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EXHIBIT 10.1
TAX INDEMNIFICATION AGREEMENT
This TAX INDEMNIFICATION AGREEMENT (the "Agreement") dated as of
_________, 2001 between Kinder Morgan, Inc., a Kansas corporation ("KMI") and
Kinder Morgan Management, LLC, a Delaware limited liability company
("Management").
PREAMBLE
WHEREAS, Management was formed pursuant to the Limited Liability
Company Agreement of Kinder Morgan Management, LLC, dated as of February 14,
2001 which was amended by the Amended and Restated Limited Liability Company
Agreement of Kinder Morgan Management, LLC (the "Management LLC Agreement").
WHEREAS, as part of the capitalization of Management, Management issued
two classes of limited liability company interests consisting of the "Listed
Shares" and the "Voting Share," the rights and obligations of which are more
specifically described in the Management LLC Agreement.
WHEREAS, Kinder Morgan Energy Partners, L.P., a Delaware limited
partnership ("KMEP"), pursuant to the Third Amended and Restated Agreement of
Limited Partnership of KMEP (the "Third KMEP Partnership Agreement"), authorized
the issuance of the new class of partnership interest hereinafter referred to as
the "I-Unit."
WHEREAS, Management issued the Voting Share to KMGP (as defined herein)
in exchange for $100,000.
WHEREAS, Management issued the Listed Shares to the public in exchange
for net proceeds of $______ million.
WHEREAS, Management acquired I-Units from KMEP in exchange for $_______
million. In addition, Management purchased the Exchange Right (as defined
herein), the Purchase Right (as defined herein) and its rights under this
Agreement from KMI for $________ million.
WHEREAS, KMI has agreed to indemnify Management for certain tax
consequences attributable to the Indemnifiable Events described below.
ACCORDINGLY, in consideration of the mutual covenants herein contained
and other good and valuable consideration, the parties hereto do hereby agree as
follows:
AGREEMENT
1. Definitions. For purposes of this Agreement, the following terms
shall have the following meanings. Any reference to any person shall include
such person and its permitted successors and assigns. Except where expressly
stated otherwise, any agreement referred to in this Agreement shall mean such
agreement as amended, supplemented or modified from time to
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time in accordance with the applicable provisions thereof. Capitalized terms not
otherwise defined herein have the meaning assigned them in the Management LLC
Agreement.
"After-Tax Basis" means in respect of any amount received or accrued by
any Person (or in the case of a payee which is a pass-through or disregarded
entity for the relevant Tax purposes, the Persons who are required to take into
account any items of income, gain, loss or deduction with respect to such
entity) (the "base amount"), the base amount supplemented by a further payment,
if necessary, to such Person such that, after reduction for all Taxes actually
imposed on such Person as a result of the receipt or accrual of the base amount
and such further payment (after giving effect to all deductions and credits, if
any, actually utilized by such Person arising from the event or circumstance
giving rise to the base amount), the net amount received by such Person shall be
equal to the base amount.
"Business Day" means Monday through Friday of each week, except that a
legal holiday recognized as such by the government of the United States or the
states of New York or Texas shall not be regarded as a Business Day.
"Change in Law" means the occurrence after the date hereof of (i) the
enactment of, or amendment to, any provision of the Code, Treasury Regulations
thereunder or any administrative pronouncement, (ii) the enactment of, or
amendment to, any provision of the Tax law of any state (or political
subdivision thereof) in which Management is subject to Tax, or (iii) the
issuance of a Final Determination of the United States Supreme Court or the
United States Court of Appeals for the federal judicial circuit to which appeal
would lie from a case concerning Indemnifiable Events relating to Management;
provided, that (x) a change in the rate of any Tax shall not be treated as a
Change in Law, and (y) an administrative pronouncement shall be treated as a
Change in Law only if Management provides KMI a written opinion of independent,
nationally-recognized tax counsel selected by Management (such counsel and form
of opinion to be reasonably satisfactory to KMI) to the effect that such counsel
is unable to conclude that a Reasonable Basis exists to take a position contrary
to such administrative pronouncement.
"Code" means the Internal Revenue Code of 1986, as amended and in
effect from time to time. Any reference herein to a specific section or sections
of the Code shall be deemed to include a reference to any corresponding
provision of successor law.
"Common Unit" has the meaning set forth in the Third KMEP Partnership
Agreement.
"Exchange Right" means the various rights of holders of the Listed
Shares to exchange Listed Shares for Common Units of KMEP owned by KMI or cash,
the terms and provisions of which are more specifically set forth in Annex B of
the Management LLC Agreement.
"Final Determination," in a proceeding involving KMI, KMEP or
Management means: (i) in respect of judicial decisions, a decision, judgment,
decree or other order by any court of competent jurisdiction, which decision,
judgment, decree or other order has become final after all appeals allowable by
law as of right and hereunder by either party to the action have been exhausted
or the time for filing such appeals has expired; (ii) a closing agreement
entered into under section 7121 of the Code or any other settlement agreement
entered into with the
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applicable taxing authority in connection with an administrative or judicial
proceeding (including a state or local proceeding); (iii) the expiration of the
time for instituting a suit with respect to a claimed deficiency; or (iv) the
expiration of the time for instituting a claim for refund, or if such a claim
were filed, the expiration of the time for instituting a suit with respect
thereto.
"I-Unit" is defined in the preamble to this Agreement. The terms and
provisions of the I-Units are more specifically set forth in the Third KMEP
Partnership Agreement.
"Indemnifiable Event" means an increase, as a result of a Change in
Law, an audit by the applicable taxing authority or any action taken by KMI or
KMGP that is inconsistent with the Tax Assumptions, in the sum of Taxes imposed
on, payable by, or withheld from payments to Management, over the sum of Taxes,
if any, Management would have paid or incurred in such year or shorter tax
period with respect thereto based on the Tax Assumptions, computed in each case
as provided in Section 5.
"Indemnity Amount" has the meaning set forth in Section 3(a)(1).
"Interest Rate" means the applicable federal rate (within the meaning
of section 1274(d) of the Code).
"IRS" means the United States Internal Revenue Service.
"KMGP" means Kinder Morgan G.P., Inc., a Delaware corporation, the sole
general partner of KMEP and the owner of the Voting Share.
"KMI" is defined in the introduction to this Agreement.
"Listed Shares" means the ownership interests in Management issued to
the public for cash, the rights and obligations of which are more specifically
described in the Management LLC Agreement.
"Management" is defined in the introduction to this Agreement.
"Management LLC Agreement" is defined in the preamble to this
Agreement.
"Non-Taxable" means in respect of any transaction, event or
circumstance, not causing or giving rise to the realization or recognition of
any taxable income or other basis for the imposition of Tax.
"Purchase Rights" means the rights and obligations associated with the
optional and mandatory purchase of Listed Shares by KMI, the terms and
provisions of which are more specifically set forth in Annex A of the Management
LLC Agreement.
"Reasonable Basis" for a position exists if tax counsel may properly
advise reporting such position on a Tax return in accordance with Formal Opinion
85-352 of the American Bar Association or any successor thereto.
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"Revenue Agent's Report" means a report sent to a taxpayer under cover
of a transmittal (30 day) letter relating to proposed adjustments in such
taxpayer's United States federal income tax liability referred to in Treasury
Regulation Section 601.105(c)(2)(i).
"Tax" or "Taxes" means any and all present or future taxes, duties,
levies, imposts, deductions or withholdings (including, without limitation,
income, franchise, gross receipts, sales, rental, use, turnover, value added,
property (tangible and intangible), excise and stamp taxes) of any nature
whatsoever, together with any and all assessments, penalties, fines, additions
and interest relating thereto.
"Tax Assumptions" means the following assumptions with respect to the
basis of taxation of Management and its capability to pay Taxes to which it may
be subject relative to the cash which it has available to pay such Taxes:
(1) The formation and capitalization of Management and all
transactions related or incidental thereto, its issuance of
Listed Shares and the Voting Share and its acquisition of I-Units
in KMEP will be Non-Taxable to Management.
(2) Management's receipt of the Exchange Rights and Purchase Rights
from KMI will be Non-Taxable to Management.
(3) Management's transfer of the Exchange Rights and Purchase Rights
to the holders of Listed Shares will be Non-Taxable to
Management.
(4) Management is treated as a corporation for United States federal
income Tax purposes.
(5) Each Listed Share and Voting Share is treated as an ownership
interest in Management, and each owner of a Listed Share or a
Voting Share is treated as a shareholder of Management, for
United States federal income Tax purposes.
(6) KMEP is treated as a partnership for United States federal income
Tax purposes.
(7) Management, by virtue of its ownership of I-Units in KMEP, is
treated as a partner in KMEP for United States federal income tax
purposes.
(8) The allocation of KMEP Tax Items, as set forth in the Third KMEP
Partnership Agreement, is respected for United States federal
income tax purposes.
(9) Distributions of additional I-Units to Management by KMEP made
pursuant to the Third KMEP Partnership Agreement are Non-Taxable
to Management.
(10) Distributions of additional Listed Shares and Voting Shares by
Management to holders of Listed Shares and Voting Shares, made
pursuant to the Management LLC Agreement, are Non-Taxable to
Management.
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(11) To the extent that Management engages in the management and
control of KMEP and receives reimbursement from KMEP in respect
of its services and other expenses incurred by Management, such
reimbursement will, after the payment by Management of any fees
or expenses incurred by Management in respect of the management
and control of KMEP, be adequate to pay all Taxes, if any,
payable by Management by virtue of either (i) its management and
control of KMEP, or (ii) the receipt of such reimbursement from
KMEP.
(12) The only assets owned by Management, other than cash, are I-Units
in KMEP.
(13) If there is a sale, exchange, redemption or other disposition of
I-Units owned by Management, the cash received will be sufficient
to satisfy any Tax payable as a result of such sale, exchange,
redemption or other disposition.
"Tax Items" means items of income, gain, loss, deduction and credit for
income Tax purposes.
"Tax Representations" means the representations, warranties and
covenants set forth in Section 2.
"Tax Savings" shall have the meaning set forth in Section 3(a)(3).
"Third KMEP Partnership Agreement" is defined in the preamble to this
Agreement.
"Treasury Regulations" means temporary or final United States Treasury
regulations.
"Unanticipated Tax Savings" shall be the amount calculated pursuant to
Section 6(a)
"Voting Shares" means the ownership interest in Management held by
KMGP, the rights and obligations of which are more specifically set forth in the
Management LLC Agreement.
2. Tax Representations. Management represents, warrants and covenants
to KMI, and KMI represents, warrants and covenants to Management that, for all
United States federal, state and local Tax purposes:
(a) It will treat Management as a corporation for United States
federal income Tax purposes.
(b) It will treat the owners of Listed Shares and Voting Shares as
shareholders of Management for United States federal income Tax purposes.
(c) It will treat the distributions by Management of additional
Listed Shares to holders of Listed Shares made pursuant to the Management LLC
Agreement as Non-Taxable.
(d) It will treat KMEP as a partnership for United States federal
income Tax purposes and will treat Management as a partner of KMEP with respect
to its ownership of I-Units for United States federal income tax purposes.
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(e) It will respect the allocation of Tax Items made with respect
to the I-Units owned by Management as provided in the Third KMEP Partnership
Agreement for United States federal income Tax purposes.
(f) It will prepare and file all Tax elections, Tax returns and
information returns on a basis consistent with the treatment described in (a)
through (e) and will not take any contrary position on any Tax return or
information return or take any other action that is inconsistent with such
treatment.
Notwithstanding anything to the contrary herein (including the exclusion
provided in Section 4(a)), no Indemnified Party shall be obligated to take a
position subsequent to (i) a Final Determination to the contrary or (ii) the
receipt of a written opinion of independent, nationally-recognized tax counsel
selected by Management (such counsel and form of opinion to be reasonably
satisfactory to KMI) to the effect that, due solely to a Change in Law, such
counsel is unable to conclude that a Reasonable Basis exists to take such
position.
3. Indemnification.
(a) Obligation.
(1) In General. Upon the occurrence of an Indemnifiable Event,
KMI shall become obligated, in accordance with the terms of this Agreement, to
pay as an indemnity such amounts as, on an After-Tax Basis, shall be equal to
the amount of the additional Taxes incurred by Management as a result of such
Indemnifiable Event (the "Indemnity Amount"). In addition, the Indemnity Amount
shall be increased, on an After-Tax Basis, by the amount of all reasonable
out-of-pocket expenses incurred by Management that would not otherwise have been
incurred by Management, and that have not otherwise been previously paid by KMI
to Management pursuant to Sections 7(c)(2) or 8 hereof, as result of: (i) any
Indemnifiable Event or (ii) any determination by Management of the existence or
amount of any Tax Savings or Unanticipated Tax Savings.
(2) Increase for Interest. The Indemnity Amount shall be
increased by an amount equal to interest accrued at the Interest Rate on the
amount of indemnified Taxes that have actually been paid to the IRS or other
applicable taxing authority by Management from the assumed date of payment of
such Taxes (as provided in Section 5(b)), provided that (x) a payment of Taxes
in respect of which KMI has advanced funds to Management pursuant to Section
7(d) shall not accrue interest and (y) such interest shall cease to accrue if
the payment date of the Indemnity Amount is delayed as a result of the failure
of Management to provide notice and computations to KMI within a reasonable time
pursuant to Section 3(b).
(b) Date for Payment. The amount payable by KMI pursuant to
Section 3(a) shall be paid upon the occurrence of the latest of:
(1) subject to Section 8 and the next sentence, 15 Business
Days after the receipt by KMI of a notice from Management accompanied by its
computations in accordance with Section 8,
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(2) if any such indemnity payment relates to an Indemnifiable
Event that is contested pursuant to Section 7, 15 Business Days after the date
of a Final Determination with respect to such Indemnifiable Event, and
(3) in the case of, and to the extent such amount payable by
KMI pursuant to Section 3(a) relates to, the redemption or other disposition of
the KMEP I-Units, and subject to Section 8 and the next sentence, 15 Business
Days after the redemption or other disposition of the KMEP I-Unit.
The date required for payment pursuant to the preceding sentence shall be
delayed until 15 Business Days after delivery to KMI of any verification
requested pursuant to Section 8.
4. [Intentionally Omitted]
5. Computational Assumptions.
(a) In General. For purposes of (i) computing the amount of Taxes
payable as a result of an Indemnifiable Event and (ii) the definition of
"After-Tax Basis," Management shall be assumed to be subject to United States
federal income Tax at the maximum effective statutory rate generally applicable
to corporations for the relevant period or periods, and to the extent Management
is subject to state and local income Taxes it shall be assumed to be subject to
state and local income taxes at the composite rate equal to the highest
generally applicable composite rate for corporations whose principal place of
business is such state or local jurisdiction before taking into account the
deductibility of such Taxes in computing taxable income for United States
federal income Tax purposes.
(b) Due Date for Taxes; Date of Realization of Tax Savings. Taxes
will be assumed to be payable on the later of (i) the due date, without
extensions, of the Tax return on which such Taxes are reported or (ii) the date
on which such Taxes are actually paid to the IRS or other applicable taxing
authority. Tax Savings will be assumed to be realized on the due date, without
extensions, of the Tax return on which such Tax Savings are reported or
reasonably expected to be reported.
6. [Intentionally Omitted]
7. Contests; Records.
(a) Notice of Claim. If Management receives written notice
(including in the form of a proposed Revenue Agent's Report) of any action by
the IRS or other taxing authority that, if successful, would result in an
Indemnifiable Event for which KMI may be required to indemnify Management
hereunder, Management hereby agrees promptly to notify KMI in writing of such
claim (but except as set forth in Section 4(b) and 4(c), failure to do so will
not diminish KMI's obligations under this Agreement); provided, however, that if
KMGP receives any such notice as the tax matters partner of KMEP, KMI shall be
deemed to have received notice under this Section 7(a).
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(b) Agreement to Contest. Except as set forth in Section 7(d) and
provided the conditions set forth in Section 7(c) are satisfied, Management
agrees to contest (or join in contesting) in good faith such claim or proposed
action and agrees not to settle such claim without the written approval of KMI
except pursuant to the indemnity waiver provisions of Section 7(h). The conduct
of the contest shall be controlled by Management (or such other person as
Management shall have designated, subject to KMI's right of involvement set
forth in this Section 7).
(c) Conditions to Indemnified Party's Obligation to Contest and
Not Settle.
(1) Prior to taking any action to contest the claim described
in Section 7(a), and again prior to any appeal of an adverse judicial decision,
KMI shall have delivered to Management a written opinion of independent,
nationally-recognized tax counsel selected by KMI (such counsel and form of
opinion to be reasonably satisfactory to Management) to the effect that there is
a Reasonable Basis for contesting such action or proposed action by the IRS or
other taxing authority;
(2) KMI shall have agreed to pay, on an After-Tax Basis as
verified under Section 8 hereof, and shall be currently paying for Management,
all reasonable out-of-pocket expenses (including reasonable attorneys fees of
legal counsel reasonably selected by Management) that Management shall incur in
connection with contesting such action or proposed action; and
(3) the amount of the indemnity that would be payable
hereunder (which shall include prospective exposure in future tax years
attributable to the position being challenged) shall exceed U.S. $5,000.
(d) Refund Claims. If Management shall determine in its reasonable
discretion to pay the Tax claimed and sue for a refund, KMI must either, at its
option and to the extent necessary for the contest to proceed, (i) promptly
advance to Management on an interest-free basis sufficient funds to pay the Tax
payable with respect thereto or (ii) pay to Management the amount payable
pursuant to Section 3 (but without regard to the time of payment in Section
3(b)) with respect to such claim.
(e) Supreme Court Appeals. Notwithstanding any other provision of
this Section 7, no appeal to the Supreme Court of the United States shall be
required in contesting a Tax claim or proposed action hereunder.
(f) Time at Which Obligations Operative. In any circumstance where
judicial review shall be unavailable, KMI's right to cause a contest hereunder,
and Management's obligation to contest hereunder, shall become operative at the
earliest time such a contest may, pursuant to law, be initiated, provided that
KMI has then satisfied all of the necessary preconditions to the exercise of its
contest rights.
(g) Deferral of Indemnification. If KMI shall have requested
Management to contest such claim as above provided and shall have duly complied
and remains in compliance with all the terms of this Section 7, KMI's liability
for indemnification shall be deferred (as
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provided in Section 3) until a Final Determination of the liability of
Management. At such time, KMI shall become obligated for the payment of any
indemnification hereunder resulting from the outcome of such contest, and, to
the extent funds were advanced by KMI pursuant to Section 7(d) hereof,
Management shall become obligated to refund to KMI any amount received as a
refund by Management or credited to Management and fairly attributable to
advances by KMI, net of any Taxes attributable to the receipt of such refund or
credit. Within 15 Business Days following such Final Determination, any amounts
due hereunder shall be paid first by set off against each other and then either:
(1) KMI shall pay to Management any excess of the full amount
due hereunder over the amount of any advances previously made by KMI and applied
against its indemnity obligation as aforesaid; or
(2) Management shall repay to KMI any excess of such advances,
net of any Taxes attributable to Management's receipt of such refund or credit,
over such full amount due hereunder, together with any interest received from
the IRS or other taxing authority by Management that is properly attributable to
such advances during the period such advances were outstanding and that is in
excess of the amount of any Taxes attributable to Management's receipt or
accrual of such interest.
(h) Records and Participation.
(1) Indemnified Party. Management shall provide KMI with all
documents and information related to the contest as may be reasonably requested
by KMI, shall keep KMI fully informed, shall afford KMI the opportunity to
attend and participate in any meetings or negotiations with the IRS or other
taxing authority regarding such contest and will consult in good faith with (and
consider in good faith suggestions by) KMI and its counsel regarding relevant
aspects of the progress and nature of any such contest, provided that nothing in
this Agreement shall require Management to provide KMI with its Tax returns or
other proprietary information relating to the identity of Management's
shareholders, owners, members or lenders.
(2) KMI. Within a reasonable time under the circumstances
after reasonable written request therefor from Management, KMI shall provide
such information and copies of records as are within its control to enable
Management to fulfill its Tax return filing, audit and litigation obligations in
connection with the transactions contemplated by the Management LLC Agreement,
provided that nothing in this Agreement shall require KMI to provide Management
with its Tax returns.
8. Verification. The results of all computations to be made with
respect to Management under this Agreement, together with a statement describing
in reasonable detail the manner in which such computations were made, shall be
delivered to KMI in writing. Preparation and delivery of such computations shall
be pursued diligently, in a timely manner and in good faith, and notice of an
Indemnifiable Event and delivery of such computations to KMI shall be made
within a reasonable time under the circumstances. If KMI so requests within ten
(10) Business Days after receipt of such computations, any determination shall
be reviewed
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by the independent accounting firm who regularly audits Management, who shall be
asked to verify, after consulting with KMI and Management, whether Management's
computations are correct, and to report its conclusions (within 20 Business Days
upon being requested to verify and determine the correct computation) to both
KMI and Management. KMI also may request that such accounting firm review
Management's Tax returns for any year to determine if Management is required to
make any payment pursuant to Section 3(a)(3) or 6. Management and KMI hereby
agree to provide such accountants with all information and materials as shall be
reasonably necessary or desirable in connection herewith. Any information
provided to such accountants by any person shall be and remain the exclusive
property of such person and shall be deemed by the parties to be (and the
accountants shall confirm in writing that they shall treat such information as)
the private, proprietary and confidential property of such person, and no person
other than such person and the accountants shall be entitled thereto, and all
such materials shall be returned to such person. The reasonable fees and
expenses of the accountants in verifying an amount pursuant to this Agreement
shall be paid by KMI; provided, that Management and not KMI shall be required to
pay such fees if the computations provided by Management were not prepared in
good faith. The parties hereto agree that the sole responsibility of the
accountants hereunder shall be to verify calculations hereunder and that all
matters of interpretation of this Agreement shall not be within the scope of the
accountant's responsibilities.
9. Late Payments. Except as otherwise provided in this Agreement, any
amount payable to Management or KMI under this Agreement not paid when due shall
bear interest from the date due to the date paid at the Interest Rate.
10. No Duplication of Payments. Nothing contained in this Agreement
shall be construed to permit Management to receive payment with respect to an
Indemnifiable Event hereunder more than once, to permit Management to receive
payment with respect to an Indemnifiable Event in duplication of any payment
with respect to such Indemnifiable Event previously received by any transferor
of Management's interest, to permit any third-party beneficiary hereof to
recover any amount hereunder or to require Management to pay any Tax Savings
arising out of any Indemnifiable Event more than once.
11. Notices. All notices and other communications shall be given in
the manner, to the respective addresses, and shall become effective as provided
in the Management LLC Agreement except to the extent otherwise expressly
provided herein, except that notices or communications shall be directed to KMI
at:
Kinder Morgan, Inc.
500 Dallas Street, suite 1000
Houston, Texas 77002
Attn: Joseph Listengart
713/369-9000
12. Assignment. The obligations and liabilities of KMI and Management
arising under this Agreement are expressly made for the benefit of, and shall be
enforceable by,
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Management and KMI and their respective successors and permitted assigns. Any
assignment by KMI of any of its obligations or liabilities hereunder will not
relieve KMI of any such obligations or liabilities without the consent of
Management.
13. Survival. The obligations, rights and liabilities of KMI and
Management hereunder shall continue in full force and effect (notwithstanding
the cancellation, sale, exchange, redemption or other disposition of Listed
Shares, or the dissolution, liquidation or termination of Management, KMEP or
KMI) until the 180th day following the expiration of the relevant statute of
limitations for all relevant taxable years (taking into account all extensions
thereof).
14. Method of Payment. All payments to be made to a party pursuant to
this Agreement shall be made in United States Dollars by wire transfer to such
bank account of such party as such party from time to time shall have directed
in writing at least five (5) Business Days prior to the due date thereof.
15. Governing Law. THIS TAX INDEMNIFICATION AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF DELAWARE,
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE AND WITHOUT REGARD TO
ANY CONFLICT OF LAW PROVISIONS.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, and
such counterparts together shall constitute and be one and the same instrument.
17. Miscellaneous.
(a) Severability. Any provision of this Agreement which 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, unless the provisions
declared prohibited as unenforceable are essential to effectuate the intent of
the parties with respect to the Agreement taken as a whole. To the extent
permitted by applicable Law, each of the parties hereto hereby agrees that any
provision hereof that renders any other term or provision hereof invalid or
unenforceable in any respect shall be modified, but only to the extent necessary
to avoid rendering such other term or provision invalid or unenforceable, and
such modification shall be accomplished in a manner that most nearly preserves
the benefit of the parties' bargains hereunder.
(b) Amendments. Neither this Agreement nor any of the terms hereof
may be terminated, amended, supplemented, waived or modified orally, but only by
an instrument in writing signed by the party against which the enforcement of
the termination, amendment, supplement, waiver or modification is sought.
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(c) Headings. The section and paragraph headings in this Agreement
are for convenience of reference only and shall not modify, define, expand or
limit any of the terms or provisions hereof.
(d) No Intended Third Party Beneficiaries. There are no intended
third party beneficiaries of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
KINDER MORGAN, INC.
By:
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Name:
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Title:
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KINDER MORGAN MANAGEMENT, LLC
By: Kinder Morgan G.P., Inc., its Voting
Share member
By:
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Name:
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Title:
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KINDER MORGAN ENERGY PARTNERS, L.P.
By: Kinder Morgan G.P., Inc., its general
partner
By:
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Name:
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Title:
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