[Form of Hamm Funding Commitment
Letter — HLND Merger]
HH GP Holding,
LLC
302 North Independence
Enid, Oklahoma 73701
Reference
is made to the Agreement and Plan of Merger, dated the date hereof
(the “ Merger Agreement ”), among you (“
Parent ”), HLND MergerCo, LLC, a Delaware limited
liability company and a subsidiary of Parent (“ Merger
Sub ”), Hiland Partners GP, LLC, a Delaware limited
liability company and the general partner of the Partnership
(“ Partnership GP ”), and Hiland Partners, LP, a
Delaware limited partnership (the “ Partnership
” and, together with Partnership GP, the “ Hiland
Parties ”). “ Trusts ” as used herein
means the Harold Hamm DST Trust, for which Bert Harold Mackie is
the trustee, and the Harold Hamm HJ Trust, for which Bert Harold
Mackie is the trustee. Terms used and not defined herein have the
meanings ascribed to such terms in the Merger Agreement.
Prior
to the Effective Time, and subject to (i) the terms and
conditions of this letter agreement and (ii) the satisfaction
or waiver (where permissible) of all of the conditions set forth in
Sections 6.1 and 6.3 of the Merger Agreement, the undersigned
hereby agrees to contribute to Parent $32,014,000.00 in cash, less
the amount of cash, if any, immediately available to Parent or
Merger Sub on the Closing Date that was contributed to Parent or
Merger Sub by the Trusts (such amount, as so reduced, the “
Funding Commitment Amount ”).
The undersigned agrees that
the Hiland Parties shall be third party beneficiaries of this
letter agreement in respect of the undersigned’s obligations,
representations and warranties hereunder and, in such capacity and
to the fullest extent permitted by law, are permitted to
specifically enforce this letter agreement, provided that,
to the fullest extent permitted by law, under no circumstances
(including, without limitation, willful breach) shall the
undersigned’s aggregate liability hereunder (i) exceed
the Funding Commitment Amount or (ii) include any special,
indirect, incidental, consequential or punitive damages or lost
profits. Parent, by its acceptance of the benefits hereof, agrees
and acknowledges that no person other than the undersigned shall
have any obligation hereunder.
The
undersigned represents and warrants to Parent that (i) the
undersigned has all requisite power and authority to execute,
deliver, and perform this letter agreement and (ii) this
letter agreement has been duly executed and delivered by the
undersigned and constitutes a legal, valid and binding obligation
of the undersigned, enforceable against the undersigned in
accordance with its terms (except insofar as such enforceability
may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws relating to or
affecting creditors’ rights generally and by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law)). The undersigned
further represents and warrants to Parent that the undersigned has,
and will have throughout the term of
this letter
agreement, sufficient cash or other immediately available funds to
enable the undersigned to contribute the full Funding Commitment
Amount.
Neither
this letter agreement nor any of the rights, interests or
obligations hereunder shall be assigned by either party hereto
(whether by operation of law or otherwise) without the prior
written consent of the other party. This letter agreement may not
be amended, supplemented or otherwise modified unless made by
written instrument signed by both parties hereto, and Parent hereby
agrees not to enter into any such amendment, supplement or
modification, or to waive or fail to enforce any of its rights or
interests hereunder, without the prior written consent of the
Conflicts Committee of Partnership GP.
Any
term or provision of this letter agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective only to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable such
term or provision as to any other jurisdiction or any of the
remaining terms and provisions of this letter agreement in that or
any other jurisdiction. If any provision of t
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