Purchase Agreement between Koch Hydrocarbon Management Company, LLC and Oneok



 Exhibit 10.1 
  
 EXECUTION COPY 
  
 Limited Liability Company Membership Interest and Stock 
  
 Purchase Agreement 
  
 by and between 
  
 KOCH HYDROCARBON MANAGEMENT COMPANY, LLC 
  
 and 
  
 ONEOK, INC. 
  
 for the purchase and sale of

  
 a 100% Membership Interest in 
  
 NGL/LP, LLC 
  
 and all of the outstanding capital stock of 
  
 KOCH UNDERGROUND STORAGE COMPANY 
  
 Date: May 9, 2005 







 TABLE OF CONTENTS 
  

							
	 	    	 	  	Page


	 Article I
	    	DEFINITIONS	  	1
				
	 	 	1.1	    	Certain Definitions	  	1
			
	 Article II
	    	SALE AND PURCHASE OF EQUITY INTERESTS	  	9
				
	 	 	2.1	    	Sale and Purchase of Equity Interests	  	9
			
	 Article III
	    	CONSIDERATION	  	9
				
	 	 	3.1	    	Consideration	  	9
				
	 	 	3.2	    	Payment of Purchase Price	  	9
				
	 	 	3.3	    	Closing Statement	  	9
				
	 	 	3.4	    	Adjusted Purchase Price Adjustment	  	10
			
	 Article IV
	    	CLOSING AND TERMINATION	  	12
				
	 	 	4.1	    	Closing Date	  	12
				
	 	 	4.2	    	Termination of Agreement	  	12
				
	 	 	4.3	    	Procedure Upon Termination	  	12
				
	 	 	4.4	    	Effect of Termination	  	12
			
	 Article V
	    	REPRESENTATIONS AND WARRANTIES OF SELLER	  	13
				
	 	 	5.1	    	Organization and Good Standing	  	13
				
	 	 	5.2	    	Authorization of Agreement	  	13
				
	 	 	5.3	    	Conflicts; Consents of Third Parties	  	14
				
	 	 	5.4	    	Ownership and Transfer of Equity Interests; Sufficiency	  	14
				
	 	 	5.5	    	Capitalization	  	15
				
	 	 	5.6	    	Subsidiaries	  	15
				
	 	 	5.7	    	Financial Statements	  	16
				
	 	 	5.8	    	Absence of Certain Changes	  	16
				
	 	 	5.9	    	Taxes	  	16
				
	 	 	5.10	    	Real Property	  	17
				
	 	 	5.11	    	Tangible Personal Property Leases	  	17
				
	 	 	5.12	    	Intellectual Property	  	17
				
	 	 	5.13	    	Material Contracts	  	17
				
	 	 	5.14	    	Employee Benefits Plans	  	18

  

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 TABLE OF CONTENTS 
 (continued) 
  

							
	 	 	 	    	 	  	Page


	 	 	5.15	    	Labor	  	19
				
	 	 	5.16	    	Litigation	  	19
				
	 	 	5.17	    	Compliance with Laws; Permits	  	19
				
	 	 	5.18	    	Environmental Matters	  	20
				
	 	 	5.19	    	Financial Advisors	  	20
				
	 	 	5.20	    	Sufficient Rights	  	21
			
	 Article VI
	    	REPRESENTATIONS AND WARRANTIES OF PURCHASER	  	21
				
	 	 	6.1	    	Organization and Good Standing	  	21
				
	 	 	6.2	    	Authorization of Agreement	  	21
				
	 	 	6.3	    	Conflicts; Consents of Third Parties	  	21
				
	 	 	6.4	    	Litigation	  	22
				
	 	 	6.5	    	Securities Matters	  	22
				
	 	 	6.6	    	Financial Advisors	  	22
				
	 	 	6.7	    	Financing	  	22
			
	 Article VII
	    	COVENANTS	  	23
				
	 	 	7.1	    	Access to Information	  	23
				
	 	 	7.2	    	Conduct of the Business Pending the Closing	  	23
				
	 	 	7.3	    	Consents	  	25
				
	 	 	7.4	    	Regulatory Approvals	  	25
				
	 	 	7.5	    	Further Assurances	  	27
				
	 	 	7.6	    	Confidentiality	  	27
				
	 	 	7.7	    	Indemnification and Exculpation	  	27
				
	 	 	7.8	    	Preservation of Records	  	28
				
	 	 	7.9	    	Publicity	  	29
				
	 	 	7.10	    	Use of Name	  	29
				
	 	 	7.11	    	Employment and Employee Benefits	  	30
				
	 	 	7.12	    	Non-Solicitation	  	31
				
	 	 	7.13	    	Supplementation and Amendment of Schedules	  	32
				
	 	 	7.14	    	Company Guarantees	  	32

  

 ii 








 TABLE OF CONTENTS 
 (continued) 
  

							
	 	 	 	    	 	  	Page


	 	 	7.15	    	Intercompany Contracts; Intercompany Balances	  	33
				
	 	 	7.16	    	Tax Matters	  	33
				
	 	 	7.17	    	Insurance	  	35
			
	 Article VIII
	    	CONDITIONS TO CLOSING	  	36
				
	 	 	8.1	    	Conditions Precedent to Obligations of Purchaser	  	36
				
	 	 	8.2	    	Conditions Precedent to Obligations of Seller	  	37
				
	 	 	8.3	    	Frustration of Closing Conditions	  	38
			
	 Article IX
	    	INDEMNIFICATION	  	38
				
	 	 	9.1	    	Survival of Representations and Warranties and Covenants	  	38
				
	 	 	9.2	    	Indemnification by Seller	  	38
				
	 	 	9.3	    	Indemnification by Purchaser	  	39
				
	 	 	9.4	    	Indemnification Procedures	  	39
				
	 	 	9.5	    	Limitations on Indemnification	  	40
				
	 	 	9.6	    	Tax Treatment of Indemnity Payments	  	42
				
	 	 	9.7	    	No Consequential Damages	  	42
				
	 	 	9.8	    	Exclusive Remedy	  	43
				
	 	 	9.9	    	No Transfer of Seller’s Indemnities	  	43
			
	 Article X
	    	MISCELLANEOUS	  	43
				
	 	 	10.1	    	Payment of Transfer Taxes	  	43
				
	 	 	10.2	    	Expenses	  	44
				
	 	 	10.3	    	Submission to Jurisdiction; Consent to Service of Process	  	44
				
	 	 	10.4	    	Entire Agreement; Amendments and Waivers	  	44
				
	 	 	10.5	    	Governing Law	  	45
				
	 	 	10.6	    	Notices	  	45
				
	 	 	10.7	    	Severability	  	46
				
	 	 	10.8	    	Binding Effect; Assignment	  	46
				
	 	 	10.9	    	Non-Recourse	  	46
				
	 	 	10.10	    	Counterparts	  	47
				
	 	 	10.11	    	Time is of the Essence	  	47

  

 iii 








 TABLE OF CONTENTS 
 (continued) 
  

							
	 	 	 	  	 	  	Page


	 	 	 10.12
	  	Specific Performance	  	47

  

 iv 








 Exhibits 
  

			
	 Exhibit A
	  	Form of § 1445 Certificate
		
	Schedules	  	 
		
	 Schedule 1.1(a)
	  	Knowledge of Seller
	 Schedule 1.1(b)
	  	Permitted Exceptions
	 Schedule 1.1(c)
	  	Subsidiaries
	 Schedule 3.3
	  	Agreed Principles
	 Schedule 3.3(a)
	  	Reference Working Capital
	 Schedule 5.3
	  	No Conflicts; Consents
	 Schedule 5.4(b)
	  	Exceptions to Sufficiency
	 Schedule 5.6
	  	Subsidiaries
	 Schedule 5.7
	  	Financial Statements Exceptions to GAAP
	 Schedule 5.8
	  	Absence of Certain Changes
	 Schedule 5.9
	  	Taxes
	 Schedule 5.10
	  	Real Property
	 Schedule 5.11
	  	Tangible Personal Property
	 Schedule 5.12
	  	Intellectual Property
	 Schedule 5.13(a)
	  	Material Contracts
	 Schedule 5.13(b)
	  	Notices of Default
	 Schedule 5.14(a)
	  	Company Benefit Plans
	 Schedule 5.15(b)
	  	Labor
	 Schedule 5.16
	  	Litigation
	 Schedule 5.17
	  	Compliance with Laws
	 Schedule 5.18
	  	Environmental Matters
	 Schedule 5.20
	  	Exceptions to Sufficient Rights
	 Schedule 6.3
	  	No Conflicts; Consents
	 Schedule 7.2
	  	Conduct of Business Pending the Closing
	 Schedule 7.11
	  	Continuing Employees
	 Schedule 7.14
	  	Company Guarantees
	 Schedule 7.15
	  	Intercompany Contracts

  
  

 v 








 Limited Liability Company Membership Interest 
 and Stock Purchase Agreement 
  
 This Limited Liability Company Membership Interest and Stock Purchase Agreement (this “Agreement”), dated May 9, 2005, is made by and
between Koch Hydrocarbon Management Company, LLC, a Delaware limited liability company (“Seller”), and ONEOK, Inc., an Oklahoma corporation (“Purchaser”). 
  
 W I T N E S S E T H: 
  
 WHEREAS, Seller owns (i) 100% of the membership interests (the
“Membership Interest”) of NGL/LP, LLC, a Delaware limited liability company (“NGL”), and (ii) all of the outstanding capital stock (the “Shares” and, together with the Membership Interest, the
“Equity Interests”) of Koch Underground Storage Company, a Kansas corporation (“KUS” and, together with NGL, collectively the “Companies”); 
  
 WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, the Equity Interests for the purchase price and upon the terms and conditions hereinafter set forth; and 
  
 WHEREAS, certain terms used in this Agreement are defined in Section 1.1; 
  
 NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements hereinafter contained, the parties
hereby agree as follows: 
  
 DEFINITIONS 
  
 .1 Certain Definitions. 
  
 (a) For purposes of this Agreement, the following terms shall have the
meanings specified in this Section 1.1: 
  
 “Affiliate” means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person, and the term
“control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person,
whether through ownership of voting stock, ownership interest or securities, by contract or otherwise. 
  
 “Affiliated Group” means any affiliated group within the meaning of Section 1504 of the Code and any comparable or analogous group under
state or local tax law. 







 “Business Day” means any day of the year on which national banking institutions in New
York, New York are open to the public for conducting business and are not required or authorized to close. 
  
 “Code” shall mean the Internal Revenue Code of 1986, as amended. 
  
 “Company Guarantees” means all guaranties, letters of credit, bonds, sureties and other credit support or
assurances provided by Seller or its Affiliates (other than any of the Companies or the Subsidiaries) in support of any obligations of any of the Companies or the Subsidiaries, including those obligations listed on Schedule 7.14. 

 
 “Continuing Employees” means those individuals (or their
replacements) who are employed by any of the Companies or the Subsidiaries immediately before the Closing and are set forth on Schedule 7.11, as may be supplemented by Seller. 
  
 “Contract” means any written contract, indenture, note, bond, lease, commitment or other agreement.

  
 “Effective Time” means 7:00 a.m. (Central
time) on the Closing Date. 
  
 “Environmental
Law” means any federal, state or local statute, regulation, ordinance, rule of common law or other legal requirement currently in effect relating to the environment or natural resources, including the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. § 9601 et seq.), the Oil Pollution Act of 1990 (33 U.S.C. § 2701 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), the
Clean Water Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.) and the Federal Insecticide, Fungicide,
and Rodenticide Act (7 U.S.C. § 136 et seq.), as to each, as amended and the regulations promulgated pursuant thereto and as each is in effect on the date of this Agreement. 
  
 “GAAP” means generally accepted accounting principles in the
United States as of the date hereof. 
  
 “Governmental
Body” means any government or governmental or regulatory body thereof, or political subdivision thereof, whether federal, state, local or foreign, or any agency, instrumentality or authority thereof, or any court or arbitrator (public or
private). 
  
 “Hazardous Material” means any
substance, material or waste that is regulated, classified, or otherwise characterized under or pursuant to any Environmental Law as “hazardous,” “toxic,” “pollutant,” “contaminant,” “radioactive,”
or words of similar meaning or effect, including petroleum and its by-products, asbestos, polychlorinated biphenyls, radon, hazardous waste, mold and urea formaldehyde insulation. 
  
 “HSR Act” shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules
and regulations promulgated thereunder. 
  

 2 








 “Income Taxes” means any taxes imposed on net income except for Texas franchise Taxes.

  
 “Income Tax Return” means any Tax Return
filed with respect to Income Taxes. 
  
 “Indebtedness” of any Person means, without duplication, (i) the principal of and premium (if any) in respect of (A) indebtedness of such Person for money borrowed and (B) indebtedness evidenced by notes, debentures, bonds
or other similar instruments for the payment of which such Person is responsible or liable; (ii) all obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations of such Person and all
obligations of such Person under any title retention agreement (but excluding trade accounts payable and other accrued current liabilities arising in the Ordinary Course of Business); (iii) all obligations of such Person under leases required to be
capitalized in accordance with GAAP; (iv) all obligations of such Person for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction; (v) all obligations of the type referred to in clauses (i)
through (iv) of other Persons for the payment of which such Person is responsible or liable as obligor, guarantor, surety or otherwise, including guarantees of such obligations; and (vi) all obligations of the type referred to in clauses (i) through
(v) of other Persons secured by any Lien on any property or asset of such Person (whether or not such obligation is assumed by such Person). 
  
 “Intellectual Property” means all intellectual property rights used by any of the Companies or the Subsidiaries arising from or in
respect of the following: (i) patents and applications therefor, including continuations, divisionals, continuations-in-part, or reissues of patent applications and patents issuing thereon, (ii) trademarks, service marks, trade names, service names,
brand names, trade dress rights, logos, Internet domain names and corporate names, together with the goodwill associated with any of the foregoing, and all applications, registrations and renewals thereof, (iii) copyrights and registrations and
applications therefor, works of authorship and mask work rights, (iv) Software and (v) Technology. 
  
 “IRS” means the Internal Revenue Service. 
  
 “Knowledge of Seller” means the actual knowledge of those Persons identified on Schedule 1.1(a). 
  
 “LLC Agreement” means that certain Limited Liability Company
Agreement of NGL, dated October 9, 2001, as first amended on November 1, 2001 and as second amended on January 1, 2005, entered into by Seller, the sole member. 
  

“Law” means any foreign, federal, state or local law, statute, code, ordinance, rule or regulation. 
  
 “Legal Proceeding” means any judicial, administrative or
arbitral actions, suits or proceedings (public or private) by or before a Governmental Body. 
  

 3 








 “Liability” means any Indebtedness, debt, liability or obligation (whether direct or
indirect, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, or due or to become due) and including all costs and expenses relating thereto. 
  
 “Lien” means any lien, encumbrance, pledge, mortgage, deed of trust, security interest, claim, lease,
charge, option, right of first refusal, easement, servitude or transfer restriction. 
  
 “Losses” means all losses, Liabilities, obligations, damages, notices, actions, suits, proceedings, claims, demands, assessments, judgments, costs, penalties and expenses, including attorneys’
and other professionals’ fees and disbursements. 
  
 “Material Adverse Effect” means (i) a material adverse effect on the business, assets, properties, results of operations or financial condition of the Companies and the Subsidiaries (taken as a whole) or (ii) a material
adverse effect on the ability of Seller to consummate the transactions contemplated by this Agreement, other than with respect to (i) and (ii), an effect resulting from an Excluded Matter. “Excluded Matter” means any one or more of
the following: (A) the effect of any change in the United States or foreign economies or securities or financial markets in general; (B) the effect of any change that generally affects any industry in which any of the Companies or the Subsidiaries
operates; (C) the effect of any change arising in connection with any natural disasters, hostilities, acts of war, sabotage or terrorism or military actions or any escalation or material worsening of any such hostilities, acts of war, sabotage or
terrorism or military actions existing or underway as of the date hereof; (D) the effect of any action taken by Purchaser or its Affiliates with respect to the transactions contemplated hereby or with respect to any of the Companies or the
Subsidiaries; (E) any matter of which Purchaser is aware on the date hereof; (F) the effect of any changes in applicable Laws or accounting rules; (G) the failure of any of the Companies or the Subsidiaries to meet any of its internal projections;
(H) any effect resulting from the public announcement of this Agreement, compliance with terms of this Agreement or the consummation of the transactions contemplated by this Agreement; (I) the loss of any employee of any of the Companies or the
Subsidiaries; or (J) matters that will be reflected in the determination of the Adjusted Purchase Price as of the Closing Date. 
  
 “Mid-Continent Business Unit” means the combined businesses, activities and operations of (i) the Companies and the Subsidiaries and (ii)
Koch Pipeline Company, L.P. that are exclusively related to the business of transporting natural gas liquids on behalf of shippers in the Sterling Pipeline System, the FERC Gathering System and the North Lines Pipeline System and of operating
pipelines and other facilities owned by Koch Hydrocarbon, LP or KUS. 
  
 “Order” means any order, injunction, judgment, decree, ruling, writ, assessment or arbitration award of a Governmental Body. 
  
 “Ordinary Course of Business” means the ordinary and usual course of business of any of the Companies or the Subsidiaries. 
  

 4 








 “Permits” means any approvals, authorizations, consents, licenses, permits or
certificates of a Governmental Body. 
  
 “Permitted
Exceptions” means (i) all defects, exceptions, restrictions, easements, rights of way and encumbrances disclosed in policies of title insurance that have been made available to Purchaser; (ii) statutory liens for current Taxes, assessments
or other governmental charges not yet delinquent or the amount or validity of which is being contested in good faith by appropriate proceedings; (iii) mechanics’, carriers’, workers’, repairers’ and similar Liens arising or
incurred in the Ordinary Course of Business; (iv) zoning, entitlement and other land use and environmental regulations by any Governmental Body; (v) Liens securing debt as disclosed in the Financial Statements; (vi) title of a lessor under a capital
or operating lease; (vii) Liens of public record; (viii) such other Liens, imperfections in title, charges, easements, restrictions and encumbrances that would not reasonably be expected to result in a Material Adverse Effect; and (ix) any other
matters disclosed on Schedule 1.1(b). 
  
 “Person” means any individual, corporation, partnership, firm, joint venture, association, joint enterprise, joint-stock company, trust, unincorporated organization, Governmental Body or other entity. 
  
 “Release” means any release, spill, emission, leaking,
pumping, deposit, disposal, discharge, dispersal, or leaching into the indoor or outdoor environment. 
  
 “Remedial Action” means all actions to (i) clean up, remove, treat or in any other way address any Hazardous Material, (ii) prevent the
Release of any Hazardous Material so it does not endanger or threaten to endanger public health or welfare or the indoor or outdoor environment, (iii) perform pre-remedial studies and investigations or post-remedial monitoring and care and (iv)
respond to or correct a condition of noncompliance with Environmental Laws. 
  
 “Software” means any and all of the following, other than “shrink wrap” licenses, that are primarily used by any of the Companies or the Subsidiaries: (i) computer programs, including any
and all software implementations of algorithms, models and methodologies, whether in source code or object code, (ii) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise, (iii)
descriptions, flow-charts and other work product used to design, plan, organize and develop any of the foregoing, screens, user interfaces, report formats, firmware, development tools, templates, menus, buttons and icons, and (iv) documentation
including user manuals and other training documentation related to any of the foregoing. 
  
 “Subsidiary” means each Person set forth on Schedule 1.1(c). 
  
 “Tax Effective Time” means 11:59 p.m. (Central time) on the Closing Date. 
  
 “Taxes” means (i) all federal, state, local or foreign taxes, charges, fees, imposts, levies or other
assessments, including all net income, gross receipts, capital, 

  

 5 








 
sales, use, ad valorem, value added, transfer, franchise, profits, inventory, capital stock, license, withholding, payroll, employment, social security,
unemployment, excise, severance, stamp, occupation, property and estimated taxes, customs duties, fees, assessments and charges of any kind whatsoever and (ii) all interest, penalties, fines, additions to tax or additional amounts imposed by any
taxing authority in connection with any item described in clause (i). 
  
 “Tax Return” means all returns, declarations, reports, estimates, information returns and statements required to be filed in respect of any Taxes. 
  
 “Technology” means, collectively, all designs, formulae, algorithms, procedures, methods, techniques,
ideas, know-how, research and development, technical data, programs, subroutines, tools, materials, specifications, processes, inventions (whether patentable and whether or not reduced to practice), apparatus, creations, improvements, works of
authorship and other similar materials that are primarily used by any of the Companies or the Subsidiaries. 
  
 (b) Terms Defined Elsewhere in this Agreement. For purposes of this Agreement, the following terms have meanings set forth in the sections
indicated: 
  

			
	 Term

	  	 Section


	 Accounting Referee
	  	3.4(c)
	 Act
	  	6.5
	 Adjusted Purchase Price
	  	3.3
	 Agreed Principles
	  	3.3
	 Agreement
	  	Recitals
	 Allocation Statement
	  	7.16(a)
	 Antitrust Division
	  	7.4(a)
	 Antitrust Laws
	  	5.3
	 Balance Sheet
	  	5.7
	 Balance Sheet Date
	  	5.7
	 Claim
	  	7.7(b)
	 Closing
	  	4.1
	 Closing Date
	  	4.1
	 Closing Statement
	  	3.3
	Closing Statement Delivery Date	  	3.3
	 COBRA
	  	7.11(b)
	 Common Stock
	  	5.5(b)
	 Companies
	  	Recitals
	 Company Benefit Plan
	  	5.14(a)
	 Company Pension Plan
	  	5.14(b)
	 Company Savings Plan
	  	7.11(b)
	 Confidentiality Agreement
	  	7.6
	 Equity Interests
	  	Recitals
	 ERISA
	  	5.14(a)
	 Excluded Matter
	  	1.1 (in definition of Material Adverse Effect)

  

 6 









			
	 Term

	  	 Section


	 Final Closing Statement
	  	3.4(a)
	 Final Closing Working Capital
	  	3.4(a)
	 Final Working Capital
	  	3.4(e)
	 Financial Statements
	  	5.7
	 FTC
	  	7.4(a)
	 Indemnification Claim
	  	9.4(a)
	 Indemnitees
	  	7.7(a)
	 Initial Closing Working Capital
	  	3.3
	 Koch Marks
	  	7.10
	 KUS
	  	Recitals
	 Material Contracts
	  	5.13(a)
	 Membership Interest
	  	Recitals
	 Negative Adjustment
	  	3.3
	 Net Working Capital
	  	3.3
	 NGL
	  	Recitals
	 Owned Property
	  	5.10
	 Owned Properties
	  	5.10
	 Personal Property Leases
	  	5.11
	 Positive Adjustment
	  	3.3
	 Purchase Price
	  	3.1
	 Purchaser
	  	Recitals
	 Purchaser Documents
	  	6.2
	 Purchaser Indemnified Parties
	  	9.2(a)
	 Purchaser Plans
	  	7.11(b)
	 Purchaser Savings Plan
	  	7.11(b)
	 Real Property Lease
	  	5.10
	 Real Property Leases
	  	5.10
	 Reference Working Capital
	  	3.3
	 Section 338(h)(10) Election
	  	7.16(a)
	 Seller
	  	Recitals
	 Seller Documents
	  	5.2
	 Seller Indemnified Parties
	  	9.3(a)
	 Shares
	  	Recitals
	 Tax Proceeding
	  	7.16(e)

  
 (c) Other
Definitional and Interpretive Matters. Unless otherwise expressly provided, for purposes of this Agreement, the following rules of interpretation shall apply: 
  
 Calculation of Time Period. When calculating the period of time before which, within which or following which any act
is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded. If the last day of such period is a non-Business Day, the period in question shall end on the next succeeding
Business Day. 
  

 7 








 Dollars. Any reference in this Agreement to $ shall mean U.S. dollars. 
  
 Exhibits/Schedules. The Exhibits and Schedules to this Agreement are
hereby incorporated and made a part hereof and are an integral part of this Agreement. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any
capitalized terms used in any Schedule or Exhibit but not otherwise defined therein shall be defined as set forth in this Agreement. 
  
 Gender and Number. Any reference in this Agreement to gender shall include all genders, and words imparting the singular number only shall include
the plural and vice versa. 
  
 Headings. The provision of a
Table of Contents, the division of this Agreement into Articles, Sections and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized in construing or interpreting this Agreement.
All references in this Agreement to any “Section” are to the corresponding Section of this Agreement unless otherwise specified. 
  
 Herein. The words such as “herein,” “hereinafter,” “hereof,” and “hereunder”
refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires. 
  
 Including. The word “including” or any variation thereof means “including, without limitation” and shall not be
construed to limit any general statement that it follows to the specific or similar items or matters immediately following it. 
  
 Reflected On or Set Forth In. An item arising with respect to a specific representation or warranty shall be deemed to be “reflected
on” or “set forth in” a balance sheet or financial statements, to the extent any such phrase appears in such representation or warranty, if (a) there is a reserve, accrual or other similar item underlying a number on such
balance sheet or financial statements that related to the subject matter of such representation, (b) such item is otherwise specifically set forth on the balance sheet or financial statements or (c) such item is reflected on the balance sheet or
financial statements and is specifically set forth in the notes thereto. 
  
 (d) The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as
jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement. 
  

 8 








 SALE AND PURCHASE OF EQUITY INTERESTS 
  
 .1 Sale and Purchase of Equity Interests. Upon the terms and subject to the conditions contained herein, on the
Closing Date, Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller, the Equity Interests. 
  
 CONSIDERATION 
  
 .1 Consideration. The aggregate consideration for the Equity Interests shall be an amount in cash equal to SEVEN HUNDRED NINETY ONE MILLION DOLLARS
($791,000,000) (the “Purchase Price”), plus or minus any adjustments to the Purchase Price as provided in Sections 3.3 and 3.4. 
  

.2 Payment of Purchase Price. On the Closing Date, Purchaser shall pay the Adjusted Purchase Price (as defined below) to Seller, which shall be
paid by wire transfer of immediately available United States funds (not ACH) into an account designated by Seller. 
  
 .3 Closing Statement. At least two (2) Business Days before Closing (the “Closing Statement Delivery Date”), Seller shall cause to
be prepared and delivered to Purchaser a statement (the “Closing Statement”) setting forth Seller’s good faith estimate of Net Working Capital (as defined below) as of the Effective Time (“Initial Closing Working
Capital”) and the corresponding Adjusted Purchase Price to be paid at Closing (which shall conclusively adjust the Purchase Price at Closing, absent manifest error) and such documentation reasonably necessary to support the calculation and
adjustment. “Net Working Capital” means the adjusted assets of the Mid-Continent Business Unit, reduced by the adjusted liabilities of the Mid-Continent Business Unit, in each case as determined in accordance with the accounting
principles set forth on Schedule 3.3 (the “Agreed Principles”). Seller shall use the latest available information as of the Closing Statement Delivery Date to calculate the Initial Closing Working Capital and the Adjusted
Purchase Price. The preparation of the Closing Statement shall be for the purpose of determining the difference between Net Working Capital as calculated in accordance with the Agreed Principles and set forth on Schedule 3.3(a)
(“Reference Working Capital”) and the Initial Closing Working Capital for the purpose of determining the Adjusted Purchase Price. If Initial Closing Working Capital exceeds Reference Working Capital, the Purchase Price shall be
increased by the amount of such excess (such increase, a “Positive Adjustment”) and, if Reference Working Capital exceeds Initial Closing Working Capital, the Purchase Price shall be reduced by the amount of such excess (such
reduction, a “Negative Adjustment”). “Adjusted Purchase Price” means the Purchase Price plus any Positive Adjustment or the Purchase Price minus any Negative Adjustment, as applicable. 
  

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 .4 Adjusted Purchase Price Adjustment. 
  
 (a) As promptly as practicable, but no later than ninety (90) days after the
Closing Date, Seller shall confirm the calculation of the Initial Closing Working Capital as described in the Closing Statement by causing to be prepared and delivered to Purchaser a statement (the “Final Closing Statement”) setting
forth Seller’s calculation of the Net Working Capital as of the Effective Time (“Final Closing Working Capital”). The preparation of the Final Closing Statement shall be for the purpose of confirming the calculation of the
Initial Closing Working Capital. 
  
 (b) If Purchaser disagrees
with Seller’s calculation of Final Closing Working Capital delivered pursuant to Section 3.4(a), Purchaser may, within fifteen (15) days after receipt of the Final Closing Statement, deliver a notice to Seller disagreeing with such
calculation and setting forth Purchaser’s calculation of such amount; provided, however, that in the event the Closing Date falls on a date other than an accounting month-end of the Mid-Continent Business Unit, Purchaser may only
deliver a notice to Seller disagreeing with Seller’s calculation of Final Closing Working Capital if Purchaser’s calculation of the Final Closing Working Capital is greater than Seller’s calculation of Final Closing Working Capital by
more than 10%. Any such notice of disagreement shall specify in reasonable detail those items or amounts as to which Purchaser disagrees, and Purchaser shall be deemed to have agreed with all other items and amounts contained in the Final Closing
Statement delivered pursuant to Section 3.4(a). 
  
 (c) If
a notice of disagreement shall be duly delivered pursuant to Section 3.4(b), Seller and Purchaser shall, during the fifteen (15) days after such delivery, use their commercially reasonable efforts to reach agreement on the disputed items or
amounts in order to determine, as may be required, the amount of Final Closing Working Capital, which amount shall not be more than the amount thereof shown in Seller’s calculation delivered pursuant to Section 3.4(a) nor less than the
amount thereof shown in Purchaser’s calculation delivered pursuant to Section 3.4(b). If during such period, Seller and Purchaser are unable to reach such agreement, they shall promptly thereafter cause PricewaterhouseCoopers LLP (the
“Accounting Referee”) to review this Agreement and the disputed items or amounts for the purpose of calculating Final Closing Working Capital (it being understood that in making such calculation, the Accounting Referee shall be
functioning as an expert and not as an arbitrator). In making such calculation, the Accounting Referee shall consider only those items or amounts in the Final Closing Statement and Seller’s calculation of Final Closing Working Capital as to
which Purchaser has disagreed. The Accounting Referee shall deliver to Seller and Purchaser, as promptly as practicable (but in any case no later than thirty (30) days from the date of engagement of the Accounting Referee), a report setting forth
such calculation. Such report shall be final and binding upon Seller and Purchaser. The cost of such review and report shall be borne proportionately by Seller and Purchaser. Purchaser shall be responsible for the proportion of such cost equal to
the quotient of (A) the absolute value of the difference of (w) Purchaser’s calculation of Final Working Capital (as defined below) minus (x) the Final Working Capital divided by (B) the absolute value of the difference of (y) Purchaser’s
calculation of Final Working Capital minus (z) Seller’s 

  

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calculation of Final Working Capital. Seller shall be responsible for the proportion of such cost equal to the quotient of (A) the absolute value of the
difference of (w) Seller’s calculation of Final Working Capital minus (x) the Final Working Capital divided by (B) the absolute value of the difference of (y) Seller’s calculation of Final Working Capital minus (z) Purchaser’s
calculation of Final Working Capital. 
  
 (d) Seller and Purchaser
shall, and shall cause their respective representatives to, and Purchaser shall cause the Companies and their respective representatives to, cooperate and assist in the preparation of the Final Closing Statement and the calculation of Final Closing
Working Capital and in the conduct of the review referred to in this Section 3.4, including the making available to the extent necessary of books, records, work papers and personnel. 
  
 (e) If Final Working Capital exceeds Initial Closing Working Capital,
Purchaser shall pay to Seller, in the manner and with interest as provided in Section 3.4(f), the amount of such excess and, if Initial Closing Working Capital exceeds Final Working Capital, Seller shall pay to Purchaser in the manner and
with interest as provided in Section 3.4(f), the amount of the excess of Initial Closing Working Capital over Final Working Capital. “Final Working Capital” means Final Closing Working Capital (i) as shown in Seller’s
calculation delivered pursuant to Section 3.4(a), if no notice of disagreement with respect thereto is duly delivered pursuant to Section 3.4(b); or (ii) if such a notice of disagreement is delivered, (A) as agreed by Seller and
Purchaser pursuant to Section 3.4(c) or (B) in the absence of such agreement, as shown in the Accounting Referee’s calculation delivered pursuant to Section 3.4(c); provided, however, that in no event shall Final
Working Capital be more than Seller’s calculation of Final Closing Working Capital delivered pursuant to Section 3.4(a) or less than Purchaser’s calculation of Final Closing Working Capital delivered pursuant to Section
3.4(b). 
  
 (f) Any payment pursuant to Section 3.4(e)
shall be made at a mutually convenient time and place within five (5) Business Days after Final Working Capital has been determined by wire transfer by Purchaser or Seller, as the case may be, of immediately available United States funds (not ACH)
to the account of such other party as may be designated in writing by such other party. The amount of any payment to be made pursuant to this Section 3.4 shall bear interest from and including the Effective Time to but excluding the date of
payment at a rate per annum equal to the rate of interest published from time to time by the Wall Street Journal (under the heading “Money Rates”) as the “prime rate” at large U.S. money center banks during the period from
the Effective Time to the date of payment. Such interest shall be payable at the same time as the payment to which it relates and shall be calculated daily on the basis of a year of three hundred sixty five (365) days and the actual number of days
elapsed. 
  

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 CLOSING AND TERMINATION 
  
 .1 Closing Date. Subject to the satisfaction of the conditions set forth in Sections 8.1 and 8.2 hereof
(or the waiver thereof by the party entitled to waive that condition), the consummation of the sale and purchase of the Equity Interests provided for in Section 2.1 hereof (the “Closing”) shall take place at the offices of
Seller located at 4111 E. 37th St. North, Wichita, Kansas (or at such other place as the parties may designate in writing) at 10:00 a.m. (Central time) on a date to be specified by the parties, which date shall be no later than the second Business
Day after the satisfaction or waiver of each condition to the Closing set forth in Article VIII (other than conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions),
unless another date is agreed to in writing by the parties hereto. The date on which the Closing shall be held is referred to in this Agreement as the “Closing Date.” 
  
 .2 Termination of Agreement. This Agreement may be terminated before the Closing as follows: 
  
 (a) At the election of Seller or Purchaser on or after the first annual
anniversary of the date hereof, if the Closing shall not have occurred by the close of business on such date, provided that the terminating party is not in material default of any of its obligations hereunder, and provided further that such date may
be extended by Seller for up to two consecutive periods of up to 180 days each if only the conditions to Closing set forth in Sections 8.1(d) and 8.2(d) remain unsatisfied or unwaived at the first annual anniversary of the date hereof;

  
 (b) by mutual written consent of Seller and Purchaser; or

  
 (c) by Seller or Purchaser if there shall be in effect a final
nonappealable Order of a Governmental Body of competent jurisdiction permanently restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby; it being agreed that the parties hereto shall promptly appeal
any adverse determination that is not nonappealable (and pursue such appeal with reasonable diligence). 
  
 .3 Procedure Upon Termination. In the event of termination by Purchaser or Seller, or both, pursuant to Section 4.2 hereof, written notice
thereof shall forthwith be given to the other party, and this Agreement shall terminate, and the purchase of the Equity Interests hereunder shall be abandoned, without further action by Purchaser or Seller. 
  
 .4 Effect of Termination. In the event that this Agreement is validly
terminated pursuant to Section 4.2, then each of the parties shall be relieved of their duties and obligations arising under this Agreement after the date of such termination and 
  

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 such termination shall be without liability to Purchaser or Seller; provided, that no such termination shall
relieve any party hereto from liability for any breach of this Agreement. 
  
 REPRESENTATIONS AND WARRANTIES OF SELLER 
  
 Seller hereby represents and warrants to Purchaser that: 
  
 .1 Organization and Good Standing. Seller is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite limited liability
company power and authority to own, lease and operate its properties and to carry on its business as now conducted. NGL is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and
has all requisite limited liability company power and authority to own, lease and operate its properties, if any, and to carry on its business as now conducted. NGL is duly qualified or authorized to do business as a limited liability company and is
in good standing under the laws of the State of Delaware and each other jurisdiction in which the conduct of its business or the ownership of its properties requires such qualification or authorization, except where the failure to be so qualified,
authorized or in good standing would not reasonably be expected to have a Material Adverse Effect. KUS is a corporation duly organized, validly existing and in good standing under the laws of the State of Kansas and has all requisite corporate power
and authority to own, lease and operate its properties and to carry on its business as now conducted. KUS is duly qualified or authorized to do business as a corporation and is in good standing under the laws of each jurisdiction in which it owns or
leases real property and each other jurisdiction in which the conduct of its business or the ownership of its properties requires such qualification or authorization, except where the failure to be so qualified, authorized or in good standing would
not reasonably be expected to have a Material Adverse Effect. 
  
 .2 Authorization of Agreement. Seller has all requisite power, authority and legal capacity to execute and deliver this Agreement and each other agreement, document, or instrument or certificate contemplated by this Agreement or to
be executed by Seller in connection with the consummation of the transactions contemplated by this Agreement (the “Seller Documents”), and to consummate the transactions contemplated hereby and thereby. The execution and delivery of
this Agreement and each of the Seller Documents and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all required limited liability company action on the part of Seller. This Agreement has been, and
each of the Seller Documents will be at or before the Closing, duly and validly executed and delivered by Seller, and (assuming the due authorization, execution and delivery by the other parties hereto and thereto) this Agreement constitutes, and
each Seller Document, when so executed and delivered will constitute, the legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and similar Laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of 
  

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 equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement
is sought in a proceeding at law or in equity). 
  
 .3
Conflicts; Consents of Third Parties. Except as set forth on Schedule 5.3 and other than Contracts that have been terminated or will expire by their terms before or upon the Closing or Contracts with Affiliates of Seller that will be
terminated before or upon the Closing, none of the execution and delivery by Seller of this Agreement or the Seller Documents, the consummation of the transactions contemplated hereby or thereby, or compliance by Seller with any of the provisions
hereof or thereof will (a) conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination or cancellation under, any provision of (i) the certificate of
formation of Seller or NGL, the certificate of incorporation of KUS and the limited liability company agreement of Seller or the LLC Agreement, the bylaws of KUS or comparable organizational documents of any Subsidiary; (ii) any Contract or Permit
to which Seller or any of the Companies or the Subsidiaries is a party or by which any of the properties or assets of Seller or any of the Companies or the Subsidiaries are bound (other than with respect to any provisions related to changes in
credit ratings); (iii) any Order of any Governmental Body applicable to Seller or any of the Companies or the Subsidiaries or by which any of the properties or assets of Seller or any of the Companies or the Subsidiaries are bound; or (iv) any
applicable Law; other than, in the case of clauses (ii), (iii) and (iv), such conflicts, violations, defaults, terminations or cancellations, that would not reasonably be expected to have a Material Adverse Effect; or (b) require Seller or any of
the Companies or the Subsidiaries to obtain any consent, waiver, approval, Order, Permit or authorization of, or declare or file with, or give notification to, any Person or Governmental Body, except for (i) compliance with the applicable
requirements of the HSR Act, the Sherman Act, as amended, the Clayton Act, as amended, the Federal Trade Commission Act, as amended, and any other United States federal or state or foreign statutes, rules, regulations, orders, decrees,
administrative or judicial doctrines or other Laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “Antitrust Laws”), and (ii) such
consents, waivers, approvals, Orders, Permits or authorizations the failure of which to obtain would not reasonably be expected to have a Material Adverse Effect. 
  
 .4 Ownership and Transfer of Equity Interests; Sufficiency. 
  
 (a) Seller is the record and beneficial owner of the Equity Interests, free
and clear of any and all Liens other than transfer restrictions imposed by securities Laws. Seller has the power and authority to sell, transfer, assign and deliver the Equity Interests as provided in this Agreement, and such delivery will convey to
Purchaser good and marketable title to the Equity Interests, free and clear of any and all Liens. 
  
 (b) Except as set forth on Schedule 5.4(b), the assets of the Companies and the Subsidiaries constitute all of the assets used to conduct the
business of each of the Companies and the Subsidiaries as presently conducted, except where the absence of which would not reasonably be expected to have a Material Adverse Effect. 
  

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 .5 Capitalization. 
  
 (a) Seller has provided Purchaser with a true and correct copy of the LLC Agreement, including all amendments thereto.

  
 (b) The authorized capital stock of KUS consists of 100 shares
of common stock, $10 par value per share (the “Common Stock”). As of the date hereof, there are 100 shares of Common Stock issued and outstanding and no shares of Common Stock are held by KUS as treasury stock. All of the issued and
outstanding shares of Common Stock were duly authorized for issuance and are validly issued, fully paid and non-assessable. 
  
 (c) There is no existing option, warrant, call, right or Contract to which either of the Companies is a party requiring, and there are no securities of
either of the Companies outstanding that upon conversion or exchange would require, the issuance, of any units of membership interest of NGL or Common Stock, as applicable, or other securities convertible into, exchangeable for or evidencing the
right to subscribe for or purchase units of membership interest of NGL or of Common Stock, as applicable. Neither of the Companies is a party to any voting trust or other Contract with respect to the voting, redemption, sale, transfer or other
disposition of the units of membership interest in NGL or of the Common Stock. 
  
 .6 Subsidiaries. 
  
 (a)
Schedule 5.6 sets forth, with respect to each Subsidiary, the jurisdiction in which it is organized, the jurisdictions, if any, in which it is qualified to do business, the number and class of equity interests thereof duly issued and
outstanding, the names of all equity owners and the amount of equity owned by each equity owner. Each Subsidiary is a duly organized and validly existing entity in good standing under the laws of the jurisdiction of its organization and is duly
qualified or authorized to do business as an entity and is in good standing under the laws of each jurisdiction in which the conduct of its business or the ownership of its properties requires such qualification or authorization, except where the
failure to be so qualified, authorized or in good standing would not reasonably be expected to have a Material Adverse Effect. Each Subsidiary has all requisite entity power and authority to own, lease and operate its properties and carry on its
business as now conducted. The Subsidiaries are the only Persons of which a majority of the outstanding voting securities or other voting equity interests are owned, directly or indirectly, by the Companies. 
  
 (b) The outstanding equity interests of each Subsidiary are validly issued,
fully paid and non-assessable, and all such equity interests represented by Seller as being owned by each of the Companies are owned by it free and clear of any and all Liens other than transfer restrictions imposed by securities Laws. There is no
existing option, warrant, call, right or Contract to which any Subsidiary is a party requiring, and there are no convertible securities of any Subsidiary outstanding that upon conversion would require, the issuance of any equity interests of any
Subsidiary or other securities convertible into equity interests of any Subsidiary. 
  

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 .7 Financial Statements. Seller has delivered to Purchaser copies of the audited combined
statements of net assets of the Mid-Continent Business Unit as of December 31, 2003 and 2004 and the related audited combined statements of revenues and expenses, changes in owner’s net assets, and cash flows for each of the three years for the
period ended December 31, 2004 (such audited statements on a carve-out basis, including the related notes and schedules thereto, are referred to herein as the “Financial Statements”). Except as set forth in the notes thereto and as
disclosed in Schedule 5.7, each of the Financial Statements has been prepared in accordance with GAAP consistently applied and presents fairly in all material respects the combined net assets, the results of operations and cash flows of the
Mid-Continent Business Unit as of the dates and for the periods indicated therein. 
  
 For the purposes hereof, the audited combined statements of net assets of the Mid-Continent Business Unit as at December 31, 2004 is referred to as the “Balance Sheet” and December 31, 2004 is
referred to as the “Balance Sheet Date.” 
  
 .8
Absence of Certain Changes. Except as contemplated by this Agreement or as set forth on Schedule 5.8, since the Balance Sheet Date (i) the Companies and the Subsidiaries have conducted their respective businesses in all material
respects only in the Ordinary Course of Business and (ii) there has not been any Material Adverse Effect. 
  
 .9 Taxes. Except as set forth on Schedule 5.9: 
  
 (a) each of the Companies and the Subsidiaries has timely filed all Tax Returns required to be filed by it (taking into account requests for extensions to
file such returns), all such returns are correct and complete, and all Taxes required to be paid by it have either been paid or are reflected in accordance with GAAP as a reserve for Taxes on the Financial Statements, except to the extent that such
failures to timely file, to be correct and complete or to pay, individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect; 
  
 (b) all material amounts of Taxes required to be withheld by any of the Companies or the Subsidiaries have been withheld and
have been (or will be) duly and timely paid to the proper taxing authority; 
  
 (c) no material deficiencies for any Taxes have been proposed, asserted or assessed against any of the Companies or the Subsidiaries that are still pending; 
  
 (d) no requests for waivers of the time to assess any material amounts of
Taxes against any of the Companies or the Subsidiaries have been made that are still pending; and 
  
 (e) no Tax Return filed by any of the Companies or the Subsidiaries is under current examination by the IRS or by any tax authority. 
  

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 This Section 5.9 represents the sole and exclusive representation and warranty of Seller regarding
Tax matters. 
  
 .10 Real Property. Schedule 5.10
sets forth a complete list of (i) all real property owned in fee by any of the Companies or the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), and (ii) all leases of real
property by any of the Companies or the Subsidiaries involving annual payments in excess of $100,000 (individually, a “Real Property Lease” and collectively, the “Real Property Leases”). The Companies and the
Subsidiaries, as applicable, have good and valid fee title to the Owned Properties, free and clear of all Liens of any nature whatsoever except (A) as set forth on Schedule 5.10 and (B) Permitted Exceptions. 
  
 .11 Tangible Personal Property Leases. Schedule 5.11 sets forth
all leases of personal property by any of the Companies or the Subsidiaries (“Personal Property Leases”) involving annual payments in excess of $100,000, other than any Personal Property Leases that have been terminated or will
expire by their terms before or upon the Closing or Contracts with Affiliates of Seller that will be terminated before or upon the Closing. 
  
 .12 Intellectual Property. Except as set forth on Schedule 5.12, to the Knowledge of Seller, the Companies and the Subsidiaries own or have
valid licenses to use all Intellectual Property used by them in the Ordinary Course of Business, except to the extent the failure to be the owner or the valid licensee would not reasonably be expected to have a Material Adverse Effect. Except as set
forth on Schedule 5.12, to the Knowledge of Seller, the Intellectual Property used by any of the Companies or the Subsidiaries are not the subject of any challenge received by any of the Companies or the Subsidiaries in writing. 

 
 .13 Material Contracts. 
  
 (a) Schedule 5.13(a) sets forth all of the following Contracts to
which any of the Companies or the Subsidiaries is a party or by which it is bound, other than Contracts that have been terminated or will expire by their terms before or upon the Closing or Contracts with Affiliates of Seller that will be terminated
before or upon the Closing (collectively, the “Material Contracts”): 
  
 (i) Contracts with Seller or any current officer or director of any of the Companies or the Subsidiaries; 
  
 (ii) Contracts with any labor union or association
representing any employee of any of the Companies or the Subsidiaries; 
  
 (iii) Contracts entered into on or after January 1, 2002 for the sale of any of the assets of any of the Companies or the Subsidiaries, other than in the Ordinary Course of Business, for consideration in excess of
$1,000,000; 
  
 (iv) Contracts entered into on or
after January 1, 2002 relating to the acquisition by any of the Companies or the Subsidiaries of any operating business 
  

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 or the equity of any other Person, in each case for consideration in excess of $1,000,000; 
  
 (v) Contracts relating to the incurrence of Indebtedness or
the making of any loans by any of the Companies or the Subsidiaries, in each case involving amounts in excess of $500,000; 
  
 (vi) any other Contracts (except for Real Property Leases, Personal Property Leases and any Company Benefit Plan) between any of the
Companies or the Subsidiaries and any Person to whom any of the Companies or the Subsidiaries is obligated to pay more than $250,000 in consideration in a calendar year that have a term of longer than ninety (90) days or are not terminable by any of
the Companies or the Subsidiaries without penalty on notice of ninety (90) days or less; and 
  
 (vii) any other Contracts (except for Real Property Leases, Personal Property Leases and any Company Benefit Plan) between any of the
Companies or the Subsidiaries and any Person that is obligated to pay more than $250,000 in consideration in a calendar year to any of the Companies or the Subsidiaries that have a term of longer than ninety (90) days or are not terminable by any of
the Companies or the Subsidiaries without penalty on notice of ninety (90) days or less. 
  
 (b) Except as set forth on Schedule 5.13(b), neither of the Companies nor any Subsidiary has received any written notice of any default or event that with notice or lapse of time, or both, would constitute a
default by any of the Companies or the Subsidiaries under any Material Contract, Real Property Lease or Personal Property Lease, except for defaults that would not reasonably be expected to have a Material Adverse Effect. 
  
 .14 Employee Benefits Plans. This Section 5.14 represents the
sole and exclusive representation and warranty of Seller regarding employee benefit matters. 
  
 (a) Schedule 5.14(a) lists each “employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) and any other
material employee plan or agreement maintained, contributed to, or required to be contributed to by the Companies (each, a “Company Benefit Plan”). Seller has made available to Purchaser correct and complete copies of (i) each
Company Benefit Plan (or, in the case of any such Company Benefit Plan that is unwritten, descriptions thereof) and (ii) the most recent summary plan description for each Company Benefit Plan for which such summary plan description is required. Each
Company Benefit Plan maintained, contributed to, or required to be contributed to by any of the Companies or the Subsidiaries has been administered in all material respects in accordance with its terms. The Companies, the Subsidiaries and all of the
Company Benefit Plans are all in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws with respect to employee benefit matters, except for any noncompliance that would not reasonably be expected to have a
Material Adverse Effect. 
  

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 (b) To the Knowledge of Seller, (i) each Company Benefit Plan that is an “employee pension
plan” (as defined in Section 3(3) of ERISA) that is intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) that is maintained, contributed to, or required to be contributed to by any of
the Companies or the Subsidiaries is so qualified and (ii) no event has occurred since the date of the most recent determination letter or application therefor relating to any such Company Pension Plan that would adversely affect the qualification
of such Company Pension Plan. Seller has made available to Purchaser a correct and complete copy of the most recent determination letter received by the Companies with respect to each Company Pension Plan maintained, contributed to, or required to
be contributed to by any of the Companies or the Subsidiaries, as well as a correct and complete copy of each pending application for a determination letter, if any. 
  
 (c) All contributions, premiums, and benefit payments under or in connection with the Company Benefit Plans that are
required to have been made as of the date hereof in accordance with the terms of the Company Benefit Plans have been timely made or have been reflected on the most recent Balance Sheet. No Company Pension Plan has an “accumulated funding
deficiency” (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived. 
  
 .15 Labor. 
  
 (a) Neither of the Companies nor any of the Subsidiaries is a party to any labor or collective bargaining agreement. 
  
 (b) Except as set forth on Schedule 5.15(b), there are no (i) strikes,
work stoppages, work slowdowns, or lockouts pending or, to the Knowledge of Seller, threatened in writing against or involving any of the Companies or the Subsidiaries, or (ii) unfair labor practice charges, grievances or complaints pending or, to
the Knowledge of Seller, threatened in writing by or on behalf of any employee or group of employees of any of the Companies or the Subsidiaries, except in each case as would not reasonably be expected to have a Material Adverse Effect. 

 
 .16 Litigation. Except as set forth on Schedule 5.16, there
are no Legal Proceedings pending or, to the Knowledge of Seller, threatened in writing against Seller or any of the Companies or the Subsidiaries before any Governmental Body, which, if adversely determined, would reasonably be expected to have a
Material Adverse Effect. 
  
 .17 Compliance with Laws;
Permits. Except for environmental matters covered in Section 5.18, Tax matters covered in Section 5.9, employee benefit matters covered in Section 5.14 and except as set forth on Schedule 5.17: 
  
 (a) the Companies and the Subsidiaries are in compliance with all Laws of
any Governmental Body applicable to their respective businesses or operations, except where the failure to be in compliance would not reasonably be expected to have a Material Adverse Effect. Neither of the Companies nor any Subsidiary has received
any 
  

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 written notice of or been charged with the violation of any Laws, except where such violation would not reasonably be
expected to have a Material Adverse Effect; and 
  
 (b) the
Companies and the Subsidiaries currently have all Permits that are necessary to operate their respective businesses as currently conducted, except where the absence of which would not reasonably be expected to have a Material Adverse Effect. Neither
of the Companies nor any of the Subsidiaries is in default or violation (and no event has occurred which, with notice or the lapse of time or both, would constitute a default or violation) of any term, condition or provision of any Permit to which
it is a party, except where such default or violation would not reasonably be expected to have a Material Adverse Effect. 
  
 .18 Environmental Matters. The representations and warranties contained in this Section 5.18 are the sole and exclusive representations and
warranties of Seller pertaining or relating to any environmental matters, including any Permits and any other matter arising under any Environmental Laws. To the Knowledge of Seller, except as set forth on Schedule 5.18 hereto and except in
each case as would not reasonably be expected to have a Material Adverse Effect: 
  
 (a) the operations of the Companies and the Subsidiaries are presently in compliance with all applicable Environmental Laws and all Permits issued pursuant to Environmental Laws; 
  
 (b) each of the Companies and the Subsidiaries has obtained all Permits
required under all applicable Environmental Laws necessary to operate its business as currently conducted; 
  
 (c) neither of the Companies nor any of the Subsidiaries is the subject of any outstanding Order or Contract with any Governmental Body respecting (i)
Environmental Laws, (ii) Remedial Action or (iii) any Release or threatened Release of a Hazardous Material; 
  
 (d) neither of the Companies nor any of the Subsidiaries has received any written communication alleging that any of the Companies or the Subsidiaries may
be in violation of any Environmental Law or any Permit issued pursuant to Environmental Law, or may have any liability under any Environmental Law; and 
  
 (e) there are no investigations by a Governmental Body of the businesses of any of the Companies or the Subsidiaries, or currently or previously owned,
operated or leased property of any of the Companies or the Subsidiaries pending or threatened in writing, which would reasonably be expected to result in the imposition of any material liability pursuant to any Environmental Law. 
  
 .19 Financial Advisors. Except for Goldman, Sachs & Co., no Person
has acted, directly or indirectly, as a broker, finder or financial advisor for Seller or the Companies in connection with the transactions contemplated by this Agreement, and no Person is entitled to any fee or commission or like payment from
Purchaser in respect thereof. 
  

 20 








 .20 Sufficient Rights. Except as set forth on Schedule 5.20, the Companies and the
Subsidiaries have sufficient rights to use and to operate all of the assets of the Companies and the Subsidiaries that are currently used to conduct the business of each of the Companies and the Subsidiaries, except where the absence of which would
not reasonably be expected to have a Material Adverse Effect. 
  
 REPRESENTATIONS AND WARRANTIES OF PURCHASER 
  
 Purchaser
hereby represents and warrants to Seller that: 
  
 .1
Organization and Good Standing. Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the State of Oklahoma and has all requisite corporate power and authority to own, lease and operate properties
and carry on its business. 
  
 .2 Authorization of
Agreement. Purchaser has full corporate power and authority to execute and deliver this Agreement and each other agreement, document, instrument or certificate contemplated by this Agreement or to be executed by Purchaser in connection with the
consummation of the transactions contemplated hereby and thereby (the “Purchaser Documents”), and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance by Purchaser of this Agreement
and each Purchaser Document have been duly authorized by all necessary corporate action on behalf of Purchaser. This Agreement has been, and each Purchaser Document will be at or before the Closing, duly executed and delivered by Purchaser and
(assuming the due authorization, execution and delivery by the other parties hereto and thereto) this Agreement constitutes, and each Purchaser Document when so executed and delivered will constitute, the legal, valid and binding obligation of
Purchaser, enforceable against Purchaser in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). 
  
 .3 Conflicts; Consents of Third Parties. Except as set forth on
Schedule 6.3, none of the execution and delivery by Purchaser of this Agreement or the Purchaser Documents, the consummation of the transactions contemplated hereby or thereby, or compliance by Purchaser with any of the provisions hereof or
thereof will (a) conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination or cancellation under, any provision of (i) the certificate of incorporation or
bylaws of Purchaser; (ii) any Contract or Permit to which Purchaser is a party or by which any of the properties or assets of Purchaser are bound; (iii) any Order of any Governmental Body applicable to Purchaser or by which any of the properties or
assets of Purchaser are bound; or (iv) any applicable Law, other than, in the case of clauses (ii), (iii) and (iv), such conflicts, violations, defaults, terminations or cancellations, that would not reasonably be expected to have a 

  

 21 








 
material adverse effect on the ability of Purchaser to perform its obligations under this Agreement or to consummate the transactions contemplated hereby; or
(b) require Purchaser to obtain any consent, waiver, approval, Order, Permit or authorization of, or declare or file with, or give notification to, any Person or Governmental Body, except for (i) compliance with the applicable requirements of the
Antitrust Laws, and (ii) such consents, waivers, approvals, Orders, Permits or authorizations the failure of which to obtain would not reasonably be expected to have a material adverse effect on the ability of Purchaser to perform its obligations
under this Agreement or to consummate the transactions contemplated hereby. 
  
 .4 Litigation. There are no Legal Proceedings pending or, to the knowledge of Purchaser, threatened in writing against Purchaser, or to which Purchaser is otherwise a party before any Governmental Body, which,
if adversely determined, would reasonably be expected to have a material adverse effect on the ability of Purchaser to perform its obligations under this Agreement or to consummate the transactions hereby. Purchaser is not subject to any Order of
any Governmental Body except to the extent the same would not reasonably be expected to have a material adverse effect on the ability of Purchaser to perform its obligations under this Agreement or to consummate the transactions contemplated hereby.

  
 .5 Securities Matters. Purchaser is an “accredited
investor” as defined in Rule 501 under the Securities Act of 1933, as amended (the “Act”), and is acquiring the Equity Interests solely for its own account and not with a view to any distribution or disposition thereof.
Purchaser understands that (a) the Equity Interests have not been registered under the Act or registered or qualified under any applicable state securities laws in reliance upon specific exemptions therefrom, and (b) the Equity Interests may not be
transferred or sold except in a transaction registered or exempt from registration under the Act, and registered or qualified or exempt from registration or qualification under any applicable state securities laws. 
  
 .6 Financial Advisors. Except for UBS Securities LLC or its
Affiliates, no Person has acted, directly or indirectly, as a broker, finder or financial advisor for Purchaser in connection with the transactions contemplated by this Agreement and no Person is entitled to any fee or commission or like payment in
respect thereof. 
  
 .7 Financing. Purchaser (i) has, and
at the Closing will have, sufficient internal funds (without giving effect to any unfunded financing regardless of whether any such financing is committed) available to pay the Adjusted Purchase Price and any expenses incurred by Purchaser in
connection with the transactions contemplated by this Agreement, (ii) has, and at the Closing will have, the resources and capabilities (financial or otherwise) to perform its obligations hereunder, and (iii) has not incurred any obligation,
commitment, restriction or Liability of any kind, which would impair or adversely affect such resources and capabilities. 
  

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 COVENANTS 
  
 .1 Access to Information. Before the Closing Date, Purchaser shall be entitled, through its officers, employees and representatives (including its
legal advisors and accountants), to make such investigation of the properties, businesses and operations of the Companies and the Subsidiaries and such examination of the books and records of the Companies and the Subsidiaries as it reasonably
requests and to make extracts and copies of such books and records; provided, that such examination shall not include (i) information that, if provided to Purchaser, would violate applicable Law or the organizational documents of any of the
Companies or the Subsidiaries, (ii) bids, letters of intent, expressions of interest, or other proposals received from others in connection with the transactions contemplated by this Agreement or otherwise and information and analyses relating to
such communications, (iii) any information, the disclosure of which would jeopardize any legal privilege available to Seller, the Companies or any of their respective Affiliates relating to such information or would cause Seller, the Companies or
any of their respective Affiliates to breach a confidentiality obligation by which it is bound or (iv) any of Seller’s internal valuations of the industry of the Companies and the Subsidiaries, the Companies, the Subsidiaries or the Equity
Interests. Any such investigation and examination shall be conducted during regular business hours and under commercially reasonable circumstances and shall be subject to restrictions under applicable Law. Seller shall, and shall cause the Companies
and their respective officers, employees, consultants, agents, accountants, attorneys and other representatives of the Companies and the Subsidiaries to, cooperate with Purchaser and Purchaser’s representatives in connection with such
investigation and examination, and Purchaser and its representatives shall cooperate with Seller, the Companies and their respective representatives and shall use their commercially reasonable efforts to minimize any disruption to the business of
Seller, the Companies or the Subsidiaries. Purchaser agrees to abide by any safety rules or rules of conduct reasonably imposed by Seller, the Companies or the operator of such properties, as the case may be, with respect to Purchaser’s access
and any information furnished to Purchaser or its representatives pursuant to this Section 7.1. Purchaser shall indemnify, defend and hold harmless Seller, the Companies and the Subsidiaries and their respective officers, directors, employees
and agents from and against any and all Losses asserted against or suffered by them relating to, resulting from, or arising out of, examinations or inspections made by Purchaser or its representatives pursuant to this Section 7.1, except to
the extent such Losses relate to, result from or arise out of, the gross negligence or willful misconduct of Seller, the Companies or the Subsidiaries. Notwithstanding anything to the contrary contained herein, before the Closing, without the prior
written consent of Seller, which may be withheld for any reason, (i) Purchaser shall not contact any suppliers to, or customers of, the Companies, the Subsidiaries or their respective Affiliates, and (ii) Purchaser shall have no right to perform
invasive or subsurface investigations of the properties or facilities of any of the Companies or the Subsidiaries. 
  
 .2 Conduct of the Business Pending the Closing. From the date hereof and until the Closing, except (A) as set forth on Schedule 7.2, (B) as
required by 
  

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 applicable Law, (C) as otherwise contemplated by this Agreement or (D) with the prior written consent of Purchaser (which
consent shall not be unreasonably withheld, delayed or conditioned): 
  
 (a) Seller shall cause each of the Companies and the Subsidiaries to: 
  
 (i) conduct its respective business only in the Ordinary Course of Business; and 
  
 (ii) use its commercially reasonable efforts to (A) preserve
its present business, operations, organization and goodwill and (B) preserve its present relationships with customers and suppliers. 
  
 (b) Seller shall not and shall cause the Companies and the Subsidiaries not to: 
  
 (i) declare, set aside, make or pay any dividend or other distribution (other than cash) in respect of the
equity interests in the Companies or repurchase, redeem or otherwise acquire any outstanding units of membership interest or other ownership interests in, any of the Companies or the Subsidiaries; 
  
 (ii) transfer, issue, sell or dispose of any equity interest
or other securities of any of the Companies or the Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire equity interests or other securities of any of the Companies or the Subsidiaries; 
  
 (iii) effect any recapitalization, reclassification or like
change in the capitalization of any of the Companies or the Subsidiaries; 
  
 (iv) amend the certificate of formation or LLC Agreement or the certificate of incorporation or bylaws of KUS or comparable organizational documents of any Subsidiary; 
  
 (v) other than in the Ordinary Course of Business (A)
materially increase the annual level of compensation of any executive officer of any of the Companies or the Subsidiaries, (B) materially increase the annual level of compensation payable or to become payable by any of the Companies or the
Subsidiaries to any of their respective executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any executive officer, (D) materially increase the coverage or benefits available under any
(or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or
arrangement made to, for, or with any of the executive officers of any of the Companies or the Subsidiaries or otherwise modify or amend or terminate any such plan or arrangement or (E) enter into any employment, deferred compensation, severance,
consulting, non-competition or similar agreement (or amend any such agreement) to which any of the Companies or the 

  

 24 








 
Subsidiaries is a party and involving an executive officer of any of the Companies or the Subsidiaries, except, in each case, as required by applicable Law
from time to time in effect or by the terms of any Company Benefit Plans; 
  
 (vi) subject any of the properties or assets (whether tangible or intangible) of any of the Companies or the Subsidiaries to any Lien, except for Permitted Exceptions; 
  
 (vii) other than in the Ordinary Course of Business, acquire
any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material properties or assets of any of the Companies or the Subsidiaries; 
  
 (viii) other than in the Ordinary Course of Business, cancel
or compromise any material debt or claim of any of the Companies or the Subsidiaries; 
  
 (ix) enter into any commitment for capital expenditures of any of the Companies or the Subsidiaries in excess of $4,000,000 for all
commitments in the aggregate, other than reasonable capital expenditures in connection with any emergency or force majeure events affecting any of the Companies or the Subsidiaries; 
  
 (x) enter into, modify or terminate any labor or collective bargaining agreement of any of the Companies or
the Subsidiaries or, through negotiations or otherwise, make any commitment or incur any liability to any labor organizations; 
  
 (xi) permit any of the Companies or the Subsidiaries to enter into or agree to enter into any merger or consolidation with any corporation
or other entity, or acquire the securities of any other Person; or 
  
 (xii) agree to do anything prohibited by this Section 7.2(b). 
  
 .3 Consents. For up to 180 days after the Closing Date, Seller shall, and shall cause its Affiliates to, use commercially reasonable efforts to
cooperate with Purchaser, at Purchaser’s request, in endeavoring to obtain any consents required with respect to Material Contracts, Real Property Leases, Personal Property Leases or Permits; provided, however, that such efforts
shall not require Seller or any of its Affiliates to incur any expenses or Liabilities or provide any financial accommodation or to remain secondarily or contingently liable for any Liability with respect thereto to obtain any such consent.

  
 .4 Regulatory Approvals. 
  
 (a) Each of Purchaser and Seller shall, and Seller shall cause the Companies
to, (i) make or cause to be made all filings required of each of them or any of their respective Affiliates under the Antitrust Laws with respect to the transactions contemplated hereby as promptly as practicable and, in any event, within fifteen
(15) 

  

 25 








 
Business Days after the date of this Agreement, (ii) comply at the earliest practicable date with any request under the HSR Act or other Antitrust Laws for
additional information, documents, or other materials received by each of them or any of their respective subsidiaries from the Federal Trade Commission (the “FTC”), the Antitrust Division of the U.S. Department of Justice (the
“Antitrust Division”) or any other Governmental Body in respect of such filings or such transactions, and (iii) cooperate with each other in connection with any such filing (including, to the extent permitted by applicable Law,
responding to any reasonable requests for copies of all such documents to the non-filing parties before filing and considering all reasonable additions, deletions or changes suggested in connection therewith) and in connection with resolving any
investigation or other inquiry of any of the FTC, the Antitrust Division or other Governmental Body under any Antitrust Laws with respect to any such filing or any such transaction. Each such party shall use its best efforts to furnish to each other
all information required for any application or other filing to be made pursuant to any applicable Law in connection with the transactions contemplated by this Agreement. Any party may, as it deems advisable and necessary, reasonably designate any
competitively sensitive material provided to the other parties under this Section 7.4 as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient,
and the recipient shall cause such outside counsel not to disclose such materials or information to any employees, officers, directors or other representatives of the recipient or their Affiliates, unless express written permission is obtained in
advance from the source of the materials. Each such party shall promptly inform the other party hereto of any oral communication with, and provide copies of written communications with, any Governmental Body regarding any such filings or any such
transaction. No party hereto shall independently participate in any formal meeting with any Governmental Body in respect of any such filings, investigation, or other inquiry without giving the other party hereto prior notice of the meeting and, to
the extent permitted by such Governmental Body, the opportunity to attend and/or participate. Subject to applicable Law, the parties hereto will consult and cooperate with one another in connection with any analyses, appearances, presentations,
memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto relating to proceedings under the HSR Act or other Antitrust Laws. Purchaser shall pay all filing fees in connection with all filings under
the Antitrust Laws. 
  
 (b) Each of Purchaser and Seller shall,
and Seller shall cause each of the Companies to, use its best efforts to resolve such objections, if any, as may be asserted by any Governmental Body with respect to the transactions contemplated by this Agreement under the Antitrust Laws. In
connection therewith, if any Legal Proceeding is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as in violation of any Antitrust Law, each of Purchaser and Seller shall, and Seller shall cause
each of the Companies to, cooperate and use its best efforts to contest and resist any such Legal Proceeding, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction or other order whether temporary, preliminary or
permanent, that is in effect and that prohibits, prevents, limits or restricts consummation of the transactions contemplated by this Agreement, including by pursuing all available avenues of administrative and judicial appeal and all available
legislative action, unless, by mutual agreement, Purchaser and Seller decide that litigation is not in their respective 

  

 26 








 
best interests. Each of Purchaser and Seller shall, and Seller shall cause each of the Companies to, use its best efforts to take such action as may be
required to cause the expiration of the notice periods under the HSR Act or other Antitrust Laws with respect to such transactions as promptly as possible after the execution of this Agreement. In connection with and without limiting the foregoing,
Purchaser agrees to take promptly any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Laws that may be asserted by any Federal, state and local and non-United States antitrust or competition authority, so
as to enable the parties to close the transactions contemplated by this Agreement as expeditiously as possible, including committing to or effecting, by consent decree, hold separate orders, trust or otherwise, the sale or disposition of such of its
assets or businesses (including any acquired pursuant to this Agreement) as are required to be divested in order to avoid the entry of, or to effect the dissolution of, any decree, order, judgment, injunction, temporary restraining order or other
order in any suit or preceding, that would otherwise have the effect of preventing, delaying or limiting the consummation of the transactions contemplated by this Agreement. 
  
 .5 Further Assurances. Each of Purchaser and Seller shall use (and Seller shall cause each of the Companies and the
Subsidiaries to use) its commercially reasonable efforts to (i) take all actions necessary or appropriate to consummate the transactions contemplated by this Agreement and (ii) cause the fulfillment at the earliest practicable date of all of the
conditions to their respective obligations to consummate the transactions contemplated by this Agreement. 
  
 .6 Confidentiality. Purchaser acknowledges that the information provided to it in connection with this Agreement and the transactions contemplated
hereby is subject to the terms of the confidentiality agreement between Purchaser and Seller dated February 1, 2005, as amended (the “Confidentiality Agreement”), the terms of which are incorporated herein by reference. Effective
upon, and only upon, the Closing Date, the Confidentiality Agreement shall terminate. 
  
 .7 Indemnification and Exculpation. 
  
 (a) From and after the Closing Date, Purchaser shall cause the Companies to indemnify, defend and hold harmless, to the fullest extent permitted under applicable Law, the individuals who on or before the Closing Date
were directors, officers or employees of any of the Companies or the Subsidiaries (collectively, the “Indemnitees”) with respect to all acts or omissions by them in their capacities as such or taken at the request of any of the
Companies or the Subsidiaries at any time before the Closing Date. Purchaser agrees that all rights of the Indemnitees to indemnification and exculpation from liabilities for acts or omissions occurring at or before the Closing Date as provided in
the respective certificate of formation of NGL or LLC Agreement or the certificate of incorporation or bylaws of KUS or comparable organizational documents of any of the Subsidiaries as now in effect, and any indemnification agreements or
arrangements of any of the Companies or the Subsidiaries shall survive the Closing Date and shall continue in full force and effect in accordance with their terms. Such rights shall not be amended, or otherwise modified in any manner that would
adversely affect 

  

 27 








 
the rights of the Indemnitees, unless such modification is required by Law. In addition, Purchaser shall cause the Companies to pay any expenses of any
Indemnitee under this Section 7.7, as incurred to the fullest extent permitted under applicable Law, provided that the person to whom expenses are advanced provides an undertaking to repay such advances to the extent required by applicable
Law. 
  
 (b) In the event any litigation, claim or proceeding
(each, a “Claim”) is asserted or made, any determination required to be made with respect to whether an Indemnitee’s conduct complies with the standards set forth under applicable Law, the applicable organizational documents of
any of the Companies or the Subsidiaries or any indemnification agreements or arrangements of any of the Companies or the Subsidiaries, as the case may be, shall be made by independent legal counsel selected by such Indemnitee. 
  
 (c) Each of Purchaser and the Indemnitee shall cooperate, and cause their
respective Affiliates to cooperate, in the defense of any Claim and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such conferences,
discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith. 
  
 (d) The provisions of this Section 7.7: (i) are intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs
and his or her representatives; and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by Contract or otherwise. 
  
 (e) In the event that Purchaser or any of its successors or assigns (i)
consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger; or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then,
and in each such case, proper provision shall be made so that the successors and assigns of Purchaser shall assume all of the obligations thereof set forth in this Section 7.7. 
  
 (f) The obligations of Purchaser under this Section 7.7 shall not be terminated or modified in such a manner as to
adversely affect any Indemnitee to whom this Section 7.7 applies without the consent of the affected Indemnitee (it being expressly agreed that the Indemnitees to whom this Section 7.7 applies shall be third party beneficiaries of this
Section 7.7). 
  
 .8 Preservation of Records.
Purchaser shall cause the Companies and the Subsidiaries to preserve and keep the records relating to the Companies and the Subsidiaries for a period of seven (7) years from the Closing Date, or, if longer, as required by Law. Purchaser shall cause
the Companies and the Subsidiaries to make such records and personnel available as may be reasonably required by Seller in connection with, among other things, any insurance claims or indemnification claims by, Legal Proceedings or tax audits
against or governmental investigations of Seller or any of its Affiliates or in order to enable Seller to comply with its obligations under this Agreement 

  

 28 








 
and each other agreement, document or instrument contemplated hereby or thereby. In the event Purchaser wishes to destroy such records after that time,
Purchaser shall cause the Companies and the Subsidiaries first to give ninety (90) days prior written notice to Seller, and Seller shall have the right at its option and expense, upon prior written notice given to Purchaser within that ninety (90)
day period, to take possession of the records within one hundred and eighty (180) days after the date of such notice. 
  
 .9 Publicity. 
  
 (a) Neither Purchaser nor Seller shall, and Seller shall cause the Companies and the Subsidiaries not to, issue any press release or public announcement
concerning this Agreement or the transactions contemplated hereby without obtaining the prior written approval of the other party hereto, which approval will not be unreasonably withheld, conditioned or delayed, unless, in the reasonable judgment of
Seller or Purchaser, disclosure is otherwise required by applicable Law, provided that, to the extent required by applicable Law, the party intending to make such release shall use its commercially reasonable efforts consistent with applicable Law
to consult with the other party with respect to the text thereof. 
  
 (b) Each of Purchaser and Seller agree that the terms of this Agreement shall not be disclosed or otherwise made available to the public and that copies of this Agreement shall not be publicly filed or otherwise made available to the
public, except where such disclosure, availability or filing is required by applicable Law and only to the extent required by such Law. In the event that such disclosure, availability or filing is required by applicable Law, each of Purchaser and
Seller, as applicable, agrees to use its commercially reasonable efforts to obtain “confidential treatment” of this Agreement with the U.S. Securities and Exchange Commission (or the equivalent treatment by any other Governmental Body) and
to redact such terms of this Agreement as the other party may request. 
  
 .10 Use of Name. Purchaser agrees that (i) neither Purchaser nor any of its Affiliates has any right, title or interest in or to the name “Koch” or any service marks, trademarks, trade names, identifying symbols, logos,
emblems, signs or insignia related thereto (including any pipeline markers) or containing or comprising the foregoing, including any derivations, modifications or alterations thereof, and any word, name or mark confusingly similar thereto
(collectively, the “Koch Marks”), (ii) neither Purchaser nor any of its Affiliates shall have any right to use the Koch Marks after the Closing Date, except that Purchaser may use pipeline markers that contain the Koch Marks for a
period not to exceed one hundred eighty (180) days after the Closing Date, and (iii) Purchaser shall immediately after the Closing change the name of KUS and Koch Hydrocarbon, LP to any name other than the Koch Marks and Purchaser shall, and
Purchaser shall cause its Affiliates to, otherwise cease to hold itself out as having any affiliation with Seller or any of its Affiliates. In furtherance thereof, as promptly as practicable but in no event later than one hundred twenty (120) days
after the Closing Date, Purchaser shall remove, strike over or otherwise obliterate all Koch Marks from all materials including any vehicles, business cards, schedules, stationery, packaging materials, displays, signs, promotional materials,
manuals, forms, computer software, 

  

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technical guidelines, standards and procedures and other materials (other than with respect to pipeline markers, which shall be removed within one hundred
eighty (180) days after the Closing Date). 
  
 .11 Employment
and Employee Benefits. 
  
 (a) Employees. Purchaser
acknowledges and agrees that the employment of the Continuing Employees will not terminate because of the Closing and that such employment of the Continuing Employees shall continue after the Closing. 
  
 (b) Benefits. 
  
 (i) For a period of two (2) years after the Closing Date, or
such longer period of time required by applicable Law, Purchaser shall provide Continuing Employees, who remain employed with Purchaser or an Affiliate of Purchaser, with (a) compensation (including salary, wages and opportunities for commissions,
overtime and premium pay, but excluding bonuses and incentive pay) and a position of employment that are, in each case, at least substantially equivalent to those provided to such Continuing Employees immediately before the Effective Time and (b)
bonuses and incentive pay and employee benefits at least as favorable as those provided by Purchaser to its similarly situated employees immediately before the Effective Time. 
  
 (ii) For purposes of eligibility and vesting (but not benefit accrual, except in the case of vacation and
sick leave which shall continue post-Closing) under the employee benefit plans or pension plans of Purchaser providing benefits to Continuing Employees (the “Purchaser Plans”), Purchaser shall credit each Continuing Employee with
his or her years of service with the Companies, the Subsidiaries and any predecessor entities, to the same extent as such Continuing Employee was entitled immediately before the Effective Time to credit for such service under any similar Company
Benefit Plan. The Purchaser Plans shall not deny Continuing Employees coverage on the basis of pre-existing conditions and shall credit such Continuing Employees in the year of initial participation in the Purchaser Plans for any deductibles and
out-of-pocket expenses paid by such Continuing Employees under the Company Benefit Plans. Seller shall provide to Purchaser within ninety (90) days after the Closing a listing of deductibles and out-of-pocket expenses for the current year for those
Continuing Employees and their dependents who provide authorization for release of such data. 
  
 (iii) Purchaser shall provide and be solely responsible for any continuation coverage required under Section 4980 of the Code, Part 6 of
Title I of ERISA or applicable state law (“COBRA”) to each Continuing Employee or any person related to such Continuing Employee who is a “qualified beneficiary” as that term is defined in COBRA whose first
“qualifying event” (as defined in COBRA) occurs on or before the Closing. 
  

 30 








 (iv) Purchaser shall permit each Continuing Employee to elect on the Closing Date (or as
soon thereafter as reasonably practicable) a direct rollover of his or her rolloverable account balance under the Company Benefit Plan that is a cash or deferred arrangement under Section 401(k) of the Code (the “Company Savings
Plan”) to a defined contribution plan designated by Purchaser (the “Purchaser Savings Plan”), and Seller shall cause the Company Savings Plan to deliver to the Purchaser Savings Plan as soon as reasonably practicable after
the Closing Date the promissory notes and other loan documentation, if any, of the Continuing Employees who have elected such a direct rollover in accordance with the procedures prescribed by Seller. Purchaser shall cause the Purchaser Savings Plan
to accept the direct rollover of electing Continuing Employees’ benefits in cash and, if applicable, promissory notes that are distributed from the Company Savings Plan. 
  
 (v) If, within two (2) years after the Closing Date, (a) the employment of any Continuing Employee is
terminated by Purchaser or an Affiliate of Purchaser for a reason other than cause (as that term is defined in Purchaser’s severance plan) or (b) a Continuing Employee leaves his or her employment as a result of the decision by Purchaser or an
Affiliate of Purchaser to relocate the place of employment of any Continuing Employee that is greater than a fifty (50) mile radius from the Continuing Employee’s place of employment immediately before the Effective Time, then, in either case,
Purchaser shall provide such Continuing Employee the greater of (x) such severance benefits as Purchaser and its Affiliates make available to their similarly situated employees and (y) severance benefits equal to two (2) weeks of such Continuing
Employee’s salary for every year of service with Purchaser, Seller or their respective Affiliates, not to exceed fifty-two (52) weeks of such Continuing Employee’s salary. For purposes of calculating the amount of any severance
compensation in respect of such severance benefit, Purchaser shall take into account each Continuing Employee’s years of service with the Companies, the Subsidiaries and any predecessor entities, to the same extent as such Continuing Employee
was entitled immediately before the Closing to credit for such service. 
  
 (vi) Seller acknowledges that Purchaser is not assuming nor shall Purchaser otherwise be liable for any obligations of Seller under any Company Benefit Plan; and Purchaser acknowledges that Seller is not assuming nor
shall Seller otherwise be liable for any obligations of Purchaser under any Purchaser Plan. 
  
 .12 Non-Solicitation. 
  
 (a) For a period of two (2) years after the Closing Date, Purchaser shall not, and shall cause its Affiliates not to, cause, solicit, induce or encourage any employees who are or, after the Closing Date, become employees of Seller or its
Affiliates to leave their employment with Seller or its Affiliates; provided, however, the foregoing shall not prohibit general solicitations of employment not specifically directed toward employees of Seller or its Affiliates or the
hiring of such employees in response 

  

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thereto, nor the hiring, employment or engagement of any employee of Seller or its Affiliates who presents himself or herself for employment without direct
or indirect solicitation by Purchaser or any Affiliate of Purchaser. 
  
 (b) For a period of two (2) years after the Closing Date, Seller shall not, and shall cause its Affiliates not to, cause, solicit, induce or encourage any Continuing Employees to leave their employment with Purchaser or its Affiliates;
provided, however, the foregoing shall not prohibit general solicitations of employment not specifically directed toward Continuing Employees or the hiring of such employees in response thereto, nor the hiring, employment or engagement
of any Continuing Employee who presents himself or herself for employment without direct or indirect solicitation by Seller or any Affiliate of Seller. 
  
 .13 Supplementation and Amendment of Schedules. From time to time before the Closing, Seller shall have the right to supplement or amend the
Schedules with respect to any matter hereafter arising or discovered after the delivery of the Schedules pursuant to this Agreement. No such supplement or amendment shall have any effect on the satisfaction of the condition to Closing set forth in
Section 8.1(a); provided, however, if the Closing shall occur, then Purchaser shall be deemed to have waived any right or claim pursuant to the terms of this Agreement or otherwise, including pursuant to Article IX
hereof, with respect to any and all matters disclosed pursuant to any such supplement or amendment at or before the Closing. 
  
 .14 Company Guarantees. 
  
 (a) Purchaser shall use its commercially reasonable efforts to obtain from the respective beneficiary, in form and substance reasonably satisfactory to
Seller, on or before the Closing, valid and binding written releases of Seller and its Affiliates (other than the Companies and the Subsidiaries), as applicable, from any liability or obligation, whether arising before, on or after the Closing Date,
under any Company Guarantees in effect as of the Closing, including by providing substitute guarantees with terms that are at least as favorable to the counterparty as the terms of the applicable Company Guarantees and by furnishing letters of
credit, instituting escrow arrangements, posting surety or performance bonds or making other arrangements as the counterparty may reasonably request. If any Company Guarantee has not been released as of the Closing Date, then Purchaser shall
continue to use its commercially reasonable efforts after the Closing to cause each such unreleased Company Guarantee to be released promptly. 
  
 (b) Notwithstanding anything to the contrary herein, Purchaser and Seller acknowledge and agree that at any time on or after the Closing Date, Seller and
its Affiliates may, in their sole discretion, take any action to terminate, obtain release of or otherwise limit their liability under any and all outstanding Company Guarantees. 
  
 (c) Purchaser shall indemnify and hold harmless Seller and its Affiliates from and after the Closing for any Losses arising
out of or relating to any Company Guarantees. 
  

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 .15 Intercompany Contracts; Intercompany Balances. Except as set forth on Schedule 7.15,
all contracts, agreements and arrangements (including any Tax sharing or allocation agreements) between and among any of the Companies or the Subsidiaries, on the one hand, and Seller or any of its Affiliates (other than the Companies and the
Subsidiaries), on the other hand, shall be terminated in their entirety effective as of the Effective Time by the parties and shall be deemed voided, cancelled and discharged in their entirety. Except as set forth on Schedule 7.15, all
intercompany balances between and among any of the Companies or the Subsidiaries, on the one hand, and Seller or any of its Affiliates (other than the Companies and the Subsidiaries), on the other hand, shall be eliminated by capital contribution,
discharge or otherwise in their entirety effective as of the Effective Time. 
  
 .16 Tax Matters. 
  
 (a)
Allocation of Purchase Price. As promptly as practicable, but in no event later than sixty (60) days after the determination of Final Working Capital, Purchaser shall prepare and deliver to Seller a statement (the “Allocation
Statement”) allocating the Adjusted Purchase Price among (i) the assets of NGL and its Subsidiaries and (ii) the Shares in accordance with Section 1060 of the Code and the Treasury regulations promulgated thereunder. Further, upon the
request of Purchaser, Seller shall join with Purchaser in making an election under Section 338(h)(10) of the Code and the Treasury Regulations promulgated thereunder and any corresponding or similar elections under state, local or foreign tax law
(collectively, the “Section 338(h)(10) Election”) with respect to KUS, and Purchaser shall include in such Allocation Statement an allocation of the amount referred to in Section 7.16(a)(ii) among the assets and liabilities
of KUS determined in accordance with Section 338(h)(10) of the Code and the Treasury Regulations promulgated thereunder. Purchaser shall be responsible for the preparation and filing of all forms and documents required to effectuate the Section
338(h)(10) Election, which shall be subject to the prior approval of Seller. Seller shall have fifteen (15) days to review the Allocation Statement and shall notify Purchaser of any disputes with the allocation as set forth in the Allocation
Statement. Seller and Purchaser shall negotiate in good faith to resolve any such dispute before the date that is sixty (60) days before the due date of the Tax Returns that reflect the allocation. If Seller and Purchaser cannot resolve the disputed
allocation before such date, then Seller and Purchaser shall refer the dispute to the Accounting Referee to review and to determine the proper allocation (it being understood that in making such determination, the Accounting Referee shall be
functioning as an expert and not as an arbitrator). The Accounting Referee shall deliver to Seller and Purchaser, as promptly as practicable (but in any case no later than thirty (30) days from the date of engagement of the Accounting Referee), a
determination of the allocation. This determination will be binding on the parties hereto and all Tax Returns filed by Purchaser, Seller or the Companies and each of their Affiliates shall be prepared consistently with such allocation. The cost of
such review and report shall be borne by Purchaser. 
  
 (b) Tax
Returns. Seller shall file or cause to be filed all Income Tax Returns required to be filed by or with respect to KUS or any of its Subsidiaries for any taxable period ending at or before the Tax Effective Time, determined as provided in 

  

 33 








 
Section 7.16(c). Purchaser shall file all other Tax Returns required to be filed by or with respect to any of the Companies or the Subsidiaries,
provided that Purchaser shall provide Seller with a copy of any Tax Return to be filed by or with respect to any of the Companies or the Subsidiaries for any taxable period that begins at or before the Tax Effective Time at least twenty (20) days
before the date of filing for Seller’s review and consent. 
  
 (c) Allocation of Income Taxes. Seller and Purchaser shall, unless prohibited by applicable state or local law, cause KUS or any of its Subsidiaries to close the Income Tax period of KUS and each of its Subsidiaries at the Tax
Effective Time. If applicable Law does not permit KUS or any of its Subsidiaries to close its Income Tax period at the Tax Effective Time, the amount of Income Taxes allocable to the portion of such period ending at the Tax Effective Time shall be
deemed equal to the amount that would be payable if the relevant taxable period ended at the Tax Effective Time. Any allocation of income or deductions required to determine any Income Taxes relating to such period shall be taken into account as
though the relevant taxable period ended at the Tax Effective Time and by means of a closing of the books and records of KUS or any of its Subsidiaries at the Tax Effective Time; provided that exemptions, allowances or deductions that are calculated
on an annual basis (including, but not limited to, depreciation and amortization deductions) shall be allocated between the period ending at the Tax Effective Time and the period after the Tax Effective Time in proportion to the number of days in
each such period. All Tax Returns filed by Purchaser, Seller or the Companies and each of their Affiliates shall be prepared consistently with such allocation. Neither Seller, KUS, any of its Subsidiaries nor Purchaser shall make an election under
Treasury Regulation Section 1.1502-76(b)(2)(ii) (or any similar provision of state or local tax law) to ratably allocate Tax items for any year or taxable period that includes the Closing Date. Purchaser and Seller acknowledge and agree to apply the
provisions of Treasury Regulation Section 1.1502-76(b)(1)(ii)(B) (and any similar provision of state, local or foreign tax law) to any transactions occurring on the Closing Date and after the Effective Time. Any transaction shall be reported on
KUS’ Income Tax Return for the taxable period beginning on the day following the Closing Date. 
  
 (d) Tax Refunds. Any refund or credit (including any interest with respect thereto) of Income Taxes of KUS and its Subsidiaries attributable to any
taxable period (or portion thereof, determined under Section 7.16(c)) ending at or before the Tax Effective Time shall be the property of Seller, and if such refund or credit is received by Purchaser, KUS or its Subsidiaries or any of their
Affiliates, Purchaser shall promptly notify Seller of such refund or credit and pay over to Seller the amount of such refund or credit. 
  
 (e) Tax Contests. If notice of any claim, audit, examination, or other proposed change or adjustment by any taxing authority, as well as any notice
of assessment and any notice and demand for payment, concerning any Income Taxes for any taxable period (or portion thereof, as determined under Section 7.16(c)) ending at or before the Tax Effective Time (a “Tax Proceeding”)
shall be received by Purchaser, Purchaser shall promptly inform Seller in writing of such Tax Proceeding. Seller shall have the right, at its expense to represent the interests of KUS or any of its Subsidiaries 

  

 34 








 
and control the prosecution, defense and settlement of any Tax Proceeding relating exclusively to taxable periods ending at or before the Tax Effective Time.
Purchaser shall represent, at its expense, the interests of KUS or any of its Subsidiaries in any Tax Proceeding relating to any taxable period that begins at or before the Tax Effective Time and ends after the Tax Effective Time; provided,
however, that (i) Purchaser shall allow Seller and its counsel to participate in any such Tax Proceeding at Seller’s sole expense; (ii) Purchaser shall keep Seller fully and timely informed with respect to the commencement, status and
nature of such Tax Proceeding; and (iii) if the results of any such Tax Proceeding involve an issue that is the subject of indemnification by Seller pursuant to Section 9.2 or for which a refund may be available to Seller, then Purchaser and
Seller shall, subject to the indemnification procedures set forth in Section 9.4 to the extent not inconsistent with this Section 7.16(e), jointly control the prosecution, defense and settlement of any such Tax Proceeding, each party
shall cooperate with the other party at its own expense and there shall be no settlement or closing or other agreement with respect thereto without the consent of the other party, which consent shall not be unreasonably withheld. 
  
 (f) Exclusivity. In the event of a conflict between the provisions of
this Section 7.16, on the one hand, and the provisions of Article IX, on the other, the provisions of this Section 7.16 shall control. 
  
 (g) Carry Back of Losses. Purchaser agrees that it shall not, and shall not cause or permit KUS or any of its Subsidiaries to, carry back to any
taxable period ending at or before the Tax Effective Time any net operating loss or other Tax attribute and further agrees that Seller has no obligation under this Agreement or otherwise to return or remit any refund or other Tax benefit
attributable to a breach by Purchaser of the foregoing undertaking. 
  
 (h) Pre-Closing Periods. Purchaser shall not make any Tax elections that would affect Seller or any of its Affiliates (including KUS and its Subsidiaries) for any taxable period (or portion thereof, determined under Section
7.16(c)) ending at or before the Tax Effective Time. 
  
 .17
Insurance. 
  
 (a) Purchaser shall not, and shall cause
each of the Companies and the Subsidiaries not to, assert any right, claim or interest to or under any insurance policies or rights to proceeds thereof (other than any workers’ compensation policy) in effect on or before the Closing Date
relating to any of the Companies or the Subsidiaries. In furtherance thereof, Purchaser, on behalf of itself and each of the Companies and the Subsidiaries, hereby waives any and all rights to or under any such insurance policies. 
  
 (b) Notwithstanding the foregoing Section 7.17(a), if between the date
of this Agreement and the Effective Time, (i) any loss or damage to the improvements or other tangible personal property of any of the Companies or the Subsidiaries shall occur from fire, casualty or any other occurrence, (ii) Seller does not at its
discretion replace or restore such property before the Effective Time and (iii) the Closing occurs, then all 

  

 35 








 
insurance proceeds received by Seller or any of the Companies or the Subsidiaries as a result of the event causing such loss or damage (net of any
retrospective premium, payback or similar obligations in applicable insurance policies) will be delivered by Seller to Purchaser. For the avoidance of doubt, Seller shall not otherwise have any obligation to replace or restore any such property if
such insurance proceeds are assigned to Purchaser. Seller shall have the sole right and authority to provide notices and claims to the applicable insurance carrier and otherwise to communicate and negotiate with such carrier, but shall use its
commercially reasonable efforts to obtain any such proceeds payable to Seller. Notwithstanding the foregoing, the benefit of any insurance proceeds in relation to “business interruption” damages based upon lost profits or business
opportunities in respect of the period before the Effective Time, and insurance proceeds in relation to such loss or damage to the extent attributable to any such property replaced or restored before the Effective Time or otherwise used for such
purposes, will inure to the benefit of and be payable to Seller, and Purchaser will not be entitled to receive or retain such proceeds. 
  
 CONDITIONS TO CLOSING 
  
 .1 Conditions Precedent to Obligations of Purchaser. The obligation of Purchaser to consummate the transactions contemplated by this Agreement is
subject to the fulfillment, on or before the Closing Date, of each of the following conditions (any or all of which may be waived by Purchaser in whole or in part to the extent permitted by applicable Law): 
  
 (a) Subject to supplementation pursuant to Section 7.13, Seller shall
be deemed to remake the representations and warranties of Seller set forth in this Agreement and such representations and warranties qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all
material respects, at and as of the Closing Date as though made on the Closing Date, except to the extent such representations and warranties relate to an earlier date (in which case such representations and warranties qualified as to materiality
shall be true and correct, and those not so qualified shall be true and correct in all material respects, on and as of such earlier date); provided however, that in the event of a breach of a representation or warranty, the condition
set forth in this Section 8.1(a) shall be deemed satisfied unless the effect of all such breaches of representations and warranties taken together result in a Material Adverse Effect; 
  
 (b) Seller shall have performed and complied with all obligations and
agreements required by this Agreement to be performed or complied with by it on or before the Closing Date; provided however, that in the event of any failure to comply, the condition set forth in this Section 8.1(b) shall be
deemed satisfied unless the effect of any such failure to comply results in a Material Adverse Effect; 
  

 36 








 (c) there shall not be in effect any Order by a Governmental Body of competent jurisdiction restraining,
enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby; 
  
 (d) the waiting period applicable to the transactions contemplated by this Agreement under the Antitrust Laws shall have expired or early termination shall have been granted; 
  
 (e) Seller shall have delivered, or caused to be delivered, to Purchaser
certificates representing the Shares and the Membership Interest, duly endorsed in blank or accompanied by stock transfer powers; 
  
 (f) Seller shall have delivered, or caused to be delivered, to Purchaser a duly executed and acknowledged affidavit of the appropriate Affiliate of
Seller, substantially in the form attached hereto as Exhibit A, stating that such Affiliate of Seller is not a “foreign person” as defined in Section 1445 of the Code; and 
  
 (g) the transactions contemplated by that certain Asset Purchase Agreement
dated as of the date hereof by and between Koch Pipeline Company, L.P. and Purchaser shall be consummated simultaneously with the Closing and the transactions contemplated herein. 
  
 .2 Conditions Precedent to Obligations of Seller. The obligations of Seller to consummate the transactions
contemplated by this Agreement are subject to the fulfillment, before or on the Closing Date, of each of the following conditions (any or all of which may be waived by Seller in whole or in part to the extent permitted by applicable Law):

  
 (a) Purchaser shall be deemed to remake the representations
and warranties of Purchaser set forth in this Agreement and such representations and warranties qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, at and as of the
Closing Date as though made on the Closing Date, except to the extent such representations and warranties relate to an earlier date (in which case such representations and warranties qualified as to materiality shall be true and correct, and those
not so qualified shall be true and correct in all material respects, on and as of such earlier date); 
  
 (b) Purchaser shall have performed and complied in all material respects with all obligations and agreements required by this Agreement to be performed or
complied with by it on or before the Closing Date; 
  
 (c) there
shall not be in effect any Order by a Governmental Body of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby; 
  
 (d) the waiting period applicable to the transactions contemplated by this Agreement under the Antitrust Laws shall have
expired or early termination shall have been granted; 
  

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 (e) Seller shall have received the Adjusted Purchase Price pursuant to Section 3.2; and

  
 (f) the transactions contemplated by that certain Asset
Purchase Agreement dated as of the date hereof by and between Koch Pipeline Company, L.P. and Purchaser shall be consummated simultaneously with the Closing and the transactions contemplated herein. 
  
 .3 Frustration of Closing Conditions. Neither Purchaser nor Seller may
rely on the failure of any condition set forth in Sections 8.1 or 8.2, as the case may be, if such failure was caused by such party’s failure to comply with any provision of this Agreement. 
  
 INDEMNIFICATION 
  
 .1 Survival of Representations and Warranties and Covenants. The representations and warranties of the parties
contained in this Agreement shall survive the Closing until nine (9) months after the Closing Date, except that the representations and warranties in Sections 5.1, 5.2, 5.4, 5.19, 6.1, 6.2, 6.5 and
6.6 shall survive until the fifth annual anniversary of the Closing Date and the representations and warranties in Section 5.9 shall survive the Closing until the expiration of the applicable statute of limitations. All of the
covenants made by each party in this Agreement shall survive the consummation of the transactions contemplated herein and shall continue in full force and effect after the Closing indefinitely until all obligations with respect to any such covenants
are fulfilled in their entirety. 
  
 .2 Indemnification by
Seller. 
  
 (a) Subject to Sections 7.13, 9.1
and 9.5 hereof, Seller hereby agrees to indemnify and hold Purchaser, the Companies and their respective directors, officers, employees, Affiliates, stockholders, agents, attorneys, representatives and permitted assigns (collectively, the
“Purchaser Indemnified Parties”) harmless from and against any Losses incurred by any of the Purchaser Indemnified Parties based upon or arising directly from (i) any breach of the representations, warranties, covenants or
agreements made by Seller in this Agreement, (ii) any Income Taxes imposed on KUS or any of its Subsidiaries for any taxable period or portion thereof (determined in accordance with Section 7.16(c)) ending at or before the Tax Effective Time
(except to the extent of the amount of such Income Taxes reflected in the calculation of Final Working Capital and any Income Taxes arising by reason of any transaction occurring on the Closing Date and after the Effective Time, but including Income
Taxes incurred by KUS in the Section 338(h)(10) Election arising with respect to assets and liabilities of KUS determined at the Effective Time) or (iii) Taxes, if any, imposed on KUS or any of its Subsidiaries by reason of Treasury Regulation
Section 1.1502-6(a) (or any similar provision of state or local Law) by reason of being a member of an Affiliated Group that includes the regarded parent of Seller at or before the Tax Effective Time. 
  

 38 








 (b) Purchaser acknowledges and agrees that Seller shall not have any liability under any provision of
this Agreement for any Loss to the extent that such Loss relates to action taken by Purchaser or any other Person (other than Seller in breach of this Agreement) after the Closing Date. Purchaser shall take and shall cause its Affiliates to take all
reasonable steps to mitigate any Loss upon becoming aware of any event that would reasonably be expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to the Loss.

  
 .3 Indemnification by Purchaser. 
  
 (a) Subject to Sections 9.1 and 9.5, Purchaser hereby agrees
to indemnify and hold Seller and its directors, officers, employees, Affiliates, stockholders, agents, attorneys, representatives and permitted assigns (collectively, the “Seller Indemnified Parties”) harmless from and against any
Losses incurred by any of the Seller Indemnified Parties based upon or arising directly from (i) any breach of the representations, warranties, covenants or agreements made by Purchaser in this Agreement and (ii) except as otherwise provided in
Section 9.2(a), all Liabilities of any of the Companies or the Subsidiaries arising on, before or after the Closing Date, including any Taxes imposed on any of the Companies or the Subsidiaries. 
  
 (b) Seller shall take and cause its Affiliates to take all reasonable steps
to mitigate any Loss upon becoming aware of any event that would reasonably be expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to the Loss. 
  
 .4 Indemnification Procedures. 
  
 (a) In the event that any Legal Proceeding shall be instituted, or that any
claim shall be asserted, by any Person in respect of which payment may be sought under Sections 9.2 or 9.3 hereof ( an “Indemnification Claim”), the indemnified party shall promptly cause written notice in reasonable
detail of the assertion of any Indemnification Claim of which it has knowledge that is covered by this indemnity to be forwarded to the indemnifying party. The indemnifying party shall have the right, at its sole option and expense, to be
represented by counsel of its choice, which must be reasonably satisfactory to the indemnified party, and to defend against, negotiate, settle or otherwise deal with any Indemnification Claim that relates to any Losses indemnified against hereunder.
If the indemnifying party elects to defend against, negotiate, settle or otherwise deal with any Indemnification Claim that relates to any Losses indemnified against hereunder, it shall within ninety (90) days notify the indemnified party of its
intent to do so. If the indemnifying party elects not to defend against, negotiate, settle or otherwise deal with any Indemnification Claim that relates to any Losses indemnified against hereunder, the indemnified party may defend against,
negotiate, settle or otherwise deal with such Indemnification Claim. If the indemnifying party shall assume the defense of any Indemnification Claim, the indemnified party may participate, at its own expense, in the defense of such Indemnification
Claim; provided, however, that such indemnified party shall be entitled to participate in any such defense with separate counsel at the expense of the indemnifying party if, (i) so requested by the indemnifying 

  

 39 








 
party to participate or (ii) in the reasonable opinion of counsel to the indemnified party, a conflict or potential conflict exists between the indemnified
party and the indemnifying party that would make such separate representation advisable; and provided, further, that the indemnifying party shall not be required to pay for more than one such counsel for all indemnified parties in
connection with any Indemnification Claim. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such Indemnification Claim. Notwithstanding anything in this Section 9.4
to the contrary, neither the indemnifying party nor the indemnified party shall, without the written consent of the other party, settle or compromise any Indemnification Claim or permit a default or consent to entry of any judgment unless the
claimant and such party provide to such other party an unqualified release from all liability in respect of the Indemnification Claim. Notwithstanding the foregoing, if a settlement offer solely for money damages is made by the applicable third
party claimant, and the indemnifying party notifies the indemnified party in writing of the indemnifying party’s willingness to accept the settlement offer and, subject to the applicable limitations of Section 9.5, pay the amount called
for by such offer, and the indemnified party declines to accept such offer, the indemnified party may continue to contest such Indemnification Claim, free of any participation by the indemnifying party, and the amount of any ultimate liability with
respect to such Indemnification Claim that the indemnifying party has an obligation to pay hereunder, subject to the applicable limitations of Section 9.5, shall be limited to the lesser of (A) the amount of the settlement offer that the
indemnified party declined to accept plus the Losses of the indemnified party relating to such Indemnification Claim through the date of its rejection of the settlement offer or (B) the aggregate Losses of the Indemnified Party with respect to such
Indemnification Claim. If the indemnifying party makes any payment on any Indemnification Claim, the indemnifying party shall be subrogated, to the extent of such payment, to all rights and remedies of the indemnified party to any insurance benefits
or other claims of the indemnified party with respect to such Indemnification Claim. 
  
 (b) After any final decision, judgment or award shall have been rendered by a Governmental Body of competent jurisdiction and the expiration of the time in which to appeal therefrom, or a settlement shall have been
consummated, or the indemnified party and the indemnifying party shall have arrived at a mutually binding agreement with respect to an Indemnification Claim hereunder, the indemnified party shall forward to the indemnifying party notice of any sums
due and owing by the indemnifying party pursuant to this Agreement with respect to such matter. 
  
 .5 Limitations on Indemnification. 
  
 (a) A Purchaser Indemnified Party may assert an Indemnification Claim pursuant to Section 9.2(a)(i) with respect to representations and warranties
of the Seller only to the extent the Purchaser Indemnified Party gives notice of the Indemnification Claim pursuant to Section 9.4(a) before the expiration of the applicable time period set forth in Section 9.1 for such representation
and warranty. A Purchaser Indemnified Party may assert an Indemnification Claim pursuant to Section 9.2(a)(ii) or Section 9.2(a)(iii), as the case may be, only to the extent the Purchaser Indemnified Party gives notice of the
Indemnification Claim in accordance with Section 9.4(a) before 

  

 40 








 
expiration of the applicable statute of limitations for the matters indemnified under Section 9.2(a)(ii) or Section 9.2(a)(iii). Any
Indemnification Claim not made in accordance with Section 9.4(a) by the Purchaser Indemnified Parties on or before the applicable date set forth in Section 9.1 or herein, and Seller’s indemnification obligations with respect
thereto, will be irrevocably and unconditionally released and waived by the Purchaser Indemnified Parties. 
  
 (b) Notwithstanding the provisions of this Article IX, Seller shall not have any indemnification obligations for Losses under Section
9.2(a)(i), (i) for any individual item where the Loss relating thereto is less than $100,000 and (ii) in respect of each individual item where the Loss relating thereto is equal to or greater than $100,000, unless the aggregate amount of all
such Losses exceeds three (3%) percent of the Purchase Price, and then only to the extent of such excess. In no event shall the aggregate amount of Losses to be paid by Seller under Section 9.2(a)(i) exceed ten (10%) percent of the Purchase
Price. 
  
 (c) No representation or warranty of Seller contained
herein shall be deemed untrue or incorrect, and Seller shall not be deemed to have breached a representation or warranty, as a consequence of the existence of any fact, circumstance or event of which (i) is disclosed in response to another
representation or warranty contained in this Agreement or (ii) Purchaser is aware as of the Closing Date. 
  
 (d) No Purchaser Indemnified Party shall have any right to indemnification under this Article IX in respect of any matter that is taken into
account in the calculation of any adjustment to the Purchase Price pursuant to Sections 3.3 and 3.4. 
  
 (e) The amount of any Losses for which indemnification is provided under this Article IX shall be net of any amounts actually recovered or
recoverable by the indemnified party under insurance policies or otherwise, and net of any Tax benefit realized by Purchaser with respect to such Losses. 
  
 (f) For purposes of calculating the amount of any Losses for which indemnification for any breach of any representation or warranty is provided under this
Article IX (but not for purposes of determining whether any particular representation or warranty contained herein has been breached), any materiality or Material Adverse Effect qualifications in the applicable representations or warranties
shall be ignored. 
  
 (g) Notwithstanding anything contained in
this Agreement to the contrary, Purchaser, on behalf of itself and each of the other Purchaser Indemnified Parties, acknowledges and agrees that, except for the representations and warranties contained in Article V (as modified by the
Schedules hereto), neither Seller nor any other Person is making any express or implied representation or warranty with respect to Seller, the Companies, the Subsidiaries, their respective Affiliates or the transactions contemplated by this
Agreement, and Seller disclaims any representations or warranties, whether made by Seller, the Companies or any of their respective Affiliates, officers, directors, employees, agents or representatives. Any claims a Purchaser Indemnified Party may
have for breach of representation or warranty shall be based solely on the 

  

 41 








 
representations and warranties of Seller set forth in Article V (as modified by the Schedules hereto as supplemented or amended). In furtherance of
the foregoing, except for the representations and warranties contained in Article V (as modified by the Schedules hereto), Purchaser, on behalf of itself and each of the other Purchaser Indemnified Parties, acknowledges and agrees that none
of the Companies, Seller, any of their respective Affiliates or any other Person will have or be subject to any liability to a Purchaser Indemnified Party or any other Person for, and Seller hereby disclaims all liability and responsibility for, any
representation, warranty, projection, forecast, statement, or information made, communicated, or furnished (orally or in writing) to Purchaser or its Affiliates or representatives, including any confidential memoranda distributed on behalf of the
Companies relating to any of the Companies or the Subsidiaries or other publications or data room information provided to Purchaser or its Affiliates or representatives, or any other document or information in any form provided to Purchaser or its
Affiliates or representatives in connection with the sale of the Equity Interests and the transactions contemplated hereby (including any opinion, information, projection, or advice that may have been or may be provided to Purchaser or its
Affiliates or representatives by any director, officer, employee, agent, consultant, or representative of the Companies or Seller or any of their respective Affiliates) or for Purchaser’s use of any such information. 
  
 (h) Purchaser, on behalf of itself and each of the other Purchaser
Indemnified Parties, acknowledges that it has conducted to its satisfaction, its own independent investigation of the condition, operations, assets (including all activated and deactivated pipelines) and business of the Companies and the
Subsidiaries and, in making its determination to proceed with the transactions contemplated by this Agreement, each of the Purchaser Indemnified Parties has relied on the results of Purchaser’s independent investigation. The disclosure of any
matter or item in any schedule hereto shall not be deemed to constitute an acknowledgment that any such matter is required to be disclosed. 
  
 (i) Purchaser, on behalf of itself and each of the other Purchaser Indemnified Parties, acknowledges that the properties of the Companies and the
Subsidiaries have asbestos-containing materials. Seller hereby disclaims all liability and responsibility with respect to any claims or Liabilities arising therefrom or related thereto, and Purchaser, on behalf of itself and each of the other
Purchaser Indemnified Parties, acknowledges that it shall have no claims against Seller with respect thereto. 
  
 .6 Tax Treatment of Indemnity Payments. Seller and Purchaser agree to treat any indemnity payment made pursuant to this Article IX as an
adjustment to the Purchase Price for federal, state, local and foreign income tax purposes. 
  
 .7 NO CONSEQUENTIAL DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY
ELSEWHERE IN THIS AGREEMENT OR PROVIDED FOR UNDER ANY APPLICABLE LAW,
NO PARTY SHALL, IN ANY EVENT, BE LIABLE TO ANY OTHER PERSON,
EITHER IN CONTRACT OR IN TORT, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT,
SPECIAL OR PUNITIVE DAMAGES OF SUCH OTHER PERSON, INCLUDING LOSS OF
FUTURE REVENUE, INCOME OR PROFITS, DIMINUTION OF VALUE OR LOSS OF
BUSINESS REPUTATION OR OPPORTUNITY RELATING TO THE BREACH OR ALLEGED BREACH
HEREOF, WHETHER OR 

  

 42 








 
NOT THE POSSIBILITY OF SUCH DAMAGES HAS
BEEN DISCLOSED TO THE OTHER PARTY IN ADVANCE OR COULD HAVE BEEN
REASONABLY FORESEEN BY SUCH OTHER PARTY (PROVIDED THAT SUCH LIMITATION SHALL
NOT LIMIT SELLER’S RIGHT TO RECOVER CONTRACT DAMAGES IN CONNECTION
WITH PURCHASER’S FAILURE TO CONSUMMATE THE CLOSING IN VIOLATION OF
THIS AGREEMENT). THE EXCLUSION OF CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR
PUNITIVE DAMAGES AS SET FORTH IN THE PRECEDING SENTENCE SHALL NOT
APPLY TO ANY SUCH DAMAGES SOUGHT BY THIRD PARTIES AGAINST A PURCHASER
INDEMNIFIED PARTY OR A SELLER INDEMNIFIED PARTY, AS THE CASE MAY BE,
IN CONNECTION WITH LOSSES THAT MAY BE INDEMNIFIED PURSUANT TO THIS
ARTICLE IX. 
  
 .8
EXCLUSIVE REMEDY. SELLER, ON BEHALF OF ITSELF AND EACH OF THE
OTHER SELLER INDEMNIFIED PARTIES, AND PURCHASER, ON BEHALF OF ITSELF AND
EACH OF THE OTHER PURCHASER INDEMNIFIED PARTIES, ACKNOWLEDGE AND AGREE THAT,
SUBJECT TO SECTION 10.12, THE SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH
OR INACCURACY, OR ALLEGED BREACH OR INACCURACY, OF ANY REPRESENTATION OR
WARRANTY IN THIS AGREEMENT OR ANY COVENANT OR AGREEMENT UNDER THIS
AGREEMENT, SHALL BE INDEMNIFICATION IN ACCORDANCE WITH THIS ARTICLE IX. IN
FURTHERANCE OF THE FOREGOING, SELLER, ON BEHALF OF ITSELF AND EACH OF
THE OTHER SELLER INDEMNIFIED PARTIES, AND PURCHASER, ON BEHALF OF ITSELF
AND EACH OF THE OTHER PURCHASER INDEMNIFIED PARTIES, HEREBY WAIVE, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL OTHER
RIGHTS, CLAIMS AND CAUSES OF ACTION (INCLUDING RIGHTS OF CONTRIBUTIONS, IF
ANY) THAT MAY BE BASED UPON, ARISE OUT OF OR RELATE TO
THIS AGREEMENT, OR THE NEGOTIATION, EXECUTION OR PERFORMANCE OF THIS AGREEMENT
(INCLUDING ANY TORT OR BREACH OF CONTRACT CLAIM OR CAUSE OF ACTION
BASED UPON, ARISING OUT OF OR RELATED TO ANY REPRESENTATION OR
WARRANTY MADE IN OR IN CONNECTION WITH THIS AGREEMENT OR AS AN
INDUCEMENT TO ENTER INTO THIS AGREEMENT), KNOWN OR UNKNOWN, FORESEEN OR
UNFORESEEN, WHICH EXIST OR MAY ARISE IN THE FUTURE, THAT IT MAY
HAVE AGAINST THE SELLER INDEMNIFIED PARTIES OR THE PURCHASER INDEMNIFIED PARTIES,
AS THE CASE MAY BE, ARISING UNDER OR BASED UPON ANY FEDERAL,
STATE OR LOCAL LAW (INCLUDING ANY SUCH LAW RELATING TO ENVIRONMENTAL
MATTERS OR ARISING UNDER OR BASED UPON ANY SECURITIES LAW, COMMON LAW
OR OTHERWISE). 
  
 .9 No Transfer
of Seller’s Indemnities. If Purchaser sells, assigns or otherwise transfers, by operation of law or otherwise, any or all of the Equity Interests to any Person, other than an Affiliate of Purchaser, then Seller’s indemnities pursuant
to Section 9.2 relating to such transferred Equity Interests, or portion thereof, shall automatically and immediately extinguish. 
  
 MISCELLANEOUS 
  
 .1 Payment of Transfer Taxes. All sales, use, transfer, intangible, recordation, documentary stamp or similar Taxes or charges, of any nature
whatsoever, applicable to, or resulting from, the transactions contemplated by this Agreement shall be 

  

 43 








 
borne by Purchaser. At Closing, Purchaser shall remit such Taxes resulting from the transactions contemplated by this Agreement to Seller or otherwise
provide for the payment of such Taxes in a manner satisfactory to Seller. In the event Seller receives written notice assessing Taxes from any tax authority after the Closing Date with respect to such Taxes, Purchaser shall within ten (10) days of
receiving written notice from Seller of such Taxes, remit such amounts to Seller. 
  
 .2 Expenses. Except as otherwise provided in this Agreement, each of Seller and Purchaser shall bear its own expenses incurred in connection with the negotiation and execution of this Agreement and each other
agreement, document and instrument contemplated by this Agreement and the consummation of the transactions contemplated hereby and thereby. 
  
 .3 Submission to Jurisdiction; Consent to Service of Process. 
  
 (a) Seller, on behalf of itself and each of the other Seller Indemnified Parties, and Purchaser, on behalf of itself and
each of the other Purchaser Indemnified Parties, hereby irrevocably submit to the exclusive personal jurisdiction of the Delaware Court of Chancery over any dispute arising out of or relating to this Agreement or any of the transactions contemplated
hereby and each party hereby irrevocably agrees that all claims in respect of such dispute or any suit, action or proceeding related thereto may be heard and determined in such court. Seller, on behalf of itself and each of the other Seller
Indemnified Parties, and Purchaser, on behalf of itself and each of the other Purchaser Indemnified Parties, hereby irrevocably waive, to the fullest extent permitted by applicable Law, any objection that they may now or hereafter have to the laying
of venue of any such dispute brought in such court or any defense of inconvenient forum for the maintenance of such dispute. Each of Seller, on behalf of itself and each of the other Seller Indemnified Parties, and Purchaser, on behalf of itself and
each of the other Purchaser Indemnified Parties, hereto agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. 
  
 (b) Each of Seller, on behalf of itself and each of the other Seller
Indemnified Parties, and Purchaser, on behalf of itself and each of the other Purchaser Indemnified Parties, hereto hereby consents to process being served by any party to this Agreement in any suit, action or proceeding by delivery of a copy
thereof in accordance with the provisions of Section 10.6. 
  
 .4 Entire Agreement; Amendments and Waivers. This Agreement (including the schedules and exhibits hereto) and the Confidentiality Agreement represent the entire understanding and agreement between the parties hereto with respect to
the subject matter hereof. This Agreement can be amended, supplemented or changed, and any provision hereof can be waived, only by written instrument making specific reference to this Agreement signed by the party against whom enforcement of any
such amendment, supplement, modification or waiver is sought. No action taken pursuant to this Agreement, including any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of compliance
with any 

  

 44 








 
representation, warranty, covenant or agreement contained herein. The waiver by any party hereto of a breach of any provision of this Agreement shall not
operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any party to exercise, and no delay in exercising, any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. 
  
 .5 Governing Law. The provisions of this Agreement, all of the
documents delivered pursuant hereto, their execution, performance or nonperformance, interpretation, construction and all matters based upon, arising out of or related to this Agreement or the negotiation, execution or performance of this Agreement
(whether in tort or contract) shall be governed by the laws, both procedural and substantive, of the State of Delaware without regard to its conflict of laws provisions that if applied might require the application of the laws of another
jurisdiction. 
  
 .6 Notices. All notices and other
communications under this Agreement shall be in writing and shall be deemed given (a) when delivered personally by hand (with written confirmation of receipt), (b) when sent by facsimile (with written confirmation of transmission) or (c) one (1)
business day after the day sent by overnight courier (with written confirmation of receipt), in each case at the following addresses and facsimile numbers (or to such other address or facsimile number as a party may have specified by notice given to
the other party pursuant to this provision): 
  
 If to Seller,
to: 
  
 Koch Hydrocarbon Management Company, LLC 
 Attn: President 
 4111 E. 37th St. North

 Wichita, Kansas 67220 
 Fax:
(316) 828-7972 
  
 With a copy to: 
  
 Koch Industries, Inc. 
 Attn: General Counsel 
 4111 E. 37th St. North

 Wichita, Kansas 67220 
 Fax:
(316) 828-3133 
  
 and 
  
 Weil, Gotshal & Manges LLP 
 Attn: Glenn D. West, Esq. 
 200 Crescent
Court, Suite 300 
 Dallas, Texas 75201 
 Fax: (214) 746-7777 
  

 45 








 If to Purchaser, to: 
  
 ONEOK, Inc. 
 Attn: David Kyle 
 100 West Fifth Street 
 Tulsa, Oklahoma 74103 
 Fax: (918) 588-7961 
  
 With a copy to: 
  
 ONEOK, Inc. 
 Attn: General Counsel

 100 West Fifth Street 
 Tulsa,
Oklahoma 74103 
 Fax: (918) 588-7971 
  
 .7 Severability. If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any Law or public policy,
all other terms or provisions of this Agreement shall nevertheless remain in full force and effect so long as the legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such
determination that any term or other provision is invalid, illegal, or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible
in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible. 
  
 .8 Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and
permitted assigns. Nothing in this Agreement shall create or be deemed to create any third party beneficiary rights in any person or entity not a party to this Agreement, except as contemplated by Section 7.7. No assignment of this Agreement
or of any rights or obligations hereunder may be made by either Seller or Purchaser, directly or indirectly (by operation of law or otherwise), without the prior written consent of the other party hereto (other than an assignment to an Affiliate)
and any attempted assignment without the required consents shall be void. No assignment of any obligations hereunder shall relieve the assignor of its obligations hereunder, and any such assignor shall remain jointly and severally liable for its
obligations and the obligations of its permitted assignee. Upon any such permitted assignment, the references in this Agreement to Purchaser shall also apply to any such assignee unless the context otherwise requires. 
  
 .9 Non-Recourse. This Agreement may only be enforced against, and any
claims or causes of action that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement may only be made against, the entities that are expressly identified as parties hereto. No
past, present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney or representative of Seller or the Companies or any of their 

  

 46 








 
respective Affiliates shall have any liability for any obligations or liabilities of Seller under this Agreement of or for any claim based on, in respect of,
or by reason of, the transactions contemplated hereby and thereby. 
  
 .10 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same
agreement. Once signed, any reproduction of this Agreement made by reliable means (e.g., photocopy, facsimile) is considered an original. 
  
 .11 Time is of the Essence. With regard to the dates and time periods set forth or referred to in this Agreement, TIME IS OF THE ESSENCE.

  
 .12 Specific Performance. Without limiting any other
rights or remedies of the parties under this Agreement, to the extent all of the conditions to Closing set forth in Article VIII have either been satisfied or waived and a party to this Agreement fails to consummate the Closing, the other
party hereto shall have the right to seek a decree of specific performance to cause the breaching party to so consummate the Closing. 
  
 [THE REMAINDER OF THIS PAGE IS INTENTIONALLY
LEFT BLANK.] 
  

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 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective
officers thereunto duly authorized, as of the date first written above. 
  

			
	ONEOK, INC.
		
	 By:
	 	 /s/ David Kyle


	 Name:
	 	David Kyle
	 Title:
	 	Chairman, President and
	 	 	Chief Executive Officer
	
	 KOCH HYDROCARBON
 MANAGEMENT
COMPANY, LLC

		
	 By:
	 	 /s/ Ronald D. Vaupel


	 Name:
	 	Ronald D. Vaupel
	 Title:
	 	Chief Executive Officer