with other
applicable state and federal securities Laws.
(b)
SXE has undertaken such investigation as it has deemed necessary to
enable it to make an informed decision with respect to the execution, delivery
and performance of this Agreement and the other Operative Documents, and the
acquisition of the Frio Interests. SXE has had an opportunity to ask questions
and receive answers from TexStar regarding the business, properties, prospects
and financial condition of the members of the TexStar Group.
6.12
No Representations or Warranties Implied; Independent Investigation;
Forecasts.
(a)
EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE VI OR ELSEWHERE IN THIS
AGREEMENT OR ANY OTHER OPERATIVE DOCUMENT, NEITHER SXE NOR ANY OTHER PERSON HAS
MADE, DOES NOT MAKE AND SXE SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR
WARRANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL
OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO
(i) THE VALUE, NATURE, QUALITY, ADEQUACY OR CONDITION OF THE SXE BUSINESS OR THE
SXE ASSETS, (ii) THE INCOME TO BE DERIVED FROM THE PIK COMMON UNITS OR (iii) THE
MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR USE OR
PURPOSE OF THE SXE UNITS. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS
ARTICLE VI OR ELSEWHERE IN THIS AGREEMENT OR ANY OPERATIVE DOCUMENT, TEXSTAR
FURTHER ACKNOWLEDGES AND AGREES THAT TEXSTAR (i) IS ACQUIRING THE PIK COMMON
UNITS AND ACCEPTING THE SXE ASSETS ON AN AS IS, WHERE IS CONDITION AND BASIS
WITH ALL FAULTS AND (ii) WITHOUT LIMITING ITS RIGHTS IN THE CASE OF KNOWING AND
INTENTIONAL FRAUD OR WILLFUL MISCONDUCT, WILL NOT ASSERT ANY CLAIMS OR TAKE ANY
POSITION IN ANY LEGAL PROCEEDING THAT IS INCONSISTENT WITH THIS SECTION 6.12.
(b)
SXE HAS CONDUCTED ITS OWN INDEPENDENT INVESTIGATION, REVIEW AND ANALYSIS
OF THE BUSINESS, RESULTS OF OPERATIONS, PROSPECTS, CONDITION (FINANCIAL OR
OTHERWISE) OR ASSETS OF THE TEXSTAR GROUP, AND ACKNOWLEDGES THAT IT HAS BEEN
PROVIDED ADEQUATE ACCESS TO THE PERSONNEL, PROPERTIES, ASSETS, PREMISES, BOOKS
AND RECORDS, AND OTHER DOCUMENTS AND DATA OF THE TEXSTAR GROUP FOR SUCH PURPOSE.
SXE ACKNOWLEDGES AND AGREES THAT, IN MAKING ITS DECISION TO ENTER INTO THIS
AGREEMENT AND TO CONSUMMATE THE TRANSACTIONS, SXE
33
HAS RELIED SOLELY UPON ITS OWN INVESTIGATION AND THE EXPRESS REPRESENTATIONS AND
WARRANTIES OF TEXSTAR SET FORTH IN ARTICLE IV AND ARTICLE V (INCLUDING THE
RELATED PORTIONS OF THE SCHEDULES) AND IS NOT RELYING ON THE ACCURACY OR
COMPLETENESS OF ANY OTHER INFORMATION, MATERIALS, REPRESENTATIONS OR WARRANTIES
PROVIDED BY OR ON BEHALF OF TEXSTAR OR THE TEXSTAR GROUP.
(c)
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SXE ACKNOWLEDGES AND
EXPRESSLY CONFIRMS THAT IT HAS RECEIVED FROM TEXSTAR AND THE TEXSTAR GROUP
CERTAIN PROJECTIONS, INCLUDING PROJECTED BALANCE SHEETS AND STATEMENTS OF
OPERATING REVENUES AND INCOME AND CERTAIN BUSINESS PLAN INFORMATION RELATED TO
THE TEXSTAR GROUP. SXE ACKNOWLEDGES THAT (i) THERE ARE UNCERTAINTIES INHERENT IN
ATTEMPTING TO MAKE SUCH ESTIMATES, PROJECTIONS AND OTHER FORECASTS AND PLANS,
(ii) SXE IS FAMILIAR WITH SUCH UNCERTAINTIES, (iii) SXE IS TAKING FULL
RESPONSIBILITY