit Facility


Principal Office” means the principal office of the Administrative Agent, presently located in New York, New York, or such other location as designated by the Administrative Agent from time to time.
PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
Recipient” means (a) the Administrative Agent, (b) any Lender and (c) any Issuing Bank, as applicable.
Register” has the meaning specified in Section 9.05(b).
Regulation D” means Regulation D of the Board, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
Regulation T” means Regulation T of the Board, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
Regulation U” means Regulation U of the Board, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
Regulation X” means Regulation X of the Board, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
Relevant Governmental Body” means the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto.
Required Lenders” means, at any time, subject to the provisions of Section 9.02(b), Lenders having Credit Exposure and unused Commitments representing more than 50% of the sum of the total Credit Exposures and unused Commitments at such time.
Requirement of Law” means, as to any Person, any law, statute, code, ordinance, order, determination, rule, regulation, judgment, decree, injunction, franchise, permit, certificate, license, authorization or other directive or requirement (whether or not having the force of law), including Environmental Laws, energy regulations and occupational, safety and health standards or controls, or any applicable Laws of any Governmental Authority that are binding upon such Person or to which any Person is subject.
Reserve Requirement” means, for any day a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentage (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board or other Governmental Authority to which the Administrative Agent is subject with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board). Such reserve percentage shall include those imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under
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Revolving Credit Facility


such Regulation D or any comparable regulations. The Reserve Requirement shall be adjusted automatically on and as of the effective date of any change in any such reserve percentage.
Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
Responsible Officer” means, as used with respect to the Borrower, the Chairman, Vice Chairman, President, any Vice President, Chief Executive Officer, Chief Financial Officer, Controller or Treasurer of the Borrower.
Restricted Payment” means any dividend or distribution (whether in cash, securities or other property) with respect to any Capital Stock in the Borrower, or any payment (whether in cash, securities or other property), including any deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Capital Stock or any option or other right to acquire any such Capital Stock.
S&P” means Standard & Poor’s Ratings Group, a division of The McGraw-Hill Companies, Inc.
Sanctioned Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the time of this Agreementas of the Second Amendment Effective Date, the so-called Donetsk People’s Republic region of Ukraine, the so-called Luhansk People’s Republic region of Ukraine, Crimea, Cuba, Iran, North Korea, and Syria).
Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b).
Sanctions” has the meaning specified in Section 4.14(a).
SEC” means the Securities and Exchange Commission or any Governmental Authority succeeding to its function.
SOFR” means a rate per annum equal to the secured overnight financing rate for such Business Day published by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate) on the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org (or any successor source for the secured overnight financing rate identified as such by the administrator of the secured overnight financing rate from time to time).
“Second Amendment Effective Date” means December 15, 2022, the date of effectiveness of that certain Amendment No. 2 to Credit Agreement.
“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Borrowing” means, as to any Borrowing, the SOFR Loans comprising such Borrowing.
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Revolving Credit Facility


“SOFR Loan” means a Loan that bears interest at a rate based on Adjusted Term SOFR, other than pursuant to clause (c) of the definition of “Alternate Base Rate”.
Solvent” means, with respect to any Person as of any date, that as of such date, (a)(i) the sum of such Person’s indebtedness (including contingent liabilities) does not exceed the present fair saleable value of such Person’s present assets; (ii) such Person’s capital is not unreasonably small in relation to its business as contemplated on such date; and (iii) such Person has not incurred, and does not intend to incur, or believe that it will incur indebtedness (including current obligations) beyond its ability to pay principal and interest on such indebtedness as it becomes due (whether at maturity or otherwise); and (b) such Person is “solvent” within the meaning given that term and similar terms under applicable laws relating to fraudulent transfers and conveyances. For the purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).
Stated Maturity Date” means, for any Lender, the date that is five years following the Closing Date or, if such date is not a Business Day, the immediately preceding Business Day.
Subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity that is, as of such date, otherwise controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent. Unless the context otherwise clearly requires, references in this Agreement to a “Subsidiary” or the “Subsidiaries” refer to a Subsidiary or the Subsidiaries of the Borrower.
Swingline Exposure” means, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall be its Applicable Percentage of the total Swingline Exposure at such time.
Swingline Lender” means Barclays Bank PLC, in its capacity as lender of Swingline Loans hereunder, or any other Lender acceptable to the Borrower and the Administrative Agent, acting in such capacity.
Swingline Loan” means a Loan made pursuant to Section 2.04(a).
Swingline Note” means a promissory note of the Company payable to the Swingline Lender in substantially the form of Exhibit 1.01-D, together with all modifications, extensions, renewals and replacements thereof.
Syndication Agent” means JPMorgan Chase Bank, N.A.
Taxes” means all present or future taxes, levies, imposts, duties, deductions, or withholdings (including backup withholding) assets, fees or other charges imposed by any Governmental Authority including any interest, additions to tax or penalties applicable thereto.
“Term SOFR” means,
(a) for any calculation with respect to a SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR
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Revolving Credit Facility


Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and
(b)    for any calculation with respect to an ABR Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “ABR Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any ABR Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such ABR SOFR Determination Day.
“Term SOFR Adjustment” means a percentage equal to 0.10% per annum.
“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion).
Term SOFR” means, for the applicable corresponding tenor, Reference Rate” means the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
Total Capitalization” means, as to the Borrower at any date, the sum of Consolidated Net Indebtedness (determined at such date) and the Net Worth (determined as at the end of the most recent fiscal quarter of the Borrower for which financial statements pursuant to Section 5.01(a) or Section 5.01(b), as applicable, have been delivered).
Total Commitment” means the sum of the Commitments of the Lenders.
Transactions” has the meaning specified in the Preliminary Statements.
Trustee” means The Bank of New York Mellon Trust Company, N.A., as the beneficiary of the Bond Letter of Credit and any successor beneficiary.
Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted LIBOTerm SOFR Rate or the Alternate Base Rate.
UK Financial Institutions” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from
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Revolving Credit Facility


time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
Uncommitted Letter of Credit” has the meaning specified in Section 2.05(b).
United States” and “U.S. each means United States of America.
“U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
U.S. Tax Compliance Certificate” has the meaning specified in Section 2.16(g)(ii)(B)(3).
Voting Stock” means, with respect to any Person, securities of any class or classes of Capital Stock in such Person entitling holders thereof (whether at all times or only so long as no senior class of stock has voting power by reason of any contingency) to vote in the election of members of the Board of Directors or other governing body of such Person or its managing member or its general partner (or its managing general partner if there is more than one general partner).
Wells Fargo” means Wells Fargo Bank National Association.
Wholly-owned Domestic Operating Subsidiary” means any Wholly-owned Subsidiary that constitutes (i) a Domestic Subsidiary and (ii) an Operating Subsidiary.
Wholly-owned Subsidiary” means a Subsidiary of which all issued and outstanding Capital Stock (excluding in the case of a corporation, directors’ qualifying shares) is directly or indirectly owned by the Borrower.
Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
Withholding Agent” means the Administrative Agent and the Borrower.
Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that
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Revolving Credit Facility


person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
SECTION 1.02    Classification of Loans and Borrowings. For purposes of this Agreement, Loans and Borrowings may be classified and referred to by Type (e.g., a “EurodollarSOFR Loan” or “EurodollarSOFR Borrowing” or an “ABR Loan” or “ABR Borrowing”).
SECTION 1.03    Accounting Terms; Changes in GAAP. All accounting and financial terms used herein and not otherwise defined herein and the compliance with each covenant contained herein which relates to financial matters shall be determined in accordance with GAAP applied by the Borrower on a consistent basis, except to the extent that a deviation therefrom is expressly stated. Should there be a change in GAAP from that in effect on the Closing Date, such that any of the defined terms set forth in Section 1.01 and/or compliance with the covenants set forth in Article VI would then be calculated in a different manner or with different components or any of such covenants and/or defined terms used therein would no longer constitute meaningful criteria for evaluating the matters addressed thereby prior to such change in GAAP (a) the Borrower and the Required Lenders agree, within the 60-day period following any such change, to negotiate in good faith and enter into an amendment to this Agreement in order to modify the defined terms set forth in Section 1.01 or the covenants set forth in Article VI, or both, in such respects as shall reasonably be deemed necessary by the Required Lenders that the criteria for evaluating the matters addressed by such covenants are substantially the same criteria as were effective prior to any such change in GAAP, and (b) the Borrower shall be deemed to be in compliance with such covenants during the 60-day period following any such change, or until the earlier date of execution of such amendment, if and to the extent that the Borrower would have been in compliance therewith under GAAP as in effect immediately prior to such change; provided, however, that for the avoidance of doubt, any lease that was accounted for by the Borrower or the Subsidiaries as an operating lease as of December 31, 2018 and any other lease entered into after December 31, 2018 by the Borrower or any Subsidiary shall be accounted for as an operating lease and not a capital lease to the extent that such lease would have been characterized as an operating lease as of such date.
SECTION 1.04    Interpretation. In this Agreement, unless a clear contrary intention appears:
(a)    the singular number includes the plural number and vice versa;
(b)    reference to any gender includes each other gender;
(c)    the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision;
(d)    reference to any Person includes such Person’s successors and assigns but, if applicable, only if such successors and assigns are permitted by this Agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity or individually; provided that nothing in this clause (d) is intended to authorize any assignment not otherwise permitted by this Agreement;
(e)    except as expressly provided to the contrary herein, reference to any agreement, document or instrument (including this Agreement) means such agreement, document or instrument as amended, supplemented or modified, or extended, renewed, refunded, substituted or replaced, and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof, and reference to any Note or other note or Indebtedness or other indebtedness includes any note or indebtedness issued pursuant hereto in extension or renewal or refunding thereof or in substitution or replacement therefor;
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(f)    unless the context indicates otherwise, reference to any Article, Section, Schedule or Exhibit means such Article or Section hereof or such Schedule or Exhibit hereto;
(g)    the word “including” (and with correlative meaning “include”) means including, without limiting the generality of any description preceding such term;
(h)    with respect to the determination of any period of time, except as expressly provided to the contrary, the word “from” means “from and including” and the word “to” means “to but excluding”;
(i)    reference to any law, rule or regulation means such as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time; and
(j)    the words “asset” and “property” shall be construed to have the same meaning and effect and refer to any and all tangible and intangible assets and properties.
SECTION 1.05    Rates. The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, (a) the continuation of, administration of, submission of, calculation of or any other matter related to any Benchmark, anyABR, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or any component definition thereof or rates referencedreferred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, such BenchmarkABR, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Benchmark Replacement Conforming Changes. The Administrative Agent and its affiliates or other related entities may engage in transactions that affect the calculation of ABR, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain ABR, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR or any other Benchmark, or any component definition thereof or rates referred to in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

ARTICLE II
THE CREDITS
SECTION 2.01    Commitments.
Subject to the terms and conditions set forth herein, each Lender agrees to make Committed Loans in U.S. dollars to the Borrower from time to time during the Availability Period in an aggregate principal amount that will not result in (i) such Lender’s Credit Exposure exceeding such Lender’s Commitment or (ii) the sum of the total Credit Exposures exceeding the Total Commitment. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Committed Loans.
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Revolving Credit Facility


SECTION 2.02    Loans and Borrowings.
(a)    Each Committed Loan shall be made as part of a Borrowing consisting of Committed Loans denominated in U.S. dollars made by the Lenders, ratably in accordance with their Applicable Percentage of the Total Commitment on the date such Loan is made hereunder. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(b)    Subject to Section 2.13, each Borrowing (other than a Borrowing of Swingline Loans, which must be ABR Loans) shall be comprised entirely of ABR Loans or EurodollarSOFR Loans as the Borrower may request in accordance herewith. Each Lender at its option may make any EurodollarSOFR Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement.
(c)    At the commencement of each Interest Period for any EurodollarSOFR Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $3,000,000. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $1,000,000; provided that an ABR Borrowing may be in an aggregate amount that is equal to the entire unused balance of the Total Commitment or that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(h). Each Swingline Loan shall be in an amount that is an integral multiple of $100,000 and not less than $1,000,000.
(d)    There shall not at any time be more than a total of twelve EurodollarSOFR Borrowings outstanding.
(e)    Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Stated Maturity Date.
SECTION 2.03    Requests for Borrowings.
(a)    To request a Borrowing (other than a Borrowing of a Swingline Loan), the Borrower shall notify the Administrative Agent of such request (which request shall be in writing unless otherwise agreed to by the Administrative Agent) (a) in the case of a EurodollarSOFR Borrowing, not later than 11:00 a.m., New York, New York time, three Business Days before the date of the proposed Borrowing and (b) in the case of an ABR Borrowing, not later than 10:00 a.m., New York, New York, time, on the date of the proposed Borrowing. Each such Borrowing Request shall be irrevocable and shall be made by telecopy or electronic communication (e-mail) to the Administrative Agent of a written Borrowing Request in a form of Exhibit 2.03 (a “Borrowing Request”) and signed by the Borrower. Each such Borrowing Request shall specify the following information in compliance with Section 2.02:
(i)    the aggregate amount of the requested Borrowing;
(ii)    the date of such Borrowing, which shall be a Business Day;
(iii)    whether such Borrowing is to be an ABR Borrowing or a EurodollarSOFR Borrowing;
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Revolving Credit Facility


(iv)    in the case of a EurodollarSOFR Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”; and
(v)    the location and number of the Borrower’s account to which funds are to be disbursed, which shall comply with the requirements of Section 2.06;
If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested EurodollarSOFR Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in accordance with this Section 2.03, the Administrative Agent shall advise each Lender in writing of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.
(b)    To request a Borrowing of a Swingline Loan, the Borrower shall notify the Administrative Agent of such request (which request shall be in writing unless otherwise agreed by the Administrative Agent), not later than 12:00 noon, New York, New York, time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify (i) the requested date (which shall be a Business Day) of the Swingline Loan, (ii) the amount of the requested Swingline Loan and (iii) the number of the Borrower’s deposit account with the Swingline Lender to which funds are to be disbursed. The Administrative Agent (if not the Swingline Lender) will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to the deposit account of the Borrower identified in the notice or otherwise agreed upon by the Borrower and the Swingline Lender from time to time by 3:00 p.m., New York, New York, time, on the requested date of such Swingline Loan.
SECTION 2.04    Swingline Loans.
(a)    Subject to the terms and conditions set forth herein, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Closing Date, to make a loan or loans (each a “Swingline Loan” and, collectively, the “Swingline Loans”) to the Borrower from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $0 or (ii) the sum of the total Credit Exposures exceeding the Total Commitment; provided that (A) each Swingline Loan shall be in a minimum amount of $1,000,000 and shall be repayable in full as provided in Section 2.09, and (B) the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b)    The Swingline Lender may by written notice given to the Administrative Agent not later than 12:00 noon, New York, New York, time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is irrevocable and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or Event of Default or reduction or termination of the Total Commitment, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply
33
Revolving Credit Facility


with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent for the account of the Lenders and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent for the account of the Lenders; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
SECTION 2.05    Letters of Credit.
(a)    Existing Letters of Credit. The parties hereto acknowledge that on and after the Closing Date, each Existing Letter of Credit shall be a Letter of Credit issued by the Issuing Bank shown as the issuer thereof on Schedule 1.01B for the account of the relevant Existing LC Subsidiary in the case of the Existing Subsidiary Letters of Credit, and for the account of the Borrower in the case of all other Existing Letters of Credit. Any Letter of Credit issued by Wachovia Bank, National Association, or First Union National Bank shall be deemed to be a Letter of Credit issued by Wells Fargo. OLP “B” hereby pledges, assigns, transfers and delivers to Wells Fargo, as the Issuing Bank that has issued the Bond Letter of Credit, all its right, title and interest to all Bonds purchased with funds drawn under the Bond Letter of Credit (the “Pledged Bonds”), and hereby grants to such Issuing Bank a first lien on, and security interest in, its rights, title and interest in and to the Pledged Bonds, the interest thereon and all proceeds thereof or substitutions therefor, as collateral security for the prompt and complete payment when due of the amounts payable in respect of the Bond Letter of Credit. During such time as any Bonds are Pledged Bonds, the Issuing Bank that has issued the Bond Letter of Credit shall be entitled to exercise all of the rights of a holder of Bonds with respect to voting, consenting and directing the Trustee as if such Issuing Bank were the owner of such Bonds, and OLP “B” hereby grants and assigns to such Issuing Bank all such rights.
(b)    General. Subject to the terms and conditions set forth herein, the Borrower may request the issuance, amendment, renewal or extension of Letters of Credit from an Issuing Bank for its own account individually, for its own account and that of any Subsidiary as co-applicants, or, in the case of the Existing Subsidiary Letters of Credit, for the account of the relevant Existing LC Subsidiary, in a form reasonably acceptable to the Administrative Agent and such Issuing Bank, at any time and from time to time during the Availability Period. Subject to the terms and conditions set forth herein, such Issuing Bank shall have an obligation to issue a Letter of Credit (each such Letter of Credit, a “Committed Letter of Credit”), and to amend, renew or extend any Letter of Credit previously issued by it, under this Section 2.05 if, after giving effect to any such issuance, amendment, renewal or extension, (i) the LC Exposure for all Letters of Credit issued by such Issuing Bank would not exceed such Issuing Bank’s Letter of Credit Commitment at such time, (ii) the total LC Exposure would not exceed the LC Sublimit and (iii) the total Credit Exposure does not exceed the Total Commitment. In addition, at the request of the Borrower, an Issuing Bank may in its sole discretion agree to issue, amend, renew, or extend Letters of Credit for the account of the Borrower individually or for its own account and that of any Subsidiary (each such Letter of Credit, an “Uncommitted Letter of Credit”); provided, however, after giving effect to any such issuance, amendment, renewal or extension, (i) the total LC Exposure shall not exceed the LC Sublimit, and (ii) the total Credit Exposure shall not exceed the Total Commitment. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and
34
Revolving Credit Facility


conditions of any Application or other agreement submitted by the Borrower to, or entered into by the Borrower with, the Issuing Bank thereof relating to any Letter of Credit, the terms and conditions of this Agreement shall control. All Letters of Credit issued and deemed issued under this Section 2.05 shall constitute utilization of the Total Commitment including the total Letter of Credit Commitments in an amount equal to the LC Exposure relating to such Letters of Credit. All Letters of Credit issued under this Agreement shall be denominated in U.S. dollars. In no event shall any Issuing Bank be required to issue any Letter of Credit other than a stand-by Letter of Credit.
(c)    No Issuing Bank shall be under any obligation to issue any Letter of Credit if:
(i)    any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing such Letter of Credit, or any Law applicable to such Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuing Bank shall prohibit, or request that such Issuing Bank refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such Issuing Bank is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such Issuing Bank in good faith deems material to it;
(ii)    the issuance of such Letter of Credit would violate one or more policies of such Issuing Bank applicable to letters of credit generally;
(iii)    except as otherwise agreed by the Administrative Agent and such Issuing Bank, such Letter of Credit is in an initial stated amount less than $10,000;
(iv)    such Letter of Credit is to be denominated in a currency other than U.S. dollars;
(v)    such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or
(vi)    any Lender is at such time a Defaulting Lender, unless such Issuing Bank has entered into arrangements, including reallocation of such Lender’s Applicable Percentage of the outstanding LC Exposure pursuant to Section 2.19(a)(iv) or the delivery of Cash Collateral, satisfactory to such Issuing Bank (in its sole discretion) with the Borrower or such Lender to eliminate such Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.19(a)(iv)) with respect to such Lender arising from either the Letter of Credit then proposed to be issued or such Letter of Credit and all other LC Exposure as to which such Issuing Bank has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(d)    No Issuing Bank shall be under any obligation to amend or extend any Letter of Credit if (A) such Issuing Bank would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment thereto.
(e)    Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication (e-mail), if arrangements for doing so have been approved by the designated Issuing Bank) to the designated Issuing Bank and the Administrative Agent not less than five Business Days (or such lesser number as may be otherwise acceptable to such Issuing Bank) in advance of the requested date of
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Revolving Credit Facility


issuance, amendment, renewal or extension) a notice (a “Letter of Credit Request”) requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, the date of issuance, amendment, renewal or extension, the date on which such Letter of Credit is to expire (which shall comply with Section 2.05(f)), the amount of such Letter of Credit, the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. If requested by the Issuing Bank that has been requested to issue such Letter of Credit, the Borrower also shall submit a letter of credit application on such Issuing Bank’s standard form (an “Application”), appropriately completed and signed by a Responsible Officer of the Borrower and including agreed-upon draft language for such Letter of Credit reasonably acceptable to the applicable Issuing Bank, in connection with any request for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or extended only if, after giving effect to such issuance, amendment, renewal or extension, (i) at any time prior to the Stated Maturity Date (A) the sum of the total Credit Exposures at any time shall not exceed the Total Commitment, (B) the LC Exposure in respect of Committed Letters of Credit issued by any Issuing Bank shall not exceed the Letter of Credit Commitment of such Issuing Bank and (C) the total LC Exposure shall not exceed the LC Sublimit, and (ii) at any time on and after the Stated Maturity Date, no Lender shall have any Credit Exposure or LC Exposure. Upon the issuance, amendment, renewal or extension of each Letter of Credit, the Issuing Bank that has issued such Letter of Credit will notify the Administrative Agent, who, in turn, will notify the Lenders, of the amount and type of such Letter of Credit that is issued, amended, renewed or extended pursuant to this Agreement.
(f)    Expiration Date. Each Letter of Credit (other than the Bond Letter of Credit) shall expire at or prior to the close of business on the earlier of (i) the date one year after the date of the issuance of such Letter of Credit (unless the Issuing Bank issuing such Letter of Credit otherwise agrees in its sole discretion) and (ii) five Business Days prior to the Stated Maturity Date (except to the extent Cash Collateralized or backstopped pursuant to arrangements satisfactory to the relevant Issuing Bank when required in accordance with Section 2.05(l)). If the Borrower so requests in any applicable Letter of Credit Request, the Issuing Bank may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the Issuing Bank to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Issuing Bank, the Borrower shall not be required to make a specific request to the Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the Issuing Bank to permit the extension of such Letter of Credit at any time to an expiry date not later than the five Business Days prior to the Stated Maturity Date; provided, however, that (i) the Issuing Bank shall not permit any such extension if the Issuing Bank has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (e) of this Section 2.05 or otherwise pursuant to the terms hereof) and (ii) an Issuing Bank may permit the extension of such Letter of Credit to an expiry date that is later than the five Business Days prior to the Stated Maturity Date (but in any case to a date that is no later than twelve months since the expiry date as of the last auto-extension), provided that such Letter of Credit is Cash Collateralized or otherwise backstopped pursuant to arrangements satisfactory to the relevant Issuing Bank when required in accordance with Section 2.05(l).
(g)    Participations. On the Closing Date, with respect to the Existing Letters of Credit and by the issuance of each other Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Banks or the Lenders, the Issuing Bank that has issued such Letter of Credit hereby grants to each Lender, and each Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. In
36
Revolving Credit Facility


consideration and in furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of such Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed by the Borrower on the date due as provided in Section 2.05(h), or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is irrevocable and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or an Event of Default or reduction or termination of the Total Commitment, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
(h)    Reimbursement. If any Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative Agent (whether from its own funds or with the proceeds of Committed Loans) an amount equal to such LC Disbursement not later than 12:00 noon, New York, New York, time, on the Business Day immediately following the day that the Borrower receives notice of such LC Disbursement; provided that if the Borrower fails to make such payment when due, then, upon demand by such Issuing Bank sent to the Administrative Agent and each Lender before 10:00 a.m., New York, New York, time, each Lender shall pursuant to Section 2.06 on the same day make available to the Administrative Agent for delivery to such Issuing Bank, immediately available funds in an amount equal to such Lender’s Applicable Percentage of the amount of such payment by such Issuing Bank, and the funding of such amount shall be treated as the funding of an ABR Loan by such Lender to the Borrower. Notwithstanding anything herein or in any other Loan Document to the contrary, the funding obligations of the Lenders set forth in this Section 2.05(h) shall be binding regardless of whether or not a Default or an Event of Default shall exist or the other conditions precedent in Article III are satisfied at such time. If and to the extent any Lender fails to effect any payment due from it under this Section 2.05(h) to the Administrative Agent, then interest shall accrue on the obligation of such Lender to make such payment from the date such payment became due to the date such obligation is paid in full at a rate per annum equal to the Federal Funds Effective Rate. The failure of any Lender to pay its Applicable Percentage of any payment under any Letter of Credit shall not relieve any other Lender of its obligation hereunder to pay to the Administrative Agent its Applicable Percentage of any payment under any Letter of Credit on the date required, as specified above, but no Lender shall be responsible for the failure of any other Lender to pay to the Administrative Agent such other Lender’s Applicable Percentage of any such payment.
(i)    Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as provided in Section 2.05(h) shall, to the extent permitted by law, be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of:
(i)    any lack of validity or enforceability of any Letter of Credit, this Agreement or any other Loan Document, or any term or provision herein or therein;
(ii)    any amendment or waiver of or any consent to departure from all or any of the provisions of any Letter of Credit, this Agreement or any other Loan Document;
(iii)    the existence of any claim, setoff, defense or other right that any Loan Party, any Affiliate of any Loan Party or any other Person may at any time have against the beneficiary under any Letter of Credit, any Issuing Bank, the Administrative Agent or any Lender or any other Person, whether in connection with this Agreement or any other related or unrelated agreement or transaction;
37
Revolving Credit Facility


(iv)    any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect;
(v)    payment by any Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit; and
(vi)    any other act or omission to act or delay of any kind of the Issuing Banks, the Lenders, the Administrative Agent or any other Person or any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.05, constitute a legal or equitable discharge of either Borrower’s obligations hereunder.
Neither the Administrative Agent, the Lenders nor the Issuing Banks, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder, including any of the circumstances specified in clauses (i) through (vi) above, as well as any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of any Issuing Bank; provided that the foregoing shall not be construed to excuse any Issuing Bank from liability to the Borrower (or, in the case of the Existing Subsidiary Letters of Credit, the relevant Existing LC Subsidiary) to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by each Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by such Issuing Bank’s failure to exercise the agreed standard of care (as set forth below) in determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that each Issuing Bank shall have exercised the agreed standard of care in the absence of gross negligence, willful misconduct or unlawful conduct on the part of such Issuing Bank. Without limiting the generality of the foregoing, it is understood that each Issuing Bank may accept documents that appear on their face to be in substantial compliance with the terms of a Letter of Credit, without responsibility for further investigation, regardless of any notice or information to the contrary, and may make payment upon presentation of documents that appear on their face to be in substantial compliance with the terms of such Letter of Credit; provided that each Issuing Bank shall have the right, in its sole discretion, to decline to accept such documents and to make such payment if such documents are not in strict compliance with the terms of such Letter of Credit.
(j)    Disbursement Procedures. Each Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit issued by it. Each Issuing Bank shall promptly notify the Administrative Agent and the Borrower and, in the case of the Existing Subsidiary Letters of Credit, the relevant Existing LC Subsidiary, by telephone (confirmed by telecopy) or by electronic communication (e-mail) of such demand for payment and whether such Issuing Bank has made or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse such Issuing Bank and the Lenders with respect to any such LC Disbursement.
(k)    Interim Interest. If any Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date specified in Section 2.05(h), the unpaid amount thereof shall bear interest, for each day from the date such LC Disbursement is made to the date that the Borrower reimburses such LC Disbursement (or all Lenders make the payments to the Administrative Agent contemplated by Section 2.05(h) and treated pursuant to
38
Revolving Credit Facility


said Section as constituting the funding of ABR Loans), at the rate per annum then applicable to ABR Committed Loans.
(l)    Cash Collateralization. If (i) any Event of Default shall occur and be continuing, on the Business Day that the Borrower receives notice from the Administrative Agent or the Required Lenders (or, if the maturity of the Loans has been accelerated, Lenders with LC Exposure representing greater than 51% of the total LC Exposure) demanding the deposit of cash collateral pursuant to this paragraph or (ii) any Letter of Credit remains outstanding on the fifth Business Day prior to the Stated Maturity Date, the Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders, an amount in cash equal to the LC Exposure as of such date plus any accrued and unpaid interest thereon; provided that the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or notice of any kind, upon (A) the occurrence of any event described in the foregoing clauses (i) or (ii) or (B) the occurrence of any Event of Default with respect to the Borrower described in clause (g) or (h) of Section 7.01. Such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the obligations of the Borrower under this Agreement and the other Loan Documents. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest earned on the investment of such deposits (which investments shall be made at the option and sole discretion of the Administrative Agent, but only in investments rated at least AA (or equivalent) by at least one nationally recognized rating agency) such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account and may, subject to the immediately preceding sentence be reinvested from time to time. Moneys in such account shall be applied by the Administrative Agent to reimburse each Issuing Bank for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of Lenders with LC Exposure representing greater than 51% of the total LC Exposure), be applied to satisfy other obligations of the Borrower under this Agreement and the other Loan Documents. If the Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three Business Days after all Events of Default have been cured or waived. If the Borrower is required to provide an amount of cash collateral hereunder as a result of any Letter of Credit remaining outstanding on the fifth Business Day prior to the Stated Maturity Date, then such cash collateral or portion thereof shall be released promptly following: (i) the elimination of the applicable LC Exposure, (ii) the Administrative Agent’s good faith determination that there exists excess cash collateral, or (iii) the extension of the Stated Maturity Date to a date that is more than five Business Days later than the expiry date of the applicable Letter of Credit.
(m)    Designation. In addition the Borrower and any Issuing Bank, with the written consent of the applicable Issuing Bank and notice to the Administrative Agent and the Lenders, may designate letters of credit issued by such Issuing Bank that were not originally issued under this Agreement as Letters of Credit issued hereunder, so long as, at the time of such designation, (i) the Borrower would have been able to deliver a Letter of Credit Request with respect to a Letter of Credit hereunder containing the same terms as such letter of credit that was so designated, (ii) such Issuing Bank would have been required to issue a Letter of Credit hereunder containing the same terms as such letter of credit that was so designated and (iii) all the conditions to a credit extension set forth in Section 3.02 have been met immediately prior to such designation. Upon such designation in accordance with the foregoing, such designated letter of credit of such Issuing Bank shall be deemed to be a Letter of Credit issued by such Issuing Bank hereunder.
(n)    Existing Subsidiary Letters of Credit Guaranty. Notwithstanding that each Existing Subsidiary Letter of Credit is in support of obligations of, and is for the account of, a Subsidiary,
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Revolving Credit Facility


the Borrower shall be obligated to reimburse the Issuing Bank hereunder for any and all drawings under such Existing Subsidiary Letter of Credit in accordance with Section 2.05(h). Notwithstanding the foregoing, to the extent that the Borrower is not treated as the primary obligor for the reimbursement of such Existing Subsidiary Letter of Credit pursuant to the relevant documentation for such Existing Subsidiary Letter of Credit, the Debtor Relief Laws, any other applicable Laws or otherwise, the Borrower hereby absolutely, unconditionally and irrevocably guarantees (this “Existing Subsidiary Letters of Credit Guaranty”) the punctual payment and performance when due, whether at stated maturity, by acceleration or otherwise, of the obligations of the Existing LC Subsidiaries under the Existing Subsidiary Letters of Credit, whether for principal, interest (including interest accruing or becoming owing both prior to and subsequent to the commencement of any proceeding against or with respect to the Existing LC Subsidiaries under any Debtor Relief Laws, fees, commissions, expenses (including reasonable attorneys’ fees and expenses) or otherwise (all such obligations being the “Existing Subsidiary Letters of Credit Guaranteed Obligations”). The Borrower agrees to pay any and all expenses incurred by each Lender, the Issuing Bank and the Administrative Agent in enforcing this Existing Subsidiary Letters of Credit Guaranty against the Borrower. This Existing Subsidiary Letters of Credit Guaranty is an absolute, unconditional, present and continuing guaranty of payment and not of collectability and is in no way conditioned upon any attempt to collect from the Existing LC Subsidiaries or any other action, occurrence or circumstance whatsoever. The Borrower agrees that, to the maximum extent permitted by applicable law, the Existing Subsidiary Letters of Credit Guaranteed Obligations may be extended or renewed, and indebtedness thereunder repaid and reborrowed in whole or in part, without notice to or assent by the Borrower, and that it will remain bound upon this Existing Subsidiary Letters of Credit Guaranty notwithstanding any extension, renewal or other alteration of any Existing Subsidiary Letters of Credit Guaranteed Obligations, or any repayment and reborrowing of Loans. To the maximum extent permitted by applicable law, except as otherwise expressly provided in this Agreement or any other Loan Document to which the Borrower is a party, the obligations of the Borrower under this Existing Subsidiary Letters of Credit Guaranty shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms hereof under any circumstances whatsoever. The Borrower hereby waives promptness, diligence, notice of acceptance and any other notice with respect to any of the Existing Subsidiary Letters of Credit Guaranteed Obligations and this Existing Subsidiary Letters of Credit Guaranty and waives presentment, demand for payment, notice of intent to accelerate, notice of dishonor or nonpayment and any requirement that the Administrative Agent or any Lender institute suit, collection proceedings or take any other action to collect the Existing Subsidiary Letters of Credit Guaranteed Obligations, including any requirement that the Administrative Agent or any Lender exhaust any right or take any action against the Existing LC Subsidiaries or any other Person or any collateral (it being the intention of the Administrative Agent, the Lenders and the Borrower that this Existing Subsidiary Letters of Credit Guaranty is to be a guaranty of payment and not of collection). It shall not be necessary for the Administrative Agent or any Lender, in order to enforce any payment by the Borrower hereunder, to institute suit or exhaust its rights and remedies against the Existing LC Subsidiaries or any other Person, including others liable to pay any Existing Subsidiary Letters of Credit Guaranteed Obligations, or to enforce its rights against any security ever given to secure payment thereof. The Borrower hereby expressly waives to the maximum extent permitted by applicable law each and every right to which it may be entitled by virtue of the suretyship laws of the State of New York or any other state in which it may be located, including any and all rights it may have pursuant to Rule 31, Texas Rules of Civil Procedure, Section 17.001 of the Texas Civil Practice and Remedies Code and Chapter 34 of the Texas Business and Commerce Code.
SECTION 2.06    Funding of Borrowings.
(a)    Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 2:00 p.m., New York, New York time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders; provided that Swingline Loans shall be made as provided in Section 2.04. The Borrower hereby
40
Revolving Credit Facility


irrevocably authorizes the Administrative Agent to disburse the proceeds of each Borrowing requested pursuant to Section 2.03 in immediately available funds by crediting or wiring such proceeds to the deposit account of the Borrower identified in the Borrowing Request or otherwise agreed upon by the Borrower and the Administrative Agent from time to time; provided that ABR Committed Loans made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(g) and (h) shall be remitted by the Administrative Agent to the Issuing Bank that made such LC Disbursement.
(b)    Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing (or prior to 11:00 a.m., New York, New York, time, on such date in the case of an ABR Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s Applicable Percentage of such Borrowing, the Administrative Agent may assume that such Lender has made such Applicable Percentage of such Borrowing available on such date in accordance with Section 2.06(a) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its Applicable Percentage of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from the date such amount is made available to the Borrower to the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, or (ii) in the case of the Borrower, the interest rate applicable to ABR Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
SECTION 2.07    Interest Elections.
(a)    Subject to Section 2.13, each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a EurodollarSOFR Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, subject to Section 2.13, the Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a EurodollarSOFR Borrowing, may elect Interest Periods therefor, all as provided in this Section 2.07. The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing. This Section 2.07 shall not apply to Swingline Borrowings, which may not be converted or continued.
(b)    To make an election pursuant to this Section 2.07, the Borrower shall notify the Administrative Agent of such election (which notification shall be in writing unless otherwise agreed to by the Administrative Agent) by the time that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such Interest Election Request shall be irrevocable and shall be made by telecopy or by electronic communication (e-mail) to the Administrative Agent of an Interest Election Request in the form of Exhibit 2.07 (an “Interest Election Request”).
(c)    Each Interest Election Request shall specify the following information in compliance with Section 2.02:
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Revolving Credit Facility


(i)    the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);
(ii)    the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(iii)    whether the resulting Borrowing is to be an ABR Borrowing or a EurodollarSOFR Borrowing; and
(iv)    if the resulting Borrowing is a EurodollarSOFR Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period”.
If any such Interest Election Request requests a EurodollarSOFR Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.
(d)    Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender in writing of the details thereof and of such Lender’s portion of each resulting Borrowing.
(e)    If the Borrower fails to deliver a timely Interest Election Request with respect to a EurodollarSOFR Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if and so long as an Event of Default is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, then so long as an Event of Default has occurred and is continuing (i) no outstanding Borrowing may be converted to or continued as a EurodollarSOFR Borrowing, and (ii) unless repaid, each EurodollarSOFR Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.08    Termination and Reduction of Commitments; Mandatory Prepayments.
(a)    Unless previously terminated, the Total Commitment shall terminate on the Maturity Date.
(b)    The Borrower may at any time terminate, or from time to time reduce, the Total Commitment or the Letter of Credit Commitments, in whole or in part; provided that (i) each partial reduction of the Total Commitment or Letter of Credit Commitments shall be in an amount that is an integral multiple of $1,000,000 and not less than $5,000,000, (ii) the Borrower shall not terminate or reduce the Commitments if, after giving effect to any concurrent prepayment of the Loans in accordance with Section 2.10, the total Credit Exposures would exceed the Total Commitment and (iii) the Borrower shall not terminate or reduce the Letter of Credit Commitments if, after giving effect to such termination or reduction, (A) the total LC Exposure would exceed the total Letter of Credit Commitments as so reduced or (B) the LC Exposure of any Issuing Bank would exceed its Letter of Credit Commitment.
(c)    The Borrower shall notify the Administrative Agent of any election to terminate or reduce the Total Commitment or the Letter of Credit Commitments under Section 2.08(a) at least three Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall
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Revolving Credit Facility


advise the Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section 2.08 shall be irrevocable; provided that a notice of termination of the Total Commitment or the Letter of Credit Commitments delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities or other event, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of the Total Commitment or the Letter of Credit Commitments shall be permanent. Except as expressly provided in Section 2.19, each reduction of the Total Commitment shall be made ratably among the Lenders in accordance with their Applicable Percentages.
SECTION 2.09    Repayment of Loans; Evidence of Debt.
(a)    The Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Committed Loan on the Maturity Date and (ii) to the Swingline Lender the then unpaid principal amount of each Swingline Loan not later than seven days after the date such Swingline Loan is made. In addition, if the total Credit Exposures exceeds the Total Commitment, the Borrower shall pay to the Administrative Agent for the account of each Lender an aggregate principal amount of Committed Loans or Swingline Loans sufficient to cause the total Credit Exposures not to exceed the Total Commitment; provided, however, if the repayment of the outstanding Committed Loans and/or Swingline Loans does not cause the total Credit Exposures, to be equal to or less than the Total Commitment, the Borrower shall deposit in an account with the Administrative Agent in the name of the Administrative Agent and for the benefit of the Lenders, an amount in cash equal to the amount by which the total Credit Exposures exceeds the Total Commitment, which cash deposit shall be held by the Administrative Agent for the payment of the Obligations of the Borrower under this Agreement and the other Loan Documents. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account other than any interest earned on the investment of such deposit (which investments shall be made at the option and sole discretion of the Administrative Agent, but only in investments rated at least AA (or equivalent) by at least one nationally recognized rating agency, unless an Event of Default shall have occurred and be continuing, and in any event at the Borrower’s risk and expense). Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to reimburse each Issuing Bank for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such time, or if the maturity of the Loans has been accelerated (but subject to the consent of the Lenders with LC Exposure representing greater than 51% of the total LC Exposure), be applied to satisfy other obligations of the Borrower under this Agreement and the other Loan Documents. At any time when the sum of the total Credit Exposures does not exceed the Total Commitment and so long as no Default under Section 7.01(b) or Event of Default shall then exist, upon the request of the Borrower the amount of such deposit (to the extent not applied as aforesaid) shall be returned to the Borrower within three Business Days after receipt of such request.
(b)    Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.
(c)    The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.
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Revolving Credit Facility


(d)    The entries made in the accounts maintained pursuant to Section 2.09(b) or (c) shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error or conflict therein shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement.
(e)    Any Lender may request that Loans made by it be evidenced by a Committed Note or a Swingline Note, as applicable. In such event, the Borrower shall prepare, execute and deliver to such Lender a Committed Note or a Swingline Note, as applicable. Thereafter, the Loans evidenced by such Committed Note and interest thereon shall at all times (including after assignment pursuant to Section 9.05) be represented by one or more Committed Notes in such forms payable to the payee named therein.
SECTION 2.10    Voluntary Prepayment of Loans.
(a)    The Borrower shall have the right at any time and from time to time to prepay any Borrowing in whole or in part, subject to prior notice in accordance with Section 2.10(b).
(b)    The Borrower shall notify the Administrative Agent (or, in the case of prepayment of a Swingline Loan, the Swingline Lender) (which notice shall be made in writing by telecopy or electronic communication (e-mail) in the form of Exhibit 2.10 (a “Notice of Prepayment”)) of any prepayment hereunder (i) in the case of prepayment of a EurodollarSOFR Borrowing, not later than 11:00 a.m., New York, New York time, three Business Days before the date of prepayment, (ii) in the case of prepayment of an ABR Borrowing (other than Swingline Loans), not later than 11:00 a.m., New York, New York time, one Business Day prior to the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 11:00 a.m., New York, New York time on the date of the prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, Type and the principal amount of each Borrowing or portion thereof to be prepaid; provided that, if a notice of prepayment is given in connection with a conditional notice of termination of the Total Commitment as contemplated by Section 2.08, then such notice of prepayment may be revoked if such notice of termination of the Total Commitment is revoked in accordance with Section 2.08. Each partial prepayment shall be in an aggregate amount not less than, and shall be an integral multiple of, the amounts shown below with respect to the applicable Type of Loan or Borrowing:
Type of
Loan/Borrowing
Integral
Multiple of
Minimum
Aggregate Amount
EurodollarSOFR Borrowing
$1,000,000$3,000,000
ABR Borrowing$1,000,000$1,000,000
Swingline Loan$100,000$1,000,000

Promptly following receipt of any such notice relating to a Borrowing, the Administrative Agent shall advise the Lenders in writing of the contents thereof. If the Borrower fails to designate the Type of Borrowings to be prepaid, partial prepayments shall be applied first to the outstanding Swingline Loans until the outstanding principal amount of all Swingline Loans is repaid in full, then to the outstanding ABR Borrowings until the outstanding principal amount of all ABR Borrowings is repaid in full, and then to the outstanding principal amount of EurodollarSOFR Borrowings. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02. Each prepayment of a Borrowing shall be applied to the Loans
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Revolving Credit Facility


included in the prepaid Borrowing in accordance with the Lenders’ Applicable Percentage of such Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
SECTION 2.11    Fees.
(a)    The Borrower agrees to pay to the Administrative Agent for the account of each Lender (other than a Defaulting Lender) a commitment fee (the “Commitment Fee”), which shall be equal to (a) the Applicable Commitment Fee Rate times (b) the daily average undrawn portion of the such Lender’s Commitment (it being understood that (i) such Lender’s Applicable Percentage of the face amount of Letters of Credit issued and outstanding shall be considered a drawn portion of such Lender’s Commitment for such purpose and (ii) such Lender’s Swingline Exposure shall be excluded from the drawn portion of such Lender’s Commitment for such purpose), during the period from the Closing Date to the later of (i) the date on which such Commitment terminates and (ii) the date on which the Loans are paid in full; provided that, if such Lender continues to have any Credit Exposure after its Commitment terminates, then such Commitment Fee shall continue to accrue on the daily amount of such Lender’s Credit Exposure from the date on which its Commitment terminates to the date on which such Lender ceases to have any Credit Exposure. Accrued Commitment Fees shall be payable in arrears on the last Business Day of March, June, September and December of each year and on the date on which the Commitments terminate and the date the Loans are paid in full, commencing on the first such date to occur after the Closing Date. All Commitment Fees shall be computed on the basis of a year of 365 or 366 days, as the case may be, and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).
(b)    The Borrower agrees to pay (i) to the Administrative Agent for the account of each Lender (other than a Defaulting Lender) a participation fee with respect to its participations in Letters of Credit which shall accrue at a rate per annum equal to the Applicable Margin for EurodollarSOFR Loans on the average daily amount of such Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Closing Date to but excluding the later of the date on which such Lender’s Commitment terminates and the date on which such Lender ceases to have any LC Exposure and (ii) to each Issuing Bank that has issued a Letter of Credit, a fronting fee which shall accrue a rate agreed to by the Borrower and such Issuing Bank (and notified to the Administrative Agent) on the average daily amount of the LC Exposure in respect of each such Letter of Credit from the date such Letter of Credit is issued to the date on which there ceases to be any LC Exposure with respect to such Letter of Credit. The Borrower also agrees to pay each Issuing Bank’s standard fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit issued by it or the processing of drawings thereunder. Accrued participation fees and fronting fees shall be payable in arrears on the last Business Day of March, June, September and December of each year, commencing on the first such date to occur after the Closing Date; provided that all such fees shall be payable on the date on which the Total Commitment terminates and any such fees accruing after the date on which the Total Commitment terminates shall be payable on demand. Any other fees payable to any Issuing Bank pursuant to this paragraph shall be payable within 10 days after demand. All participation fees shall be computed on the basis of a year of 360 days, as applicable, and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).
(c)    The Borrower agrees to pay, without duplication, to (i) the Administrative Agent and the Lenders, for their own accounts (or that of their applicable Affiliate), fees payable in the amounts and at the times specified in that letter agreement dated October 23, 2018 among the Borrower, Barclays Bank PLC and JPMorgan Chase Bank, N.A. (as from time to time amended, the “Fee Letter”) and (ii) the Administrative Agent, for its own account (or that of its applicable Affiliate), fees payable in amounts and at the times specified in that letter agreement dated October 23, 2018 among the Borrower and Barclays Bank PLC (the “Administrative Agent Fee Letter”).
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Revolving Credit Facility


(d)    All fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Administrative Agent (or to each Issuing Bank, in the case of fees payable to it) (for distribution, in the case of Commitment Fees and participation fees, to the Lenders). Except as required by law, fees paid shall not be refundable under any circumstance.
SECTION 2.12    Interest.
(a)    The Loans comprising each ABR Borrowing shall bear interest at a rate per annum equal to the sum of Alternate Base Rate plus the Applicable Margin. Each Swingline Loan shall be an ABR Loan and shall bear interest at the Alternate Base Rate plus the Applicable Margin.
(b)    The Loans comprising each EurodollarSOFR Borrowing shall bear interest at the Adjusted LIBOTerm SOFR Rate for the Interest Period in effect for such Borrowing plus the Applicable Margin.
(c)    Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the rate otherwise applicable to such Loan as provided above or (ii) in the case of any other amount, 2% plus the Alternate Base Rate.
(d)    Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan; provided that (i) interest accrued pursuant to Section 2.12(c) shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Committed Loan prior to the end of the Availability Period), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment, (iii) in the event of any conversion of any EurodollarSOFR Committed Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion and (iv) all accrued interest shall be payable upon termination of the Total Commitment.
(e)    All interest hereunder shall be computed on the basis of a year of 360-day year, except that interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate, Adjusted LIBOTerm SOFR Rate or LIBOTerm SOFR Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.
SECTION 2.13    Alternate Rate of Interest.
(a) Subject to Section 2.22, if, on or If prior to the commencementfirst day of any Interest Period for a Eurodollar Borrowingany SOFR Loan:
(a)    (i) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate for such Interest Period;“Adjusted Term SOFR” cannot be determined pursuant to the definition thereof, or
(b)    the Required Lenders determine that for any reason in connection with any request for a SOFR Loan or a conversion thereto or a continuation thereof that Adjusted Term SOFR for any requested Interest Period with respect to a proposed SOFR Loan does not adequately and fairly reflect
46
Revolving Credit Facility


the cost to such Lenders of making and maintaining such Loan, and the Required Lenders have provided notice of such determination to the Administrative Agent,
the Administrative Agent will promptly so notify the Borrower and each Lender.
Upon notice thereof by the Administrative Agent to the Borrower, any obligation of the Lenders to make SOFR Loans, and any right of the Borrower to continue SOFR Loans or to convert ABR Loans to SOFR Loans, shall be suspended (to the extent of the affected SOFR Loans or affected Interest Periods) until the Administrative Agent (with respect to clause (b), at the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, (i) the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of SOFR Loans (to the extent of the affected SOFR Loans or affected Interest Periods) or, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans in the amount specified therein and (ii) any outstanding affected SOFR Loans will be deemed to have been converted into ABR Loans at the end of the applicable Interest Period. Upon any such conversion, the Borrower shall also pay accrued interest on the amount so converted, together with any additional amounts required pursuant to Section 2.14. Subject to Section 2.22, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that “Adjusted Term SOFR” cannot be determined pursuant to the definition thereof on any given day, the interest rate on ABR Loans shall be determined by the Administrative Agent without reference to clause (c) of the definition of “Alternate Base Rate” until the Administrative Agent revokes such determination.
(ii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders in writing as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders in writing that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective, and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing.
(b) Notwithstanding anything to the contrary herein or in any other Loan Document:
(i) Replacing the Eurodollar Rate. On March 5, 2021 the Financial Conduct Authority (“FCA”), the regulatory supervisor of the Eurodollar Rate's administrator (“IBA”), announced in a public statement the future cessation or loss of representativeness of overnight/spot next, 1-month, 3-month, 6-month and 12-month Eurodollar Rate tenor settings. On the earlier of (i) the date that all Available Tenors of the Eurodollar Rate have either permanently or indefinitely ceased to be provided by IBA or have been announced by the FCA pursuant to public statement or publication of information to be no longer representative and (ii) the Early Opt-in Effective Date, if the then-current Benchmark is the Eurodollar Rate, the Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any setting of such Benchmark on such day and all subsequent settings without any amendment to, or further action or consent of any other party to this Agreement or any other Loan Document. If the Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a quarterly basis.
(ii) Replacing Future Benchmarks. Upon the occurrence of a Benchmark Transition Event, the Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after
47
Revolving Credit Facility


5:00 p.m. on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders. At any time that the administrator of the then-current Benchmark has permanently or indefinitely ceased to provide such Benchmark or such Benchmark has been announced by the regulatory supervisor for the administrator of such Benchmark pursuant to public statement or publication of information to be no longer representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored, the Borrower may revoke any request for a borrowing of, conversion to or continuation of Loans to be made, converted or continued that would bear interest by reference to such Benchmark until the Borrower's receipt of notice from the Administrative Agent that a Benchmark Replacement has replaced such Benchmark, and, failing that, the Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to ABR Loans. During the period referenced in the foregoing sentence, the component of ABR based upon the Benchmark will not be used in any determination of ABR.
(iii) Benchmark Replacement Conforming Changes. In connection with the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.
(iv) Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Benchmark Replacement Conforming Changes. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section.
(v) Unavailability of Tenor of Benchmark. At any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR or the Eurodollar Rate), then the Administrative Agent may remove any tenor of such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (ii) the Administrative Agent may reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settings.
SECTION 2.14    Increased Costs.
(a)    If any Change in Law shall:
(i)    impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or any Issuing Bank;
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Revolving Credit Facility


(ii)    subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its Loans, loan principal, Letters of Credit, Commitments, or other Obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii)    impose on any Lender, any Issuing Bank or the Londonrelevant interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or EurodollarSOFR Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Loan or of maintaining its obligation to make any such Loan, or to increase the cost to such Lender, such Issuing Bank or such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of maintaining any obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender, Issuing Bank or other Recipient hereunder (whether of principal, interest or any other amount) then, upon request of such Lender, Issuing Bank or other Recipient, the Borrower will pay to such Lender or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, Issuing Bank or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b)    If any Lender or Issuing Bank determines that any Change in Law affecting such Lender or Issuing Bank or any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements, has or would have the effect of reducing the rate of return on such Lender’s or Issuing Bank’s capital or on the capital of such Lender’s or Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitment of such Lender or the Loans made by, or participations in Letters of Credit or Swingline Loans held by, such Lender, or the Letters of Credit issued by any Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company with respect to capital adequacy and/or liquidity requirements), then from time to time the Borrower will pay to such Lender or Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company for any such reduction suffered.
(c)    A certificate of a Lender or any Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or Issuing Bank or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section 2.14 and delivered to the Borrower, shall be conclusive absent manifest error. The Borrower shall pay such Lender or Issuing Bank, as the case may be, the amount shown as due on any such certificate within 10 Business Days after receipt thereof.
(d)    Failure or delay on the part of any Lender or any Issuing Bank to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or any Issuing Bank pursuant to this Section 2.14 for any increased costs or reductions incurred more than six months prior to the date that such Lender or such Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such Issuing Bank’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof).
SECTION 2.15    Break Funding Payments. In the event of (a) the payment of any principal of any EurodollarSOFR Loan other than on the last day of an Interest Period applicable thereto
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Revolving Credit Facility


(including as a result of an Event of Default), (b) the conversion of any EurodollarSOFR Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow (unless such failure was caused by the failure of a Lender to make such Loan), convert, continue or prepay any EurodollarSOFR Loan, or the failure to convert an ABR Loan to a EurodollarSOFR Loan, on the date specified in any notice delivered pursuant hereto (regardless of whether such notice is permitted to be revocable under Section 2.08 and is revoked in accordance herewith), or (d) the assignment of any EurodollarSOFR Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.18, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event. In the case of a EurodollarSOFR Loan, the loss to any Lender attributable to any such event shall be deemed to include an amount determined by such Lender to be equal to the excess, if any, of (i) the amount of interest that such Lender would pay for a deposit equal to the principal amount of such Loan for the period from the date of such payment, conversion, failure or assignment to the last day of the then current Interest Period for such Loan (or, in the case of a failure to borrow, convert or continue, the duration of the Interest Period that would have resulted from such borrowing, conversion or continuation) if the interest rate payable on such deposit were equal to the Adjusted LIBOTerm SOFR Rate for such Interest Period, over (ii) the amount of interest that such Lender would earn on such principal amount for such period if such Lender were to invest such principal amount for such period at the interest rate that would be bid by such Lender (or an affiliate of such Lender) for dollar deposits from other banks in the Eurodollarinterbank market at the commencement of such period. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section 2.15 shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 Business Days after receipt thereof.
SECTION 2.16    Taxes.
(a)    Defined Terms. For purposes of this Section 2.16, the term “Requirement of Law” includes FATCA.
(b)    Payments Free of Taxes. Any and all payments by or on account of any obligation of the Borrower under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by a Requirement of Law. If any Requirement of Law (as determined in the good faith discretion of the Withholding Agent) requires the deduction or withholding of any Tax from any such payment by the Withholding Agent, then the Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Requirement of Law and, if such Tax is an Indemnified Tax, then the sum payable by the Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 2.16) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(c)    Payment of Other Taxes by the Borrower. Without duplication of any obligation under this Section 2.16, the Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable Requirement of Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(d)    Indemnification by the Borrower. Without duplication of any obligation under this Section 2.16, the Borrower shall indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted
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Revolving Credit Facility


by the relevant Governmental Authority; provided, however, the Borrower shall not be required to indemnify a Recipient pursuant to this Section 2.16(d) for any Indemnified Taxes unless such Recipient makes written demand on the Borrower for indemnification for such Indemnified Taxes no later than six months after the earlier of (i) the date on which such Recipient receives written demand from the relevant Governmental Authority for payment of such Indemnified Taxes or (ii) the date on which such Recipient has made payment of such Indemnified Taxes. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(e)    Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 9.05(c) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (e).
(f)    Evidence of Payments. As soon as practicable after any payment of Taxes by the Borrower to a Governmental Authority pursuant to this Section 2.16, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(g)    Status of Lenders. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Requirement of Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in subsections (ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii)    Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Borrower,
(A)    any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a
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Revolving Credit Facility


Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding Tax;
(B)    any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:
(1)    in the case of a Foreign Lender claiming the benefits of an income Tax treaty to which the United States is a party (x) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such Tax treaty and (y) IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such Tax treaty;
(2)    executed copies of IRS Form W-8ECI;
(3)    in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit 2.16-A to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or
(4)    to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit 2.16-B or Exhibit 2.16-C, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit 2.16-D on behalf of each such direct and indirect partner;
(C)    any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of any other form prescribed by applicable Requirement of Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed and executed, together with such supplementary documentation as may be prescribed by applicable Requirement of Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
52
Revolving Credit Facility


(D)    if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by Requirement of Law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable Requirement of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(h)    Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.16 (including by the payment of additional amounts pursuant to this Section 2.16), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(i)    On or before the date that Barclays Bank PLC (or any successor or replacement Administrative Agent) becomes the Administrative Agent hereunder, it shall deliver to the Borrower two duly executed originals of either (i) IRS Form W-9 (or any applicable successor form) certifying that the Administrative Agent is not subject to backup withholding, or (ii) IRS Form W-8IMY (or any applicable successor form) establishing that the Administrative Agent will act as a withholding agent for any U.S. federal withholding tax imposed with respect to any payments made to Lenders under any Loan Document.
(j)    Survival. Each party’s obligations under this Section 2.16 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
SECTION 2.17    Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
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Revolving Credit Facility


(a)    The Borrower shall make each payment required to be made by the Borrower hereunder (whether of principal, interest or fees, or under Section 2.14, 2.15 or 2.16, or otherwise) prior to 12:00 noon, New York, New York time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its Principal Office, except payments made directly to an Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.14, 2.15, 2.16 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in dollars.
(b)    If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amount of principal and unreimbursed LC Disbursements then due to such parties.
(c)    If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided that:
(i)    if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii)    the provisions of this paragraph shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary thereof (as to which the provisions of this paragraph shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d)    Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders
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Revolving Credit Facility


or the Issuing Banks hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or such Issuing Bank, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Banks, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such Issuing Bank with interest thereon, for each day from the date such amount is distributed to it to the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules or interbank compensation.
(e)    If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(b), 2.05(h), 2.06(b), 2.17(d) or 8.08, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under such Sections; in the case of each of (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
SECTION 2.18    Mitigation of Obligations; Replacement of Lenders.
(a)    Designation of a Different Lending Office. If any Lender requests compensation under Section 2.14, or requires the Borrower to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.16, then such Lender shall (at the request of the Borrower) use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.14 or 2.16, as the case may be, in the future, and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b)    Replacement of Lenders. If any Lender requests compensation under Section 2.14, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.16 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with Section 2.18(a), or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 9.05), all of its interests, rights (other than its existing rights to payments pursuant to Section 2.14 or Section 2.16) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:
(i)    the Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 9.05;
(ii)    such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in LC Disbursements, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 2.15) from the assignee (to the extent of such
55
Revolving Credit Facility


outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);
(iii)    in the case of any such assignment resulting from a claim for compensation under Section 2.14 or payments required to be made pursuant to Section 2.16, such assignment will result in a reduction in such compensation or payments thereafter;
(iv)    such assignment does not conflict with applicable law; and
(v)    in the case of any assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
SECTION 2.19    Defaulting Lenders(a)    . (a) Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
(i)    Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 9.02.
(ii)    Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 9.09 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank or Swingline Lender hereunder; third, to Cash Collateralize the Issuing Banks’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20; fourth, as the Company may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the Issuing Banks’ future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.20; sixth, to the payment of any amounts owing to the Lenders, the Issuing Banks or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any Issuing Bank or the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or LC Disbursements in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such
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Revolving Credit Facility


Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 3.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and LC Disbursements owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or LC Disbursements owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letter of Credit Commitments and Swingline Loans are held by the Lenders pro rata in accordance with the Commitments without giving effect to Section 2.19(a)(iv). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.19(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii)    (A) Each Defaulting Lender shall be entitled to receive a Commitment Fee for any period during which that Lender is a Defaulting Lender only to extent allocable to the sum of (1) the outstanding principal amount of the Loans funded by it, and (2) its Applicable Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.20.
(A)    Each Defaulting Lender shall be entitled to receive letter of credit fees under Section 2.11(b) for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Applicable Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.20.
(B)    With respect to any Commitment Fee or letter of credit fee under Section 2.11(b) not required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above, the Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s LC Exposure or Swingline Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to each Issuing Bank and Swingline Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such Issuing Bank’s or Swingline Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
(iv)    All or any part of such Defaulting Lender’s LC Exposure and Swingline Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that (x) the conditions set forth in Section 3.02 are satisfied at the time of such reallocation (and, unless the Borrower shall have otherwise notified the Administrative Agent at such time, the Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the aggregate Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Commitment. Subject to Section 9.18, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
(v)    If the reallocation described in clause (iv) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under law, (x) first, prepay Swingline Loans in an amount equal to the Swingline Lenders’ Fronting Exposure and (y) second, Cash Collateralize the Issuing Banks’ Fronting Exposure in accordance with the procedures set forth in Section 2.20.
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Revolving Credit Facility


(b)    If the Borrower, the Administrative Agent, the Swingline Lender and each Issuing Bank agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held pro rata by the Lenders in accordance with their respective Commitments (without giving effect to Section 2.19(a)(iv), whereupon, that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(c)    So long as any Lender is a Defaulting Lender, (i) the Swingline Lender shall not be required to fund any Swingline Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swingline Loan and (ii) no Issuing Bank shall be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.
SECTION 2.20    Cash Collateral.
At any time that there shall exist a Defaulting Lender, within one Business Day following the written request of the Administrative Agent or any Issuing Bank (with a copy to the Administrative Agent) the Borrower shall Cash Collateralize the Issuing Banks’ Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to Section 2.19(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less than the Minimum Collateral Amount.
(a)    The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to the Administrative Agent, for the benefit of the Issuing Banks, and agrees to maintain, a first priority security interest in all such Cash Collateral as security for the Defaulting Lenders’ LC Exposure, to be applied pursuant to clause (b) below. If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent and the Issuing Banks as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral provided by the Defaulting Lender).
(b)    Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under this Section 2.20 or Section 2.19 in respect of Letters of Credit shall be applied to the satisfaction of the Defaulting Lender’s LC Exposure (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.
(c)    Termination of Requirement. Cash Collateral (or the appropriate portion thereof) provided to reduce any Issuing Bank’s Fronting Exposure shall no longer be required to be held as Cash Collateral pursuant to this Section 2.20 following (i) the elimination of the applicable Fronting Exposure (including by the termination of Defaulting Lender status of the applicable Lender), or (ii) the determination by the Administrative Agent and each Issuing Bank that there exists excess Cash
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Revolving Credit Facility


Collateral; provided that, subject to Section 2.19 the Person providing Cash Collateral and each Issuing Bank may agree that Cash Collateral shall be held to support future anticipated Fronting Exposure or other obligations and provided further that to the extent that such Cash Collateral was provided by the Borrower, such Cash Collateral shall remain subject to the security interest granted pursuant to the Loan Documents.
SECTION 2.21    Accordion FacilitiesSECTION 2.22 .
(a)    Before the Maturity Date, the Borrower may by written notice to Administrative Agent elect to request the establishment of one or more increases in the Total Commitment (each increase to the Total Commitment, a “New Commitment” and, collectively, the “New Commitments”), in an aggregate amount not to exceed $0. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent; provided that any Lender offered or approached to provide all or a portion of the New Commitments may elect or decline, in its sole discretion, to provide a New Commitment. Such New Commitments shall become effective as of such Increased Amount Date; provided further that, (i) no Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Commitments; (ii) the Borrower shall make any payments required pursuant to this Agreement (including Section 2.15) to the Administrative Agent and the Lenders (other than any Defaulting Lender), in connection with the New Commitments, as applicable; (iii) the Administrative Agent, the Swingline Lender and the Issuing Banks shall have consented to such prospective lender (such consent not to be unreasonably withheld or delayed) and (iv) such New Commitment will be documented solely as an increase to the Total Commitment, without any change to the terms of revolving facility provided for herein. The proceeds of each New Commitment shall be used for working capital and general corporate purposes. For the avoidance of doubt, no Lender shall be obligated to provide any portion of the New Commitments.
(b)    On any Increased Amount Date on which New Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Commitments shall assign to each Lender with a New Commitment (each such Lender, a “New Lender”) and each of the New Lenders shall purchase from each of the Lenders with Commitments, at the principal amount thereof (together with accrued interest), such interests in the Committed Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Committed Loans will be held by existing Lenders with Committed Loans and New Lenders ratably in accordance with their Commitments after giving effect to the addition of such New Commitments to the Total Commitment, (b) each New Commitment shall be deemed for all purposes a Commitment and each Loan made thereunder (a “New Loan”) shall be deemed, for all purposes, a Committed Loan and (c) each New Lender shall become a Lender with respect to the New Commitment and all matters relating thereto.
(c)    The New Commitments shall be effected by a joinder agreement (the “New Loan Increase Joinder”) substantially in the form of Exhibit 2.21 executed by the Borrower, the Administrative Agent and each Lender making such New Commitment, in form and substance reasonably satisfactory to each of them, and consented to by the Administrative Agent, the Issuing Banks and the Swingline Lender. Each New Loan Increase Joinder may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.21.
SECTION 2.22    Benchmark Replacement.
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Revolving Credit Facility


(a)    Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event, the Administrative Agent and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 2.22(a) will occur prior to the applicable Benchmark Transition Start Date.
(b)    Benchmark Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(c)    Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Benchmark Replacement Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will notify the Borrower of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.22(d) and (y) the commencement of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.22, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.22.
(d)    Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may, in consultation with the Borrower, modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may, in consultation with the Borrower, modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(e)    Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any pending request for a SOFR Borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued
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Revolving Credit Facility


during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01    Conditions Precedent to the Closing Date. The obligations of the Lenders to make Loans hereunder and the obligations of the Issuing Banks to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied or waived in accordance with Section 9.02:
(a)    The Administrative Agent shall have received the following, each dated as of the Closing Date:
(i)    this Agreement executed by each party hereto;
(ii)    the Guaranty executed by each party thereto;
(iii)    a certificate of an officer and of the secretary or an assistant secretary of the Borrower and each Guarantor, certifying, inter alia (A) true and complete copies of each of the certificate of incorporation or other appropriate organizational document, as amended and in effect, of such Person, the bylaws or similar organizational document, as amended and in effect, of such Person and the resolutions adopted by the Board of Directors or similar governing body of such Person (1) authorizing the execution, delivery and performance by such Person of each Loan Document to which such Person is or will be a party, (2) approving the Loan Documents to which such Person is or will be a party and (3) authorizing officers of such Person to execute and deliver the Loan Documents to which such Person is or will be a party and any related documents and (B) the incumbency and specimen signatures of the officers of such Person executing any documents on its behalf; provided, that there shall be no requirement to deliver such certificates for any Guarantor that is not a Material Subsidiary;
(iv)    a certificate of a Responsible Officer of the Borrower certifying as to the satisfaction of the conditions in Sections 3.01(c) and (e); and
(v)    signed opinions addressed to the Administrative Agent and the Lenders from legal counsel to the Borrower and the Guarantors covering the matters reasonably requested by the Administrative Agent; provided, that there shall be no requirement to deliver opinions of legal counsel for any Guarantor that is not a Material Subsidiary.
(b)    The Administrative Agent shall have received a certificate of appropriate officials as to the existence and good standing of the Borrower and each Guarantor.
(c)    There shall not have occurred any change, effect, event or occurrence since December 31, 2017 that, individually or in the aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect.
(d)    The Administrative Agent shall have received evidence that the Existing Credit Agreement has been, or substantially concurrently with the Closing Date will be, terminated and the obligations outstanding thereunder repaid in full pursuant to customary payoff documentation, including evidence of the release of Liens, if any, granted in connection therewith.
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Revolving Credit Facility


(e)    The conditions precedent set forth in Sections 3.02(b) and (d) shall have theretofore been satisfied or waived in accordance with Section 9.02.
(f)    (i) The Administrative Agent shall have received (for distribution to the Lenders so requesting) at least three business days prior to the Closing Date all documentation and other information about the Borrower and Guarantors as required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, to the extent reasonably requested by any Lender to the Administrative Agent and conveyed by the Administrative Agent to the Borrower in writing at least 10 days prior to the Closing Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Closing Date, any Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).
(g)    All fees required to be paid on the Closing Date pursuant to the Fee Letters referenced in Section 2.11(c) and all reasonable out-of-pocket expenses required to be paid on the Closing Date, to the extent invoiced at least two Business Days prior to the Closing Date shall have been paid.
The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date in writing promptly upon such conditions precedent being satisfied (or waived in accordance with Section 9.02), and such notice shall be conclusive and binding.
SECTION 3.02    Conditions Precedent to Each Credit Event. Except with respect to Committed Loans made by the Lenders pursuant to Section 2.05(h), the obligations of (i) the Lenders to make Loans hereunder and (ii) the obligations of the Issuing Banks to issue or extend any Letter of Credit under this Agreement is subject to the satisfaction or waiver in accordance with Section 9.02 of the following conditions precedent:
(a)    The conditions precedent set forth in Section 3.01 shall have theretofore been satisfied or waived in accordance with Section 9.02;
(b)    The representations and warranties set forth in Article IV and in the other Loan Documents shall be true and correct in all material respects as of, and as if such representations and warranties were made on, the Borrowing Date of the proposed Loan or Letter of Credit, as the case may be (unless such representation and warranty expressly relates to an earlier date), and by the Borrower’s delivery of a Borrowing Request, the Borrower shall be deemed to have certified to the Administrative Agent and the Lenders that such representations and warranties are true and correct in all material respects;
(c)    The Company shall have complied with the provisions of Section 2.03, Section 2.04 or Section 2.05, as the case may be;
(d)    No Default or Event of Default shall have occurred and be continuing or would result from such Credit Event; and
(e)    A Borrowing Request shall have been delivered in accordance with the terms of Section 2.03.
The acceptance by the Borrower of the benefits of each Credit Event shall constitute a representation and warranty by the Borrower to each of the Lenders that all of the conditions specified in this Section 3.02 above exist as of that time.
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Revolving Credit Facility


ARTICLE IV
REPRESENTATIONS AND WARRANTIES
On the Closing Date and on each Borrowing Date, the Borrower makes the following representations and warranties to the Administrative Agent and the Lenders:
SECTION 4.01    Organization and Qualification. The Borrower and each of the Material Subsidiaries (a) is a corporation, partnership or limited liability company duly organized or formed, validly existing and in good standing under the laws of the state of its incorporation, organization or formation, (b) has all requisite corporate, partnership, limited liability company or other power and all material governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted and (c) is duly qualified to do business and is in good standing in every jurisdiction in which the failure to be so qualified would, individually or together with all such other failures of the Borrower and the Subsidiaries, have a Material Adverse Effect.
SECTION 4.02    Authorization, Validity, Etc. The Borrower and each Guarantor has all requisite corporate (or other organizational) power and authority to execute and deliver, and to incur and perform its obligations under this Agreement and under the other Loan Documents to which it is a party and, in the case of the Borrower, to make the Borrowings hereunder, and all such actions have been duly authorized by all necessary proceedings on its behalf. This Agreement and the other Loan Documents have been duly and validly executed and delivered by or on behalf of the Borrower (and, on the Closing Date, with respect to the Guaranty, each Guarantor) party thereto and constitute valid and legally binding agreements of the Borrower and each Guarantor, as applicable, enforceable against the Borrower or the Guarantor in accordance with the respective terms thereof, except (a) as may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer, fraudulent conveyance or other similar laws relating to or affecting the enforcement of creditors’ rights generally, and by general principles of equity (including principles of good faith, reasonableness, materiality and fair dealing) which may, among other things, limit the right to obtain equitable remedies (regardless of whether considered in a proceeding in equity or at law) and (b) as to the enforceability of provisions for indemnification for violation of applicable securities laws, limitations thereon arising as a matter of law or public policy.
SECTION 4.03    Governmental Consents, Etc. No authorization, consent, approval, license or exemption of or registration, declaration or filing with any Governmental Authority, is necessary for the valid execution and delivery of, or the incurrence and performance by the Borrower or each Guarantor of its obligations under, any Loan Document to which it is a party, except those that have been obtained and such matters relating to performance as would ordinarily be done in the ordinary course of business after the Closing Date.
SECTION 4.04    No Breach or Violation of Agreements or Restrictions, Etc. Neither the execution and delivery of, nor the incurrence and performance by any Loan Party of its obligations under, the Loan Documents to which it is a party, nor the extensions of credit contemplated by the Loan Documents, will (a) breach or violate any applicable Requirement of Law, (b) result in any breach or violation of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien upon any of its property or assets (other than Liens created or contemplated by this Agreement) pursuant to the terms of, any indenture, mortgage, deed of trust, agreement or other instrument to which it or any of the Subsidiaries is party or by which any of its properties or assets, or those of any of the Subsidiaries is bound or to which it is subject, except for breaches, violations and defaults under clauses (a) and (b) that neither individually nor in the aggregate could reasonably be expected to result in a Material Adverse Effect, or (c) violate any provision of the organizational documents of such Loan Party.
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Revolving Credit Facility


SECTION 4.05    Properties. Each of the Borrower and the Material Subsidiaries has good title to, or valid leasehold or other interests in, all its real and personal property material to its business free of all Liens securing Indebtedness except for such Liens permitted under Section 6.02.
SECTION 4.06    Litigation and Environmental Matters. (a) Except as disclosed in the most recent Annual Report on Form 10-K delivered by the Borrower to the Lenders, there is no action, suit or proceeding by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Borrower, threatened against or affecting the Borrower or any of the Material Subsidiaries as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect.
(a)    Except as disclosed in the most recent Annual Report on Form 10-K delivered by the Borrower to the Lenders, the associated liabilities and costs of the Borrower’s compliance with Environmental Laws (including any capital or operating expenditures required for clean-up or closure of properties currently or previously owned, any capital or operating expenditures required to achieve or maintain compliance with environmental protection standards imposed by Environmental Laws or as a condition of any license, permit or contract, any related constraints on operating activities, including any periodic or permanent shutdown of any facility or reduction in the level of or change in the nature of operations conducted thereat, any costs or liabilities in connection with off-site disposal of wastes or Hazardous Materials, and any actual or potential liabilities to third parties, including employees, and any related costs and expenses) are unlikely to result in a Material Adverse Effect.
SECTION 4.07    Financial Statements.
(a)    The consolidated balance sheet of the Borrower and the Subsidiaries as at December 31, 2017 and the related consolidated statements of income, comprehensive income, shareholders’ equity and cash flows of the Borrower and the Subsidiaries for the fiscal year ended on said date, with the opinion thereon of PricewaterhouseCoopers LLP and set forth in the Borrower’s 2017 Annual Report on Form 10-K, as filed with the SEC, fairly present, in all material respects, the consolidated financial position of the Borrower and the Subsidiaries as of such date and their consolidated results of operations and cash flows for such fiscal year in accordance with GAAP.
(b)    The unaudited consolidated balance sheets of the Borrower and the Subsidiaries as at March 31, 2018, June 30, 2018 and September 30, 2018 and the related consolidated statements of income and cash flows of the Borrower and the Subsidiaries for the three month period ended on such date and set forth in the Borrower’s Quarterly Report on Form 10-Q for its fiscal quarter then ended, as filed with the SEC, fairly present, in all material respects, the consolidated financial position of the Borrower and the Subsidiaries as of such date and their consolidated results of their operations cash flows for the applicable time period ended on said date (subject to the absence of footnotes and to normal year-end and audit adjustments), in accordance with GAAP applied on a basis consistent with the financial statements referred to in Section 4.07(a).
(c)    On the Closing Date and since the date of the Annual Report on Form 10-K delivered by the Borrower to the Lenders with respect to the fiscal year ended December 31, 2020, there has been no material adverse change in the business, assets, liabilities or financial condition of the Borrower and the Subsidiaries, taken as a whole.
SECTION 4.08    Disclosure.
(a)    As of the Closing Date only, information heretofore furnished by the Borrower to the Administrative Agent or any Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby, together with the Executive Summary is, when taken as a whole, true
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Revolving Credit Facility


and accurate in all material respects on the date as of which such information is stated or certified. The Executive Summary and the reports, financial statements, certificates or other written information furnished by or on behalf of the Borrower to the Administrative Agent or any Lender in connection with the syndication or negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished) on or prior to the Closing Date, when taken as a whole, do not contain any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to any projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time (it being recognized, however, that projections as to future events are not to be viewed as facts and that the actual results during the period or periods covered by any projects may materially different from the projected results).
(b)    As of the Closing Date, to the knowledge of the Borrower, the information included in the Beneficial Ownership Certification provided on or prior to the Closing Date to any Lender in connection with this Agreement is true and correct in all respects.
SECTION 4.09    Investment Company Act. The Borrower is not, and no Loan Party is required to register as, an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.
SECTION 4.10    ERISA. Each member of the ERISA Group has fulfilled its obligations under the minimum funding standards of ERISA and the Code with respect to each Plan and is in compliance in all material respects with the presently applicable provisions of ERISA and the Code with respect to each Plan, except where the failure to so fulfill such obligations and such noncompliance individually, or together with all such failures to fulfill such obligations and all such noncompliance, could not reasonably be expected to result in a Material Adverse Effect. No member of the ERISA Group has (i) sought a waiver of the minimum funding standard under Section 412 of the Code in respect of any Plan, (ii) failed to make any contribution or payment to any Plan or Multiemployer Plan or in respect of any Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement, which has resulted or could result in the imposition of a Lien or the posting of a bond or other security under ERISA or the Code or (iii) incurred any liability under Title IV of ERISA other than a liability to the PBGC for premiums under Section 4007 of ERISA, which waiver, failure, amendment or liability individually, or collectively with all such waivers, failures, amendments or liabilities, could reasonably be expected to result in a Material Adverse Effect. Except where the failure to so fulfill such obligations and such noncompliance could individually, or together with all such failures to fulfill such obligations and all such noncompliance could reasonably be expected to result in a Material Adverse Effect, (i) no “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder, has occurred with respect to a Plan (other than an event for which the 30 day notice period is waived),. (ii) neither the Borrower nor any member of its ERISA Group has received any notice from the PBGC or a plan administrator relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan and (iii) neither the Borrower or any members of its ERISA Group has any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan, nor has the Borrower, any members of its ERISA Group, or any Multiemployer Plan from the Borrower or member of its ERISA Group received any notice concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent within the meaning of Title IV of ERISA.
SECTION 4.11    Tax Returns and Payments. The Borrower and the Material Subsidiaries have caused to be filed all federal income Tax returns and other material Tax returns, statements and reports (or obtained extensions with respect thereto) which are required to be filed and have paid or deposited or made adequate provision in accordance with GAAP for the payment of all Taxes (including estimated Taxes shown on such returns, statements and reports) which are shown to be
65
Revolving Credit Facility


due pursuant to such returns, except for Taxes being contested in good faith by appropriate proceedings for which adequate reserves in accordance with GAAP have been created on the books of the Borrower and the Subsidiaries and where the failure to pay such Taxes (individually or in the aggregate for the Borrower and the Subsidiaries) would not have a Material Adverse Effect.
SECTION 4.12    Compliance with Laws and Agreements. Each of the Borrower and the Material Subsidiaries is in compliance with all laws, regulations and orders of any Governmental Authority applicable to it or its property and all indentures, agreements and other instruments binding upon it or its property, except where the failure to do so, individually or in the aggregate for the Borrower and the Material Subsidiaries, could not reasonably be expected to result in a Material Adverse Effect.
SECTION 4.13    Purpose of Loans.
(a)    All proceeds of the Loans will be used for the purposes set forth in Section 5.07.
(b)    Neither the Borrower nor any agent acting on its behalf has taken or will take any action which might cause this Agreement or any other Loan Document to violate Regulation T, Regulation U, Regulation X, or any other regulation of the Board or to violate the Exchange Act. Margin stock does not constitute more than 25% of the assets of the Borrower, or of the Borrower and the Subsidiaries on a consolidated basis, and the Borrower does not intend or foresee that it will ever do so.
SECTION 4.14    Foreign Assets Control Regulations, etc. (a) To the extent applicable, neither any Letter of Credit nor any part of the proceeds of the Loans will (i) be used to violate in any material respect the Trading with the Enemy Act, as amended, or (ii) be used, directly or indirectly or made available to any subsidiary, joint venture partner or any other Person to fund or support any activities or business of or with any Person, or in any country or territory, that, at the time of such funding or extension, is, or whose government is, at the time of making such Loans or extension of such Letters of Credit, the subject of any economic or financial sanctions or trade embargoes administered or enforced by the U.S. Government, including any enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control or the U.S. Department of State (collectively, “Sanctions”).
(b)    Neither the Borrower nor any Subsidiary, nor, to the knowledge of the Borrower, any director, officer, employee, agent, affiliate or representative of the Borrower or any Subsidiary is a Person that is, or is owned or controlled by, a Sanctioned Person. The Borrower and the Subsidiaries are in compliance, in all material respects, with the Patriot Act.
(c)    Neither any Letter of Credit nor any part of the proceeds of the Loans will be used, directly or indirectly, for any payments to any person in violation of any Anti-Corruption Laws or anti-money laundering laws, to the extent the Anti-Corruption Laws or anti-money laundering laws, as applicable, apply to the Borrower or one of the Subsidiaries.
SECTION 4.15    Solvency. On the Closing Date, after giving effect to the Transactions, the Borrower and its Subsidiaries, on a consolidated basis, are Solvent.
ARTICLE V
AFFIRMATIVE COVENANTS
From the Closing Date until the Commitments have expired or been terminated and principal of and interest on each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit shall have expired or terminated (or other arrangements satisfactory to the applicable Issuing Bank made with respect thereto) and all LC Disbursements shall have been reimbursed, the Borrower covenants and agrees with the Lenders that:
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Revolving Credit Facility


SECTION 5.01    Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent:
(a)    within ten days after the date in each fiscal year on which the Borrower is required to file its Annual Report on Form 10-K with the SEC or, if earlier, 100 days after the end of each fiscal year (i) such Annual Report, and (ii) its audited consolidated balance sheet and the related consolidated statements of income, comprehensive income, operations, shareholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures as of the end of and for the previous fiscal year, all reported on by, and accompanied by an opinion (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of their audit) of, PricewaterhouseCoopers LLP, or other independent public accountants of recognized national standing to the effect that such consolidated financial statements present fairly in all material respects the financial position, results of operations and cash flows of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP; provided, however, that (x) the Borrower shall be deemed to have furnished said Annual Report on Form 10-K for purposes of clause (i) if it shall have timely made the same available on “EDGAR” and/or on its home page on the worldwide web (at the date of this Agreement located at http://www.kindermorgan.com) and complied with the last grammatical paragraph of this Section 5.01 in respect thereof, and (y) if said Annual Report contains such consolidated balance sheet and such consolidated statements of results of income, comprehensive income, shareholders’ equity and cash flows, and the report thereon of such independent public accountants (without qualification or exception, and to the effect, as specified above), the Borrower shall not be required to comply with clause (ii);
(b)    within five days after each date in each fiscal year on which the Borrower is required to file a Quarterly Report on Form 10-Q with the SEC or, if earlier, 50 days after the end of each fiscal quarter (i) such Quarterly Report, and (ii) its consolidated balance sheet and the related consolidated statements of income and cash flows as of the end of and for the fiscal quarter to which said Quarterly Report relates and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures as of the end and for the corresponding period or periods of the previous fiscal year, all certified by a Responsible Officer as presenting fairly in all material respects the financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided, however, that (x) the Borrower shall be deemed to have furnished said Quarterly Report for purposes of clause (i) if it shall have timely made the same available on “EDGAR” and/or on its home page on the worldwide web (at the date of this Agreement located at http://www.kindermorgan.com) and complied with the last grammatical paragraph of this Section 5.01 in respect thereof, and (y) if said Quarterly Report contains such consolidated balance sheet and consolidated statements of income and cash flows, and such certifications, the Borrower shall not be required to comply with clause (ii);
(c)    simultaneously with the delivery of each set of financial statements referred to in clauses (a) and (b) above, a certificate in substantially the form of Exhibit 5.01 signed by an authorized financial or accounting officer of the Borrower (i) setting forth in reasonable detail the calculations required to establish whether the Borrower was in compliance with the requirements of Section 6.07, (ii) (A) in the case of the first set of financial statements delivered following the Closing Date, setting forth a list of the Material Subsidiaries, and (B) in the case of each set of financial statements delivered thereafter, an update of any change in the list of the Material Subsidiaries or stating that there has been no such change, and (iii) stating whether any Default or Event of Default exists on the date of such certificate and, if any Default or Event of Default then exists, setting forth the details thereof and the action which the Borrower is taking or proposes to take with respect thereto;
(d)    prompt written notice of the following:
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(i)    the occurrence of any Default or Event of Default;
(ii)    any other development that results in, or could reasonably be expected to result in, a Material Adverse Effect; and
(iii)    any change in the information provided in the Beneficial Ownership Certification delivered to such Lender that would result in a change to the list of beneficial owners identified in such certification;
(each notice delivered under this Section 5.01(d) to be accompanied by a statement of a Responsible Officer setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto);
(e)    without duplication of any other requirement of this Section 5.01, promptly upon the mailing thereof to the public shareholders of the Borrower generally, copies of all financial statements, reports and proxy statements so mailed;
(f)    promptly upon the filing thereof with the SEC, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent) and reports on Form 8-K which the Borrower shall have filed with the SEC;
(g)    if and when any member of the ERISA Group (i) gives or is required to give notice to the PBGC of any “reportable event (as defined in Section 4043 of ERISA) (other than such event as to which the 30-day notice requirement is waived) with respect to any Plan which would reasonably be expected to constitute grounds for a termination of such Plan under Title IV of ERISA, or knows that the plan administrator of any Plan has given or is required to give notice of any such reportable event, a copy of the notice of such reportable event given or required to be given to the PBGC; (ii) receives notice of complete or partial material Withdrawal Liability under Title IV of ERISA or notice that any Multiemployer Plan is insolvent, is in “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305 of ERISA) or has been terminated, a copy of such notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent to terminate, impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of such notice; (iv) fails to satisfy, or applies for a waiver of the minimum funding standard under Section 412 of the Code, a copy of such application; (v) gives notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and other information filed with the PBGC; (vi) gives notice of withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) fails to make any payment or contribution to any Plan or Multiemployer Plan or in respect of any Benefit Arrangement or makes any amendment to any Plan or Benefit Arrangement which has resulted or could result in the imposition of a Lien or the posting of a bond or other security, a certificate of the chief financial officer or the chief accounting officer of the Borrower setting forth details as to such occurrence and action, if any, which the Borrower or applicable member of the ERISA Group is required or proposes to take; and
(h)    (x) from time to time such other information (other than projections) regarding the business, affairs or financial condition of the Borrower or any Subsidiary as the Required Lenders or the Administrative Agent may reasonably request and (y) promptly following any request therefor, information and documentation reasonably requested by the Administrative Agent for distribution to the Lenders so requesting for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation.
Information required to be delivered pursuant to Section 5.01(a), 5.01(b) or 5.01(f) above shall be deemed to have been delivered on the date on which the Borrower provides notice to the
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Administrative Agent and the Lenders that such information has been posted on “EDGAR” or the Borrower’s website or another website identified in such notice and accessible by the Administrative Agent and the Lenders without charge (and the Borrower hereby agrees to provide such notice); provided that such notice may be included in a certificate delivered pursuant to Section 5.01(c).
SECTION 5.02    Existence, Conduct of Business. The Borrower will, and will cause each of the Material Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges and franchises material to the conduct of its business, except where the failure to do so (individually or collectively with all such failures) could not reasonably expected to have a Material Adverse Effect; provided that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.03.
SECTION 5.03    Payment of Obligations. The Borrower will, and will cause each of the Material Subsidiaries to, pay, before the same shall become delinquent or in default, its Indebtedness and Tax liabilities but excluding Indebtedness (other than the Obligations) that is not in excess of $150,000,000, except where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings, (b) the Borrower or such Material Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP or (c) the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.04    Maintenance of Properties; Insurance.
(a)    The Borrower will keep, and will cause each Material Subsidiary to keep, all property material to the conduct its business (taken as a whole) in good working order and condition, ordinary wear and tear excepted, in the reasonable judgment of the Borrower.
(b)    The Borrower will maintain or cause to be maintained with, in the good faith judgment of the Borrower, financially sound and reputable insurers, or through self-insurance, insurance with respect to its properties and business and the properties and businesses of the Subsidiaries against loss or damage of the kinds customarily insured against by business enterprises of established reputation engaged in the same or similar business and similarly situated, of such types and in such amounts as are customarily carried under similar circumstances by such other corporations. Such insurance may include self-insurance or be subject to co-insurance, deductibility or similar clauses which, in effect, result in self-insurance of certain losses, provided that such self-insurance is in accord with the approved practices of business enterprises of established reputation similarly situated and adequate insurance reserves are maintained in connection with such self-insurance, and, notwithstanding the foregoing provisions of this Section 5.04 the Borrower or any Subsidiary may effect workers’ compensation or similar insurance in respect of operations in any state or other jurisdiction any through an insurance fund operated by such state or other jurisdiction or by causing to be maintained a system or systems of self-insurance in accord with applicable laws.
SECTION 5.05    Books and Records; Inspection Rights. The Borrower will, and will cause each of the Material Subsidiaries to, keep, in accordance with GAAP, books of record and account. The Borrower will, and will cause each of the Material Subsidiaries to, permit any representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice during normal business hours, and, if the Borrower shall so request, in the presence of a Responsible Officer or an appointee of a Responsible Officer, at the expense of the Administrative Agent or such Lender (unless an Event of Default exists, in which event the expense shall be that of the Borrower) to visit and inspect its properties, to examine and make extracts from its books and records (subject to compliance with confidentiality agreements and applicable copyright law), and to discuss its affairs, finances and condition
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with its officers, all at such times, and as often, as reasonably requested, but unless an Event of Default exists, no more frequently than once during each calendar year.
SECTION 5.06    Compliance with Laws. The Borrower will, and will cause each of the Material Subsidiaries to, comply with all Requirements of Law applicable to it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. The Borrower will maintain in effect and enforce policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.
SECTION 5.07    Use of Proceeds. The proceeds of the Loans will be used for working capital and other general corporate purposes.
SECTION 5.08    Additional Guarantors. The Borrower shall cause each Subsidiary (including, without limitation, any Division Successor) (other than any Excluded Subsidiary) formed or otherwise purchased or acquired after the Closing Date (including each Subsidiary that ceases to constitute an Excluded Subsidiary after the Closing Date) to execute a supplement to the Guaranty and become a Guarantor within 45 days of the occurrence of the applicable event specified in this Section 5.08 (or such longer period of time as the Administrative Agent shall reasonably agree).
ARTICLE VI
NEGATIVE COVENANTS
From the Closing Date until the Commitments have expired or terminated and principal of and interest on each Loan and all fees payable hereunder have been paid in full and all Letters of Credit have expired or terminated (or other arrangements satisfactory to the applicable Issuing Bank made with respect thereto) and all LC Disbursements shall have been reimbursed, the Borrower covenants and agrees with the Lenders that:
SECTION 6.01    Indebtedness of Non-Guarantor Subsidiaries. The Borrower will not permit any Subsidiary that is not a Guarantor (each a “Non-Guarantor Subsidiary”) to create, incur or assume Indebtedness other than the following:
(a)    Indebtedness existing as of the Closing Date and set forth on Schedule 6.01 and any Indebtedness incurred to refund, extend, refinance or otherwise replace such Indebtedness; provided that the principal amount of such Indebtedness does not exceed the principal amount of Indebtedness refinanced (plus the amount of penalties, premiums, fees, accrued interest and reasonable expenses and other obligations incurred therewith) at the time of the refinancing;
(b)    Indebtedness owing to the Borrower or its Subsidiaries;
(c)    Indebtedness that is (or was) secured by Liens permitted pursuant to Section 6.02(b) or (c) and any Indebtedness incurred to refund, extend, refinance or otherwise replace such Indebtedness; provided, that the principal amount of such Indebtedness does not exceed the principal amount of Indebtedness refinanced (plus the amount of penalties, premiums, fees, accrued interest and reasonable expenses and other obligations incurred therewith) at the time of refinancing;
(d)    (i) Indebtedness attaching to any property or asset prior to the acquisition thereof by any Non-Guarantor Subsidiary or of, or attaching to any property or asset of, any Person that becomes a Non-Guarantor Subsidiary after the date hereof prior to the time such Person becomes a Non-Guarantor Subsidiary, in each case, outstanding prior to the acquisition of such property or asset or such Person becoming a Non-Guarantor Subsidiary; provided that such Indebtedness was not incurred in contemplation of or in connection with such acquisition or such Person becoming a Non-Guarantor
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Subsidiary, as the case may be and (ii) and any Indebtedness incurred to refund, extend, refinance or otherwise replace such Indebtedness (plus the amount of penalties, premiums, fees, accrued interest and reasonable expenses and other obligations incurred therewith);
(e)    Indebtedness of Foreign Subsidiaries; and
(f)    Indebtedness of Non-Wholly-owned Subsidiaries.
SECTION 6.02    Liens. The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Lien securing Indebtedness on any property or asset now owned or hereafter acquired by it except:
(a)    Liens existing as of the Closing Date (including any replacement, extension or renewal of any such Lien permitted upon or in the same assets (other than after acquired property that is affixed or incorporated into the property covered by such Lien) theretofore subject to such Lien or the replacement, extension or renewal (without increase in the amount or change in any direct or contingent obligor except to the extent otherwise permitted hereunder) of the Indebtedness secured thereby);
(b)    Liens securing (A) Capital Lease Obligations, or (B) Indebtedness incurred to finance the acquisition, construction, expansion or improvement of any fixed or capital assets of the Borrower or its Subsidiaries; provided that (x) such Liens attach at all times only to the assets so financed except for accessions to such property, improvements thereof and general intangibles relating thereto, and the proceeds and the products thereof and (y) individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender;
(c)    Liens existing on any property or asset prior to the acquisition thereof by the Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary, in each case, pursuant to security documents in effect prior to the acquisition of such property or asset or such Person becoming a Subsidiary (“Existing Security Documents”), and securing Indebtedness whose incurrence, for purposes of this Agreement, by virtue of acquisition of such property or asset, or by virtue of such Person so becoming a Subsidiary, would not result in a violation of Section 6.07; provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other property or assets of the Borrower or any Subsidiary except to the extent such Lien attaches to such property or assets pursuant to Existing Security Documents, (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be, and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof. For purposes of this Section 6.02(c), the Indebtedness so secured shall be deemed to have been incurred on the last day of the fiscal quarter then most recently ended;
(d)    Liens, not otherwise permitted by the foregoing clauses (a) and (b), securing Indebtedness in an aggregate amount not exceeding, as of the last day of the fiscal quarter most recently ended, 15% of Consolidated Net Tangible Assets; and
(e)    Liens encumbering the equity interests or other investments owned by the Borrower or any of its Subsidiary in any joint venture (i) securing obligations (other than Indebtedness) of the Borrower or such Subsidiary under the joint venture agreement for such joint venture, (ii) in the nature of customary voting, equity transfer, redemptive rights or similar terms (other than Liens securing Indebtedness) under any such agreement, or (iii) securing Indebtedness of such joint venture.
SECTION 6.03    Fundamental Changes. The Borrower will not, and will not permit any Material Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to
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merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (including pursuant to a Division and whether in one transaction or in a series of transactions) all (or substantially all) of its assets, or all or substantially all of the stock of or other equity interest in any of the Material Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, unless: (a) at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing; and (b) (i) the Borrower or a Material Subsidiary is the surviving entity or the recipient of the assets so sold, transferred, leased or otherwise disposed of in any such sale, transfer, lease or other disposition of assets, provided, that no such merger, consolidation, sale, transfer, lease or other disposition shall have the effect of releasing the Borrower from any of the Obligations or (ii) such merger, consolidation, sale, transfer, lease or other disposition, when taken together with all other consolidations, mergers or sales of assets by the Borrower or any Material Subsidiary since the First Amendment Effective Date, shall not result in the disposition by the Borrower and the Material Subsidiaries of assets in an amount that would constitute all or substantially all of the consolidated assets of the Borrower and the Material Subsidiaries.
SECTION 6.04    Restricted Payments. The Borrower will not declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment except (a) so long as both before and after the making of such Restricted Payment, no Event of Default shall have occurred and be continuing, (b) any Capital Stock split, Capital Stock reverse split, dividend of Borrower Capital Stock or similar transaction will not constitute a Restricted Payment, and (c) acquisitions by officers, directors and employees of the Borrower of equity interests in the Borrower through cashless exercise of options pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements.
SECTION 6.05    Transactions with Affiliates. The Borrower will conduct, and cause each of the Subsidiaries to conduct, all transactions with any of its Affiliates (other than the Borrower or the Subsidiaries) on terms that are substantially as favorable to the Borrower or such Subsidiary as it would obtain in a comparable arm’s-length transaction with a Person that is not an Affiliate, provided that the foregoing shall be deemed to be satisfied with respect to any transaction that is approved by a majority of the independent members of the Borrower’s board of directors, or of a committee thereof consisting solely of independent directors, and provided, further that the foregoing restrictions shall not apply to:
(a)    the payment of customary fees for management, consulting and financial services rendered to the Borrower and the Subsidiaries and (ii) customary investment banking fees paid for services rendered to the Borrower and the Subsidiaries in connection with divestitures, acquisitions, financings and other transactions;
(b)    transactions permitted by Section 6.04;
(c)    the payment of any fees or expenses incurred or paid by the Borrower or any of its Subsidiaries in connection with the Transactions, this Agreement and the other Loan Documents and the transactions contemplated hereby and thereby;
(d)    the issuance of Capital Stock of the Borrower to the management of the Borrower or any of its Subsidiaries in connection with the Transactions or pursuant to arrangements described in clause (f) of this Section 6.05;
(e)    loans, advances, provision of credit support and other investments by (or to) the Borrower and the Subsidiaries;
(f)    employment and severance arrangements among the Borrower and the Subsidiaries and their respective officers and employees in the ordinary course of business;
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(g)    payments by the Borrower and the Subsidiaries pursuant to tax sharing agreements among the Borrower and the Subsidiaries on customary terms to the extent attributable to the ownership or operation of the Borrower and the Subsidiaries;
(h)    the payment of customary fees and reasonable out of pocket costs to, and indemnities provided on behalf of, directors, managers, consultants, officers and employees of the Borrower and the Subsidiaries in the ordinary course of business to the extent attributable to the ownership or operation of the Borrower and the Subsidiaries; and
(i)    transactions pursuant to agreements set forth on Schedule 6.05 or any amendment thereto to the extent such an amendment is not adverse, taken as a whole, to the Lenders in any material respect.
SECTION 6.06    Restrictive Agreements. The Borrower will not, and will not permit any of the Material Subsidiaries that are not Guarantors to, directly or indirectly, enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon the ability of any non-Guarantor Material Subsidiary to pay dividends or other distributions with respect to any shares of its Capital Stock or to make or repay loans (including subordinate loans) or advances to the Borrower or any Guarantor, provided that the foregoing shall not apply to (a) restrictions and conditions imposed by law or by this Agreement, (b) customary restrictions and conditions contained in agreements relating to the sale of all or substantially all of the Capital Stock or assets of a Subsidiary pending such sale, provided such restrictions and conditions apply only to the Subsidiary that is to be sold and such sale is permitted hereunder, (c) restrictions and conditions existing on the date hereof identified on Schedule 6.06 (but shall apply to any extension or renewal of, or any amendment or modification expanding the scope of, any such restriction or condition) and (d) restrictions or conditions contained in, or existing by reason of, any agreement or instrument relating to any Subsidiary at the time such Subsidiary was merged or consolidated with or into, or acquired by, the Borrower or a Subsidiary or became a Subsidiary and not created in contemplation thereof.
SECTION 6.07    Ratio of Consolidated Net Indebtedness to Consolidated EBITDA. Commencing with the last day of the first full fiscal quarter following the Closing Date and on the last day of each fiscal quarter ended thereafter, the Borrower will not permit the ratio of Consolidated Net Indebtedness to Consolidated EBITDA for the most recent four full fiscal quarters ended as of the last day of such applicable fiscal quarter, to exceed 5.50:1.00.
For purposes of this Section 6.07, Hybrid Securities up to an aggregate amount of 5% of Total Capitalization (after giving effect to the following exclusion) shall be excluded from Consolidated Net Indebtedness.
SECTION 6.08    Use of Proceeds. The Borrower will not request any Borrowing or Letter of Credit, and the Borrower shall not use, and shall procure that its Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Borrowing or Letter of Credit (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws or applicable anti-money laundering laws, (B) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (C) in any manner that would result in the violation of any Sanctions applicable to any party hereto.
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ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01    Events of Default and Remedies. If any of the following events (“Events of Default”) shall occur and be continuing:
(a)    the principal of any Loan or any reimbursement obligation in respect of any LC Disbursement shall not be paid when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b)    any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable by a Loan Party under this Agreement or any other Loan Document shall not be paid, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Days;
(c)    any representation or warranty made or, for purposes of Article III, deemed made by or on behalf of the Borrower herein, at the direction of the Borrower or by any Loan Party in any other Loan Document or in any document, certificate or financial statement delivered in connection with this Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed made or reaffirmed, as the case may be;
(d)    the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.01(d)(i), 5.02 (with respect to the Borrower’s existence) or 5.07 or in Article VI;
(e)    any Loan Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those specified in Section 7.01(a), Section 7.01(b) or Section 7.01(d)) or any other Loan Document to which it is a party and, in any event, such failure shall remain unremedied for 30 calendar days after the earlier of (i) written notice of such failure shall have been given to the Borrower by the Administrative Agent or any Lender or, (ii) a Responsible Officer of the Borrower becomes aware of such failure;
(f)    other than as specified in Section 7.01(a) or (b), (i) the Borrower or any Subsidiary fails to make (whether as primary obligor or as guarantor or other surety) any payment of principal of, or interest or premium, if any, on any item or items of Indebtedness (other than as specified in Section 7.01(a) or Section 7.01(b)) or any payment in respect of any Hedging Agreement, in each case when the same becomes due and payable (whether by scheduled maturity, required payment or prepayment, acceleration, demand or otherwise), beyond any period of grace provided with respect thereto (not to exceed 30 days); provided that the aggregate outstanding principal amount of all Indebtedness or payment obligations in respect of all Hedging Agreements as to which such a payment default shall occur and be continuing is equal to or exceeds $150,000,000, or (ii) the Borrower or any Subsidiary fails to duly observe, perform or comply with any agreement with any Person or any term or condition of any instrument, if such failure, either individually or in the aggregate, shall have resulted in the acceleration of the payment of Indebtedness with an aggregate face amount which is equal to or exceeds $150,000,000; provided that this Section 7.01(f) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, so long as such Indebtedness is paid in full when due;
(g)    an involuntary case shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Material Subsidiary or its debts, or of a substantial part of its assets, under any Debtor Relief Laws or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Material
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Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(h)    the Borrower or any Material Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, winding-up, reorganization or other relief under any Debtor Relief Laws, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in Section 7.01(g), (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Material Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(i)    the Borrower or any Material Subsidiary shall become unable, admit in writing or fail generally to pay its debts as they become due;
(j)    one or more judgments for the payment of money in an aggregate amount in excess of $150,000,000 shall be rendered against the Borrower, any Subsidiary or any combination thereof and the same shall (x) not be covered by insurance and (y) remain undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Subsidiary to enforce any such judgment;
(k)    a Change in Control shall occur;
(l)    any member of the ERISA Group shall fail to pay when due an amount which it shall have become liable to pay under Title IV of ERISA; or notice of intent to terminate a Plan shall be filed under Title IV of ERISA by any member of the ERISA Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer any Plan; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Plan must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause one or more members of the ERISA Group to incur a current payment obligation; and in each of the foregoing instances such condition could reasonably be expected to result in a Material Adverse Effect;
then, and in any such event, and at any time thereafter (but for the avoidance of doubt, in each case, not prior to the Closing Date) if any Event of Default shall then be continuing, the Administrative Agent, may, and upon the written request of the Required Lenders shall, by written notice (including notice sent by telecopy or electronic mail) to the Borrower (a “Notice of Default”) take any or all of the following actions, without prejudice to the rights of the Administrative Agent, any Lender or other holder of any of the Obligations to enforce its claims against the Borrower (provided that, if an Event of Default specified in Section 7.01(g) or Section 7.01(h) shall occur with respect to the Borrower or any Material Subsidiary, the actions described in clauses (i), (ii) and (v) below shall occur automatically without the giving of any Notice of Default): (i) declare the Total Commitment terminated, whereupon the Commitments of the Lenders shall forthwith terminate immediately and any accrued Commitment Fees shall forthwith become due and payable without any other notice of any kind; (ii) declare the principal of and any accrued interest in respect of all Loans, and all the other Obligations owing hereunder and under the other Loan Documents, to be, whereupon the same shall become, forthwith due and payable without presentment, demand, notice of demand or of dishonor and nonpayment, protest, notice of protest, notice of intent to accelerate, declaration or notice of acceleration or any other notice of any kind, all of which are hereby
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Revolving Credit Facility


waived by the Borrower; (iii) exercise any rights or remedies under the Loan Documents; (iv) terminate any Letter of Credit which may be terminated in accordance with its terms (whether by the giving of written notice to the beneficiary or otherwise); and (v) direct the Borrower to comply, and the Borrower agrees that upon receipt of such notice (or upon the occurrence of an Event of Default specified in Section 7.01(g) or Section 7.01(h)) it will comply, with the provisions of Section 2.05(l).
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.01    Appointment and Authority. Each of the Lenders and the Issuing Banks hereby irrevocably appoints Barclays Bank PLC to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks and, except as specifically provided in Section 8.06(a) and (b), the Borrower shall not have rights as a third-party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.
SECTION 8.02    Rights as a Lender. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for, and generally engage in any kind of business with, the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
SECTION 8.03    Exculpatory Provisions.
(a)    The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent:
(i)    shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing;
(ii)    shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and
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Revolving Credit Facility


(iii)    shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.
(b)    The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 9.02 and 9.03) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until notice describing such Default is given to the Administrative Agent in writing by the Borrower, a Lender or an Issuing Bank.
(c)    The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default or the enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article III or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
SECTION 8.04    Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making or extension of a Loan or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or Issuing Bank prior to the making or extension of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
SECTION 8.05    Delegation of Duties. The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub agents appointed by the Administrative Agent. The Administrative Agent and any such sub agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub agent and to the Related Parties of the Administrative Agent and any such sub agent, and shall apply to their respective activities in connection with the syndication of the revolving credit facility provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub agents.
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Revolving Credit Facility


SECTION 8.06    Resignation of Administrative Agent.
(a)    The Administrative Agent may at any time give notice of its resignation to the Lenders, the Issuing Banks and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right to appoint a successor, subject to (so long as no Default or Event of Default exists) the prior written consent of the Borrower (which consent will not be unreasonably withheld or delayed), which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to), subject to (so long as no Default or Event of Default exists) the prior written consent of the Borrower (which consent will not be unreasonably withheld), on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent meeting the qualifications set forth above. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.
(b)    If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Borrower and such Person remove such Person as Administrative Agent and, subject to (so long as no Default or Event of Default exists) the prior written consent of the Borrower (which consent will not be unreasonably withheld or delayed), appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.
(c)    With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the Issuing Banks under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (2) except for any indemnity payments owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and Issuing Bank directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than any rights to indemnity payments owed to the retiring or removed Administrative Agent), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent.
SECTION 8.07    Non-Reliance on Administrative Agent and Other Lenders.
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Revolving Credit Facility


(a)    Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
(b)    Each Lender acknowledges that Simpson Thacher & Bartlett LLP is acting in this transaction as special legal counsel to the Administrative Agent only. Each Lender and Issuing Bank will consult with its own legal counsel to the extent it deems necessary with this Agreement and the other Loan Documents and the matters contemplated herein and therein.
SECTION 8.08    INDEMNIFICATION. THE LENDERS AGREE TO INDEMNIFY THE ADMINISTRATIVE AGENT, THE ARRANGERS, THE SYNDICATION AGENT AND THE DOCUMENTATION AGENTS RATABLY IN ACCORDANCE WITH THEIR APPLICABLE PERCENTAGES FOR THE INDEMNITY MATTERS AS DESCRIBED IN SECTION 9.03 TO THE EXTENT NOT INDEMNIFIED OR REIMBURSED BY THE BORROWER UNDER SECTION 9.03, BUT WITHOUT LIMITING THE OBLIGATIONS OF THE BORROWER UNDER SAID SECTION 9.03 AND FOR ANY AND ALL OTHER LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS OF ANY KIND AND NATURE WHATSOEVER WHICH MAY BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST THE ADMINISTRATIVE AGENT, ANY ARRANGER, THE SYNDICATION AGENT OR ANY DOCUMENTATION AGENT IN ANY WAY RELATING TO OR ARISING OUT OF: (A) THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT CONTEMPLATED BY OR REFERRED TO HEREIN OR THE TRANSACTIONS CONTEMPLATED HEREBY, BUT EXCLUDING, UNLESS A DEFAULT OR AN EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING, NORMAL ADMINISTRATIVE COSTS AND EXPENSES INCIDENT TO THE PERFORMANCE OF ITS AGENCY DUTIES, IF ANY, HEREUNDER OR UNDER ANY SUCH OTHER LOAN DOCUMENT OR (B) THE ENFORCEMENT OF ANY OF THE TERMS OF THIS AGREEMENT OR OF ANY OTHER LOAN DOCUMENT; WHETHER OR NOT ANY OF THE FOREGOING SPECIFIED IN THIS SECTION 8.08 ARISES FROM THE SOLE OR CONCURRENT NEGLIGENCE OF THE ADMINISTRATIVE AGENT, ANY ARRANGER, THE SYNDICATION AGENT OR ANY DOCUMENTATION AGENT, AS THE CASE MAY BE; PROVIDED THAT NO LENDER SHALL BE LIABLE FOR ANY OF THE FOREGOING TO THE EXTENT THEY ARISE FROM THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR UNLAWFUL CONDUCT OF THE ADMINISTRATIVE AGENT, ANY ARRANGER, THE SYNDICATION AGENT OR ANY DOCUMENTATION AGENT AS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL AND NONAPPEALABLE JUDGMENT.
SECTION 8.09     No Reliance on Agents or other Lenders. Each Lender acknowledges and agrees that it has, independently and without reliance on the Administrative Agent, any Arranger, the Syndication Agent, any Documentation Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own credit analysis of the Borrower and its Subsidiaries and its decision to enter into this Agreement, and that it will, independently and without reliance upon the Administrative Agent, any Arranger, the Syndication Agent, any Documentation Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own analysis and decisions in taking or not taking action under this Agreement. None of the Administrative Agent, the Arrangers, the Syndication Agent or the
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Documentation Agents shall be required to keep itself informed as to the performance or observance by the Borrower of this Agreement, the other Loan Documents or any other document referred to or provided for herein or to inspect the properties or books of the Borrower. Except for notices, reports and other documents and information expressly required to be furnished to the Lenders by the Administrative Agent hereunder, none of the Administrative Agent, the Arrangers, the Syndication Agent or the Documentation Agents shall have any duty or responsibility to provide any Lender with any credit or other information concerning the affairs, financial condition or business of the Borrower (or any of its Affiliates) which may come into the possession of the Administrative Agent, any Arranger, the Syndication Agent, any Documentation Agent or any of their respective Affiliates. In this regard, each Lender acknowledges that Simpson Thacher & Bartlett LLP is acting in this transaction as special counsel to the Administrative Agent only. Each Lender will consult with its own legal counsel to the extent that it deems necessary in connection with this Agreement and other Loan Documents and the matters contemplated herein and therein.
SECTION 8.10     Duties of the Syndication Agent, Documentation Agents, Arrangers. Notwithstanding the indemnity of the Syndication Agent, the Documentation Agents and the Arrangers contained in Section 8.08 and in Section 9.03, nothing contained in this Agreement shall be construed to impose any obligation or duty whatsoever on any Person named on the cover of this Agreement or elsewhere in this Agreement as a Syndication Agent, a Documentation Agent, an Arranger, a “lead arranger” or a “bookrunner”, other than those applicable to all Lenders as such.
SECTION 8.11    Certain ERISA Matters.
(a)    Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and the Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:
(i)    such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit or the Commitments or this Agreement,
(ii)    the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
(iii)    (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such
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Revolving Credit Facility


Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or
(iv)    such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
(b)    In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and the Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that none of the Administrative Agent or the Joint Leader Arrangers or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement (including in connection with the reservation ofor exercise orof any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).
(c)    The Administrative Agent and the Joint Leader Arrangers hereby inform the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans, the Letters of Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.
SECTION 8.01    Erroneous Payments.
(a)    Each Lender (and each Participant of the foregoing, by its acceptance of a participation) hereby acknowledges and agrees that if the Administrative Agent notifies such Lender that the Administrative Agent has determined in its sole discretion that any funds (or any portion thereof) received by such Lender (any of the foregoing, a “Payment Recipient”) from the Administrative Agent (or any of its Affiliates) were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Payment Recipient) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) and demands the return of such Payment, such Payment Recipient shall promptly, but in no event later than two Business Days thereafter, return to the Administrative Agent the amount of any such Payment as to which such a demand was made. A notice of the Administrative Agent to any Payment Recipient under this Section shall be conclusive, absent manifest error.
(b)    Without limitation of clause (a) above, each Payment Recipient further acknowledges and agrees that if such Payment Recipient receives a Payment from the Administrative Agent (or any of its Affiliates) (x) that is in an amount, or on a date different from the amount and/or date specified in a notice
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Revolving Credit Facility


of payment sent by the Administrative Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, it understands and agrees at the time of receipt of such Payment that an error has been made (and that it is deemed to have knowledge of such error) with respect to such Payment. Each Payment Recipient agrees that, in each such case, it shall promptly notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in no event later than two Business Days thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made.
(c)    Any Payment required to be returned by a Payment Recipient under this Section shall be made in same day funds in the currency so received, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. Each Payment Recipient hereby agrees that it shall not assert and, to the fullest extent permitted by applicable law, hereby waives, any right to retain such Payment, and any claim, counterclaim, defense or right of set-off or recoupment or similar right to any demand by the Administrative Agent for the return of any Payment received, including without limitation any defense based on “discharge for value” or any similar doctrine.
(d)    The Borrower and each other Loan Party hereby agrees that (x) in the event an erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party except, in each case, to the extent such erroneous Payment is, and with respect to the amount of such erroneous Payment that is, comprised of funds of the Borrower or any other Loan Party.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01    Notices, Etc.
(a)    All notices, consents, requests, approvals, demands and other communications (collectively “Communications”) provided for herein shall be in writing (including facsimile Communications) and mailed, telecopied or delivered:
(i)    if to the Borrower, to it at:
1001 Louisiana Street, Suite 1000
Houston, Texas 77002
Attention: Chris Graeter
Telecopy No.: (713) 336-4074;
With a copy to:
1001 Louisiana Street, Suite 1000
Houston, Texas 77002
Attention:    General Counsel
Telecopy No.:    (713) 495-2877;
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Revolving Credit Facility


(ii)    if to the Administrative Agent, to it at
c/o   Barclays Bank PLC
745 Seventh Avenue, 8th Floor
New York, NY 10019
Attention: Robert Walsh
Email: Robert.xa.walsh@barclays.com / ltmny@Barclays.com
Phone: 212-526-6047

(iii)    if to the Swingline Lender, to it at
c/o   Barclays Bank PLC
400 Jefferson Park
Whippany, NJ 07981
Attention: Sarah Wright
Email: Sarah.Wright@barclays.com / 12145455230@tls.ldsprod.com
Phone: 201-499-2138

(i)     if to any other Lender or to any Issuing Bank, to it at its address (or telecopy number) set forth in the Administrative Questionnaire delivered by such Person to the Administrative Agent or in the Assignment and Acceptance executed by such Person;
or, in the case of any party hereto, such other address or telecopy number as such party may hereafter specify for such purpose by notice to the other parties.
(b)    Communications to the Lenders hereunder may be delivered or furnished by electronic communications (including electronic mail and internet or intranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.
(c)    Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.
(d)    Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto.
(e)    Platform.
(i)    The Borrower agrees that the Administrative Agent may, but shall not be obligated to, make the Communications available to the Lenders and the Issuing Banks by
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Revolving Credit Facility


posting the Communications on Debt Domain, Intralinks, Syndtrak or a substantially similar electronic transmission system (the “Platform”).
The Platform is provided “as is” and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Electronic Communications (as defined below). No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender, any Issuing Bank or any other Person or entity for damages of any kind, including, without limitation, direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of the Borrower or the Administrative Agent’s transmission of communications through the Platform. “Electronic Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of the Borrower pursuant to any Loan Document or the transactions contemplated therein which is distributed to the Administrative Agent, any Lender or any Issuing Bank by means of electronic communications pursuant to this Section, including through the Platform.
SECTION 9.02    Waivers; Amendments; Releases.
(a)    No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising, and no course of dealing with respect to, any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. No notice to or demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances. No waiver of any provision of this Agreement or consent to any departure therefrom shall in any event be effective unless the same shall be permitted by Section 9.02(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b)    No provision of this Agreement or any other Loan Document (other than each Fee Letter, which may be amended by the parties thereto) provision may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrower (or to the extent another Loan Party and not the Borrower is party thereto, such Loan Party) and the Required Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders; provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of such Lender, other than increases of Commitments as provided in Section 2.21, (ii) reduce the principal amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender affected thereby (for the avoidance of doubt, any amendment imposing an alternative interest rate basis in accordance with Section 2.13(b) shall become effective as provided in Section 2.13(b)), (iii) postpone the scheduled date of payment of the principal amount of any Loan or LC Disbursement, or any interest thereon, or any fees or other amounts payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender affected thereby, (iv) change Section 2.17(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby, without the written consent of each Lender, (v) amend Section 2.19 or 2.20 without the consent of the Administrative Agent, the Swingline Lender and the Issuing Banks in addition to the consent of the Required Lenders, (vi) release all or substantially all of the value of the Guarantees under the Guaranty or
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change any of the provisions of this Section 9.02(b), or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender; provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, the Swingline Lender or any Issuing Bank hereunder without the prior written consent of the Administrative Agent, the Swingline Lender or such Issuing Bank, as the case may be. Except as provided herein, during such period as a Lender is a Defaulting Lender, to the fullest extent permitted by applicable law, such Lender will not be entitled to vote in respect of amendments and waivers hereunder and the Commitment and the outstanding Loans or other extensions of credit of such Lender hereunder will not be taken into account in determining whether the Required Lenders or all of the Lenders, as required, have approved any such amendment or waiver (and the definition of “Required Lenders” will automatically be deemed modified accordingly for the duration of such period); provided that any such amendment or waiver referred to in clauses (i) through (vi) or the first of this Section 9.02(b) above or that would alter the terms set forth in such proviso shall require the consent of such Defaulting Lender.
Notwithstanding the foregoing, the Administrative Agent and the Borrower may amend any Loan Document to correct any obvious errors, mistakes, omissions, defects or inconsistencies and such amendment shall become effective without any further consent of any other party to such Loan Document other than the Administrative Agent and the Borrower.
(c)    Notwithstanding the provisions of Section 9.02(b), amendments to this Agreement pursuant to Section 2.21(c) may be effected without the consent of any Lenders other than the Administrative Agent, the Issuing Banks, the Swingline Lender and each Lender making a New Commitment or extending a Commitment.
(d)    The Lenders hereby irrevocably agree that any Guarantor shall be automatically released from the Guarantee upon consummation of any transaction not prohibited hereunder resulting in such Subsidiary ceasing to constitute a Subsidiary or upon any Subsidiary becoming an Excluded Subsidiary, provided that with respect to any Excluded Subsidiary that is a Guarantor on the Closing Date or that has become a Guarantor after the Closing Date at the request of the Borrower, such Excluded Subsidiary shall be automatically released from the Guaranty upon written notice thereof from a Responsible Officer of the Borrower to the Administrative Agent certifying that (i) such Excluded Subsidiary is an Excluded Subsidiary and (ii) on such date, or concurrently with such release, such Excluded Subsidiary shall be automatically released as a guarantor under the Cross Guarantee Agreement, dated as of November 26, 2014 (as amended, restated, supplemented or otherwise modified from time to time) entered by the Borrower and the other signatories party thereto, and is not a guarantor of the Bonds or any other material Indebtedness of the Borrower or any Subsidiary. The Lenders hereby authorize the Administrative Agent to execute and deliver any instruments, documents, and agreements necessary or desirable to evidence and confirm the release of any Guarantor pursuant to the foregoing provisions of this paragraph, all without the further consent or joinder of any Lender.
SECTION 9.03    Payment of Expenses, Indemnities, etc. The Borrower agrees:
(a)    to pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, in connection with the syndication of the credit facility provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof, (ii) all reasonable out-of-pocket expenses incurred by any Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the Administrative Agent, any Issuing Bank or any Lender,
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including the fees, charges and disbursements of any counsel for the Administrative Agent, any Issuing Bank or any Lender, in connection with the enforcement or protection of its rights in connection with this Agreement, including its rights under this Section, or in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b)    TO INDEMNIFY THE ADMINISTRATIVE AGENT, EACH ISSUING BANK, EACH ARRANGER, THE SYNDICATION AGENT, EACH DOCUMENTATION AGENT AND EACH LENDER AND EACH OF THEIR AFFILIATES AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, ATTORNEYS, ACCOUNTANTS AND EXPERTS (“INDEMNIFIED PARTIES”) FROM, HOLD EACH OF THEM HARMLESS AGAINST AND PROMPTLY UPON DEMAND PAY OR REIMBURSE EACH OF THEM FOR, THE INDEMNITY MATTERS WHICH MAY BE REASONABLY INCURRED BY OR ASSERTED AGAINST OR INVOLVE ANY OF THEM (WHETHER OR NOT ANY OF THEM IS DESIGNATED A PARTY THERETO AND WHETHER OR NOT THE CLAIM IS BROUGHT BY THE BORROWER OR A THIRD PARTY) AS A RESULT OF, ARISING OUT OF OR IN ANY WAY RELATED TO (I) ANY ACTUAL OR PROPOSED USE BY THE BORROWER OF THE PROCEEDS OF ANY OF THE LOANS OR ANY LETTER OF CREDIT, (II) THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY OR THEREBY, (III) THE OPERATIONS OF THE BUSINESS OF THE BORROWER AND THE SUBSIDIARIES, (IV) THE FAILURE OF THE BORROWER OR ANY SUBSIDIARY TO COMPLY WITH THE TERMS OF THIS AGREEMENT, OR WITH ANY REQUIREMENT OF LAW, (V) ANY INACCURACY OF ANY REPRESENTATION OR ANY BREACH OF ANY WARRANTY OF THE BORROWER SET FORTH IN ANY OF THE LOAN DOCUMENTS, (VI) THE ISSUANCE, EXECUTION AND DELIVERY OR TRANSFER OF OR PAYMENT OR FAILURE TO PAY UNDER ANY LETTER OF CREDIT, (VII) THE PAYMENT OF A DRAWING UNDER ANY LETTER OF CREDIT NOTWITHSTANDING THE NON-COMPLIANCE, NON-DELIVERY OR OTHER IMPROPER PRESENTATION OF THE MANUALLY EXECUTED DRAFT(S) AND CERTIFICATION(S), OR (VIII) ANY OTHER ASPECT OF THE LOAN DOCUMENTS, INCLUDING THE REASONABLE FEES AND DISBURSEMENTS OF COUNSEL AND ALL OTHER EXPENSES INCURRED IN CONNECTION WITH INVESTIGATING, DEFENDING OR PREPARING TO DEFEND ANY SUCH ACTION, SUIT, PROCEEDING (INCLUDING ANY INVESTIGATIONS, LITIGATION OR INQUIRIES) OR CLAIM AND INCLUDING ALL INDEMNITY MATTERS ARISING BY REASON OF THE ORDINARY NEGLIGENCE OF ANY INDEMNIFIED PARTY, BUT EXCLUDING ALL INDEMNITY MATTERS ARISING SOLELY (I) BY REASON OF CLAIMS BETWEEN THE LENDERS OR ANY LENDER AND THE ADMINISTRATIVE AGENT, ANY ARRANGER, THE SYNDICATION AGENT, ANY DOCUMENTATION AGENT, OR A LENDER’S SHAREHOLDERS AGAINST THE ADMINISTRATIVE AGENT OR LENDER (OTHER THAN CLAIMS IN ITS ROLE AS AGENT OR ARRANGER) OR (II) BY REASON OF THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR UNLAWFUL CONDUCT ON THE PART OF THE INDEMNIFIED PARTY SEEKING INDEMNIFICATION AS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL AND NONAPPEALABLE JUDGMENT. FOR THE AVOIDANCE OF DOUBT, THIS SECTION 9.03(B) SHALL NOT APPLY WITH RESPECT TO TAXES OTHER THAN ANY TAXES THAT REPRESENT LOSSES, CLAIMS, DAMAGES, ETC. ARISING FROM ANY NON-TAX CLAIM.
(c)    TO INDEMNIFY AND HOLD HARMLESS FROM TIME TO TIME THE INDEMNIFIED PARTIES FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, COST RECOVERY ACTIONS, ADMINISTRATIVE ORDERS OR PROCEEDINGS, DAMAGES AND LIABILITIES TO WHICH ANY SUCH PERSON MAY BECOME SUBJECT (I) UNDER ANY ENVIRONMENTAL LAW APPLICABLE TO THE BORROWER OR ANY SUBSIDIARY OR ANY
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OF THEIR PROPERTIES OR ASSETS, INCLUDING THE TREATMENT OR DISPOSAL OF HAZARDOUS MATERIALS ON ANY OF THEIR PROPERTIES OR ASSETS, (II) AS A RESULT OF THE BREACH OR NON-COMPLIANCE BY THE BORROWER OR ANY SUBSIDIARY WITH ANY ENVIRONMENTAL LAW APPLICABLE TO THE BORROWER OR ANY SUBSIDIARY, (III) DUE TO PAST OWNERSHIP BY THE BORROWER OR ANY SUBSIDIARY OF ANY OF THEIR PROPERTIES OR ASSETS OR PAST ACTIVITY ON ANY OF THEIR PROPERTIES OR ASSETS WHICH, THOUGH LAWFUL AND FULLY PERMISSIBLE AT THE TIME, COULD RESULT IN PRESENT LIABILITY, (IV) THE PRESENCE, USE, RELEASE, STORAGE, TREATMENT OR DISPOSAL OF HAZARDOUS MATERIALS ON OR AT ANY OF THE PROPERTIES OWNED OR OPERATED BY THE BORROWER OR ANY SUBSIDIARY, OR (V) ANY OTHER ENVIRONMENTAL, HEALTH OR SAFETY CONDITION IN CONNECTION WITH THE LOAN DOCUMENTS (EXPRESSLY INCLUDING ANY SUCH CLAIM, DAMAGE LOSS, LIABILITY, COST, PENALTY, FEE OR EXPENSE ATTRIBUTABLE TO THE ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE OF SUCH INDEMNIFIED PARTY, BUT EXCLUDING ANY SUCH CLAIM, DAMAGE, LOSS, LIABILITY, COST, PENALTY, FEE OR EXPENSE RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNIFIED PARTY AS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL AND NONAPPEALABLE JUDGMENT). FOR THE AVOIDANCE OF DOUBT, THIS SECTION 9.03(C) SHALL NOT APPLY WITH RESPECT TO TAXES OTHER THAN ANY TAXES THAT REPRESENT LOSSES, CLAIMS, DAMAGES, ETC. ARISING FROM ANY NON-TAX CLAIM.
(d)    No Indemnified Party may settle any claim to be indemnified without the consent of the indemnitor, such consent not to be unreasonably withheld; provided that the indemnitor may not reasonably withhold consent to any settlement that an Indemnified Party proposes, if the indemnitor does not have the financial ability to pay all its obligations outstanding and asserted against the indemnitor at that time, including the maximum potential claims against the Indemnified Party to be indemnified pursuant to this Section 9.03.
(e)    In the case of any indemnification hereunder, the Indemnified Party, as appropriate, shall give notice to the Borrower of any such claim or demand being made against the Indemnified Party and the Borrower shall have the non-exclusive right to join in the defense against any such claim or demand; provided that if the Borrower provides a defense, the Indemnified Party shall bear its own cost of defense unless there is a conflict between the Borrower and such Indemnified Party.
(f)    THE FOREGOING INDEMNITIES SHALL EXTEND TO THE INDEMNIFIED PARTIES NOTWITHSTANDING THE SOLE OR CONCURRENT NEGLIGENCE OF EVERY KIND OR CHARACTER WHATSOEVER, WHETHER ACTIVE OR PASSIVE, WHETHER AN AFFIRMATIVE ACT OR AN OMISSION, INCLUDING, ALL TYPES OF NEGLIGENT CONDUCT IDENTIFIED IN THE RESTATEMENT (SECOND) OF TORTS OF ONE OR MORE OF THE INDEMNIFIED PARTIES OR BY REASON OF STRICT LIABILITY IMPOSED WITHOUT FAULT ON ANY ONE OR MORE OF THE INDEMNIFIED PARTIES. TO THE EXTENT THAT AN INDEMNIFIED PARTY IS FOUND TO HAVE COMMITTED AN ACT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR ENGAGED IN UNLAWFUL CONDUCT (AS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL AND NONAPPEALABLE JUDGMENT), THIS CONTRACTUAL OBLIGATION OF INDEMNIFICATION SHALL CONTINUE BUT SHALL ONLY EXTEND TO THE PORTION OF THE CLAIM THAT IS DEEMED TO HAVE OCCURRED BY REASON OF EVENTS OTHER THAN THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR UNLAWFUL CONDUCT OF THE INDEMNIFIED PARTY (AS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL AND NONAPPEALABLE JUDGMENT).
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(g)    The Borrower’s obligations under this Section 9.03 shall survive any termination of this Agreement, the payment of the Loans and the expiration of the Letters of Credit and shall continue thereafter in full force and effect.
(h)    To the extent that the Borrower fails to pay any amount required to be paid by it to the Administrative Agent, the Swingline Lender or any Issuing Bank under this Section 9.03, each Lender severally agrees to pay to the Administrative Agent, the Swingline Lender or such Issuing Bank, as the case may be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent, the Swingline Lender or such Issuing Bank in its capacity as such.
(i)    The Borrower shall pay any amounts due under this Section 9.03 within 30 days of the receipt by the Borrower of notice of the amount due.
(j)    To the fullest extent permitted by applicable law, no party shall assert, and each party hereby waives, any claim against any other party, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof; provided, however, that the foregoing limitation shall not be deemed to impair or affect the indemnification obligations of the Borrower under the Loan Documents. No Indemnified Party referred to in paragraph (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
SECTION 9.04    Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender, and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of Section 9.05(a), (ii) by way of participation in accordance with the provisions of Section 9.05(c), or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 9.05(d) (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 9.05(c) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
SECTION 9.05    Assignments by Lenders.
(a)    Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, Letter of Credit Commitment and the Loans at the time owing to it); provided that any such assignment shall be subject to the following conditions:
(i)    (A)    in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and/or the Loans at the time owing to it or
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contemporaneous assignments to related Approved Funds that equal at least the amount specified in paragraph (a)(i)(B) of this Section; and
(B)    in any case not described in the proviso to paragraph (a)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Acceptance, as of the Trade Date) shall not be less than $5,000,000, unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, however, in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned.
(ii)    Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned.
(iii)    No consent shall be required for any assignment except to the extent required by paragraph (a)(i)(B) of this Section and, in addition:
(A)    the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (x) an Event of Default has occurred and is continuing at the time of such assignment or (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund, provided that the Borrower’s consent shall not be required during the primary syndication of the credit facility evidenced by this Agreement;
(B)    the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments if such assignment is to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender; and
(C)    the consent of each Issuing Bank and the Swingline Lender (such consents not to be unreasonably withheld or delayed) shall be required for any assignment.
(iv)    The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500; provided that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
(v)    No such assignment shall be made to (A) the Borrower or any of the Borrower’s Affiliates or Subsidiaries or (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B).
(vi)    No such assignment shall be made to a natural Person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person).
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(vii)    In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, each Issuing Bank, the Swingline Lender and each other Lender hereunder (and interest and fees accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swingline Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (b) of this Section, from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 2.14, 2.15 and 9.03 and with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section.
(b)    Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee, if any, referred to in Section 9.05(a) and any written consent to such assignment required by Section 9.05(a), the Administrative Agent shall accept such Assignment and Acceptance and record the information contained therein in the Register (as defined below). No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph. The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices in New York, New York a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender (with respect to its own interest only), at any reasonable time and from time to time upon reasonable prior notice.
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Revolving Credit Facility


(c)    Any Lender may at any time, without the consent of, or notice to, the Borrower, the Administrative Agent, the Swingline Lender or the Issuing Banks, sell participations to any Person (other than a natural Person, a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the Borrower, the Administrative Agent, the Issuing Banks and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 8.08 with respect to any payments made by such Lender to its Participant(s).
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first proviso Section 9.02(b) that affects such Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.14, 2.15 and 2.16 (subject to the requirements and limitations therein, including the requirements under Section 2.16 (it being understood that the documentation required under Section 2.16 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (a) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 2.18 as if it were an assignee under paragraph (a) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 2.14 and 2.16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 2.18 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.09 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.17 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d)    Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or any central bank having jurisdiction over such Lender; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
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SECTION 9.06    Survival; Reinstatement.
(a)    All covenants, agreements, representations and warranties made by the Borrower herein and in the certificates or other instruments delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent, any Issuing Bank or any Lender may have had notice or knowledge of any Default or Event of Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding or so long as the Commitments have not expired or terminated. The provisions of Sections 2.14, 2.15, 2.16 and 9.03 and Article VIII shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement or any provision hereof.
(b)    To the extent that any payments on the Obligations are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, debtor in possession, receiver or other Person under any bankruptcy law, common law or equitable cause, then to such extent, the Obligations so satisfied shall be revived and continue as if such payment or proceeds had not been received.
SECTION 9.07    Counterparts; Integration; Effectiveness; Electronic Execution.
(a)    This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement, the other Loan Documents and the Fee Letters constitute the entire contract among the parties hereto relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof (including the Executive Summary). Except as provided in Section 3.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Agreement.
(b)    The words “execution,” “signed,” “signature,” and words of like import in any Loan Document or any Assignment and Acceptance shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
SECTION 9.08    Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
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Revolving Credit Facility


SECTION 9.09    Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender, each Issuing Bank and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held, and other obligations (in whatever currency) at any time owing, by such Lender, such Issuing Bank or any such Affiliate, to or for the credit or the account of a Loan Party against any and all of the obligations of a Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender, such Issuing Bank or their respective Affiliates, irrespective of whether or not such Lender, Issuing Bank or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Loan Parties may be contingent or unmatured or are owed to a branch, office or Affiliate of such Lender or Issuing Bank different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.19 pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the Issuing Banks and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, each Issuing Bank and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, such Issuing Bank or their respective Affiliates may have. Each Lender and Issuing Bank agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of each Lender under this Section 9.09 are in addition to other rights and remedies (including other rights of setoff) which such Lender may have.
SECTION 9.10    Governing Law; Jurisdiction; Consent to Service of Process. (a) This Agreement and the other Loan Documents shall be construed in accordance with and governed by the laws of the State of New York.
(b)    ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY AND ASSETS, UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS WITH RESPECT TO ANY SUCH ACTION OR PROCEEDING. THE BORROWER HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS C T CORPORATION SYSTEM, WITH OFFICES ON THE DATE HEREOF AT 111 8TH AVENUE, NEW YORK, NEW YORK 10011, AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE AND ACCEPT FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, THE BORROWER AGREES TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT IN NEW YORK, NEW YORK ON THE TERMS AND FOR THE PURPOSES OF THIS PROVISION SATISFACTORY TO THE ADMINISTRATIVE AGENT. THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO IT AT ITS ADDRESS PROVIDED IN SECTION 9.01, SUCH
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Revolving Credit Facility


SERVICE TO BECOME EFFECTIVE THIRTY DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(c)    THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (b) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE RIGHT TO PLEAD OR CLAIM, AND AGREES NOT TO PLEAD OR CLAIM, THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(d)    EACH PARTY HERETO HEREBY (i) IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; (ii) CERTIFIES THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OR AGENT OR COUNSEL FOR ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS, AND (iii) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION 9.10.
SECTION 9.11    WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12    Confidentiality. Each of the Administrative Agent, the Issuing Banks and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to their Affiliates, to their and their Affiliates’ directors, officers and employees and agents, including accountants, legal counsel and other advisors who have been informed of the confidential nature of the information provided, (b) disclosures in connection with any pledge or assignment permitted under Section 9.05(d) and, to the extent requested by any regulatory authority, including any self-regulatory authority such as the National Association of Insurance Commissioners or any similar organization, or any nationally recognized rating agency that requires access to information about a Lender’s investment portfolio, (c) to the extent a Lender reasonably believes it is required by applicable laws or regulations or by any subpoena or similar legal process (and, to the extent not prohibited under applicable law), such Lender will provide prompt notice thereof to the Borrower), (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies
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Revolving Credit Facility


hereunder or any suit, action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an understanding with such Person that such Person will comply with this Section 9.12, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective party (or its Related Parties) to any swap, derivative, or other transaction under which payments are to be made by reference to the Borrower, and its obligations under this Agreement or the payments hereunder, (g) with the consent of the Borrower or (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section 9.12 or (ii) becomes available to the Administrative Agent, any Issuing Bank or any Lender from a source other than the Borrower (unless such source is actually known by the individual providing the information to be bound by a confidentiality agreement or other legal or contractual obligation of confidentiality with respect to such information). In addition, the Administrative Agent and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and service providers to the Administrative Agent and the Lenders in connection with the administration of this Agreement, the other Loan Documents, and the Commitments. For the purposes of this Section 9.12, “Information” means all information received from the Borrower relating to the Borrower or its business, other than any such information that is known to a Lender, publicly known or otherwise available to the Administrative Agent or any Lender other than through disclosure (a) by the Borrower, or (b) from a source actually known to a Lender to be bound by a confidentiality agreement or other legal or contractual obligation of confidentiality with respect to such information. Any Person required to maintain the confidentiality of Information as provided in this Section 9.12 shall be considered to have complied with its obligation to do so if such Person maintains the confidentiality of such Information in accordance with procedures adopted in good faith to protect confidential Information of third parties delivered to a lender.
SECTION 9.13    Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable law, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section 9.13 shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.
SECTION 9.14    EXCULPATION PROVISIONS. EACH OF THE PARTIES HERETO SPECIFICALLY AGREES THAT IT HAS A DUTY TO READ THIS AGREEMENT, THE NOTES AND (IN THE CASE OF THE BORROWER AND THE ADMINISTRATIVE AGENT) THE FEE LETTERS AND AGREES THAT IT IS CHARGED WITH NOTICE AND KNOWLEDGE OF THE TERMS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS; THAT IT HAS IN FACT READ THIS AGREEMENT AND IS FULLY INFORMED AND HAS FULL NOTICE AND KNOWLEDGE OF THE TERMS, CONDITIONS AND EFFECTS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS; THAT IT HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL OF ITS CHOICE THROUGHOUT THE NEGOTIATIONS PRECEDING ITS EXECUTION OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS; AND HAS RECEIVED THE ADVICE OF ITS ATTORNEY IN ENTERING INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS; AND THAT IT RECOGNIZES THAT CERTAIN OF THE TERMS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS RESULT IN ONE PARTY ASSUMING THE LIABILITY INHERENT IN SOME ASPECTS OF THE TRANSACTION AND RELIEVING THE
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Revolving Credit Facility


OTHER PARTY OF ITS RESPONSIBILITY FOR SUCH LIABILITY. EACH PARTY HERETO AGREES AND COVENANTS THAT IT WILL NOT CONTEST THE VALIDITY OR ENFORCEABILITY OF ANY EXCULPATORY PROVISION OF THIS AGREEMENT ON THE BASIS THAT THE PARTY HAD NO NOTICE OR KNOWLEDGE OF SUCH PROVISION OR THAT THE PROVISION IS NOT “CONSPICUOUS.”
SECTION 9.15    U.S. Patriot Act. Each Lender that is subject to the requirements of the USA PATRIOT ACT (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”) and the Beneficial Ownership Regulation hereby notifies the Loan Parties that pursuant to the requirements of the Patriot Act and the Beneficial Ownership Regulation, it is required to obtain, verify, and record information that identifies the Loan Parties, which information includes the name and address of the Loan Parties and other information that will allow such Lender to identify the Loan Parties in accordance with the Patriot Act and the Beneficial Ownership Regulation.
SECTION 9.16    No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby, the Borrower acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) the credit facility provided for hereunder and any related arranging or other services in connection therewith (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document) are an arm’s-length commercial transaction between the Borrower, on the one hand, and the Administrative Agent, the Arrangers, the Syndication Agent, the Documentation Agents, the Issuing Banks and the Lenders, on the other hand, and the Borrower is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents (including any amendments, waiver or other modification hereof or thereof); (ii) in connection with the process leading to such transaction, the Administrative Agent, the Arrangers, the Syndication Agent, the Documentation Agents, the Issuing Banks and the Lenders are and have been acting solely as principals and are not the financial advisors, agents or fiduciaries, for the Borrower or any of its Affiliates, stockholders, creditors or employees or any other Person; (iii) the Administrative Agent, the Arrangers, Syndication Agent, the Documentation Agents, the Issuing Banks and the Lenders have not assumed and will not assume an advisory, agency or fiduciary responsibility in favor of the Borrower with respect to any of the transactions contemplated hereby or the process leading thereto, including with respect to any amendment, waiver or other modification hereof or of any other Loan Document (irrespective of whether the Administrative Agent, any Arranger, the Syndication Agent, any Documentation Agent, any Issuing Bank or any Lender advised or is currently advising the Borrower or any of its Affiliates on other matters) and the Administrative Agent, the Arrangers, the Syndication Agent, the Documentation Agents, the Issuing Banks and the Lenders have no obligation to the Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; (iv) the Administrative Agent, the Arrangers, the Syndication Agent, the Documentation Agents, the Issuing Banks, the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and its Affiliates, and the Administrative Agent, the Arrangers, the Syndication Agent, the Documentation Agents, the Issuing Banks and the Lenders have no obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) the Administrative Agent, the Arrangers, the Syndication Agent, the Documentation Agents, the Issuing Banks and the Lenders have not provided and will not provide any legal, accounting, regulatory or Tax advice with respect to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and the Loan Parties have consulted its own legal, accounting, regulatory and Tax advisors to the extent it has deemed appropriate. Each Loan Parties hereby waive and release, to the fullest extent permitted by law, any claims that it may have against the Administrative Agent, the Arrangers, the Syndication Agent, the Documentation Agents, the Issuing Banks or the Lenders with respect to any breach or alleged breach of agency or fiduciary duty.
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SECTION 9.17    Headings. Section headings herein are included herein for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.
SECTION 9.18    Acknowledgement and Consent to Bail-In of Affected Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)    the application of any Write-Down and Conversion Powers by an the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(a)    the effects of any Bail-In Action on any such liability, including, if applicable:
(i)    a reduction in full or in part or cancellation of any such liability;
(ii)    a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii)    the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.
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Revolving Credit Facility


The parties hereto have caused this Agreement to be duly executed as of the date and year first above written.
KINDER MORGAN, INC.,
as the Borrower
By:     __________________________________
Name:    
Title:

[5-Year Revolving Credit Agreement]


BARCLAYS BANK PLC,
as the Administrative Agent and as a Lender
By:     __________________________________
Name:    
Title:

[5-Year Revolving Credit Agreement]


JPMORGAN CHASE BANK, N.A.,
as a Lender
By:     __________________________________
Name:    
Title:

[5-Year Revolving Credit Agreement]


[ ],
as a Lender
By:     __________________________________
Name:    
Title:
[5-Year Revolving Credit Agreement]


Acknowledged and agreed, solely for the purpose of Section 2.05(a):
KINDER MORGAN OPERATING LLC “B”
By:     Kinder Morgan G.P., Inc.,
    its General Partner
By:     Kinder Morgan Management, LLC,
    its Delegate
By:     __________________________________
Name:    
Title:_




[5-Year Revolving Credit Agreement]
Exhibit 10.14


CROSS GUARANTEE AGREEMENT
This CROSS GUARANTEE AGREEMENT is dated as of November 26, 2014 (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), by each of the signatories listed on the signature pages hereto and each of the other entities that becomes a party hereto pursuant to Section 19 (the “Guarantors” and individually, a “Guarantor”), for the benefit of the Guaranteed Parties (as defined below).
W I T N E S S E T H:
WHEREAS, Kinder Morgan, Inc., a Delaware corporation (“KMI”), and certain of its direct and indirect Subsidiaries have outstanding senior, unsecured Indebtedness and may from time to time issue additional senior, unsecured Indebtedness;
WHEREAS, each Guarantor, other than KMI, is a direct or indirect Subsidiary of KMI;
WHEREAS, each Guarantor desires to provide the guarantee set forth herein with respect to the Indebtedness of such Guarantors that constitutes the Guaranteed Obligations; and
WHEREAS, each Guarantor acknowledges that it will derive substantial direct and indirect benefit from the making of the guarantees hereby;
NOW, THEREFORE, in consideration of the premises, the Guarantors hereby agree with each other for the benefit of the Guaranteed Parties as follows:
1.Defined Terms.
(a)    As used in this Agreement, the following terms have the meanings specified below:
Agreement” has the meaning provided in the preamble hereto.
Bankruptcy Code” means Title 11 of the United States Code, as now or hereafter in effect, or any successor thereto.
Capital Stock” means, with respect to any Person, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents (however designated) of such Person’s equity, including (i) all common stock and preferred stock, any limited or general partnership interest and any limited liability company member interest, (ii) beneficial interests in trusts, and (iii) any other interest or participation that confers upon a Person the right to receive a share of the profits and losses of, or distribution of assets of, the issuing Person.
CFC” means a Person that is a “controlled foreign corporation” within the meaning of Section 957 of the Internal Revenue Code of 1986, as amended.
Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.




Exhibit 10.14


Consolidated Assets” means, at the date of any determination thereof, the total assets of KMI and its Subsidiaries as set forth on a consolidated balance sheet of KMI and its Subsidiaries for their most recently completed fiscal quarter, prepared in accordance with GAAP.
Consolidated Tangible Assets” means, at the date of any determination thereof, Consolidated Assets after deducting therefrom the value, net of any applicable reserves and accumulated amortization, of all goodwill, trade names, trademarks, patents and other like intangible assets, all as set forth, or on a pro forma basis would be set forth, on a consolidated balance sheet of KMI and its Subsidiaries for their most recently completed fiscal quarter, prepared in accordance with GAAP.
Domestic Subsidiary” means any Subsidiary of KMI organized under the laws of any jurisdiction within the United States.
Excluded Subsidiary” means (i) any Subsidiary that is not a Wholly-owned Domestic Operating Subsidiary, (ii) any Domestic Subsidiary that is a Subsidiary of a CFC or any Domestic Subsidiary (including a disregarded entity for U.S. federal income tax purposes) substantially all of whose assets (held directly or through Subsidiaries) consist of Capital Stock of one or more CFCs or Indebtedness of such CFCs, (iii) any Immaterial Subsidiary, (iv) any Subsidiary listed on Schedule III, (v) each of Calnev Pipe Line LLC, SFPP, L.P., Kinder Morgan G.P., Inc. and EPEC Realty, Inc. and each of its Subsidiaries, (vi) any other Subsidiary that is not a Guarantor under the Revolving Credit Agreement Guarantee, (vii) any not-for-profit Subsidiary, (viii) any Subsidiary that is prohibited by a Requirement of Law from guaranteeing the Guaranteed Obligations, and (ix) any Subsidiary acquired by KMI or its Subsidiaries after the date of this Agreement to the extent, and so long as, the financing documentation governing any existing Indebtedness of such Subsidiary that survives such acquisition prohibits such Subsidiary from guaranteeing the Guaranteed Obligations; provided, that notwithstanding the foregoing, any Subsidiary that is party to the Revolving Credit Agreement Guarantee or that Guarantees any senior notes or senior debt securities issued by KMI (other than pursuant to this Agreement) shall not constitute an Excluded Subsidiary for so long as such Guarantee is in effect.
Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Guarantor becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee is or becomes illegal.
GAAP” means generally accepted accounting principles in the United States of America from time to time, including as set forth in the opinions, statements and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and the Financial Accounting Standards Board.
Governmental Authority” means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra national bodies such as the European Union or the European Central Bank).
2

Exhibit 10.14


Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (ii) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (iv) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.
Guarantee Termination Date” has the meaning set forth in Section 2(d).
Guaranteed Obligations” means the Indebtedness set forth on Schedule I hereto, as such schedule may be amended from time to time in accordance with the terms of this Agreement; provided that the term “Guaranteed Obligations” shall exclude any Excluded Swap Obligations.
Guaranteed Parties” means, collectively, (i) in the case of Guaranteed Obligations that are governed by trust indentures, the holders (as that term is defined in the applicable trust indenture) of such Guaranteed Obligations, (ii) in the case of Guaranteed Obligations that are governed by loan agreements, credit agreements, or similar agreements, the lenders providing such loans or credit, and (iii) in the case of Guaranteed Obligations with respect to Hedging Agreements, the counterparties under such agreements.
Guarantor” has the meaning provided in the preamble hereto. Schedule II hereto, as such schedule may be amended from time to time in accordance with the terms of this Agreement, sets forth the name of each Guarantor.
Hedging Agreement” means a financial instrument, agreement or security which hedges or is used to hedge or manage the risk associated with a change in interest rates, foreign currency exchange rates or commodity prices (but excluding any purchase, swap, derivative contract or similar agreement relating to power, electricity or any related commodity product).
Immaterial Subsidiary” means any Subsidiary that is not a Material Subsidiary.
Indebtedness” means, collectively, (i) any senior, unsecured obligation created or assumed by any Person for borrowed money, including all obligations of such Person evidenced by bonds, debentures, notes or similar instruments (other than surety, performance and guaranty bonds), and (ii) all payment obligations of any Person with respect to obligations under Hedging Agreements.
Investment Grade Rating” means a rating equal to or higher than Baa3 by Moody’s and BBB- by S&P; provided, however, that if (i) either of Moody’s or S&P changes its rating system, such ratings shall be the equivalent ratings after such changes or (ii) Moody’s or S&P shall not make a rating of a Guaranteed Obligation publicly available, the references above to Moody’s or S&P or both of them, as the case may be, shall be to a nationally recognized U.S. rating agency or agencies, as the case may be, selected by KMI and the references to the ratings categories above shall be to the corresponding rating categories of such rating agency or rating agencies, as the case may be.
Issuer” means the issuer, borrower, or other applicable primary obligor of a Guaranteed Obligation.
3

Exhibit 10.14


KMI” has the meaning provided in the recitals hereto.
Lien” means, with respect to any asset (i) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, and (ii) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset.
Material Subsidiary” means, as at any date of determination, any Subsidiary of KMI whose total tangible assets (for purposes of the below, when combined with the tangible assets of such Subsidiary’s Subsidiaries, after eliminating intercompany obligations) as at such date of determination are greater than or equal to 5% of Consolidated Tangible Assets as of the last day of the fiscal quarter most recently ended for which financial statements of KMI have been filed with the SEC.
Moody’s” means Moody’s Investors Service, Inc. and its successors.
Operating Subsidiary” means any operating company that is a Subsidiary of KMI.
Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Guarantor that has total assets exceeding $10,000,000 at the time the relevant Guarantee becomes effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.    
Rating Agencies” means Moody’s and S&P; provided that, if at the relevant time neither Moody’s nor S&P shall be rating the relevant Guaranteed Obligation, then “Rating Agencies” shall mean another nationally recognized rating service that rates such Guaranteed Obligation.
Rating Date” means the date immediately prior to the earlier of (i) the occurrence of a Release Event and (ii) public notice of the intention to effect a Release Event.
Rating Decline” means, with respect to a Guaranteed Obligation, the occurrence of the following on, or within 90 days after, the date of the occurrence of a Release Event or of public notice of the intention to effect a Release Event (which period may be extended so long as the rating of such Guaranteed Obligation is under publicly announced consideration for possible downgrade by either of the Rating Agencies): (i) in the event such Guaranteed Obligation is assigned an Investment Grade Rating by both Rating Agencies on the Rating Date, the rating of such Guaranteed Obligation by one or both of the Rating Agencies shall be below an Investment Grade Rating; or (ii) in the event such Guaranteed Obligation is rated below an Investment Grade Rating by either of the Rating Agencies on the Rating Date, any such below-Investment Grade Rating of such Guaranteed Obligation shall be decreased by one or more gradations (including gradations within rating categories as well as between rating categories).
Release Event” has the meaning set forth in Section 6(b).
Requirement of Law” means any law, statute, code, ordinance, order, determination, rule, regulation, judgment, decree, injunction, franchise, permit, certificate, license, authorization or other

4

Exhibit 10.14


directive or requirement (whether or not having the force of law), including environmental laws, energy regulations and occupational, safety and health standards or controls, of any Governmental Authority.
Revolving Credit Agreement” means the Revolving Credit Agreement, dated as of September 19, 2014, among KMI, the lenders party thereto and Barclays Bank PLC, as administrative agent, as such credit agreement may be amended, modified, supplemented or restated from time to time, or refunded, refinanced, restructured, replaced, renewed, repaid or extended from time to time (whether with the original agents and lenders or other agents or lenders or trustee or otherwise, and whether provided under the original credit agreement or other credit agreements or note indentures or otherwise), including, without limitation, increasing the amount of available borrowings or other Indebtedness thereunder.
Revolving Credit Agreement Guarantee” means the Guarantee Agreement, dated as of November 26, 2014, made by the Subsidiaries of KMI party thereto in favor of Barclays Bank PLC, as administrative agent, for the benefit of the lenders and the issuing banks under the Revolving Credit Agreement, as such guarantee agreement may be amended, modified, supplemented or restated from time to time, and as it may be replaced or renewed from time to time in connection with any amendment, modification, supplement, restatement, refunding, refinancing, restructuring, replacement, renewal, repayment, or extension of any Revolving Credit Agreement from time to time.
S&P” means Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc., and its successors.
SEC” means the United States Securities and Exchange Commission.
Subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partner interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise controlled, by the parent or one or more Subsidiaries of the parent or by the parent and one or more Subsidiaries of the parent. Unless the context otherwise clearly requires, references in this Agreement to a “Subsidiary” or the “Subsidiaries” refer to a Subsidiary or the Subsidiaries of KMI. Notwithstanding the foregoing, Plantation Pipe Line Company, a Delaware and Virginia corporation, shall not be a Subsidiary of KMI until such time as its assets and liabilities, profit or loss and cash flow are required under GAAP to be consolidated with those of KMI.
Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
Wholly-owned Domestic Operating Subsidiary” means any Wholly-owned Subsidiary that constitutes (i) a Domestic Subsidiary and (ii) an Operating Subsidiary.
Wholly-owned Subsidiary” means a Subsidiary of which all issued and outstanding Capital Stock (excluding in the case of a corporation, directors’ qualifying shares) is directly or indirectly owned by KMI.
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Exhibit 10.14


(b)    The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section references are to Sections of this Agreement unless otherwise specified. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.
(c)    The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
2.    Guarantee.
(a)    Subject to the provisions of Section 2(b), each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably, guarantees, as primary obligor and not merely as surety, for the benefit of the Guaranteed Parties, the prompt and complete payment when due (whether at the stated maturity, by acceleration or otherwise) of the Guaranteed Obligations; provided that each Guarantor shall be released from its respective guarantee obligations under this Agreement as provided in Section 6(b). Upon the failure of an Issuer to punctually pay any Guaranteed Obligation, each Guarantor shall, upon written demand by the applicable Guaranteed Party to such Guarantor, pay or cause to be paid such amounts.
(b)    Anything herein to the contrary notwithstanding, the maximum liability of each Guarantor hereunder shall in no event exceed the amount that can be guaranteed by such Guarantor under the Bankruptcy Code or any applicable laws relating to fraudulent conveyances, fraudulent transfers or the insolvency of debtors after giving full effect to the liability under this Agreement and its related contribution rights set forth in this Section 2, but before taking into account any liabilities under any other Guarantees.
(c)    Each Guarantor agrees that the Guaranteed Obligations may at any time and from time to time exceed the amount of the liability of such Guarantor hereunder (as a result of the limitations set forth in Section 2(b) or elsewhere in this Agreement) without impairing this Agreement or affecting the rights and remedies of any Guaranteed Party hereunder.
(d)    No payment or payments made by any Issuer, any of the Guarantors, any other guarantor or any other Person or received or collected by any Guaranteed Party from any Issuer, any of the Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of any Guaranteed Obligation shall be deemed to modify, reduce, release or otherwise affect the liability of any Guarantor hereunder, which shall, notwithstanding any such payment or payments, other than payments made by such Guarantor in respect of such Guaranteed Obligation or payments received or collected from such Guarantor in respect of such Guaranteed Obligation, remain liable for the Guaranteed Obligations up to the maximum liability of such Guarantor hereunder until all Guaranteed Obligations (other than any contingent indemnity obligations not then due and any letters of credit that remain outstanding which have been fully cash collateralized or otherwise back-stopped to the reasonable satisfaction of the applicable issuing bank) shall have been discharged by payment in full or shall have been deemed paid and discharged by defeasance pursuant to the terms of the instruments governing such Guaranteed Obligations (the “Guarantee Termination Date”).
(e)    If and to the extent required in order for the obligations of any Guarantor hereunder to be enforceable under applicable federal, state and other laws relating to the insolvency of debtors, the maximum liability of such Guarantor hereunder shall be limited to the greatest amount which can lawfully be guaranteed by such Guarantor under such laws, after giving effect to any rights of
6

Exhibit 10.14


contribution, reimbursement and subrogation arising hereunder. Each Guarantor acknowledges and agrees that, to the extent not prohibited by applicable law, (i) such Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right under such laws to reduce, or request any judicial relief that has the effect of reducing, the amount of its liability under this Agreement, (ii) such Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right to enforce the limitation set forth in this Section 2(e) or to reduce, or request judicial relief reducing, the amount of its liability under this Agreement, and (iii) the limitation set forth in this Section 2(e) may be enforced only to the extent required under such laws in order for the obligations of such Guarantor under this Agreement to be enforceable under such laws and only by or for the benefit of a creditor, representative of creditors or bankruptcy trustee of such Guarantor or other Person entitled, under such laws, to enforce the provisions hereof.
3.    Right of Contribution. Each Guarantor hereby agrees that to the extent that a Guarantor shall have paid more than its proportionate share of any payment made hereunder (including by way of set-off rights being exercised against it), such Guarantor shall be entitled to seek and receive contribution from and against any other Guarantor hereunder who has not paid its proportionate share of such payment as set forth in this Section 3. To the extent that any Guarantor shall be required hereunder to pay any portion of any Guaranteed Obligation guaranteed hereunder exceeding the greater of (a) the amount of the value actually received by such Guarantor and its Subsidiaries from such Guaranteed Obligation and (b) the amount such Guarantor would otherwise have paid if such Guarantor had paid the aggregate amount of such Guaranteed Obligation guaranteed hereunder (excluding the amount thereof repaid by the Issuer of such Guaranteed Obligation) in the same proportion as such Guarantor’s net worth on the date enforcement is sought hereunder bears to the aggregate net worth of all the Guarantors on such date, then such Guarantor shall be reimbursed by such other Guarantors for the amount of such excess, pro rata, based on the respective net worth of such other Guarantors on such date; provided that any Guarantor’s right of reimbursement shall be subject to the terms and conditions of Section 5 hereof. For purposes of determining the net worth of any Guarantor in connection with the foregoing, all Guarantees of such Guarantor other than pursuant to this Agreement will be deemed to be enforceable and payable after its obligations pursuant to this Agreement. The provisions of this Section 3 shall in no respect limit the obligations and liabilities of any Guarantor to the Guaranteed Parties, and each Guarantor shall remain liable to the Guaranteed Parties for the full amount guaranteed by such Guarantor hereunder.
4.    No Right of Set-off. No Guaranteed Party shall have, as a result of this Agreement, any right of set-off against any amount owing by such Guaranteed Party to or for the credit or the account of a Guarantor.
5.    No Subrogation. Notwithstanding any payment or payments made by any of the Guarantors hereunder, no Guarantor shall be entitled to be subrogated to any of the rights (or if subrogated by operation of law, such Guarantor hereby waives such rights to the extent permitted by applicable law) of any Guaranteed Party against any Issuer or any other Guarantor or any collateral security or guarantee or right of offset held by any Guaranteed Party for the payment of any Guaranteed Obligation, nor shall any Guarantor seek or be entitled to seek any contribution or reimbursement from any Issuer or any other Guarantor in respect of payments made by such Guarantor hereunder, until the Guarantee Termination Date. If any amount shall be paid to any Guarantor on account of such subrogation, contribution or reimbursement rights at any time prior to the Guarantee Termination Date, such amount shall be held by such Guarantor in trust for the applicable Guaranteed Parties, segregated from other funds of such Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned over to the applicable Guaranteed Parties in the exact form received by such Guarantor (duly indorsed by such
7

Exhibit 10.14


Guarantor to the applicable Guaranteed Parties if required), to be applied against the applicable Guaranteed Obligation, whether due or to become due.
6.    Amendments, etc. with Respect to the Guaranteed Obligations; Waiver of Rights; Release.
(a)    Each Guarantor shall remain obligated hereunder notwithstanding that, without any reservation of rights against any Guarantor and without notice to or further assent by any Guarantor, (i) any demand for payment of any Guaranteed Obligation made by any Guaranteed Party may be rescinded by such party and any Guaranteed Obligation continued, (ii) a Guaranteed Obligation, or the liability of any other party upon or for any part thereof, or any collateral security or guarantee therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, amended, modified, accelerated, compromised, waived, allowed to lapse, surrendered or released by any Guaranteed Party, (iii) the instruments governing any Guaranteed Obligation may be amended, modified, supplemented or terminated, in whole or in part, and (iv) any collateral security, guarantee or right of offset at any time held by any Guaranteed Party for the payment of any Guaranteed Obligation may be sold, exchanged, waived, allowed to lapse, surrendered or released. No Guaranteed Party shall have any obligation to protect, secure, perfect or insure any Lien at any time held by it as security for the Guaranteed Obligations or for this Agreement or any property subject thereto. When making any demand hereunder against any Guarantor, a Guaranteed Party may, but shall be under no obligation to, make a similar demand on the Issuer of the applicable Guaranteed Obligation or any other Guarantor or any other person, and any failure by a Guaranteed Party to make any such demand or to collect any payments from such Issuer or any other Guarantor or any other person or any release of such Issuer or any other Guarantor or any other person shall not relieve any Guarantor in respect of which a demand or collection is not made or any Guarantor not so released of its several obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of law, of any Guaranteed Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.
(b)    A Guarantor shall be automatically released from its guarantee hereunder upon release of such Guarantor from the Revolving Credit Agreement Guarantee, including upon consummation of any transaction resulting in such Guarantor ceasing to constitute a Subsidiary or upon any Guarantor becoming an Excluded Subsidiary (such transaction or event, a “Release Event”).
(c)    Upon the occurrence of a Release Event, each Guaranteed Obligation for which such released Guarantor was the Issuer shall be automatically released from the provisions of this Agreement and shall cease to constitute a Guaranteed Obligation hereunder; provided that in the case of any Guaranteed Obligation that has been assigned an Investment Grade Rating by the Rating Agencies, such Guaranteed Obligation shall be so released, effective as of the 91st day after the occurrence of the Release Event, if and only if a Rating Decline with respect to such Guaranteed Obligation does not occur.
7.    Guarantee Absolute and Unconditional.
(a)    Each Guarantor waives any and all notice of the creation, contraction, incurrence, renewal, extension, amendment, waiver or accrual of any of the Guaranteed Obligations, and notice of or proof of reliance by any Guaranteed Party upon this Agreement or acceptance of this Agreement. To the fullest extent permitted by applicable law, each Guarantor waives diligence, promptness, presentment, protest and notice of protest, demand for payment or performance, notice of default or nonpayment, notice of acceptance and any other notice in respect of the Guaranteed Obligations or any part of them, and any defense arising by reason of any disability or other defense of any Issuer or any of the Guarantors with respect to the Guaranteed Obligations. Each Guarantor understands and agrees that this Agreement
8

Exhibit 10.14


shall be construed as a continuing, absolute and unconditional guarantee of payment without regard to (i) the validity, regularity or enforceability of any of the Guaranteed Obligations, the indenture, loan agreement, note or other instrument evidencing or governing any of the Guaranteed Obligations or any collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Guaranteed Party, (ii) any defense, set-off or counterclaim (other than a defense of payment or performance) that may at any time be available to or be asserted by any Issuer against any Guaranteed Party or (iii) any other circumstance whatsoever (with or without notice to or knowledge of any Issuer or such Guarantor) that constitutes, or might be construed to constitute, an equitable or legal discharge of any Issuer for any of the Guaranteed Obligations, or of such Guarantor under this Agreement, in bankruptcy or in any other instance. When pursuing its rights and remedies hereunder against any Guarantor, any Guaranteed Party may, but shall be under no obligation to, pursue such rights and remedies as it may have against the Issuer or any other Person or against any collateral security or guarantee for the Guaranteed Obligations or any right of offset with respect thereto, and any failure by any Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Issuer or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Issuer or any such other Person or any such collateral security, guarantee or right of offset, shall not relieve such Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the other Guaranteed Parties against such Guarantor.
(b)    This Agreement shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon each Guarantor and the successors and assigns thereof and shall inure to the benefit of the Guaranteed Parties and their respective successors, indorsees, transferees and assigns until the Guarantee Termination Date.
8.    Reinstatement. This Agreement shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Guaranteed Obligations is rescinded or must otherwise be restored or returned by any Guaranteed Party upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of any Issuer or any Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, any Issuer or any Guarantor or any substantial part of its property, or otherwise, all as though such payments had not been made.
9.    Payments. Each Guarantor hereby guarantees that payments hereunder will be paid to the applicable Guaranteed Parties without set-off or counterclaim in dollars.
10.    Representations and Warranties. Each Guarantor hereby represents and warrants to each Guaranteed Party that the following representations and warranties are true and correct in all material respects as of the date of this Agreement or as of the date such Guarantor became a party to this Agreement, as applicable:
(a)    such Guarantor (i) is a corporation, partnership or limited liability company duly organized or formed, validly existing and in good standing under the laws of the state of its incorporation, organization or formation, (ii) has all requisite corporate, partnership, limited liability company or other power and all material governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted and (iii) is duly qualified to do business and is in good standing in every jurisdiction in which the failure to be so qualified would have a material adverse effect on its ability to perform its obligations under this Agreement;
9

Exhibit 10.14


(b)    such Guarantor has all requisite corporate (or other organizational) power and authority to execute and deliver and to perform its obligations under this Agreement, and all such actions have been duly authorized by all necessary proceedings on its behalf;
(c)    this Agreement has been duly and validly executed and delivered by or on behalf of such Guarantor and constitutes the valid and legally binding agreement of such Guarantor, enforceable against such Guarantor in accordance with its terms, except (i) as may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer, fraudulent conveyance or other similar laws relating to or affecting the enforcement of creditors’ rights generally, and by general principles of equity (including principles of good faith, reasonableness, materiality and fair dealing) which may, among other things, limit the right to obtain equitable remedies (regardless of whether considered in a proceeding in equity or at law) and (ii) as to the enforceability of provisions for indemnification for violation of applicable securities laws, limitations thereon arising as a matter of law or public policy;
(d)    no authorization, consent, approval, license or exemption of or registration, declaration or filing with any Governmental Authority is necessary for the valid execution and delivery of, or the performance by such Guarantor of its obligations hereunder, except those that have been obtained and such matters relating to performance as would ordinarily be done in the ordinary course of business after the date of this Agreement or as of the date such Guarantor became a party to this Agreement, as applicable; and
(e)    neither the execution and delivery of, nor the performance by such Guarantor of its obligations under, this Agreement will (i) breach or violate any applicable Requirement of Law, (ii) result in any breach or violation of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien upon any of its property or assets (other than Liens created or contemplated by this Agreement) pursuant to the terms of, any indenture, mortgage, deed of trust, agreement or other instrument to which it or any of its Subsidiaries is party or by which any of its properties or assets, or those of any of its Subsidiaries is bound or to which it is subject, except for breaches, violations and defaults under clauses (i) and (ii) that neither individually nor in the aggregate could reasonably be expected to result in a material adverse effect on its ability to perform its obligations under this Agreement, or (iii) violate any provision of the organizational documents of such Guarantor.
11.    Rights of Guaranteed Parties. Each Guarantor acknowledges and agrees that any changes in the identity of the Persons from time to time comprising the Guaranteed Parties gives rise to an equivalent change in the Guaranteed Parties, without any further act. Upon such an occurrence, the persons then comprising the Guaranteed Parties are vested with the rights, remedies and discretions of the Guaranteed Parties under this Agreement.
12.    Notices.
(a)    All notices, requests, demands and other communications to any Guarantor pursuant hereto shall be in writing and mailed, telecopied or delivered to such Guarantor in care of KMI, 1001 Louisiana Street, Suite 1000, Houston, Texas 77002, Attention: Treasurer, Telecopy: (713) 445-8302.
(b)    KMI will provide a copy of this Agreement, including the most recently amended schedules and supplements hereto, to any Guaranteed Party upon written request to the address set forth in Section 12(a); provided, however, that KMI’s obligations under this Section 12(b) shall be deemed satisfied if KMI has filed a copy of this Agreement, including the most recently amended schedules and
10

Exhibit 10.14


supplements hereto, with the SEC within three months preceding the date on which KMI receives such written request.
13.    Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts (including by facsimile or other electronic transmission), and all of said counterparts taken together shall be deemed to constitute one and the same instrument. A set of the copies of this Agreement signed by all the parties shall be lodged with KMI.
14.    Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
15.    Integration. This Agreement represents the agreement of each Guarantor with respect to the subject matter hereof, and there are no promises, undertakings, representations or warranties by any Guaranteed Party relative to the subject matter hereof not expressly set forth or referred to herein.
16.    Amendments; No Waiver; Cumulative Remedies.
(a)    None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except by a written instrument executed by the affected Guarantors and KMI.
(b)    The Guarantors may amend or supplement this Agreement by a written instrument executed by all Guarantors:
(i) to cure any ambiguity, defect or inconsistency;
(ii) to reflect a change in the Guarantors or the Guaranteed Obligations made in accordance with this Agreement;
(iii) to make any change that would provide any additional rights or benefits to the Guaranteed Parties or that would not adversely affect the legal rights hereunder of any Guaranteed Party in any material respect; or
(iv) to conform this Agreement to any change made to the Revolving Credit Agreement or to the Revolving Credit Agreement Guarantee.
Except as set forth in this clause (b) or otherwise provided herein, the Guarantors may not amend, supplement or otherwise modify this Agreement prior to the Guarantee Termination Date without the prior written consent of the holders of the majority of the outstanding principal amount of the Guaranteed Obligations (excluding obligations with respect to Hedging Agreements). Notwithstanding the foregoing, in the case of an amendment that would reasonably be expected to adversely, materially and disproportionately affect Guaranteed Parties with Guaranteed Obligations existing under Hedging Agreements relative to the other Guaranteed Parties, the foregoing exclusion of obligations with respect to Hedging Agreements shall not apply, and the outstanding principal amount attributable to each such Guaranteed Party’s Guaranteed Obligations shall be deemed to be equal to the termination payment that

11

Exhibit 10.14


would be due to such Guaranteed Party as if the valuation date were an “Early Termination Date” under and calculated in accordance with each applicable Hedging Agreement.
(c)    No Guaranteed Party shall by any act, delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any breach of any of the terms and conditions hereof. No failure to exercise, nor any delay in exercising, on the part of any Guaranteed Party, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by a Guaranteed Party of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy that such Guaranteed Party would otherwise have on any future occasion.
(d)    The rights, remedies, powers and privileges herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law.
17.    Section Headings. The Section headings used in this Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.
18.    Successors and Assigns. This Agreement shall be binding upon the successors and assigns of each Guarantor and shall inure to the benefit of the Guaranteed Parties and their respective successors and permitted assigns, except that no Guarantor may assign, transfer or delegate any of its rights or obligations under this Agreement except pursuant to a transaction permitted by the Revolving Credit Agreement and in connection with a corresponding assignment under the Revolving Credit Agreement Guarantee.
19.    Additional Guarantors.
(a)    KMI shall cause each Subsidiary (other than any Excluded Subsidiary) formed or otherwise purchased or acquired after the date of this Agreement (including each Subsidiary that ceases to constitute an Excluded Subsidiary after the date of this Agreement) to execute a supplement to this Agreement and become a Guarantor within 45 days of the occurrence of the applicable event specified in this Section 19(a).
(b)    Each Subsidiary of KMI that becomes, at the request of KMI, or that is required pursuant to Section 19(a) to become, a party to this Agreement shall become a Guarantor, with the same force and effect as if originally named as a Guarantor herein, for all purposes of this Agreement upon execution and delivery by such Subsidiary of a written supplement substantially in the form of Annex A hereto. The execution and delivery of any instrument adding an additional Guarantor as a party to this Agreement shall not require the consent of any other Guarantor hereunder. The rights and obligations of each Guarantor hereunder shall remain in full force and effect notwithstanding the addition of any new Guarantor as a party to this Agreement.
20.    Additional Guaranteed Obligations. Any Indebtedness issued by a Guarantor or for which a Guarantor otherwise becomes obligated after the date of this Agreement shall become a Guaranteed Obligation upon the execution by all Guarantors of a notation of guarantee substantially in the form of Annex B hereto, which shall be affixed to the instrument or instruments evidencing such Indebtedness. Each such notation of guarantee shall be signed on behalf of each Guarantor by a duly authorized officer prior to the authentication or issuance of such Indebtedness.
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Exhibit 10.14


21.    GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
22.    Keepwell. Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Guarantor to honor all of its obligations under this Agreement in respect of Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 22 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 22, or otherwise under this Agreement, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section shall remain in full force and effect until the Guarantee Termination Date. Each Qualified ECP Guarantor intends that this Section 22 constitute, and this Section 22 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Guarantor for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
[Signature pages follow]

13

Exhibit 10.14


IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly executed and delivered by its duly authorized officer or other representative as of the day and year first above written.

GUARANTORS


KINDER MORGAN, INC.


By:        /s/ Anthony B. Ashley                    
Name: Anthony B. Ashley
Title: Treasurer


AGNES B CRANE, LLC
AMERICAN PETROLEUM TANKERS II LLC
AMERICAN PETROLEUM TANKERS III LLC
AMERICAN PETROLEUM TANKERS IV LLC
AMERICAN PETROLEUM TANKERS LLC
AMERICAN PETROLEUM TANKERS PARENT LLC
AMERICAN PETROLEUM TANKERS V LLC
AMERICAN PETROLEUM TANKERS VI LLC
AMERICAN PETROLEUM TANKERS VII LLC
APT FLORIDA LLC
APT INTERMEDIATE HOLDCO LLC
APT NEW INTERMEDIATE HOLDCO LLC
APT PENNSYLVANIA LLC
APT SUNSHINE STATE LLC
AUDREY TUG LLC
BEAR CREEK STORAGE COMPANY, L.L.C.
BETTY LOU LLC
CAMINO REAL GATHERING COMPANY, L.L.C.
CANTERA GAS COMPANY LLC
CDE PIPELINE LLC
CENTRAL FLORIDA PIPELINE LLC
CHEYENNE PLAINS GAS PIPELINE COMPANY, L.L.C.
CIG GAS STORAGE COMPANY LLC
CIG PIPELINE SERVICES COMPANY, L.L.C.
CIMMARRON GATHERING LLC
COLORADO INTERSTATE GAS COMPANY, L.L.C.
COLORADO INTERSTATE ISSUING CORPORATION
COPANO DOUBLE EAGLE LLC
COPANO ENERGY FINANCE CORPORATION
COPANO ENERGY, L.L.C.
COPANO ENERGY SERVICES/UPPER GULF COAST LLC
COPANO FIELD SERVICES GP, L.L.C.
COPANO FIELD SERVICES/NORTH TEXAS, L.L.C.
COPANO FIELD SERVICES/SOUTH TEXAS LLC
COPANO FIELD SERVICES/UPPER GULF COAST LLC
COPANO LIBERTY, LLC
COPANO NGL SERVICES (MARKHAM), L.L.C.
COPANO NGL SERVICES LLC
COPANO PIPELINES GROUP, L.L.C.

[Signature Page to Cross Guarantee]

Exhibit 10.14


COPANO PIPELINES/NORTH TEXAS, L.L.C.
COPANO PIPELINES/ROCKY MOUNTAINS, LLC
COPANO PIPELINES/SOUTH TEXAS LLC
COPANO PIPELINES/UPPER GULF COAST LLC
COPANO PROCESSING LLC
COPANO RISK MANAGEMENT LLC
COPANO/WEBB-DUVAL PIPELINE LLC
CPNO SERVICES LLC
DAKOTA BULK TERMINAL, INC.
DELTA TERMINAL SERVICES LLC
EAGLE FORD GATHERING LLC
EL PASO CHEYENNE HOLDINGS, L.L.C.
EL PASO CITRUS HOLDINGS, INC.
EL PASO CNG COMPANY, L.L.C.
EL PASO ENERGY SERVICE COMPANY, L.L.C.
EL PASO LLC
EL PASO MIDSTREAM GROUP LLC
EL PASO NATURAL GAS COMPANY, L.L.C.
EL PASO NORIC INVESTMENTS III, L.L.C.
EL PASO PIPELINE CORPORATION
EL PASO PIPELINE GP COMPANY, L.L.C.
EL PASO PIPELINE HOLDING COMPANY, L.L.C.
EL PASO PIPELINE LP HOLDINGS, L.L.C.
EL PASO PIPELINE PARTNERS, L.P.
By El Paso Pipeline GP Company, L.L.C., its general partner
EL PASO PIPELINE PARTNERS OPERATING COMPANY, L.L.C.
EL PASO RUBY HOLDING COMPANY, L.L.C.
EL PASO TENNESSEE PIPELINE CO., L.L.C.
ELBA EXPRESS COMPANY, L.L.C.
ELIZABETH RIVER TERMINALS LLC
EMORY B CRANE, LLC
EPBGP CONTRACTING SERVICES LLC
EP ENERGY HOLDING COMPANY
EP RUBY LLC
EPTP ISSUING CORPORATION
FERNANDINA MARINE CONSTRUCTION MANAGEMENT LLC
FRANK L. CRANE, LLC
GENERAL STEVEDORES GP, LLC
GENERAL STEVEDORES HOLDINGS LLC
GLOBAL AMERICAN TERMINALS LLC
HAMPSHIRE LLC
HARRAH MIDSTREAM LLC
HBM ENVIRONMENTAL, INC.
ICPT, L.L.C
J.R. NICHOLLS LLC
JAVELINA TUG LLC
JEANNIE BREWER LLC
JV TANKER CHARTERER LLC
KINDER MORGAN (DELAWARE), INC.
KINDER MORGAN 2-MILE LLC
KINDER MORGAN ADMINISTRATIVE SERVICES TAMPA LLC
KINDER MORGAN ALTAMONT LLC
[Signature Page to Cross Guarantee]

Exhibit 10.14


KINDER MORGAN AMORY LLC
KINDER MORGAN ARROW TERMINALS HOLDINGS, INC.
KINDER MORGAN ARROW TERMINALS, L.P.
By Kinder Morgan River Terminals, LLC, its general partner
KINDER MORGAN BALTIMORE TRANSLOAD TERMINAL LLC
KINDER MORGAN BATTLEGROUND OIL LLC
KINDER MORGAN BORDER PIPELINE LLC
KINDER MORGAN BULK TERMINALS, INC.
KINDER MORGAN CARBON DIOXIDE TRANSPORTATION
COMPANY
KINDER MORGAN CO2 COMPANY, L.P.
By Kinder Morgan G.P., Inc., its general partner
KINDER MORGAN COCHIN LLC
KINDER MORGAN COLUMBUS LLC
KINDER MORGAN COMMERCIAL SERVICES LLC
KINDER MORGAN CRUDE & CONDENSATE LLC
KINDER MORGAN CRUDE OIL PIPELINES LLC
KINDER MORGAN CRUDE TO RAIL LLC
KINDER MORGAN CUSHING LLC
KINDER MORGAN DALLAS FORT WORTH RAIL TERMINAL LLC
KINDER MORGAN ENDEAVOR LLC
KINDER MORGAN ENERGY PARTNERS, L.P.
By Kinder Morgan G.P., Inc., its general partner
KINDER MORGAN EP MIDSTREAM LLC
KINDER MORGAN FINANCE COMPANY LLC
KINDER MORGAN FLEETING LLC
KINDER MORGAN FREEDOM PIPELINE LLC
KINDER MORGAN KEYSTONE GAS STORAGE LLC
KINDER MORGAN KMAP LLC
KINDER MORGAN LAS VEGAS LLC
KINDER MORGAN LINDEN TRANSLOAD TERMINAL LLC
KINDER MORGAN LIQUIDS TERMINALS LLC
KINDER MORGAN LIQUIDS TERMINALS ST. GABRIEL LLC
KINDER MORGAN MARINE SERVICES LLC
KINDER MORGAN MATERIALS SERVICES, LLC
KINDER MORGAN MID ATLANTIC MARINE SERVICES LLC
KINDER MORGAN NATGAS O&M LLC
KINDER MORGAN NORTH TEXAS PIPELINE LLC
KINDER MORGAN OPERATING L.P. “A”
By Kinder Morgan G.P., Inc., its general partner
KINDER MORGAN OPERATING L.P. “B”
By Kinder Morgan G.P., Inc., its general partner
KINDER MORGAN OPERATING L.P. “C”
By Kinder Morgan G.P., Inc., its general partner
KINDER MORGAN OPERATING L.P. “D”
By Kinder Morgan G.P., Inc., its general partner
KINDER MORGAN PECOS LLC
KINDER MORGAN PECOS VALLEY LLC
KINDER MORGAN PETCOKE GP LLC
[Signature Page to Cross Guarantee]

Exhibit 10.14


KINDER MORGAN PETCOKE, L.P.
By Kinder Morgan Petcoke GP LLC, its general partner
KINDER MORGAN PETCOKE LP LLC
KINDER MORGAN PETROLEUM TANKERS LLC
KINDER MORGAN PIPELINE LLC
KINDER MORGAN PIPELINES (USA) INC.
KINDER MORGAN PORT MANATEE TERMINAL LLC
KINDER MORGAN PORT SUTTON TERMINAL LLC
KINDER MORGAN PORT TERMINALS USA LLC
KINDER MORGAN PRODUCTION COMPANY LLC
KINDER MORGAN RAIL SERVICES LLC
KINDER MORGAN RESOURCES II LLC
KINDER MORGAN RESOURCES III LLC
KINDER MORGAN RESOURCES LLC
KINDER MORGAN RIVER TERMINALS LLC
KINDER MORGAN SERVICES LLC
KINDER MORGAN SEVEN OAKS LLC
KINDER MORGAN SOUTHEAST TERMINALS LLC
KINDER MORGAN TANK STORAGE TERMINALS LLC
KINDER MORGAN TEJAS PIPELINE LLC
KINDER MORGAN TERMINALS, INC.
KINDER MORGAN TEXAS PIPELINE LLC
KINDER MORGAN TEXAS TERMINALS, L.P.
By General Stevedores GP, LLC, its general partner
KINDER MORGAN TRANSMIX COMPANY, LLC
KINDER MORGAN TREATING LP
By KM Treating GP LLC, its general partner
KINDER MORGAN URBAN RENEWAL, L.L.C.
KINDER MORGAN UTICA LLC
KINDER MORGAN VIRGINIA LIQUIDS TERMINALS LLC
KINDER MORGAN WINK PIPELINE LLC
KINDERHAWK FIELD SERVICES LLC
KM CRANE LLC
KM DECATUR, INC.
KM EAGLE GATHERING LLC
KM GATHERING LLC
KM KASKASKIA DOCK LLC
KM LIQUIDS TERMINALS LLC
KM NORTH CAHOKIA LAND LLC
KM NORTH CAHOKIA SPECIAL PROJECT LLC
KM NORTH CAHOKIA TERMINAL PROJECT LLC
KM SHIP CHANNEL SERVICES LLC
KM TREATING GP LLC
KM TREATING PRODUCTION LLC
KMBT LLC
KMGP CONTRACTING SERVICES LLC
KMGP SERVICES COMPANY, INC.
KN TELECOMMUNICATIONS, INC.
KNIGHT POWER COMPANY LLC
LOMITA RAIL TERMINAL LLC
MILWAUKEE BULK TERMINALS LLC
MJR OPERATING LLC
MOJAVE PIPELINE COMPANY, L.L.C.
MOJAVE PIPELINE OPERATING COMPANY, L.L.C.
MR. BENNETT LLC
[Signature Page to Cross Guarantee]

Exhibit 10.14


MR. VANCE LLC
NASSAU TERMINALS LLC
NGPL HOLDCO INC.
NS 307 HOLDINGS INC.
PADDY RYAN CRANE, LLC
PALMETTO PRODUCTS PIPE LINE LLC
PI 2 PELICAN STATE LLC
PINNEY DOCK & TRANSPORT LLC
QUEEN CITY TERMINALS LLC
RAHWAY RIVER LAND LLC
RAZORBACK TUG LLC
RCI HOLDINGS, INC.
RIVER TERMINALS PROPERTIES GP LLC
RIVER TERMINAL PROPERTIES, L.P.
By River Terminals Properties GP LLC, its general partner
SCISSORTAIL ENERGY, LLC
SNG PIPELINE SERVICES COMPANY, L.L.C.
SOUTHERN GULF LNG COMPANY, L.L.C.
SOUTHERN LIQUEFACTION COMPANY LLC
SOUTHERN LNG COMPANY, L.L.C.
SOUTHERN NATURAL GAS COMPANY, L.L.C.
SOUTHERN NATURAL ISSUING CORPORATION
SOUTHTEX TREATERS LLC
SOUTHWEST FLORIDA PIPELINE LLC
SRT VESSELS LLC
STEVEDORE HOLDINGS, L.P.
By Kinder Morgan Petcoke GP LLC, its general partner
TAJON HOLDINGS, INC.
TEJAS GAS, LLC
TEJAS NATURAL GAS, LLC
TENNESSEE GAS PIPELINE COMPANY, L.L.C.
TENNESSEE GAS PIPELINE ISSUING CORPORATION
TEXAN TUG LLC
TGP PIPELINE SERVICES COMPANY, L.L.C.
TRANS MOUNTAIN PIPELINE (PUGET SOUND) LLC
TRANSCOLORADO GAS TRANSMISSION COMPANY LLC
TRANSLOAD SERVICES, LLC
UTICA MARCELLUS TEXAS PIPELINE LLC
WESTERN PLANT SERVICES, INC.
WYOMING INTERSTATE COMPANY, L.L.C.


By:     /s/ Anthony B. Ashley                
Anthony Ashley
Vice President

[Signature Page to Cross Guarantee]

Exhibit 10.14


ANNEX A TO
THE CROSS GUARANTEE AGREEMENT
SUPPLEMENT NO. [ ] dated as of [                    ] to the CROSS GUARANTEE AGREEMENT dated as of [                    ] (the “Agreement”), among each of the Guarantors listed on the signature pages thereto and each of the other entities that becomes a party thereto pursuant to Section 19 of the Agreement (each such entity individually, a “Guarantor” and, collectively, the “Guarantors”). Unless otherwise defined herein, terms defined in the Agreement and used herein shall have the meanings given to them in the Agreement.
A.    The Guarantors consist of Kinder Morgan, Inc., a Delaware corporation (“KMI”), and certain of its direct and indirect Subsidiaries, and the Guarantors have entered into the Agreement in order to provide guarantees of certain of the Guarantors’ senior, unsecured Indebtedness outstanding from time to time.
B.    Section 19 of the Agreement provides that additional Subsidiaries may become Guarantors under the Agreement by execution and delivery of an instrument in the form of this Supplement. Each undersigned Subsidiary (each a “New Guarantor”) is executing this Supplement at the request of KMI or in accordance with the requirements of the Agreement to become a Guarantor under the Agreement.
Accordingly, each New Guarantor agrees as follows:
SECTION 1.    In accordance with Section 19 of the Agreement, each New Guarantor by its signature below becomes a Guarantor under the Agreement with the same force and effect as if originally named therein as a Guarantor and each New Guarantor hereby (a) agrees to all the terms and provisions of the Agreement applicable to it as a Guarantor thereunder and (b) represents and warrants that the representations and warranties made by it as a Guarantor thereunder are true and correct on and as of the date hereof. Each reference to a Guarantor in the Agreement shall be deemed to include each New Guarantor. The Agreement is hereby incorporated herein by reference.
SECTION 2.     Each New Guarantor represents and warrants to the Guaranteed Parties that this Supplement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms.
SECTION 3.    This Supplement may be executed by one or more of the parties to this Supplement on any number of separate counterparts (including by facsimile or other electronic transmission), and all of said counterparts taken together shall be deemed to constitute one and the same instrument. A set of the copies of this Supplement signed by all the parties shall be lodged with KMI. This Supplement shall become effective as to each New Guarantor when KMI shall have received a counterpart of this Supplement that bears the signature of such New Guarantor.
SECTION 4.    Except as expressly supplemented hereby, the Agreement shall remain in full force and effect.
SECTION 5.    THIS SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 6.    Any provision of this Supplement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or




Exhibit 10.14


unenforceability without invalidating the remaining provisions hereof and in the Agreement, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 7.    All notices, requests and demands pursuant hereto shall be made in accordance with Section 12 of the Agreement. All communications and notices hereunder to each New Guarantor shall be given to it in care of KMI at the address set forth in Section 12 of the Agreement.
[Signature Pages Follow]





Exhibit 10.14


IN WITNESS WHEREOF, each New Guarantor has duly executed this Supplement to the Agreement as of the day and year first above written.
_________________________________
as Guarantor
By:______________________________
Name:
Title:



Exhibit 10.14


ANNEX B TO
THE CROSS GUARANTEE AGREEMENT

FORM OF NOTATION OF GUARANTEE

Subject to the limitations set forth in the Cross Guarantee Agreement, dated as of [•] (the “Guarantee Agreement”), the undersigned Guarantors hereby certify that this [Indebtedness] constitutes a Guaranteed Obligation, entitled to all the rights as such set forth in the Guarantee Agreement. The Guarantors may be released from their guarantees upon the terms and subject to the conditions provided in the Guarantee Agreement. Capitalized terms used but not defined in this notation of guarantee have the meanings assigned such terms in the Guarantee Agreement, a copy of which will be provided to [a holder of this instrument] upon request to [Issuer].
Schedule I of the Guarantee Agreement is hereby deemed to be automatically updated to include this [Indebtedness] thereon as a Guaranteed Obligation.

[GUARANTORS],
as Guarantor
By: ______________________________
Name:
Title:





Exhibit 10.14


SCHEDULE I

Guaranteed Obligations
Current as of: December 31, 2022
IssuerIndebtednessMaturity
Kinder Morgan, Inc.3.150% bondsJanuary 15, 2023
Kinder Morgan, Inc.Floating rate bondsJanuary 15, 2023
Kinder Morgan, Inc.5.625% notesNovember 15, 2023
Kinder Morgan, Inc.4.30% notesJune 1, 2025
Kinder Morgan, Inc.1.75% notesNovember 15, 2026
Kinder Morgan, Inc.6.70% bonds (Coastal)February 15, 2027
Kinder Morgan, Inc.2.250% notesMarch 16, 2027
Kinder Morgan, Inc.6.67% debenturesNovember 1, 2027
Kinder Morgan, Inc.7.25% debenturesMarch 1, 2028
Kinder Morgan, Inc.4.30% notesMarch 1, 2028
Kinder Morgan, Inc.6.95% bonds (Coastal)June 1, 2028
Kinder Morgan, Inc.8.05% bondsOctober 15, 2030
Kinder Morgan, Inc.2.00% notesFebruary 15, 2031
Kinder Morgan, Inc.7.80% bondsAugust 1, 2031
Kinder Morgan, Inc.7.75% bondsJanuary 15, 2032
Kinder Morgan, Inc.4.80% bondsFebruary 1, 2033
Kinder Morgan, Inc.5.30% notesDecember 1, 2034
Kinder Morgan, Inc.7.75% bonds (Coastal)October 15, 2035
Kinder Morgan, Inc.6.40% notesJanuary 5, 2036
Kinder Morgan, Inc.7.42% bonds (Coastal)February 15, 2037
Kinder Morgan, Inc.5.55% notesJune 1, 2045
Kinder Morgan, Inc.5.050% notesFebruary 15, 2046
Kinder Morgan, Inc.5.20% notesMarch 1, 2048
Kinder Morgan, Inc.3.25% notesAugust 1, 2050
Kinder Morgan, Inc.3.60% notesFebruary 15, 2051
Kinder Morgan, Inc.5.45% notesAugust 1, 2052
Kinder Morgan, Inc.7.45% debenturesMarch 1, 2098
Kinder Morgan, Inc.$100 Million Letter of Credit FacilityNovember 30, 2023
Kinder Morgan Energy Partners, L.P.3.45% bondsFebruary 15, 2023
Kinder Morgan Energy Partners, L.P.3.50% bondsSeptember 1, 2023
Kinder Morgan Energy Partners, L.P.4.15% bondsFebruary 1, 2024
Kinder Morgan Energy Partners, L.P.4.25% bondsSeptember 1, 2024
Kinder Morgan Energy Partners, L.P.7.40% bondsMarch 15, 2031
Kinder Morgan Energy Partners, L.P.7.75% bondsMarch 15, 2032
Kinder Morgan Energy Partners, L.P.7.30% bondsAugust 15, 2033
Kinder Morgan Energy Partners, L.P.5.80% bondsMarch 15, 2035
Kinder Morgan Energy Partners, L.P.6.50% bondsFebruary 1, 2037
Kinder Morgan Energy Partners, L.P.6.95% bondsJanuary 15, 2038
Kinder Morgan Energy Partners, L.P.6.50% bondsSeptember 1, 2039


Exhibit 10.14


Schedule I
(Guaranteed Obligations)
Current as of: December 31, 2022
IssuerIndebtednessMaturity
Kinder Morgan Energy Partners, L.P.6.55% bondsSeptember 15, 2040
Kinder Morgan Energy Partners, L.P.6.375% bondsMarch 1, 2041
Kinder Morgan Energy Partners, L.P.5.625% bondsSeptember 1, 2041
Kinder Morgan Energy Partners, L.P.5.00% bondsAugust 15, 2042
Kinder Morgan Energy Partners, L.P.5.00% bondsMarch 1, 2043
Kinder Morgan Energy Partners, L.P.5.50% bondsMarch 1, 2044
Kinder Morgan Energy Partners, L.P.5.40% bondsSeptember 1, 2044
Kinder Morgan Energy Partners, L.P.(1)
4.30% bondsMay 1, 2024
Kinder Morgan Energy Partners, L.P.(1)
7.50% bondsNovember 15, 2040
Kinder Morgan Energy Partners, L.P.(1)
4.70% bondsNovember 1, 2042
Tennessee Gas Pipeline Company, L.L.C.7.00% bondsMarch 15, 2027
Tennessee Gas Pipeline Company, L.L.C.7.00% bondsOctober 15, 2028
Tennessee Gas Pipeline Company, L.L.C.2.90% bondsMarch 1, 2030
Tennessee Gas Pipeline Company, L.L.C.8.375% bondsJune 15, 2032
Tennessee Gas Pipeline Company, L.L.C.7.625% bondsApril 1, 2037
El Paso Natural Gas Company, L.L.C.7.50% bondsNovember 15, 2026
El Paso Natural Gas Company, L.L.C.3.50% bondsFebruary 15, 2032
El Paso Natural Gas Company, L.L.C.8.375% bondsJune 15, 2032
Colorado Interstate Gas Company, L.L.C.4.15% notesAugust 15, 2026
Colorado Interstate Gas Company, L.L.C.6.85% bondsJune 15, 2037
El Paso Tennessee Pipeline Co. L.L.C.7.25% bondsDecember 15, 2025
OtherCora industrial revenue bondsApril 1, 2024
_________________________________________________
(1) The original issuer, El Paso Pipeline Partners, L.P. merged with and into Kinder Morgan Energy
     Partners, L.P. effective January 1, 2015.
2

Exhibit 10.14


Schedule I
(Guaranteed Obligations)
Current as of: December 31, 2022
Hedging Agreements1
IssuerGuaranteed PartyDate
Kinder Morgan, Inc.Bank of America, N.A.January 4, 2018
Kinder Morgan, Inc.BNP ParibasSeptember 15, 2016
Kinder Morgan, Inc.Citibank, N.A.March 16, 2017
Kinder Morgan, Inc.J. Aron & CompanyDecember 23, 2011
Kinder Morgan, Inc.SunTrust BankAugust 29, 2001
Kinder Morgan, Inc.Barclays Bank PLCNovember 26, 2014
Kinder Morgan, Inc.Bank of MontrealApril 25, 2019
Kinder Morgan, Inc.Bank of Tokyo-Mitsubishi, Ltd., New York BranchNovember 26, 2014
Kinder Morgan, Inc.Canadian Imperial Bank of CommerceNovember 26, 2014
Kinder Morgan, Inc.Commerzbank AGAugust 22, 2019
Kinder Morgan, Inc.Compass Bank March 24, 2015
Kinder Morgan, Inc.Credit Agricole Corporate and Investment
Bank
November 26, 2014
Kinder Morgan, Inc.Credit Suisse InternationalNovember 26, 2014
Kinder Morgan, Inc.Deutsche Bank AGNovember 26, 2014
Kinder Morgan, Inc.ING Capital Markets LLCNovember 26, 2014
Kinder Morgan, Inc.Intesa Sanpaolo S.p.A.July 1, 2019
Kinder Morgan, Inc.JPMorgan Chase Bank, N.A.February 19, 2015
Kinder Morgan, Inc.Mizuho Capital Markets CorporationNovember 26, 2014
Kinder Morgan, Inc.Morgan Stanley Capital Services LLCJuly 9, 2018
Kinder Morgan, Inc.PNC Bank National AssociationFebruary 4, 2019
Kinder Morgan, Inc.Royal Bank of CanadaNovember 26, 2014
Kinder Morgan, Inc.SMBC Capital Markets, Inc.April 26, 2017
Kinder Morgan, Inc.The Bank of Nova ScotiaNovember 26, 2014
Kinder Morgan, Inc.The Royal Bank of Scotland PLCNovember 26, 2014
Kinder Morgan, Inc.Societe GeneraleNovember 26, 2014
Kinder Morgan, Inc.The Toronto-Dominion BankOctober 2, 2017
Kinder Morgan, Inc.UBS AGNovember 26, 2014
Kinder Morgan, Inc.Wells Fargo Bank, N.A.November 26, 2014
Kinder Morgan Energy Partners, L.P.Bank of America, N.A.April 14, 1999
Kinder Morgan Energy Partners, L.P.Bank of Tokyo-Mitsubishi, Ltd., New York BranchNovember 23, 2004
Kinder Morgan Energy Partners, L.P.Barclays Bank PLCNovember 18, 2003
Kinder Morgan Energy Partners, L.P.Canadian Imperial Bank of CommerceAugust 4, 2011
Kinder Morgan Energy Partners, L.P.Citibank, N.A.March 14, 2002
Kinder Morgan Energy Partners, L.P.Credit Agricole Corporate and Investment BankJune 20, 2014
Kinder Morgan Energy Partners, L.P.Credit Suisse InternationalMay 14, 2010
_________________________________________________
1 Guaranteed Obligations with respect to Hedging Agreements include International Swaps and
Derivatives Association Master Agreements (“ISDAs”) and all transactions entered into pursuant to any ISDA listed on this Schedule I.
3

Exhibit 10.14


Schedule I
(Guaranteed Obligations)
Current as of: December 31, 2022
Hedging Agreements1
IssuerGuaranteed PartyDate
Kinder Morgan Energy Partners, L.P.ING Capital Markets LLCSeptember 21, 2011
Kinder Morgan Energy Partners, L.P.J. Aron & CompanyNovember 11, 2004
Kinder Morgan Energy Partners, L.P.JPMorgan Chase BankAugust 29, 2001
Kinder Morgan Energy Partners, L.P.Merrill Lynch Capital Services, Inc.March 8, 2005
Kinder Morgan Energy Partners, L.P.Mizuho Capital Markets CorporationJuly 11, 2014
Kinder Morgan Energy Partners, L.P.Morgan Stanley Capital Services Inc.March 10, 2010
Kinder Morgan Energy Partners, L.P.Royal Bank of CanadaMarch 12, 2009
Kinder Morgan Energy Partners, L.P.The Royal Bank of Scotland PLCMarch 20, 2009
Kinder Morgan Energy Partners, L.P.The Bank of Nova ScotiaAugust 14, 2003
Kinder Morgan Energy Partners, L.P.Societe GeneraleJuly 18, 2014
Kinder Morgan Energy Partners, L.P.SunTrust BankMarch 14, 2002
Kinder Morgan Energy Partners, L.P.UBS AGFebruary 23, 2011
Kinder Morgan Energy Partners, L.P.Wells Fargo Bank, N.A.July 31, 2007
Kinder Morgan Texas Pipeline LLCBank of MontrealApril 25, 2019
Kinder Morgan Texas Pipeline LLCCanadian Imperial Bank of CommerceDecember 18, 2006
Kinder Morgan Texas Pipeline LLCCitibank, N.A.February 22, 2005
Kinder Morgan Texas Pipeline LLCDeutsche Bank AGJune 13, 2007
Kinder Morgan Texas Pipeline LLCING Capital Markets LLCApril 17, 2014
Kinder Morgan Texas Pipeline LLCIntesa Sanpaolo S.p.aOctober 29, 2020
Kinder Morgan Production LLCJ. Aron & CompanyJune 12, 2006
Kinder Morgan Texas Pipeline LLCJ. Aron & CompanyJune 8, 2000
Kinder Morgan Texas Pipeline LLCJPMorgan Chase Bank, N.A.September 7, 2006
Kinder Morgan Texas Pipeline LLCMacquarie Bank LimitedSeptember 20, 2010
Kinder Morgan Texas Pipeline LLCMerrill Lynch Commodities, Inc.October 24, 2001
Kinder Morgan Texas Pipeline LLCPhillips 66 CompanyMarch 30, 2015
Kinder Morgan Texas Pipeline LLCPNC Bank, National AssociationJuly 11, 2018
Kinder Morgan Texas Pipeline LLCRoyal Bank of CanadaOctober 18, 2018
Kinder Morgan Texas Pipeline LLCThe Bank of Nova ScotiaMay 8, 2014
Kinder Morgan Texas Pipeline LLC
The Toronto Dominion Bank
September 14, 2021
Kinder Morgan Texas Pipeline LLCWells Fargo Bank, N.A.June 1, 2013
Copano Risk Management, LLCCitibank, N.A.July 21, 2008
Copano Risk Management, LLCJ. Aron & CompanyDecember 12, 2005
Copano Risk Management, LLCMorgan Stanley Capital Group Inc.May 4, 2007
_________________________________________________
1 Guaranteed Obligations with respect to Hedging Agreements include International Swaps and
Derivatives Association Master Agreements (“ISDAs”) and all transactions entered into pursuant to any ISDA listed on this Schedule I.
4

Exhibit 10.14


SCHEDULE II

Guarantors
Current as of: December 31, 2022

American Petroleum Tankers II LLCCopano Terminals LLC
American Petroleum Tankers III LLCCopano/Webb-Duval Pipeline LLC
American Petroleum Tankers IV LLCCPNO Services LLC
American Petroleum Tankers LLCDakota Bulk Terminal LLC
American Petroleum Tankers Parent LLCDelta Terminal Services LLC
American Petroleum Tankers V LLCEagle Ford Gathering LLC
American Petroleum Tankers VI LLCEl Paso Cheyenne Holdings, L.L.C.
American Petroleum Tankers VII LLCEl Paso Citrus Holdings, Inc.
American Petroleum Tankers VIII LLCEl Paso CNG Company, L.L.C.
American Petroleum Tankers IX LLCEl Paso Energy Service Company, L.L.C.
American Petroleum Tankers X LLCEl Paso LLC
American Petroleum Tankers XI LLCEl Paso Midstream Group LLC
APT Florida LLCEl Paso Natural Gas Company, L.L.C.
APT Intermediate Holdco LLCEl Paso Noric Investments III, L.L.C.
APT New Intermediate Holdco LLCEl Paso Ruby Holding Company, L.L.C.
APT Pennsylvania LLCEl Paso Tennessee Pipeline Co., L.L.C.
APT Sunshine State LLCElba Express Company, L.L.C.
Arlington Storage Company, LLC
Elizabeth River Terminals LLC
Betty Lou LLCEmory B Crane, LLC
Camino Real Gas Gathering Company LLCEP Ruby LLC
Camino Real Gathering Company, L.L.C.EPBGP Contracting Services LLC
Cantera Gas Company LLCEPTP Issuing Corporation
CDE Pipeline LLCFrank L. Crane, LLC
Central Florida Pipeline LLCGeneral Stevedores GP, LLC
Cheyenne Plains Gas Pipeline Company, L.L.C.General Stevedores Holdings LLC
CIG Gas Storage Company LLCHarrah Midstream LLC
CIG Pipeline Services Company, L.L.C.HBM Environmental LLC
Colorado Interstate Gas Company, L.L.C.Hiland Crude, LLC
Colorado Interstate Issuing CorporationHiland Partners Holdings LLC
Copano Double Eagle LLCHPH Oklahoma Gathering LLC
Copano Energy Finance CorporationICPT, L.L.C.
Copano Energy Services/Upper Gulf Coast LLCIndependent Trading & Transportation
Copano Energy, L.L.C.Company I, L.L.C.
Copano Field Services GP, L.L.C.JV Tanker Charterer LLC
Copano Field Services/North Texas, L.L.C.Kinder Morgan 2-Mile LLC
Copano Field Services/South Texas LLCKinder Morgan Administrative Services Tampa LLC
Copano Field Services/Upper Gulf Coast LLCKinder Morgan Altamont LLC
Copano Liberty, LLCKinder Morgan Arlington RNG LLC
Copano NGL Services (Markham), L.L.C.Kinder Morgan Baltimore Transload Terminal LLC
Copano NGL Services LLCKinder Morgan Battleground Oil LLC
Copano Pipelines Group, L.L.C.Kinder Morgan Border Pipeline LLC
Copano Pipelines/North Texas, L.L.C.Kinder Morgan Bulk Terminals LLC
Copano Pipelines/Rocky Mountains, LLCKinder Morgan Carbon Dioxide Transportation
Copano Pipelines/South Texas LLCCompany
Copano Pipelines/Upper Gulf Coast LLCKinder Morgan CCS Holdco LLC
Copano Processing LLCKinder Morgan CO2 Company LLC
Copano Risk Management LLCKinder Morgan Commercial Services LLC


Exhibit 10.14


Schedule II
(Guarantors)
Current as of: December 31, 2022
Kinder Morgan Contracting Services LLCKinder Morgan Portland Intermediate Holdings II LLC
Kinder Morgan Crude & Condensate LLCKinder Morgan Portland Jet Line LLC
Kinder Morgan Crude Marketing LLCKinder Morgan Portland Liquids Terminals LLC
Kinder Morgan Crude Oil Pipelines LLCKinder Morgan Portland Operating LLC
Kinder Morgan Crude to Rail LLCKinder Morgan Production Company LLC
Kinder Morgan Cushing LLCKinder Morgan Products Terminals LLC
Kinder Morgan Dallas Fort Worth Rail Terminal LLCKinder Morgan Rail Services LLC
Kinder Morgan Deeprock North Holdco LLCKinder Morgan Ranger LLC
Kinder Morgan Endeavor LLCKinder Morgan Resources II LLC
Kinder Morgan Energy Partners, L.P.Kinder Morgan Resources III LLC
Kinder Morgan Energy Transition Ventures HoldcoKinder Morgan RNG Holdco LLC
LLCKinder Morgan Scurry Connector LLC
Kinder Morgan EP Midstream LLCKinder Morgan Seven Oaks LLC
Kinder Morgan Finance Company LLCKinder Morgan Shreveport RNG LLC
Kinder Morgan Freedom Pipeline LLCKinder Morgan SNG Operator LLC
Kinder Morgan Galena Park West LLCKinder Morgan Southeast Terminals LLC
Kinder Morgan GP LLCKinder Morgan Tank Storage Terminals LLC
Kinder Morgan IMT Holdco LLCKinder Morgan Tejas Pipeline LLC
Kinder Morgan, Inc.Kinder Morgan Terminals LLC
Kinder Morgan Keystone Gas Storage LLCKinder Morgan Terminals Wilmington LLC
Kinder Morgan KMAP LLCKinder Morgan Texas Pipeline LLC
Kinder Morgan Las Vegas LLCKinder Morgan Texas Terminals, L.P.
Kinder Morgan Linden Transload Terminal LLCKinder Morgan Transmix Company, LLC
Kinder Morgan Liquids Terminals LLCKinder Morgan Treating LP
Kinder Morgan Liquids Terminals St. Gabriel LLCKinder Morgan Utica LLC
Kinder Morgan Louisiana Pipeline Holding LLCKinder Morgan Vehicle Services LLC
Kinder Morgan Louisiana Pipeline LLCKinder Morgan Victoria RNG LLC
Kinder Morgan Marine Services LLCKinder Morgan Virginia Liquids Terminals LLC
Kinder Morgan Materials Services, LLCKinder Morgan Wink Pipeline LLC
Kinder Morgan Mid Atlantic Marine Services LLCKinderHawk Field Services LLC
Kinder Morgan NatGas O&M LLC
Kinetrex Energy Transportation, LLC
Kinder Morgan NGPL Holdings LLC
Kinetrex Holdco, Inc.
Kinder Morgan North Texas Pipeline LLCKM Crane LLC
Kinder Morgan Operating LLC “A”KM Decatur LLC
Kinder Morgan Operating LLC “B”KM Eagle Gathering LLC
Kinder Morgan Operating LLC “C”KM Gas Marketing LLC
Kinder Morgan Operating LLC “D”KM Gathering LLC
Kinder Morgan Pecos LLCKM Kaskaskia Dock LLC
Kinder Morgan Pecos Valley LLCKM Liquids Marketing LLC
Kinder Morgan Petcoke GP LLCKM Liquids Terminals LLC
Kinder Morgan Petcoke LP LLCKM North Cahokia Land LLC
Kinder Morgan Petcoke, L.P.KM North Cahokia Special Project LLC
Kinder Morgan Petroleum Tankers LLCKM North Cahokia Terminal Project LLC
Kinder Morgan Pipeline LLCKM Ship Channel Services LLC
Kinder Morgan Port Manatee Terminal LLCKM Treating GP LLC
Kinder Morgan Port Sutton Terminal LLCKM Treating Production LLC
Kinder Morgan Port Terminals USA LLCKM Utopia Operator LLC
Kinder Morgan Portland Bulk LLCKMBT Legacy Holdings LLC
Kinder Morgan Portland Holdings LLCKMBT LLC
Kinder Morgan Portland Intermediate Holdings I LLCKMGP Services Company, Inc.
2

Exhibit 10.14


Schedule II
(Guarantors)
Current as of: December 31, 2022
KN Telecommunications, Inc.Wyoming Interstate Company, L.L.C.
Knight Power Company LLC
Liberty High BTU LLC
LNG Indy, LLC
Lomita Rail Terminal LLC
Milwaukee Bulk Terminals LLC
MJR Operating LLC
Mojave Pipeline Company, L.L.C.
Mojave Pipeline Operating Company, L.L.C.
North American Bio-Fuels, L.L.C.
North American-Central, LLC
North American Natural Resources, LLC
North American Natural Resources-SBL, LLC
Paddy Ryan Crane, LLC
Palmetto Products Pipe Line LLC
PI 2 Pelican State LLC
Pinney Dock & Transport LLC
Prairie View High BTU LLC
Queen City Terminals LLC
Rahway River Land LLC
River Terminals Properties GP LLC
River Terminal Properties, L.P.
RNG Indy LLC
ScissorTail Energy, LLC
SNG Pipeline Services Company, L.L.C.
Southern Dome, LLC
Southern Gulf LNG Company, L.L.C.
Southern Liquefaction Company LLC
Southern LNG Company, L.L.C.
Southern Oklahoma Gathering LLC
SouthTex Treaters LLC
Southwest Florida Pipeline LLC
SRT Vessels LLC
Stagecoach Energy Solutions LLC
Stagecoach Gas Services LLC
Stagecoach Operating Services LLC
Stagecoach Pipeline & Storage Company LLC
Stevedore Holdings, L.P.
Tejas Gas, LLC
Tejas Natural Gas, LLC
Tennessee Gas Pipeline Company, L.L.C.
Tennessee Gas Pipeline Issuing Corporation
Texan Tug LLC
TGP Pipeline Services Company, L.L.C.
TransColorado Gas Transmission Company LLC
Transload Services, LLC
Twin Bridges High BTU LLC
Twin Tier Pipeline LLC
Utica Marcellus Texas Pipeline LLC
Western Plant Services LLC
3

Exhibit 10.14


SCHEDULE III

Excluded Subsidiaries
ANR Real Estate Corporation
Coastal Eagle Point Oil Company
Coastal Oil New England, Inc.
Coscol Petroleum Corporation
El Paso CGP Company, L.L.C.
El Paso Energy Capital Trust I
El Paso Energy E.S.T. Company
El Paso Energy International Company
El Paso Merchant Energy North America Company, L.L.C.
El Paso Merchant Energy-Petroleum Company
El Paso Reata Energy Company, L.L.C.
El Paso Remediation Company
El Paso Services Holding Company
EPEC Corporation
EPEC Oil Company Liquidating Trust
EPEC Polymers, Inc.
EPED Holding Company
K N Capital Trust I
K N Capital Trust III
Mesquite Investors, L.L.C.
Note: The Excluded Subsidiaries listed on this Schedule III may also be Excluded Subsidiaries pursuant to other exceptions set forth in the definition of “Excluded Subsidiary”.

Exhibit 21.1


Kinder Morgan, Inc.
Subsidiaries of the Registrant as of December 31, 2022
Entity Name (a)
Place of Incorporation
American Petroleum Tankers II LLCDelaware
American Petroleum Tankers III LLCDelaware
American Petroleum Tankers IV LLCDelaware
American Petroleum Tankers IX LLCDelaware
American Petroleum Tankers LLCDelaware
American Petroleum Tankers Parent LLCDelaware
American Petroleum Tankers V LLCDelaware
American Petroleum Tankers VI LLCDelaware
American Petroleum Tankers VII LLCDelaware
American Petroleum Tankers VIII LLCDelaware
American Petroleum Tankers X LLCDelaware
American Petroleum Tankers XI LLCDelaware
ANR Real Estate CorporationDelaware
APT Florida LLCDelaware
APT Intermediate Holdco LLCDelaware
APT New Intermediate Holdco LLCDelaware
APT Pennsylvania LLCDelaware
APT Sunshine State LLCDelaware
Arlington Storage Company, LLCDelaware
Banquete Hub LLC (50%)Delaware
Battleground Oil Specialty Terminal Company LLC (55%)Delaware
Betty Lou LLCDelaware
Calnev Pipe Line LLCDelaware
Camino Real Gas Gathering Company LLCDelaware
Camino Real Gathering Company, L.L.C.Delaware
Cantera Gas Company LLCDelaware
CDE Pipeline LLCDelaware
Cedar Cove Midstream LLC (70%)Delaware
Central Florida Pipeline LLCDelaware
Cheyenne Plains Gas Pipeline Company, L.L.C.Delaware
CIG Gas Storage Company LLCDelaware
CIG Pipeline Services Company, L.L.C.Delaware
Coastal Eagle Point Oil CompanyDelaware
Coastal Oil New England, Inc.Massachusetts
Colorado Interstate Gas Company, L.L.C.Delaware
Colorado Interstate Issuing CorporationDelaware
Copano Double Eagle LLCDelaware
Copano Energy Finance CorporationDelaware
Copano Energy, L.L.C.Delaware
Copano Energy Services/Upper Gulf Coast LLCTexas


Exhibit 21.1

Entity Name (a)
Place of Incorporation
Copano Field Services GP, L.L.C. Delaware
Copano Field Services/North Texas, L.L.C.Delaware
Copano Field Services/South Texas LLCTexas
Copano Field Services/Upper Gulf Coast LLCTexas
Copano Liberty, LLCDelaware
Copano NGL Services (Markham), L.L.C.Delaware
Copano NGL Services LLCTexas
Copano Pipelines Group, L.L.C.Delaware
Copano Pipelines/North Texas, L.L.C.Delaware
Copano Pipelines/Rocky Mountains, LLCDelaware
Copano Pipelines/South Texas LLCTexas
Copano Pipelines/Upper Gulf Coast LLCTexas
Copano Processing LLC Texas
Copano Risk Management LLCTexas
Copano Terminals LLCDelaware
Copano/Webb-Duval Pipeline LLCDelaware
Coscol Petroleum CorporationDelaware
CPNO Services LLC Texas
Dakota Bulk Terminal LLCDelaware
Delta Terminal Services LLC Delaware
Eagle Ford Gathering LLCDelaware
El Paso Amazonas Energia Ltda.Brazil
El Paso CGP Company, L.L.C.Delaware
El Paso Cheyenne Holdings, L.L.C.Delaware
El Paso Citrus Holdings, Inc.Delaware
El Paso CNG Company, L.L.C.Delaware
El Paso Energia do Brasil Ltda.Brazil
El Paso Energy Argentina Service CompanyDelaware
El Paso Energy Capital Trust IDelaware
El Paso Energy E.S.T. CompanyDelaware
El Paso Energy International CompanyDelaware
El Paso Energy Marketing de Mexico, S. de R.L. de C.V.Mexico
El Paso Energy Service Company, L.L.C.Delaware
El Paso LLCDelaware
El Paso Merchant Energy North America Company, L.L.C.Delaware
El Paso Merchant Energy-Petroleum CompanyDelaware
El Paso Mexico Holding B.V.Netherlands
El Paso Midstream Group LLCDelaware
El Paso Natural Gas Company, L.L.C.Delaware
El Paso Noric Investments III, L.L.C.Delaware
El Paso Reata Energy Company, L.L.C.Delaware
El Paso Remediation CompanyDelaware
El Paso Rio Negro Energia Ltda.Brazil


Exhibit 21.1

Entity Name (a)
Place of Incorporation
El Paso Ruby Holding Company, L.L.C.Delaware
El Paso Services Holding CompanyDelaware
El Paso Tennessee Pipeline Co., L.L.C.Delaware
Elba Express Company, L.L.C.Delaware
Elba Liquefaction Company, L.L.C. (25.5 %)Delaware
Elizabeth River Terminals LLCDelaware
Emory B Crane, LLCLouisiana
EP Ruby LLCDelaware
EPBGP Contracting Services LLCDelaware
EPC Building LLCDelaware
EPC Property Holdings, Inc.Delaware
EPEC CorporationDelaware
EPEC Oil Company Liquidating TrustDelaware Law
EPEC Polymers, Inc.Delaware
EPEC Realty, Inc.Delaware
EPED B CompanyCayman Islands
EPED Holding CompanyDelaware
EPTP Issuing CorporationDelaware
Frank L. Crane, LLCLouisiana
General Stevedores GP, LLCTexas
General Stevedores Holdings LLCDelaware
Harrah Midstream LLCDelaware
HBM Environmental LLCDelaware
Hiland Crude, LLCOklahoma
Hiland Partners Holdings LLCDelaware
HPH Oklahoma Gathering LLCDelaware
I.M.T. Land Corp.Louisiana
ICPT, L.L.C. Louisiana
Independent Trading & Transportation Company I, L.L.C.Oklahoma
International Marine Terminals PartnershipLouisiana
JV Tanker Charterer LLCDelaware
K N Capital Trust IDelaware
K N Capital Trust IIDelaware
K N Capital Trust IIIDelaware
Kinder Morgan 2-Mile LLCDelaware
Kinder Morgan Administrative Services Tampa LLCDelaware
Kinder Morgan Altamont LLCDelaware
Kinder Morgan Arlington RNG LLCTexas
Kinder Morgan Baltimore Transload Terminal LLCDelaware
Kinder Morgan Battleground Oil LLCDelaware
Kinder Morgan Border Pipeline LLC Delaware
Kinder Morgan Bulk Terminals LLCLouisiana
Kinder Morgan Carbon Dioxide Transportation CompanyDelaware


Exhibit 21.1

Entity Name (a)
Place of Incorporation
Kinder Morgan CCS Holdco LLCDelaware
Kinder Morgan CO2 Company LLC
Texas
Kinder Morgan Commercial Services LLCDelaware
Kinder Morgan Contracting Services LLCDelaware
Kinder Morgan Crude & Condensate LLCDelaware
Kinder Morgan Crude Marketing LLCDelaware
Kinder Morgan Crude Oil Pipelines LLCDelaware
Kinder Morgan Crude to Rail LLCDelaware
Kinder Morgan Cushing LLCDelaware
Kinder Morgan Dallas Fort Worth Rail Terminal LLCDelaware
Kinder Morgan Deeprock North Holdco LLC Delaware
Kinder Morgan Endeavor LLCDelaware
Kinder Morgan Energy Partners, L.P. Delaware
Kinder Morgan Energy Transition Ventures Holdco LLCDelaware
Kinder Morgan EP Midstream LLCDelaware
Kinder Morgan Finance Company LLCDelaware
Kinder Morgan FoundationColorado
Kinder Morgan Freedom Pipeline LLCDelaware
Kinder Morgan Galena Park West LLCDelaware
Kinder Morgan Gas Natural de Mexico, S. de R.L. de C.V.Mexico
Kinder Morgan GP LLCDelaware
Kinder Morgan IMT Holdco LLCDelaware
Kinder Morgan Keystone Gas Storage LLCDelaware
Kinder Morgan KMAP LLCDelaware
Kinder Morgan Las Vegas LLCDelaware
Kinder Morgan Linden Transload Terminal LLCDelaware
Kinder Morgan Liquids Terminals LLCDelaware
Kinder Morgan Liquids Terminals St. Gabriel LLCDelaware
Kinder Morgan Louisiana Pipeline Holding LLCDelaware
Kinder Morgan Louisiana Pipeline LLCDelaware
Kinder Morgan Marine Services LLCDelaware
Kinder Morgan Materials Services, LLCDelaware
Kinder Morgan Mexico LLCDelaware
Kinder Morgan Mid Atlantic Marine Services LLCDelaware
Kinder Morgan NatGas O&M LLCDelaware
Kinder Morgan NGPL Holdings LLCDelaware
Kinder Morgan North Texas Pipeline LLC Delaware
Kinder Morgan Operating LLC “A”Delaware
Kinder Morgan Operating LLC “B”Delaware
Kinder Morgan Operating LLC “C”Delaware
Kinder Morgan Operating LLC “D”Delaware
Kinder Morgan Pecos LLCDelaware
Kinder Morgan Pecos Valley LLCDelaware


Exhibit 21.1

Entity Name (a)
Place of Incorporation
Kinder Morgan Petcoke GP LLCDelaware
Kinder Morgan Petcoke LP LLCDelaware
Kinder Morgan Petcoke, L.P.Delaware
Kinder Morgan Petroleum Tankers LLCDelaware
Kinder Morgan Pipeline LLCDelaware
Kinder Morgan Port Manatee Terminal LLCDelaware
Kinder Morgan Port Sutton Terminal LLCDelaware
Kinder Morgan Port Terminals USA LLCDelaware
Kinder Morgan Portland Bulk LLCDelaware
Kinder Morgan Portland Holdings LLCDelaware
Kinder Morgan Portland Intermediate Holdings I LLCDelaware
Kinder Morgan Portland Intermediate Holdings II LLCDelaware
Kinder Morgan Portland Jet Line LLCDelaware
Kinder Morgan Portland Liquids Terminals LLCDelaware
Kinder Morgan Portland Operating LLCDelaware
Kinder Morgan Production Company LLCDelaware
Kinder Morgan Products Terminals LLCDelaware
Kinder Morgan Rail Services LLCDelaware
Kinder Morgan Ranger LLCDelaware
Kinder Morgan Resources II LLCDelaware
Kinder Morgan Resources III LLCDelaware
Kinder Morgan RNG Holdco LLCDelaware
Kinder Morgan Scurry Connector LLCDelaware
Kinder Morgan Services International LLCDelaware
Kinder Morgan Seven Oaks LLCDelaware
Kinder Morgan Shreveport RNG LLCTexas
Kinder Morgan SNG Operator LLCDelaware
Kinder Morgan Southeast Terminals LLC Delaware
Kinder Morgan Tank Storage Terminals LLCDelaware
Kinder Morgan Tejas Pipeline GP LLCDelaware
Kinder Morgan Tejas Pipeline LLCDelaware
Kinder Morgan Terminals Wilmington LLCDelaware
Kinder Morgan Terminals LLCDelaware
Kinder Morgan Texas Pipeline LLC Delaware
Kinder Morgan Texas Terminals, L.P.Delaware
Kinder Morgan Transmix Company, LLCDelaware
Kinder Morgan Treating LPDelaware
Kinder Morgan Urban Renewal II, LLCNew Jersey
Kinder Morgan Urban Renewal, L.L.C.New Jersey
Kinder Morgan Utica LLCDelaware
Kinder Morgan Vehicle Services LLCDelaware
Kinder Morgan Victoria RNG LLCTexas
Kinder Morgan Virginia Liquids Terminals LLCDelaware


Exhibit 21.1

Entity Name (a)
Place of Incorporation
Kinder Morgan Wink Pipeline LLCDelaware
KinderHawk Field Services LLCDelaware
Kinetrex Energy Real Estate Company, LLCIndiana
Kinetrex Energy Transportation, LLC
Indiana
Kinetrex Holdco, Inc.
Delaware
KM Canada Terminals ULCAlberta (Canada)
KM Crane LLCMaryland
KM Decatur LLCDelaware
KM Eagle Gathering LLCDelaware
KM Express LLCDelaware
KM Gas Marketing LLCDelaware
KM Gathering LLCDelaware
KM Insurance Texas Inc.Texas
KM Kaskaskia Dock LLCDelaware
KM Liquids Marketing LLCDelaware
KM Liquids Terminals LLCDelaware
KM North Cahokia Land LLCDelaware
KM North Cahokia Special Project LLCDelaware
KM North Cahokia Terminal Project LLCDelaware
KM Phoenix Holdings LLC (75%)Delaware
KM Ship Channel Services LLCDelaware
KM Treating GP LLCDelaware
KM Treating Production LLCDelaware
KM Utopia Operator LimitedAlberta (Canada)
KM Utopia Operator LLCDelaware
KMBT Legacy Holdings LLCTennessee
KMBT LLCDelaware
KMGP Services Company, Inc.Delaware
KN Telecommunications, Inc.Colorado
Knight Power Company LLCDelaware
Liberty High BTU LLCDelaware
LNG Indy, LLCIndiana
Lomita Rail Terminal LLCDelaware
Mesquite Investors, L.L.C.Delaware
Milwaukee Bulk Terminals LLCWisconsin
MJR Operating LLCMaryland
Mojave Pipeline Company, L.L.C.Delaware
Mojave Pipeline Operating Company, L.L.C.Texas
North American Bio-Fuels, L.L.C.Michigan
North American-Central, LLCMichigan
North American Natural Resources, LLCDelaware
North American Natural Resources-SBL, LLCMichigan
Paddy Ryan Crane, LLCLouisiana


Exhibit 21.1

Entity Name (a)
Place of Incorporation
Palmetto Products Pipe Line LLCDelaware
PI 2 Pelican State LLCDelaware
Pinney Dock & Transport LLC Delaware
Prairie View High BTU LLCDelaware
Queen City Terminals LLCDelaware
Rahway River Land LLCDelaware
River Terminals Properties GP LLCDelaware
River Terminal Properties, L.P.Tennessee
RNG Indy LLCDelaware
ScissorTail Energy, LLCDelaware
SFPP, L.P. (99.5%)Delaware
SNG Pipeline Services Company, L.L.C.Delaware
Southern Dome, LLC Delaware
Southern Gulf LNG Company, L.L.C.Delaware
Southern Liquefaction Company LLCDelaware
Southern LNG Company, L.L.C.Delaware
Southern Oklahoma Gathering LLCDelaware
SouthTex Treaters LLCDelaware
Southwest Florida Pipeline LLCDelaware
SRT Vessels LLCDelaware
Stagecoach Energy Solutions LLC
Delaware
Stagecoach Gas Services LLC
Delaware
Stagecoach Operating Services LLC
Delaware
Stagecoach Pipeline & Storage Company LLCNew York
Stevedore Holdings, L.P.Delaware
Tejas Gas, LLCDelaware
Tejas Natural Gas, LLCDelaware
Tennessee Gas Pipeline Company, L.L.C.Delaware
Tennessee Gas Pipeline Issuing CorporationDelaware
Texan Tug LLCDelaware
TGP Pipeline Services Company, L.L.C.Delaware
The Pecos Carbon Dioxide Pipeline Company (95.28%)Texas
TransColorado Gas Transmission Company LLCDelaware
Transload Services, LLCIllinois
Twin Bridges High BTU LLC
Delaware
Twin Tier Pipeline LLCDelaware
Utica Marcellus Texas Pipeline LLCDelaware
Webb/Duval Gatherers (91%)Texas
Western Plant Services LLCDelaware
Wyoming Interstate Company, L.L.C.Delaware
(a) Where included, percentages in parentheses represent Kinder Morgan, Inc.’s ownership of less-than-wholly owned subsidiaries.


Exhibit 22.1

List of Guarantor Subsidiaries
The Cross Guarantee Agreement furnished as Exhibit 10.14 to this Annual Report on Form 10-K sets forth, as of December 31, 2022, the registrant’s guarantor subsidiaries on Schedule II thereto and the guaranteed securities on Schedule I thereto.


Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in the Registration Statements on Form S-3 (No. 333-240108) and Form S-8 (Nos. 333-172170, 333-172582, 333-172584, 333-181782, 333-205430, 333-258353 and 333-260806) of Kinder Morgan, Inc. of our report dated February 8, 2023 relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in this Form 10-K.

/s/ PricewaterhouseCoopers LLP

Houston, Texas
February 8, 2023



Exhibit 31.1

KINDER MORGAN, INC. AND SUBSIDIARIES
CERTIFICATION PURSUANT TO RULE 13A-14(A) OR 15D-14(A)
OF THE SECURITIES EXCHANGE ACT OF 1934,
AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, Steven J. Kean, certify that:
1.I have reviewed this annual report on Form 10-K of Kinder Morgan, Inc.;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a)all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date:February 8, 2023/s/ Steven J. Kean
Steven J. Kean
Chief Executive Officer



Exhibit 31.2

KINDER MORGAN, INC. AND SUBSIDIARIES
CERTIFICATION PURSUANT TO RULE 13A-14(A) OR 15D-14(A)
OF THE SECURITIES EXCHANGE ACT OF 1934,
AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, David P. Michels, certify that:
1.I have reviewed this annual report on Form 10-K of Kinder Morgan, Inc.;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a)designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a)all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date:February 8, 2023 /s/ David P. Michels
David P. Michels
 Vice President and Chief Financial Officer


Exhibit 32.1


KINDER MORGAN, INC. AND SUBSIDIARIES
CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002



In connection with the Annual Report on Form 10-K of Kinder Morgan, Inc. (the “Company”) for the yearly period ended December 31, 2022, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned, in the capacity and on the date indicated below, hereby certifies pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:

(1)The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2)The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date:February 8, 2023 /s/ Steven J. Kean
Steven J. Kean
  Chief Executive Officer


Exhibit 32.2


KINDER MORGAN, INC. AND SUBSIDIARIES
CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002



In connection with the Annual Report on Form 10-K of Kinder Morgan, Inc. (the “Company”) for the yearly period ended December 31, 2022, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned, in the capacity and on the date indicated below, hereby certifies pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:

(1)The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2)The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date:February 8, 2023 /s/ David P. Michels
David P. Michels
  Vice President and Chief Financial Officer