Condition of the Business (a) Notwithstanding anything contained in this Agreement to the contrary, Purchaser acknowledges and agrees that Seller is not making any representations or warranties whatsoever, express or implied, beyond those expressly given by Seller in Article V hereof (as modified by the Seller Schedules as supplemented or amended), and Purchaser acknowledges and agrees that, except for the representations and warranties contained therein, the Purchased Assets and the Business are being transferred on a “where is” and, as to condition, “as is” basis. Any claims Purchaser may have for breach of representation or warranty shall be based solely on the representations and warranties of Seller set forth in Article V hereof (as modified by the Seller Schedules as supplemented or amended). Purchaser further represents that neither Seller nor any of its Affiliates nor any other Person has made any representation or warranty, express or implied, regarding Seller, the Purchased Assets, the Business or the transactions contemplated by this Agreement or as to the accuracy or completeness of any information not expressly set forth in this Agreement and neither Purchaser nor any of its Affiliates has relied on any such express or implied representation or warranty. Purchaser further agrees that none of Seller, any of its Affiliates or any other Person will have or be subject to any liability to Purchaser or any other Person resulting from the distribution to Purchaser or its representatives or Purchaser’s use of, any such information, including any confidential memoranda distributed on behalf of Seller relating to the Business or other publications or data room information provided to Purchaser or its representatives, or any other document or information in any form provided to Purchaser or its representatives in connection with the sale of the Business and the transactions contemplated hereby. Purchaser acknowledges that it has conducted to its satisfaction, its own independent investigation of the Business and, in making the determination to proceed with the transactions contemplated by this Agreement, Purchaser has relied on the results of its own independent investigation.
Acquired Assets On the terms and subject to the conditions of this Agreement, at the Closing, Graco and Graco US Finishing Brands shall, and shall cause Sellers to, sell, convey, transfer and deliver to Purchasers, and Purchaser Parent and US Purchaser shall, and shall cause Purchasers to, purchase from Sellers, free and clear of any Liens (except for Permitted Liens), all of the following (all of the following being the “Acquired Assets”): (i) all of the equity ownership interests, beneficial or otherwise, in the entities listed on Schedule 2.1(i) (collectively, the “Acquired Subsidiaries”), each of which is a wholly-owned direct or indirect Subsidiary of Graco; (ii) the rights under such Contracts as are set forth on Schedule 2.1(ii) (the “Acquired ITW Ancillary Agreements”), and (iii) all of the assets, properties, rights, claims, privileges, and interests of the Asset Selling Subsidiaries of every kind and character and wherever located, in each case, relating to, used in, or arising out of the Liquid Finishing Business, except for the Excluded Assets (the “Asset Selling Subsidiaries Acquired Assets”). Without limiting the generality of the foregoing, the Asset Selling Subsidiaries Acquired Assets include all of the Asset Selling Subsidiaries’ right, title and interest in and to the following, except to the extent constituting Excluded Assets: (a) the Seller Owned Real Property, together with all buildings, structures, installations, fixtures and other improvements situated thereon and all easements, rights of way and other rights, interests and appurtenances of any Asset Selling Subsidiary therein or thereunto pertaining; (b) the Real Property Leases to which any Asset Selling Subsidiary is a party and all interests of any Asset Selling Subsidiary therein, including real estate fixtures, leasehold improvements, security and other deposits, common-area-maintenance refunds, adjustments, and other amounts now or hereafter payable to any Asset Selling Subsidiary under or in respect of such leases; (c) accounts receivable (including, but not limited to, all Extra-Liquid Finishing Business Intercompany Accounts Receivable), notes receivable, prepaid expenses, prepayments by customers, and deposits held by any Asset Selling Subsidiary relating to the Liquid Finishing Business; (d) all tangible personal property (including machinery, equipment, parts, goods, furniture, furnishings, hardware, computers, automobiles, trucks, tractors, trailers and tools) of any Asset Selling Subsidiary used in the Liquid Finishing Business, including, but not limited to, all tooling, molds, dies and other equipment in which Graco US Finishing Brands has any rights or interests pursuant to that certain Settlement Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties and that certain Supply and License Agreement, dated as of October 23, 2008, by and among Graco US Finishing Brands (as the assignee of ITW Parent and ITW US Seller), 3M Company and 3M Innovative Properties; (e) the 3M-Related Agreements and all Contracts of any Asset Selling Subsidiary relating to the Liquid Finishing Business (the “Acquired Contracts”), including the Contracts to which any Asset Selling Subsidiary is a party as set forth on Schedule 4.10(e), but excluding any Contract to which any Asset Selling Subsidiary is a party that is not disclosed in Schedule 4.11 if (i) such non-disclosure constitutes a misrepresentation under Section 4.11 and (ii) the assumption of such Contract by any Purchaser would, in such Purchaser’s reasonable determination, materially and adversely affect such Purchaser, unless Purchaser Parent gives written notice to Graco that it deems such Contract to constitute an Acquired Contract; (f) all Business Intellectual Property of the Asset Selling Subsidiaries, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions, including the DeKups Intellectual Property owned by any Asset Selling Subsidiary and the Intellectual Property owned by any Asset Selling Subsidiary as listed on Schedule 1.2(a) or Schedule 1.4; (g) all Permits issued to or held by any Asset Selling Subsidiary and relating to the Liquid Finishing Business, to the extent transferable; (h) all Books and Records of any Asset Selling Subsidiary relating to the Liquid Finishing Business (except for the Books and Records identified as Excluded Assets); provided, however, that: (1) where any such Books and Records contain information that relates to both the Liquid Finishing Business and to any other business of Graco or any of its Affiliates and such information cannot be segregated in a manner that preserves the usefulness of such information as it relates to the Liquid Finishing Business, the Asset Selling Subsidiaries Acquired Assets shall include originals of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain copies of such Books and Records, except that following the Closing Date Purchaser Parent shall cause Purchasers to provide Graco access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; or (2) where any such Books and Records contain information for which an Asset Selling Subsidiary has a legal obligation to retain the originals of such Books and Records, the Asset Selling Subsidiaries Acquired Assets shall include only copies of such Books and Records and the applicable Asset Selling Subsidiary shall be entitled to retain the originals of such Books and Records, except that following the Closing Date the applicable Asset Selling Subsidiary shall provide Purchaser Parent access to the originals of such Books and Records where copies of such Books and Records are insufficient for evidentiary or regulatory purposes; (i) all claims, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, rights of set off, and rights of recoupment (including any such item relating to the payment of Taxes) of any Asset Selling Subsidiary relating to the Liquid Finishing Business, except for the Excluded Assets described in Sections 2.2(h) and 2.2(i); (j) all inventory (including finished products, work in process, raw materials, supplies, spare parts, and packaging materials) in the possession of any Asset Selling Subsidiary (including inventory at customer locations or in transit or otherwise owned by any Asset Selling Subsidiary) relating to the Liquid Finishing Business; (k) all goodwill of any Asset Selling Subsidiary relating to the Liquid Finishing Business; (l) all tangible personal property of any Asset Selling Subsidiary listed on Schedule 2.1(l); (m) the Assigned Section 6.2(g) Rights and Benefits, the Assigned Transition Services Rights and Benefits and the Assigned Transitional Trademark License Rights and Benefits; (n) any Retained Powder Finishing Business Account Receivable which is an asset of Graco Australia; and (o) all assets held with respect to the Assumed Benefit Plans/Schemes.
