Exhibit 10.3
TRANSITION SERVICES
AGREEMENT
THIS TRANSITION SERVICES AGREEMENT
(“ Agreement ”) is made and entered into
this 1st day of February 2007, by and between Stallion Energy LLC,
a Delaware limited liability company (“
Stallion ”), and Linn Energy, LLC, a Delaware
limited liability company (“ Linn ”),
Linn Energy Holdings, LLC, a Delaware limited liability company
(“ Linn Holdings ”), Linn Operating,
Inc., a Delaware corporation (“ Linn
Operating” ) and Penn West Pipeline, LLC, a Texas
limited liability company (“ Penn West” ,
and together with Linn, Linn Holdings and Linn Operating the
“Linn Parties” ).
RECITALS
WHEREAS, Cavallo Energy LP, a
Delaware limited partnership (“ Cavallo ”), and
Linn have entered into certain Purchase and Sale Agreements, each
dated as of December 13, 2006, (the “ Purchase
Agreements ”), whereby Cavallo has agreed to sell to
Linn all of Cavallo’s right, title, interest and estate in
and to the “ Assets ” (as defined in the
Purchase Agreements);
WHEREAS, at the Closings (as defined
in the Purchase Agreements) Linn designated certain of its
Affiliates (as defined in the Purchase Agreements) to take
assignment of and title to certain of the Assets, and Cavallo
assigned certain of the Assets to Linn Holdings and to Linn
Operating,
WHEREAS, Cavallo Gathering Company,
LLC, a Texas limited liability company (“ Cavallo
Gathering ”) and Penn West Pipeline, LLC, a Delaware
limited liability company, have entered into that certain
Assignment, Conveyance and Bill of Sale dated February 1, 2007 (the
“ Gathering System Conveyance
”), pursuant to which Cavallo Gathering has assigned,
conveyed and sold a gathering system and certain related assets
more particularly described in the Gathering System Conveyance (the
“ Gathering Assets ”);
WHEREAS, Stallion is currently the
operator of the Assets and of the Gathering Assets and the Linn
Parties desire that Stallion continue to provide, or cause to be
provided, to the Linn Parties certain services related to the
operation, development, maintenance and other similar services
related to the Assets and the Gathering Assets for a transitional
period following the closing of the transactions contemplated in
the Purchase Agreements (the “ Closing Date
”);
WHEREAS, the Linn Parties desire to
employ certain persons currently employed by Stallion and Stallion
has agreed to provide such persons the opportunity to seek
employment with the Linn Parties and assist the Linn Parties in
retaining such persons’ services; and
WHEREAS, terms defined in the
Purchase Agreements shall have the same meanings when used herein
unless expressly stated otherwise, except that for purposed of this
Agreement the term “Assets” shall include the Gathering
Assets.
NOW, THEREFORE
, for the mutual covenants, promises
and agreements herein contained, Stallion and the Linn Parties
covenant and agree as follows:
1.
Services
(a)
During the Initial Term (as hereinafter defined), Stallion will
perform the services in respect of the Assets, which services are
set forth on Appendix B hereto through the dates set forth
in this Agreement. The services shall be similar to those
duties and obligations that Stallion has performed as operator of
the Assets prior to acquisition of such Assets by the Linn
Parties.
(b)
Stallion shall maintain such offices and staff as it currently
maintains for the performance of its services hereunder, and
Stallion shall devote to the performance of the services hereunder
the personnel currently rendering such services or other personnel
experienced and qualified in such matters. Stallion may hire such
personnel as it deems necessary to perform the Services.
Stallion will at all times endeavor to perform such services in
accordance with good professional industry and business standards,
and in respect of the operational and field services provided
hereunder, to the standard of a reasonably prudent oil and gas
operator in the area under the same or similar circumstances, but
in no event shall Stallion have any liability to any Linn Party for
losses sustained or liabilities incurred in performing any services
except to the extent such losses or liabilities result from gross
negligence or willful misconduct of Stallion or its agents.
Stallion and its Affiliates shall have access to and use of the
Assets to perform the services to be provided pursuant to this
Agreement.
(c)
Stallion shall not enter into any contracts relating to the Assets
or wells to be drilled on the Assets during the term of this
Agreement without the prior written agreement of Linn.
(d)
Appendix C sets forth the material current contracts and
agreements with third parties pursuant to which services are
provided in connection with the Assets (“ Service Contracts ”). If at the
termination of this Agreement any Service Contract has not yet
expired, then Linn shall have the option to either: (i) take
assignment of the Service Contract from Stallion, if assignable;
such assignment to be made to the Linn Party designated by Linn or
(ii) instruct Stallion to terminate the Service Contract and
reimburse Stallion for any early termination fees or costs
associated with such early termination.
2.
Compensation and Remittance of Net Available
Cash
(a)
For the performance of services hereunder, Stallion will be
entitled to the G&A Fee (as defined in the schedule attached as
Appendix A hereto).
(b)
Until termination of this Agreement, Stallion shall continue to
receive and collect revenues from the Assets and/or any wells
drilled on the Assets during the term of this Agreement for the
account of and on behalf of the Linn Party who is entitled thereto
and shall remit same as provided in this Paragraph 2 (the total
amount of such revenues are herein referred to as the
“Linn Gross
Revenues”)
(c)
Each month during the term hereof, Stallion shall deduct from the
Linn Gross Revenues applicable production, severance and other
taxes and remit, as applicable, those taxes to the extent not
withheld by the purchaser of production. The
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amount of Linn
Gross Revenues less applicable production, severance and other
taxes is herein referred to as the “Linn Net Revenues”
.
(d)
Each month, during the term hereof, Stallion shall deduct from the
Linn Net Revenues the following: (i) the G&A Fee for such
month, (ii) the amount of outstanding operating expenses, workover
expenses, capital expenditures and other costs and expenses
incurred either as Reimbursable Expenses (as defined in the
Schedule attached as Appendix A hereto) or Field Expenses
(as defined in the Schedule attached as Appendix A hereto)
and (iv) the amounts incurred pursuant to the Work Plan and Capital
Budget (the aggregate of such amounts is herein referred to as
the “Permitted
Deductions” ).
(e)
Stallion will disburse the “Net Available Cash” to Linn
concurrently with the disbursement to royalty and other
non-operating working interest owners. For purposes of this
provision, Net Available
Cash is
defined as the Linn Net Revenues less the Permitted
Deductions. With each remittance of Net Available Cash,
Stallion will submit to Linn a statement in reasonable detail
reflecting the Linn Net Revenues and the amount of and supporting
documentation for Permitted Deductions for the previous
month.
(f)
Contemporaneously with the execution of this Agreement, Linn has
advanced to Stallion working capital in the amount of $2 million
(the “Working
Capital” ) to be used by Stallion in
connection with the performance of the Services. During the term of
this Agreement, Stallion will be entitled to retain amounts from
the Linn Net Revenues to maintain the working capital account at
approximately $2 million. If in any month the amount of the
Permitted Deductions exceeds the Linn Net Revenues, Linn will
within five (5) business days from receipt of an invoice therefor
pay to Stallion the amount necessary to maintain the working
capital balance at approximately $ 2 million. Upon termination of
this Agreement, Stallion will remit to Linn the balance of the
working capital account remaining after payment of all costs and
expenses payable to Stallion under this Agreement.
(g)
All taxes, of every nature and kind, including, by way of
illustration and not by way of limitation, franchise, income,
license, occupation or property taxes incurred by or assessed
against Stallion as a result of this Agreement, the performance by
it of services hereunder, or the receipt by it of payments
hereunder (not including taxes assessed against the Assets or
production or income therefrom), shall be borne by and paid by
Stallion, but shall be Reimbursable Expenses.
(h)
During the term of this Agreement, Stallion shall prepare and
execute or cause Cavallo to execute letters in lieu of transfer
orders covering the Assets, which will be sent to the purchasers of
production upon termination of this Agreement.
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3.
Relationship of Parties
(a)
In the performance of its services hereunder, Stallion shall be an
independent contractor, and no relationship of partnership, joint
venture, principal and agent, or employer and employee shall exist
or arise between any Linn Party and Stallion or any Affiliate,
officer, director, or employee of Stallion. By notice to
Stallion’s Designated Representative, Linn may generally
direct the work to be undertaken by Stallion hereunder; provided,
however that the method and staffing of such work shall at all
times be directed and carried out by Stallion as an independent
contractor.
(b)
Neither Stallion nor any of its officers or employees shall have
any right, power, or authority to make any warranty or
representation on behalf of any Linn Party, contract for any Linn
Party, or commit any Linn Party to any obligation or undertaking
other than actions taken reasonably by Stallion in connection with
an emergency situation of which Stallion notifies Linn within a
reasonable time after its occurrence (and the Linn Parties shall
indemnify Stallion for all costs, expenses, and liabilities
incurred in connection with such emergency response).
(c)
As used in this Agreement, Linn’s Designated Representative
shall mean Roland P. Keddie or his designee, who will serve as the
liaison between the Linn Parties and Stallion during performance of
the services under this Agreement. No oral agreement with
Linn’s Designated Representative can affect or modify any of
the terms or obligations of this Agreement. A copy of all
correspondence concerning the services under this Agreement shall
be sent to the Designated Representative that authorized the
services under this Agreement. Linn reserves the right to
change its Designated Representative at any time. Such
Designated Representative shall have the full right and authority
to bind the Linn Parties with respect to any matter under this
Agreement, including notices, consents, directives and
agreements.
(d)
As used in this Agreement, Stallion’s Designated
Representative shall mean George P. SanFilippo, President of
Stallion, or his designee, who will serve as the liaison between
the Linn Parties and Stallion during the performance of the
services under this Agreement. No oral agreement with
Stallion’s Designated Representative can affect or modify any
of the terms or obligations of this Agreement. A copy of all
correspondence concerning the services under this Agreement shall
be sent to the Designated Representative that authorized the
services under this Agreement. Stallion reserves the right to
change its Designated Representative at any time. Such
Designated Representative shall have the full right and authority
to bind Stallion with respect to any matter under this Agreement,
including notices, consents, directives and agreements.
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4.
Employees .
(a)
During the term of this Agreement, Stallion will assist Linn in
seeking to retain certain of Stallion’s employees to
effectuate a smooth transition of the operation of the Assets by
the Linn Parties subsequent to the termination of this
Agreement. The Stallion employees that Linn desires to hire
subsequent to the termination of this Agreement (the “
Stallion Employees
”) are set
forth on Appendix D attached hereto (the Stallion Employees
that Linn hires are referred to as the “
Continuing Employees
”).
(b)
Nothing in this Agreement or the Purchase Agreements shall require
or be construed or interpreted as requiring the Linn Parties or any
Affiliate thereof to offer employment to any employee of Stallion
or its Affiliates or to continue the employment of any employee of
Stallion or its Affiliates (including any Continuing Employees)
following the Closing Date, or to prevent a Party Linn or an
Affiliate thereof from changing the terms and conditions of
employment (including compensation and benefits) of any of its
employees (including any Continuing Employees) following the
Closing Date. Stallion and the Linn Parties hereby
acknowledge and agree that any employment offered by Linn to a
Continuing Employee will be “at will” and may be
terminated by the relevant Linn Party or Affiliate thereof or such
Continuing Employee at any time for any reason (subject to
applicable Laws and to any specific written commitments made to the
contrary by a Linn Party or an Affiliate thereof or such Continuing
Employee). Further, any such offer of employment shall be on
such terms and conditions as the Linn Parties or their Affiliates
shall determine and may be conditioned upon the Stallion
Employee’s passage of the Linn Party’s pre-employment
screening requirements.
(c)
Stallion shall notify the Stallion Employees of Linn’s desire
to hire them. Stallion and Linn shall assist one another in
providing such employees the right to meet with representatives of
Linn to the discuss the capacity in which such persons will be
employed by a Linn Party or an Affiliate thereof and the terms and
conditions under which such employment will be offered;
provided, however , that no employee of Stallion shall be
required to accept an offer of employment with a Linn Party or
Affiliate thereof if such an offer is made. Stallion shall
retain all liability for all severance benefits to be provided to
the employees of Stallion (including but not limited to any
Stallion Employees who receive but do not accept offers of
employment from a Linn Party or Affiliate thereof) under
Stallion’s employment agreements, offer letters, or severance
plans or policies. Not earlier than thirty (30) days and not
later than seven (7) days prior to the termination date of this
Agreement, Linn shall provide offers of employment to the Stallion
Employees a Linn Party or Affiliate thereof desires to hire, with
each offer stipulating that the date for commencement of work is
the termination date of this Agreement (the “Hire Date” ).
(d)
No Stallion Employee shall become a Continuing Employee unless he
or she (i) accepts a Linn Party’s or Affiliate’s offer
of employment under the terms provided in such Linn Party’s
or Affiliate’s offer, (ii) passes any required pre-employment
screening required by such Linn Party or Affiliate, and (iii) on
the Hire Date, is actively at work, on sickness or disability
leave, or an approved leave of absence.
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(e)
The relevant Linn Party or Affiliate shall grant to the Continuing
Employees credit for their past service years as reflected in
Appendix B for the following: (i) vesting and eligibility purposes
under any employee benefit programs maintained by the Linn Parties
or their Affiliates in which they are available to participate and
(ii) determining the duration and amount of their benefits under
any sick pay or sick leave policy or vacation policy, maintained by
the Linn Parties or their Affiliates in which they are eligible to
participate. Stallion shall use commercially reasonable
efforts to provide Linn with all necessary transition assistance,
including any applicable service credit information
relatin
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