CONSULTATION WITH ATTORNEYS OF PURCHASER'S OWN SELECTION,
PURCHASER HEREBY VOLUNTARILY WAIVES AND RELEASES ALL OF PURCHASER'S RIGHTS AND
REMEDIES UNDER THE DTPA AS APPLICABLE TO SELLER AND SELLER'S SUCCESSORS AND
ASSIGNS AND (b) PURCHASER SHALL DEFEND AND INDEMNIFY THE INDEMNIFIED SELLER
PARTIES FROM AND AGAINST ANY AND ALL CLAIMS OF OR BY ANY OF THE INDEMNIFIED
PURCHASER PARTIES OR ANY OF THEIR SUCCESSORS AND ASSIGNS BASED IN WHOLE OR IN
PART ON THE DTPA ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
17.15
Headings.
The headings and captions herein are inserted
for convenience of reference only and are not intended to govern, limit or aid
in the construction of any term or provision hereof.
The rights and obligations
of each Party shall be determined pursuant to this Agreement.
Each of Seller
and Purchaser has had the opportunity to exercise business discretion in
relation to the negotiation of the details and terms of the transaction
contemplated hereby.
This Agreement is the result of arm's length negotiations
from equal bargaining positions.
It is the intention of the Parties that every
covenant, term
76
and provision of this Agreement shall be construed simply according to its fair
meaning and not strictly for or against any Party (notwithstanding any rule of
law requiring an agreement to be strictly construed against the drafting Party)
and no consideration shall be given or presumption made, on the basis of who
drafted this Agreement or any particular provision thereof, it being understood
that the Parties to this Agreement are sophisticated and have had adequate
opportunity and means to exercise business discretion in relation to the
negotiation of the details of the transaction contemplated hereby and retain
counsel to represent their interests and to otherwise negotiate the provisions
of this Agreement.
17.16
Disclaimers.
(a)
DISCLAIMERS CONSPICUOUS. THE PARTIES AGREE
THAT, TO THE EXTENT REQUIRED BY APPLICABLE LAW TO BE OPERATIVE, THE DISCLAIMERS
CONTAINED IN THIS SECTION 17.16 ARE "CONSPICUOUS" DISCLAIMERS FOR THE PURPOSES
OF ANY APPLICABLE LAW, RULE, OR ORDER.
(b)
NO OTHER REPRESENTATIONS AND WARRANTIES. THE
EXPRESS REPRESENTATIONS AND WARRANTIES OF SELLER CONTAINED IN THIS AGREEMENT
(AND THE RE-AFFIRMATIONS THEREOF SET FORTH IN THE APPLICABLE CLOSING
CERTIFICATION), TOGETHER WITH THE TITLE WARRANTIES IN THE ASSIGNMENT TO BE
DELIVERED AT THE APPLICABLE CLOSING BY SELLER (COLLECTIVELY "SELLER'S
WARRANTIES") ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND
WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITATION OF THE
FOREGOING, SELLER EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND
WARRANTIES, INCLUDING ANY WARRANTIES OR REPRESENTATIONS, WHETHER
EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, RELATING TO: (i) TITLE TO THE
ACQUIRED ASSETS; (ii) THE CONDITION, QUANTITY, QUALITY, CONFORMITY TO MODELS OR
SAMPLES, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR NON-INFRINGEMENT
OF ANY ACQUIRED ASSETS; (iii) THE ACCURACY OR COMPLETENESS OF ANY DATA, REPORTS,
RECORDS, PROJECTIONS, INFORMATION, OR MATERIALS FURNISHED OR MADE AVAILABLE TO
PURCHASER IN CONNECTION WITH THIS AGREEMENT OR THE CONTEMPLATED TRANSACTIONS
WHETHER BEFORE, ON, OR AFTER THE EXECUTION DATE; (iv) PRICING ASSUMPTIONS, OR
QUALITY OR QUANTITY OF HYDROCARBON RESERVES