Form 10-Q KINDER MORGAN, INC. For: Mar 31
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E-mailExhibit 4.1
KINDER MORGAN, INC.
OFFICERS’ CERTIFICATE
PURSUANT TO SECTION 301 OF INDENTURE
Each of the undersigned, Anthony Ashley and David Michels, the Vice President, Investor Relations and Treasurer and the Vice President and Chief Financial Officer, respectively, of Kinder Morgan, Inc., a Delaware corporation (the “Corporation”), does hereby establish the terms of a series of senior debt Securities of the Corporation under the Indenture relating to senior debt Securities, dated as of March 1, 2012 (the “Indenture”), between the Corporation and U.S. Bank National Association, as trustee (the “Trustee”), pursuant to resolutions adopted by the Board of Directors of the Corporation, or a committee thereof, on January 20, 2021 and February 8, 2021, and in accordance with Section 301 of the Indenture, as follows:
1. The title of the Securities shall be “3.600% Senior Notes due 2051” (the “Notes”);
2. The aggregate principal amount of the Notes that initially may be authenticated and delivered under the Indenture shall be limited to a maximum of $750,000,000 except for Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes pursuant to the terms of the Indenture, and except that any additional principal amount of Notes may be issued in the future without the consent of Holders of the Notes so long as such additional principal amount of Notes are authenticated as required by the Indenture;
3. The Notes shall be issued on February 11, 2021; the principal of the Notes shall be payable on February 15, 2051; and the Notes will not be entitled to the benefit of a sinking fund;
4. The Notes shall bear interest at the rate of 3.600% per annum, which interest shall accrue from February 11, 2021, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, which dates shall be February 15 and August 15 of each year; and such interest on the Notes shall be payable semiannually in arrears on February 15 and August 15 of each year, commencing August 15, 2021, to holders of record at the close of business on the February 1 or August 1, respectively, preceding each such Interest Payment Date;
5. The principal of, and premium, if any, and interest on, the Notes shall be payable at the office or agency of the Corporation maintained for that purpose in the Borough of Manhattan, New York, New York; provided, however, that at the option of the Corporation, payment of interest may be made from such office in the Borough of Manhattan, New York, New York by check mailed to the address of the person entitled thereto as such address shall appear in the Security Register. If at any time there shall be no such office or agency in the Borough of Manhattan, New York, New York, where the Notes may be presented or surrendered for payment, the Corporation shall forthwith designate and maintain such an office or agency in the Borough of Manhattan,
New York, New York, in order that the Notes shall at all times be payable in the Borough of Manhattan, New York, New York. The Corporation hereby initially designates the Corporate Trust Office of the Trustee in the Borough of Manhattan, New York, New York, as one such office or agency;
6. U.S. Bank National Association is appointed as the Trustee for the Notes, and U.S. Bank National Association, and any other banking institution hereafter selected by the officers of the Corporation, are appointed agents of the Corporation (a) where the Notes may be presented for registration of transfer or exchange, (b) where notices and demands to or upon the Corporation in respect of the Notes or the Indenture may be made or served and (c) where the Notes may be presented for payment of principal and interest;
7. At any time prior to August 15, 2050 (the “Early Call Date”), the Notes will be redeemable, at the Corporation’s option, at any time in whole or from time to time in part, at a redemption price, as determined by the Corporation, equal to (a) the greater of: (1) 100% of the principal amount of the Notes to be redeemed; or (2) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes being redeemed that would be due if such Notes matured on the Early Call Date but for the redemption (exclusive of any portion of the payments of interest accrued to the date of redemption), discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Yield (as defined below) plus 25 basis points, plus (b) accrued and unpaid interest thereon to, but not including, the redemption date.
At any time on or after the Early Call Date, the Notes will be redeemable in whole or in part, at the Corporation’s option, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed plus accrued and unpaid interest thereon, but not including, the redemption date.
“Treasury Yield” means, with respect to any redemption date, the rate per year equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for the redemption date.
“Comparable Treasury Issue” means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Notes (assuming for this purpose, that the Notes mature on the Early Call Date).
“Comparable Treasury Price” means, with respect to any redemption date, (1) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (2) if the Independent Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
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“Independent Investment Banker” means one of the Reference Treasury Dealers that the Corporation appoints to act as the Independent Investment Banker from time to time.
“Reference Treasury Dealer” means each of (1) Barclays Capital Inc. and TD Securities (USA) LLC and their respective successors, unless it ceases to be a primary U.S. Government securities dealer in New York City (a “Primary Treasury Dealer”), in which case the Corporation will substitute another Primary Treasury Dealer, (2) a Primary Treasury Dealer selected by each of CIBC World Markets Corp. and SMBC Nikko Securities America, Inc. and their respective successors and (3) any other Primary Treasury Dealer the Corporation selects.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the applicable Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third business day preceding such redemption date.
Notice of redemption will be mailed or electronically delivered at least 30 but not more than 60 days before the redemption date to each holder of record of the Notes to be redeemed at its registered address. The notice of redemption for the Notes will state, among other things, the amount of the Notes to be redeemed, the redemption date, the manner in which the redemption price will be calculated and the place or places that payment will be made upon presentation and surrender of the Notes to be redeemed. Unless the Corporation defaults in the payment of the redemption price, interest will cease to accrue on any of the Notes that have been called for redemption on the redemption date. If less than all of the Notes are to be redeemed, the Notes to be redeemed shall be selected according to the procedures of The Depository Trust Company, in the case of Notes represented by a global note, or by lot, in the case of Notes that are not represented by a global note.
8. Payment of principal of, and interest on, the Notes shall be without deduction for taxes, assessments or governmental charges paid by Holders of the Notes;
9. The Notes shall be issuable only in registered form without coupons in minimum denominations of U.S. $2,000 and integral multiples of U.S. $1,000 in excess thereof.
10. The Notes are approved in the form attached hereto as Exhibit A and shall be issued upon original issuance in whole in the form of one or more book-entry Global Securities, and the Depositary shall be The Depository Trust Company;
11. The Notes shall be entitled to the benefits of the Indenture, including the covenants and agreements of the Corporation set forth therein, except to the extent expressly otherwise provided herein or in the Notes; and
12. The Trustee shall have the right to accept and act upon any notice, instruction, or other communication, including any funds transfer instruction (each, a “Notice”) received pursuant to the Indenture by electronic transmission (including by e-mail, facsimile transmission, web portal or other electronic methods) and shall not have any duty to confirm
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that the person sending such Notice is, in fact, a person authorized to do so. Electronic signatures believed by the Trustee to comply with the ESIGN Act of 2000 or other applicable law (including electronic images of handwritten signatures and digital signatures provided by DocuSign, Orbit, Adobe Sign or any other digital signature provider identified by the Corporation and acceptable to the Trustee) shall be deemed original signatures for all purposes. The Corporation assumes all risks arising out of the use of electronic signatures and electronic methods to send Notices to the Trustee, including without limitation the risk of the Trustee acting on an unauthorized Notice and the risk of interception or misuse by third parties. Notwithstanding the foregoing, the Trustee may in any instance and in its sole discretion require that a Notice in the form of an original document bearing a manual signature be delivered to the Trustee in lieu of, or in addition to, any such electronic Notice.
Any initially capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Indenture.
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IN WITNESS WHEREOF, each of the undersigned has hereunto signed his name this 11th day of February, 2021.
/s/ Anthony Ashley
Anthony Ashley
Vice President, Investor Relations and Treasurer
/s/ David Michels
David Michels
Vice President and Chief Financial Officer
[Signature Page to Officers’ Certificate Establishing Terms of the Notes]
EXHIBIT A
[FORM OF GLOBAL NOTE]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE CORPORATION OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
KINDER MORGAN, INC.
| NO. [___] | 3.600% NOTE DUE 2051 | U.S.$ [__________] | ||||||
| CUSIP No. 49456B AT8 | ||||||||
KINDER MORGAN, INC., a Delaware corporation (herein called the “Corporation,” which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of [__________] United States Dollars (U.S.$ [__________]) on February 15, 2051, and to pay interest thereon from February 11, 2021, or from the most recent Interest Payment Date to which interest has been paid, semi-annually in arrears on February 15 and August 15 in each year, commencing August 15, 2021 at the rate of 3.600% per annum, until the principal hereof is paid. The amount of interest payable for any period shall be computed on the basis of twelve 30-day months and a 360-day year. The amount of interest payable for any partial period shall be computed on the basis of a 360-day year of twelve 30-day months and the days elapsed in any partial month. In the event that any date on which interest is payable on this Security is not a Business Day, then a payment of the interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of any such delay) with the same force and effect as if made on the date the payment was originally
payable. A “Business Day” shall mean, when used with respect to any Place of Payment, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment are authorized or obligated by law, executive order or regulation to close. The interest so payable, and punctually paid, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the February 1 or August 1 (regardless of whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid shall forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice of which shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange or automated quotation system on which the Securities of this series may be listed or traded, and upon such notice as may be required by such exchange or automated quotation system, all as more fully provided in such Indenture.
The principal of (and premium, if any) and interest on, this Security shall be payable at the office or agency of the Corporation maintained for that purpose in the Borough of Manhattan, New York, New York; provided, however, that at the option of the Corporation, payment of interest may be made from such office in the Borough of Manhattan, New York, New York by check mailed to the address of the person entitled thereto as such address shall appear in the Security Register. If at any time there shall be no such office or agency in the Borough of Manhattan, New York, New York where this Security may be presented or surrendered for payment, the Corporation shall forthwith designate and maintain such an office or agency in the Borough of Manhattan, New York, New York, in order that this Security shall at all times be payable in the Borough of Manhattan, New York, New York. The Corporation hereby initially designates the Corporate Trust Office of the Trustee in the Borough of Manhattan, New York, New York, as one such office or agency.
Payment of the principal of (and premium, if any) and any such interest on this Security will be made by transfer of immediately available funds to a bank account designated by the Holder in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
EXHIBIT A-2
IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly executed.
| Dated: February 11, 2021 | |||||
KINDER MORGAN, INC.,
By:
Anthony Ashley
Vice President, Investor Relations and
Treasurer
This is one of the Securities designated therein referred to in the within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
As Trustee
By:
Authorized Signatory
EXHIBIT A-3
This Security is one of a duly authorized issue of securities of the Corporation (the “Securities”), issued and to be issued in one or more series under an Indenture dated as of March 1, 2012 relating to senior debt Securities (the “Indenture”), between the Corporation and U.S. Bank National Association, as trustee (the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture, all indentures supplemental thereto and the Officers’ Certificate pursuant to Section 301 of the Indenture, dated February 11, 2021, relating to the Securities reference is hereby made for a statement of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Corporation, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. As provided in the Indenture, the Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest, if any, at different rates, may be subject to different redemption provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided or permitted. This Security is one of the series designated on the face hereof, originally issued in book-entry only form in the aggregate principal amount of $750,000,000. This series of Securities may be reopened for issuances of additional Securities without the consent of Holders.
At any time prior to August 15, 2050 (the “Early Call Date”), the Securities will be redeemable, at the Corporation’s option, at any time in whole or from time to time in part, at a redemption price, as determined by the Corporation, equal to (a) the greater of: (1) 100% of the principal amount of the Securities to be redeemed; or (2) the sum of the present values of the remaining scheduled payments of principal and interest on the Securities being redeemed that would be due if such Securities matured on the Early Call Date but for the redemption (exclusive of any portion of the payments of interest accrued to the date of redemption), discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Yield (as defined below) plus 25 basis points, plus (b) accrued and unpaid interest thereon to, but not including, the redemption date.
At any time on or after the Early Call Date, the Securities will be redeemable in whole or in part, at the Corporation’s option, at a redemption price equal to 100% of the principal amount of the Securities to be redeemed plus accrued and unpaid interest thereon to, but not including, the redemption date.
“Treasury Yield” means, with respect to any redemption date, the rate per year equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for the redemption date.
“Comparable Treasury Issue” means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the Securities to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Securities (assuming for this purpose, that the Securities mature on the Early Call Date).
EXHIBIT A-4
“Comparable Treasury Price” means, with respect to any redemption date, (1) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (2) if the Independent Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Independent Investment Banker” means one of the Reference Treasury Dealers that the Corporation appoints to act as the Independent Investment Banker from time to time.
"Reference Treasury Dealer" means each of (1) Barclays Capital Inc. and TD Securities (USA) LLC and their respective successors, unless it ceases to be a primary U.S. Government securities dealer in New York City (a "Primary Treasury Dealer"), in which case the Corporation will substitute another Primary Treasury Dealer, (2) a Primary Treasury Dealer selected by each of CIBC World Markets Corp. and SMBC Nikko Securities America, Inc. and their respective successors and (3) any other Primary Treasury Dealer the Corporation selects.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the applicable Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third business day preceding such redemption date.
Notice of redemption will be mailed or electronically delivered at least 30 but not more than 60 days before the redemption date to each holder of record of the Securities to be redeemed at its registered address. The notice of redemption for the Securities will state, among other things, the amount of the Securities to be redeemed, the redemption date, the manner in which the redemption price will be calculated and the place or places that payment will be made upon presentation and surrender of the Securities to be redeemed. Unless the Corporation defaults in the payment of the redemption price, interest will cease to accrue on any of the Securities that have been called for redemption on the redemption date. If less than all of the Securities are to be redeemed, the Securities to be redeemed shall be selected according to the procedures of The Depository Trust Company, in the case of Securities represented by a global note, or by lot, in the case of Securities that are not represented by a global note.
In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.
If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of, and any premium and accrued but unpaid interest on, the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Corporation and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Corporation and the Trustee with the consent of not less than the Holders of a majority in aggregate principal
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amount of the Outstanding Securities of all series to be affected (voting as one class). The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of the Outstanding Securities of all affected series (voting as one class), on behalf of the Holders of all Securities of such series, to waive compliance by the Corporation with certain provisions of the Indenture. The Indenture permits, with certain exceptions as therein provided, the Holders of a majority in principal amount of Securities of any series then Outstanding to waive past defaults under the Indenture with respect to such series and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 90 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall, without the consent of the Holder, alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place(s) and rate, and in the coin or currency, herein prescribed.
This Security shall be entitled to the benefits of the Indenture, including the covenants and agreements of the Corporation set forth therein, except to the extent expressly otherwise set forth herein.
This Global Security or portion hereof may not be exchanged for Definitive Securities of this series except in the limited circumstances provided in the Indenture.
The Holders of beneficial interests in this Global Security will not be entitled to receive physical delivery of Definitive Securities except as described in the Indenture and will not be considered the Holders thereof for any purpose under the Indenture.
The Securities of this series are issuable only in registered form without coupons in minimum denominations of U.S. $2,000 and integral multiples of U.S. $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
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No service charge shall be made for any such registration of transfer or exchange, but the Corporation may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Corporation, the Trustee and any agent of the Corporation or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security is overdue, and neither the Corporation, the Trustee nor any such agent shall be affected by notice to the contrary.
Obligations of the Corporation under the Indenture and the Securities thereunder, including this Security, are non-recourse to the Corporation’s Affiliates, and payable only out of cash flow and assets of the Corporation. The Trustee, and each Holder of a Security by its acceptance hereof, will be deemed to have agreed in the Indenture that (1) none of the Corporation’s Affiliates, nor their respective assets, shall be liable for any of the obligations of the Corporation under the Indenture or such Securities, including this Security, and (2) no director, officer, employee, agent or shareholder, as such, of the Corporation, the Trustee or any of their respective Affiliates shall have any personal liability in respect of the obligations of the Corporation under the Indenture or such Securities by reason of his, her or its status.
The Indenture contains provisions that relieve the Corporation from the obligation to comply with certain restrictive covenants in the Indenture and for satisfaction and discharge at any time of the entire indebtedness upon compliance by the Corporation with certain conditions set forth in the Indenture.
This Security shall be governed by and construed in accordance with the laws of the State of New York.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
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Exhibit 10.1
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 10.1
“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).
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Exhibit 10.1
“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.
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Exhibit 10.1
“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
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Exhibit 10.1
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 10.1
(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
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Exhibit 10.1
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
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Exhibit 10.1
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
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Exhibit 10.1
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;
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Exhibit 10.1
(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
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Exhibit 10.1
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
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Exhibit 10.1
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.
12
Exhibit 10.1
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 10.1
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 10.1
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 10.1
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 10.1
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 10.1
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 10.1
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 10.1
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 10.1
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 10.1
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 10.1
SCHEDULE I
Guaranteed Obligations
Current as of: March 31, 2021
| Issuer | Indebtedness | Maturity | ||||||||||||
| Kinder Morgan, Inc. | 1.500% notes | March 16, 2022 | ||||||||||||
| Kinder Morgan, Inc. | 3.150% bonds | January 15, 2023 | ||||||||||||
| Kinder Morgan, Inc. | Floating rate bonds | January 15, 2023 | ||||||||||||
| Kinder Morgan, Inc. | 5.625% notes | November 15, 2023 | ||||||||||||
| Kinder Morgan, Inc. | 4.30% notes | June 1, 2025 | ||||||||||||
| Kinder Morgan, Inc. | 6.70% bonds (Coastal) | February 15, 2027 | ||||||||||||
| Kinder Morgan, Inc. | 2.250% notes | March 16, 2027 | ||||||||||||
| Kinder Morgan, Inc. | 6.67% debentures | November 1, 2027 | ||||||||||||
| Kinder Morgan, Inc. | 7.25% debentures | March 1, 2028 | ||||||||||||
| Kinder Morgan, Inc. | 4.30% notes | March 1, 2028 | ||||||||||||
| Kinder Morgan, Inc. | 6.95% bonds (Coastal) | June 1, 2028 | ||||||||||||
| Kinder Morgan, Inc. | 8.05% bonds | October 15, 2030 | ||||||||||||
| Kinder Morgan, Inc. | 2.00% notes | February 15, 2031 | ||||||||||||
| Kinder Morgan, Inc. | 7.80% bonds | August 1, 2031 | ||||||||||||
| Kinder Morgan, Inc. | 7.75% bonds | January 15, 2032 | ||||||||||||
| Kinder Morgan, Inc. | 5.30% notes | December 1, 2034 | ||||||||||||
| Kinder Morgan, Inc. | 7.75% bonds (Coastal) | October 15, 2035 | ||||||||||||
| Kinder Morgan, Inc. | 6.40% notes | January 5, 2036 | ||||||||||||
| Kinder Morgan, Inc. | 7.42% bonds (Coastal) | February 15, 2037 | ||||||||||||
| Kinder Morgan, Inc. | 5.55% notes | June 1, 2045 | ||||||||||||
| Kinder Morgan, Inc. | 5.050% notes | February 15, 2046 | ||||||||||||
| Kinder Morgan, Inc. | 5.20% notes | March 1, 2048 | ||||||||||||
| Kinder Morgan, Inc. | 3.25% notes | August 1, 2050 | ||||||||||||
| Kinder Morgan, Inc. | 3.60% notes | February 15, 2051 | ||||||||||||
| Kinder Morgan, Inc. | 7.45% debentures | March 1, 2098 | ||||||||||||
| Kinder Morgan, Inc. | $100 Million Letter of Credit Facility | November 30, 2021 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | 4.15% bonds | March 1, 2022 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | 3.95% bonds | September 1, 2022 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | 3.45% bonds | February 15, 2023 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | 3.50% bonds | September 1, 2023 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | 4.15% bonds | February 1, 2024 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | 4.25% bonds | September 1, 2024 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | 7.40% bonds | March 15, 2031 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | 7.75% bonds | March 15, 2032 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | 7.30% bonds | August 15, 2033 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | 5.80% bonds | March 15, 2035 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | 6.50% bonds | February 1, 2037 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | 6.95% bonds | January 15, 2038 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | 6.50% bonds | September 1, 2039 | ||||||||||||
Exhibit 10.1
| Schedule I | ||||||||||||||
| (Guaranteed Obligations) | ||||||||||||||
| Current as of: March 31, 2021 | ||||||||||||||
| Issuer | Indebtedness | Maturity | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | 6.55% bonds | September 15, 2040 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | 6.375% bonds | March 1, 2041 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | 5.625% bonds | September 1, 2041 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | 5.00% bonds | August 15, 2042 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | 5.00% bonds | March 1, 2043 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | 5.50% bonds | March 1, 2044 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | 5.40% bonds | September 1, 2044 | ||||||||||||
Kinder Morgan Energy Partners, L.P.(1) | 5.00% bonds | October 1, 2021 | ||||||||||||
Kinder Morgan Energy Partners, L.P.(1) | 4.30% bonds | May 1, 2024 | ||||||||||||
Kinder Morgan Energy Partners, L.P.(1) | 7.50% bonds | November 15, 2040 | ||||||||||||
Kinder Morgan Energy Partners, L.P.(1) | 4.70% bonds | November 1, 2042 | ||||||||||||
| Tennessee Gas Pipeline Company, L.L.C. | 7.00% bonds | March 15, 2027 | ||||||||||||
| Tennessee Gas Pipeline Company, L.L.C. | 7.00% bonds | October 15, 2028 | ||||||||||||
| Tennessee Gas Pipeline Company, L.L.C. | 2.90% bonds | March 1, 2030 | ||||||||||||
| Tennessee Gas Pipeline Company, L.L.C. | 8.375% bonds | June 15, 2032 | ||||||||||||
| Tennessee Gas Pipeline Company, L.L.C. | 7.625% bonds | April 1, 2037 | ||||||||||||
| El Paso Natural Gas Company, L.L.C. | 8.625% bonds | January 15, 2022 | ||||||||||||
| El Paso Natural Gas Company, L.L.C. | 7.50% bonds | November 15, 2026 | ||||||||||||
| El Paso Natural Gas Company, L.L.C. | 8.375% bonds | June 15, 2032 | ||||||||||||
| Colorado Interstate Gas Company, L.L.C. | 4.15% notes | August 15, 2026 | ||||||||||||
| Colorado Interstate Gas Company, L.L.C. | 6.85% bonds | June 15, 2037 | ||||||||||||
| El Paso Tennessee Pipeline Co. L.L.C. | 7.25% bonds | December 15, 2025 | ||||||||||||
| Other | Cora industrial revenue bonds | April 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 10.1
| Schedule I | ||||||||||||||
| (Guaranteed Obligations) | ||||||||||||||
| Current as of: March 31, 2021 | ||||||||||||||
Hedging Agreements1 | ||||||||||||||
| Issuer | Guaranteed Party | Date | ||||||||||||
| Kinder Morgan, Inc. | Bank of America, N.A. | January 4, 2018 | ||||||||||||
| Kinder Morgan, Inc. | BNP Paribas | September 15, 2016 | ||||||||||||
| Kinder Morgan, Inc. | Citibank, N.A. | March 16, 2017 | ||||||||||||
| Kinder Morgan, Inc. | J. Aron & Company | December 23, 2011 | ||||||||||||
| Kinder Morgan, Inc. | SunTrust Bank | August 29, 2001 | ||||||||||||
| Kinder Morgan, Inc. | Barclays Bank PLC | November 26, 2014 | ||||||||||||
| Kinder Morgan, Inc. | Bank of Montreal | April 25, 2019 | ||||||||||||
| Kinder Morgan, Inc. | Bank of Tokyo-Mitsubishi, Ltd., New York Branch | November 26, 2014 | ||||||||||||
| Kinder Morgan, Inc. | Canadian Imperial Bank of Commerce | November 26, 2014 | ||||||||||||
| Kinder Morgan, Inc. | Commerzbank AG | August 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 International | November 26, 2014 | ||||||||||||
| Kinder Morgan, Inc. | Deutsche Bank AG | November 26, 2014 | ||||||||||||
| Kinder Morgan, Inc. | ING Capital Markets LLC | November 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 Corporation | November 26, 2014 | ||||||||||||
| Kinder Morgan, Inc. | Morgan Stanley Capital Services LLC | July 9, 2018 | ||||||||||||
| Kinder Morgan, Inc. | PNC Bank National Association | February 4, 2019 | ||||||||||||
| Kinder Morgan, Inc. | Royal Bank of Canada | November 26, 2014 | ||||||||||||
| Kinder Morgan, Inc. | SMBC Capital Markets, Inc. | April 26, 2017 | ||||||||||||
| Kinder Morgan, Inc. | The Bank of Nova Scotia | November 26, 2014 | ||||||||||||
| Kinder Morgan, Inc. | The Royal Bank of Scotland PLC | November 26, 2014 | ||||||||||||
| Kinder Morgan, Inc. | Societe Generale | November 26, 2014 | ||||||||||||
| Kinder Morgan, Inc. | The Toronto-Dominion Bank | October 2, 2017 | ||||||||||||
| Kinder Morgan, Inc. | UBS AG | November 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 Branch | November 23, 2004 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | Barclays Bank PLC | November 18, 2003 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | Canadian Imperial Bank of Commerce | August 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 Bank | June 20, 2014 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | Credit Suisse International | May 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 10.1
| Schedule I | ||||||||||||||
| (Guaranteed Obligations) | ||||||||||||||
| Current as of: March 31, 2021 | ||||||||||||||
Hedging Agreements1 | ||||||||||||||
| Issuer | Guaranteed Party | Date | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | Deutsche Bank AG | April 2, 2009 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | ING Capital Markets LLC | September 21, 2011 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | J. Aron & Company | November 11, 2004 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | JPMorgan Chase Bank | August 29, 2001 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | Mizuho Capital Markets Corporation | July 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 Canada | March 12, 2009 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | The Royal Bank of Scotland PLC | March 20, 2009 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | The Bank of Nova Scotia | August 14, 2003 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | Societe Generale | July 18, 2014 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | SunTrust Bank | March 14, 2002 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | UBS AG | February 23, 2011 | ||||||||||||
| Kinder Morgan Energy Partners, L.P. | Wells Fargo Bank, N.A. | July 31, 2007 | ||||||||||||
| Kinder Morgan Texas Pipeline LLC | Bank of Montreal | April 25, 2019 | ||||||||||||
| Kinder Morgan Texas Pipeline LLC | Barclays Bank PLC | January 10, 2003 | ||||||||||||
| Kinder Morgan Texas Pipeline LLC | BNP Paribas | March 2, 2005 | ||||||||||||
| Kinder Morgan Texas Pipeline LLC | Canadian Imperial Bank of Commerce | December 18, 2006 | ||||||||||||
| Kinder Morgan Texas Pipeline LLC | Citibank, N.A. | February 22, 2005 | ||||||||||||
| Kinder Morgan Texas Pipeline LLC | Credit Suisse International | August 31, 2012 | ||||||||||||
| Kinder Morgan Texas Pipeline LLC | Deutsche Bank AG | June 13, 2007 | ||||||||||||
| Kinder Morgan Texas Pipeline LLC | ING Capital Markets LLC | April 17, 2014 | ||||||||||||
| Kinder Morgan Texas Pipeline LLC | Intesa Sanpaolo S.p.a | October 29, 2020 | ||||||||||||
| Kinder Morgan Production LLC | J. Aron & Company | June 12, 2006 | ||||||||||||
| Kinder Morgan Texas Pipeline LLC | J. Aron & Company | June 8, 2000 | ||||||||||||
| Kinder Morgan Texas Pipeline LLC | JPMorgan Chase Bank, N.A. | September 7, 2006 | ||||||||||||
| Kinder Morgan Texas Pipeline LLC | Macquarie Bank Limited | September 20, 2010 | ||||||||||||
| Kinder Morgan Texas Pipeline LLC | Merrill Lynch Commodities, Inc. | October 24, 2001 | ||||||||||||
| Kinder Morgan Texas Pipeline LLC | Natixis | June 13, 2011 | ||||||||||||
| Kinder Morgan Texas Pipeline LLC | Phillips 66 Company | March 30, 2015 | ||||||||||||
| Kinder Morgan Texas Pipeline LLC | PNC Bank, National Association | July 11, 2018 | ||||||||||||
| Kinder Morgan Texas Pipeline LLC | Royal Bank of Canada | October 18, 2018 | ||||||||||||
| Kinder Morgan Texas Pipeline LLC | The Bank of Nova Scotia | May 8, 2014 | ||||||||||||
| Kinder Morgan Texas Pipeline LLC | Societe Generale | January 14, 2003 | ||||||||||||
| Kinder Morgan Texas Pipeline LLC | Wells Fargo Bank, N.A. | June 1, 2013 | ||||||||||||
| Copano Risk Management, LLC | Citibank, N.A. | July 21, 2008 | ||||||||||||
| Copano Risk Management, LLC | J. Aron & Company | December 12, 2005 | ||||||||||||
| Copano Risk Management, LLC | Morgan 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 10.1
SCHEDULE II Guarantors Current as of: March 31, 2021 | ||||||||
| Agnes B Crane, LLC | Copano Risk Management LLC | |||||||
| American Petroleum Tankers II LLC | Copano Terminals LLC | |||||||
| American Petroleum Tankers III LLC | Copano/Webb-Duval Pipeline LLC | |||||||
| American Petroleum Tankers IV LLC | CPNO Services LLC | |||||||
| American Petroleum Tankers LLC | Dakota Bulk Terminal LLC | |||||||
| American Petroleum Tankers Parent LLC | Delta Terminal Services LLC | |||||||
| American Petroleum Tankers V LLC | Eagle Ford Gathering LLC | |||||||
| American Petroleum Tankers VI LLC | El Paso Cheyenne Holdings, L.L.C. | |||||||
| American Petroleum Tankers VII LLC | El Paso Citrus Holdings, Inc. | |||||||
| American Petroleum Tankers VIII LLC | El Paso CNG Company, L.L.C. | |||||||
| American Petroleum Tankers IX LLC | El Paso Energy Service Company, L.L.C. | |||||||
| American Petroleum Tankers X LLC | El Paso LLC | |||||||
| American Petroleum Tankers XI LLC | El Paso Midstream Group LLC | |||||||
| APT Florida LLC | El Paso Natural Gas Company, L.L.C. | |||||||
| APT Intermediate Holdco LLC | El Paso Noric Investments III, L.L.C. | |||||||
| APT New Intermediate Holdco LLC | El Paso Ruby Holding Company, L.L.C. | |||||||
| APT Pennsylvania LLC | El Paso Tennessee Pipeline Co., L.L.C. | |||||||
| APT Sunshine State LLC | Elba Express Company, L.L.C. | |||||||
| Betty Lou LLC | Elizabeth River Terminals LLC | |||||||
| Camino Real Gas Gathering Company LLC | Emory B Crane, LLC | |||||||
| Camino Real Gathering Company, L.L.C. | EP Ruby LLC | |||||||
| Cantera Gas Company LLC | EPBGP Contracting Services LLC | |||||||
| CDE Pipeline LLC | EPTP Issuing Corporation | |||||||
| Central Florida Pipeline LLC | Frank L. Crane, LLC | |||||||
| Cheyenne Plains Gas Pipeline Company, L.L.C. | General Stevedores GP, LLC | |||||||
| CIG Gas Storage Company LLC | General Stevedores Holdings LLC | |||||||
| CIG Pipeline Services Company, L.L.C. | Harrah Midstream LLC | |||||||
| Colorado Interstate Gas Company, L.L.C. | HBM Environmental LLC | |||||||
| Colorado Interstate Issuing Corporation | Hiland Crude, LLC | |||||||
| Copano Double Eagle LLC | Hiland Partners Holdings LLC | |||||||
| Copano Energy Finance Corporation | HPH Oklahoma Gathering LLC | |||||||
| Copano Energy Services/Upper Gulf Coast LLC | ICPT, L.L.C | |||||||
| Copano Energy, L.L.C. | Independent Trading & Transportation | |||||||
| Copano Field Services GP, L.L.C. | Company I, L.L.C. | |||||||
| Copano Field Services/North Texas, L.L.C. | JV Tanker Charterer LLC | |||||||
| Copano Field Services/South Texas LLC | Kinder Morgan 2-Mile LLC | |||||||
| Copano Field Services/Upper Gulf Coast LLC | Kinder Morgan Administrative Services Tampa LLC | |||||||
| Copano Liberty, LLC | Kinder Morgan Altamont LLC | |||||||
| Copano Liquids Marketing LLC | Kinder Morgan Baltimore Transload Terminal | |||||||
| Copano NGL Services (Markham), L.L.C. | LLC | |||||||
| Copano NGL Services LLC | Kinder 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, LLC | Kinder Morgan Carbon Dioxide Transportation | |||||||
| Copano Pipelines/South Texas LLC | Company | |||||||
| Copano Pipelines/Upper Gulf Coast LLC | Kinder Morgan CO2 Company LLC | |||||||
| Copano Processing LLC | Kinder Morgan Commercial Services LLC | |||||||
Exhibit 10.1
| Schedule II | ||||||||
| (Guarantors) | ||||||||
Current as of: March 31, 2021 | ||||||||
| Kinder Morgan Contracting Services LLC | Kinder Morgan Resources II LLC | |||||||
| Kinder Morgan Crude & Condensate LLC | Kinder Morgan Resources III LLC | |||||||
| Kinder Morgan Crude Marketing LLC | Kinder Morgan Resources LLC | |||||||
| Kinder Morgan Crude Oil Pipelines LLC | Kinder Morgan Scurry Connector LLC | |||||||
| Kinder Morgan Crude to Rail LLC | Kinder Morgan Seven Oaks LLC | |||||||
| Kinder Morgan Cushing LLC | Kinder Morgan SNG Operator LLC | |||||||
| Kinder Morgan Dallas Fort Worth Rail Terminal | Kinder Morgan Southeast Terminals LLC | |||||||
| LLC | Kinder Morgan Tank Storage Terminals LLC | |||||||
| Kinder Morgan Deeprock North Holdco LLC | Kinder Morgan Tejas Pipeline LLC | |||||||
| Kinder Morgan Endeavor LLC | Kinder Morgan Terminals, Inc. | |||||||
| Kinder Morgan Energy Partners, L.P. | Kinder Morgan Terminals Wilmington LLC | |||||||
| Kinder Morgan Energy Transition Ventures LLC | Kinder Morgan Texas Pipeline LLC | |||||||
| Kinder Morgan EP Midstream LLC | Kinder Morgan Texas Terminals, L.P. | |||||||
| Kinder Morgan Finance Company LLC | Kinder Morgan Transmix Company, LLC | |||||||
| Kinder Morgan Freedom Pipeline LLC | Kinder Morgan Treating LP | |||||||
| Kinder Morgan Galena Park West LLC | Kinder Morgan Urban Renewal, L.L.C. | |||||||
| Kinder Morgan IMT Holdco LLC | Kinder Morgan Utica LLC | |||||||
| Kinder Morgan, Inc. | Kinder Morgan Vehicle Services LLC | |||||||
| Kinder Morgan Keystone Gas Storage LLC | Kinder Morgan Virginia Liquids Terminals LLC | |||||||
| Kinder Morgan KMAP LLC | Kinder Morgan Wink Pipeline LLC | |||||||
| Kinder Morgan Las Vegas LLC | KinderHawk Field Services LLC | |||||||
| Kinder Morgan Linden Transload Terminal LLC | KM Crane LLC | |||||||
| Kinder Morgan Liquids Terminals LLC | KM Decatur LLC | |||||||
| Kinder Morgan Liquids Terminals St. Gabriel LLC | KM Eagle Gathering LLC | |||||||
| Kinder Morgan Louisiana Pipeline Holding LLC | KM Gathering LLC | |||||||
| Kinder Morgan Louisiana Pipeline LLC | KM Kaskaskia Dock LLC | |||||||
| Kinder Morgan Marine Services LLC | KM Liquids Terminals LLC | |||||||
| Kinder Morgan Materials Services, LLC | KM North Cahokia Land LLC | |||||||
| Kinder Morgan Mid Atlantic Marine Services LLC | KM North Cahokia Special Project LLC | |||||||
| Kinder Morgan NatGas O&M LLC | KM North Cahokia Terminal Project LLC | |||||||
| Kinder Morgan NGPL Holdings LLC | KM Ship Channel Services LLC | |||||||
| Kinder Morgan North Texas Pipeline LLC | KM Treating GP LLC | |||||||
| Kinder Morgan Operating LLC “A” | KM Treating Production LLC | |||||||
| Kinder Morgan Operating LLC “B” | KM Utopia Operator LLC | |||||||
| Kinder Morgan Operating LLC “C” | KMBT Legacy Holdings LLC | |||||||
| Kinder Morgan Operating LLC “D” | KMBT LLC | |||||||
| Kinder Morgan Pecos LLC | KMGP Services Company, Inc. | |||||||
| Kinder Morgan Pecos Valley LLC | KN Telecommunications, Inc. | |||||||
| Kinder Morgan Petcoke GP LLC | Knight Power Company LLC | |||||||
| Kinder Morgan Petcoke LP LLC | Lomita Rail Terminal LLC | |||||||
| Kinder Morgan Petcoke, L.P. | Milwaukee Bulk Terminals LLC | |||||||
| Kinder Morgan Petroleum Tankers LLC | MJR Operating LLC | |||||||
| Kinder Morgan Pipeline LLC | Mojave Pipeline Company, L.L.C. | |||||||
| Kinder Morgan Port Manatee Terminal LLC | Mojave Pipeline Operating Company, L.L.C. | |||||||
| Kinder Morgan Port Sutton Terminal LLC | Paddy Ryan Crane, LLC | |||||||
| Kinder Morgan Port Terminals USA LLC | Palmetto Products Pipe Line LLC | |||||||
| Kinder Morgan Portland Jet Line LLC | PI 2 Pelican State LLC | |||||||
| Kinder Morgan Production Company LLC | Pinney Dock & Transport LLC | |||||||
| Kinder Morgan Products Terminals LLC | Queen City Terminals LLC | |||||||
| Kinder Morgan Rail Services LLC | Rahway River Land LLC | |||||||
2
Exhibit 10.1
| Schedule II | ||||||||
| (Guarantors) | ||||||||
Current as of: March 31, 2021 | ||||||||
| River Terminals Properties GP LLC | ||||||||
| River Terminal Properties, L.P. | ||||||||
| 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 | ||||||||
| 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 | ||||||||
| Utica Marcellus Texas Pipeline LLC | ||||||||
| Western Plant Services LLC | ||||||||
| Wyoming Interstate Company, L.L.C. | ||||||||
3
Exhibit 10.1
| SCHEDULE III Excluded Subsidiaries | ||||||||
| ANR Real Estate Corporation | ||||||||
| Coastal Eagle Point Oil Company | ||||||||
| Coastal Oil New England, Inc. | ||||||||
| Colton Processing Facility | ||||||||
| 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 Marketing Company, L.L.C. | ||||||||
| 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 | ||||||||
| KN Capital Trust I | ||||||||
| KN 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 22.1
List of Guarantor Subsidiaries
The Cross Guarantee Agreement furnished as Exhibit 10.1 to this Quarterly Report on Form 10-Q sets forth, as of March 31, 2021, the registrant’s guarantor subsidiaries on Schedule II thereto and the guaranteed securities on Schedule I thereto.
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 quarterly report on Form 10-Q 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 in the United States;
(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: | April 23, 2021 | /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 quarterly report on Form 10-Q 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 in the United States;
(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: | April 23, 2021 | /s/ David P. Michels | ||||||
| David P. Michels | ||||||||
| Vice President and Chief Financial Officer | ||||||||
Exhibit 32.1
KINDER MORGAN, INC. AND SUBSIDIARIES
Exhibit 32.1 - 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 Quarterly Report on Form 10-Q of Kinder Morgan, Inc. (the “Company”) for the quarterly period ended March 31, 2021, 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.
A signed original of this written statement required by Section 906 has been provided to Kinder Morgan, Inc. and will be retained by Kinder Morgan, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.
| Date: | April 23, 2021 | /s/ Steven J. Kean | ||||||
| Steven J. Kean | ||||||||
| Chief Executive Officer | ||||||||
Exhibit 32.2
KINDER MORGAN, INC. AND SUBSIDIARIES
Exhibit 32.2 - 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 Quarterly Report on Form 10-Q of Kinder Morgan, Inc. (the “Company”) for the quarterly period ended March 31, 2021, 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.
A signed original of this written statement required by Section 906 has been provided to Kinder Morgan, Inc. and will be retained by Kinder Morgan, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.
| Date: | April 23, 2021 | /s/ David P. Michels | ||||||
| David P. Michels | ||||||||
| Vice President and Chief Financial Officer | ||||||||
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