(ii) THE INCOME TO BE
DERIVED FROM THE FRIO INTERESTS, THE TEXSTAR BUSINESS OR THE TEXSTAR ASSETS,
(iii) THE SUITABILITY OF THE TEXSTAR ASSETS FOR ANY ACTIVITIES OR USES WHICH THE
SXE GROUP (DIRECTLY OR INDIRECTLY) MAY CONDUCT THEREON OR (iv) THE
MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR USE OR
PURPOSE OF THE FRIO INTERESTS, THE TEXSTAR BUSINESS OR THE TEXSTAR ASSETS.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN ARTICLE IV, THIS ARTICLE V OR
ELSEWHERE IN THIS AGREEMENT OR ANY OPERATIVE DOCUMENT, SXE FURTHER ACKNOWLEDGES
AND AGREES THAT SXE (i) IS ACQUIRING THE TEXSTAR INTERESTS AND ACCEPTING THE
TEXSTAR 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 5.26.
(b)
TEXSTAR HAS CONDUCTED ITS OWN INDEPENDENT INVESTIGATION, REVIEW AND
ANALYSIS OF THE BUSINESS, RESULTS OF OPERATIONS, PROSPECTS, CONDITION (FINANCIAL
OR OTHERWISE) OR ASSETS OF THE SXE GROUP, AND ACKNOWLEDGES THAT IT HAS BEEN
PROVIDED ADEQUATE ACCESS TO THE PERSONNEL, PROPERTIES,
28
ASSETS, PREMISES, BOOKS AND RECORDS, AND OTHER DOCUMENTS AND DATA OF THE SXE
GROUP FOR SUCH PURPOSE. TEXSTAR ACKNOWLEDGES AND AGREES THAT, IN MAKING ITS
DECISION TO ENTER INTO THIS AGREEMENT AND TO CONSUMMATE THE TRANSACTIONS,
TEXSTAR HAS RELIED SOLELY UPON ITS OWN INVESTIGATION AND THE EXPRESS
REPRESENTATIONS AND WARRANTIES OF SXE SET FORTH IN ARTICLE VI AND ARTICLE VII
(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 THE SXE GROUP.
(c)
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TEXSTAR ACKNOWLEDGES
AND EXPRESSLY CONFIRMS THAT TEXSTAR HAS RECEIVED FROM THE SXE GROUP CERTAIN
PROJECTIONS, INCLUDING PROJECTED BALANCE SHEETS AND STATEMENTS OF OPERATING
REVENUES AND INCOME AND CERTAIN BUSINESS PLAN INFORMATION RELATED TO THE SXE
GROUP. TEXSTAR ACKNOWLEDGES THAT (i) THERE ARE UNCERTAINTIES INHERENT IN
ATTEMPTING TO MAKE SUCH ESTIMATES, PROJECTIONS AND OTHER FORECASTS AND PLANS,
(ii) TEXSTAR IS FAMILIAR WITH SUCH UNCERTAINTIES, (iii) TEXSTAR IS TAKING FULL
RESPONSIBILITY FOR MAKING ITS OWN EVALUATION OF THE ADEQUACY AND ACCURACY OF ALL
ESTIMATES, PROJECTIONS AND OTHER FORECASTS AND PLANS (INCLUDING THE
REASONABLENESS OF THE ASSUMPTIONS, UNDERLYING ESTIMATES, PROJECTIONS AND
FORECASTS FURNISHED TO IT) AND (iv) TEXSTAR SHALL HAVE NO CLAIM AGAINST ANY
MEMBER OF THE SXE GROUP WITH RESPECT THERETO.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF SXE REGARDING THE SXE GROUP
Except as to matters disclosed in the SXE SEC Documents filed with the SEC on or
after December 31, 2013, and prior to the date of this Agreement (but excluding
any disclosure included therein to the extent that it is cautionary, predictive
or forward-looking in nature) (provided the foregoing shall not be applicable to
the representations and warranties set forth in Section 6.4 or Section 6.5), SXE
and SXE Energy hereby represent and warrant