TRANSITION SERVICES
AGREEMENT
This TRANSITION SERVICES AGREEMENT (this “ Agreement
”), is dated as of December 4th, 2006 (the “
Effective Date ”), and is between Westland Development
Co., Inc., a New Mexico corporation (“ Westland
”), and Atrisco Oil & Gas LLC, a New Mexico limited
liability company (“ Atrisco ”).
WHEREAS, Atrisco has requested, and Westland has agreed to provide,
certain services to Atrisco pursuant to the terms and conditions of
this Agreement; and
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained in this Agreement and other good
and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereby agree as follows:
1. Services and Fees .
(a) Services . The services to be rendered by
Westland under this Agreement are set forth on Exhibit A
attached hereto and made a part hereof (hereinafter, collectively
referred to as the " Services ").
(b) Fees . In consideration of providing the
Services, Atrisco shall pay to Westland the fees set forth on
Exhibit A attached hereto (the “Fees”), which
Fees will approximate the fully-allocated cost to Westland, without
markup or profit, of providing the Services. Within ten business
days following the end of each calendar month, Westland shall send
Atrisco an invoice detailing the aggregate amount of Fees incurred
during the immediately preceding month, which invoice shall be paid
by Atrisco to Westland within 30 days following receipt thereof.
Notwithstanding the foregoing, Atrisco shall not be required to pay
the first $200,000 in Fees incurred during each one-year period
commencing on the Effective Date and the first and second
anniversary thereof.
2. Term . Westland shall provide each of the
Services for a period commencing on the Effective Date and ending
on the third anniversary thereof (the “ Service Term
”), subject to the right of Atrisco to terminate any Service
on 30 days’ prior written notice to Westland. All terms of
this Agreement shall remain in effect until no Services are being
provided hereunder (the “ Services Term ”). In
the event Atrisco shall fail to pay any amount due to Westland
within 60 days of the date due, Westland shall have the right, upon
five business days’ prior written notice to Atrisco, to
terminate this Agreement; provided, however, that prior to such
termination, Atrisco shall have the opportunity, within such five
business day period, to avoid such termination by paying the amount
due.
3. Manner of Providing Services; Cooperation .
Westland shall use all reasonable efforts to provide the Services
specified under this Agreement with the same degree of care, skill,
and prudence customarily exercised for its own operations. Atrisco
agrees to cooperate with Westland in Westland’s provision of
the Services hereunder, and each party agrees to use reasonable
efforts in good faith to cooperate with the other party in all
matters relating to the provision and receipt of such Services.
4. Confidentiality . Each party agrees that it,
its affiliates and their respective employees, agents and
representatives shall keep confidential all data and information of
the other party or its representatives obtained thereby in
connection with this Agreement in the same manner that such party
keeps its own such data and information confidential, except for
information that was or becomes generally available in the public
domain through sources other than the disclosing party and except
as disclosure thereof may be required by applicable law as
reasonably determined by legal counsel to such party, provided,
that the receiving party gives the disclosing party prompt written
notice of such requirement prior to such disclosure and assistance
in obtaining an order to protect such information from public
disclosure. The terms of this Section 4 shall survive
indefinitely.
5. Non-Solicitation and Non-Hiring of Employees
. During the Service Term and for a period of two years thereafter,
neither party will, directly or indirectly, solicit for employment,
hire or otherwise retain any employee, consultant or independent
contractor of the other party without the prior written consent of
the other party.
6. Liability of Westland; Indemnification
.
(a) Notwithstanding anything to the contrary
contained herein, neither Westland nor any of its affiliates nor
any of their respective directors, officers, employees, or
representatives will be liable to Atrisco or any of its affiliates
for any losses or damages suffered in respect of any services,
facilities or employees provided or omitted to be provided pursuant
to this Agreement other than by reason of any such person’s
gross negligence or willful misconduct in the provision of any
