SHALL NOT SETTLE OR COMPROMISE SUCH CLAIM WITHOUT THE PRIOR
WRITTEN CONSENT OF THE INDEMNIFIED PARTY, WHICH SHALL NOT BE UNREASONABLY
WITHHELD OR DELAYED.
NOTWITHSTANDING THE FOREGOING, IN THE EVENT THE SUBJECT
MATTER UNDERLYING SUCH CLAIM IS REASONABLY DETERMINED BY THE INDEMNITEE TO BE OR
REASONABLY ANTICIPATED TO BE MATERIALLY AND ADVERSELY PRECEDENT SETTING TO THE
INDEMNITEE, OR WHICH MAY MATERIALLY AND ADVERSELY AFFECT THE INDEMNITEE'S FUTURE
OPERATIONS, THE INDEMNITEE MAY, IN ITS REASONABLE JUDGMENT, WITHHOLD ITS CONSENT
TO INDEMNITOR DEFENDING THE CLAIM WITH ITS OWN COUNSEL, OR SETTLING THE CLAIM,
AND UPON WRITTEN NOTICE TO INDEMNITOR, INDEMNITEE SHALL PROCEED WITH ITS DEFENSE
OF THE CLAIM.
THE INDEMNITOR'S LIABILITY WHEN INDEMNITEE IS DEFENDING THE CLAIM
27
SHALL NOT EXCEED THAT WHICH INDEMNITOR WOULD HAVE INCURRED HAD INDEMNITOR
PROVIDED THE CLAIM DEFENSE.
8.5.
LIMITATION ON SELLER'S REPRESENTATIONS AND
WARRANTIES. INDEPENDENT ANALYSIS.
APOLLO AND APOLLO PRODUCTION ACKNOWLEDGE THAT
APOLLO AND APOLLO PRODUCTION, EITHER ALONE OR TOGETHER WITH ANY INDIVIDUALS OR
ENTITIES APOLLO AND APOLLO PRODUCTION HAVE RETAINED TO ADVISE THEM WITH RESPECT
TO THE TRANSACTIONS CONTEMPLATED HEREBY, HAVE KNOWLEDGE AND EXPERIENCE IN
TRANSACTIONS OF THE TYPE CONTEMPLATED PURSUANT TO THIS AGREEMENT AND IN THE
BUSINESS OF MOUNTAIN STATES, AND ARE THEREFORE CAPABLE OF EVALUATING THE RISKS
AND MERITS OF ACQUIRING THE STOCK.
APOLLO AND APOLLO PRODUCTION FURTHER
ACKNOWLEDGE THAT NO SELLER NOR ANY OF THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS,
EMPLOYEES, PARTNERS, MEMBERS, MANAGERS, OR OWNERS, NOR ANY OF THEIR RESPECTIVE
AFFILIATES, REPRESENTATIVES, AGENTS OR CONSULTANTS HAVE MADE ANY REPRESENTATION
OR WARRANTY IN RESPECT OF THE INTERPRETATIONS OR ECONOMIC EVALUATIONS RELATIVE
TO MOUNTAIN STATES, INCLUDING WITH RESPECT TO THE FUTURE OPERATION OF MOUNTAIN
STATES OR ITS BUSINESS, OR AS TO THE PROSPECTS (FINANCIAL OR OTHERWISE) OF
MOUNTAIN STATES.
APOLLO AND APOLLO PRODUCTION FURTHER ACKNOWLEDGE, AGREE AND
RECOGNIZE THAT ANY COST ESTIMATES, PROJECTIONS OR OTHER PREDICTIONS CONTAINED OR
REFERRED TO IN ANY DOCUMENT PROVIDED TO APOLLO, APOLLO PRODUCTION, OR ANY OF
THEIR AFFILIATES, EMPLOYEES, AGENTS OR REPRESENTATIVES, ARE PREPARED FOR
INTERNAL PLANNING PURPOSES ONLY AND ARE NOT DEEMED TO BE REPRESENTATIONS AND
WARRANTIES OF SELLER, OR SELLER'S RESPECTIVE SHAREHOLDERS, DIRECTORS, EMPLOYEES,
PARTNERS, MEMBERS OR OWNERS, OR ANY OF THEIR RESPECTIVE AFFILIATES, AGENTS,
REPRESENTATIVES, OR CONSULTANTS.
IT IS EXPRESSLY UNDERSTOOD AND AGREED BY THE PARTIES HERETO THAT SELLER MAKES NO
WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE ASSETS
OR PROPERTIES OF MOUNTAIN STATES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR
OTHERWISE. UPON CLOSING, APOLLO AND APOLLO PRODUCTION ACKNOWLEDGE THAT THEY HAVE
HAD, OR WILL HAVE HAD, PRIOR TO CLOSING, A REASONABLE OPPORTUNITY TO CONDUCT
THEIR DUE DILIGENCE ACTIVITIES AND TO INSPECT AND EXAMINE THE CONDITION OF EACH
AND EVERY ASSET AND PROPERTY OF MOUNTAIN STATES, INCLUDING THE ENVIRONMENTAL
CONDITIONS OF THE ASSETS AND PROPERTIES OF MOUNTAIN STATES, AND APOLLO AND
APOLLO PRODUCTION ARE AWARE OF AND ACCEPT THE CONDITION OF EACH AND EVERY ASSET
AND PROPERTY OF MOUNTAIN STATES, INCLUDING BUT NOT LIMITED TO THE ENVIRONMENTAL
CONDITIONS OF SUCH ASSETS