UIC HAS RECEIVED PAYMENTS
IN THE FULL AMOUNT OF EACH OF THE ASSIGNMENT PURCHASE REQUIREMENTS; AND
(III)
HOME DEPOT HAS AGREED IN WRITING TO EXTEND ITS EXCLUSIVITY AND
MINIMUM ANNUAL VOLUME PURCHASE OBLIGATIONS SET FORTH IN SECTION 5.02 UNTIL
DECEMBER 31, 2011 OR, IF HOME DEPOT HAS FAILED TO MEET THE MINIMUM AGGREGATE
VOLUME BY DECEMBER 31, 2008, UNTIL DECEMBER 31, 2012, PLUS ANY EXTENSION TO
EITHER OF THE FOREGOING DATES APPLICABLE AS SET FORTH IN SECTION 11.01(B)(II)
(CONDITIONS TO ASSIGNMENT OBLIGATION) OR SECTION 17.09 (FORCE MAJEURE).
C.
ASSIGNMENT DATE.
PROVIDED THAT EACH OF THE CONDITIONS SET FORTH
ABOVE IN SECTION 11.01(B) HAVE BEEN ACHIEVED, THEN UIC SHALL ASSIGN THE MARKS TO
HOME DEPOT, SUCH ASSIGNMENT TO BE EXECUTED AND EFFECTIVE NOT EARLIER THAN MAY 1,
2009, BUT OTHERWISE WITHIN THIRTY (30) DAYS AFTER THE DATE UPON WHICH HOME DEPOT
(I) ACHIEVES SUCH CONDITIONS TO ASSIGNMENT, AND (II) PROVIDES WRITTEN
CERTIFICATION TO UIC THAT IT HAS ACHIEVED SUCH CONDITIONS (THE "ASSIGNMENT
DATE").
D.
FORM OF ASSIGNMENT.
ANY ASSIGNMENT REQUIRED BY THIS SECTION
11.01 SHALL BE ACCOMPLISHED THROUGH EXECUTION OF THE FORM ATTACHED HERETO AS
EXHIBIT A.
THE PARTIES SHALL USE REASONABLE EFFORTS TO STRUCTURE THE TRANSFER
OF THE MARKS SO AS TO AVOID THE IMPOSITION OF ANY TAXES IN CONNECTION WITH SUCH
TRANSFER.
NOTWITHSTANDING THE FOREGOING, ALL LIABILITY FOR USE, SALES, GROSS
RECEIPT, TRANSFER, STAMP, REGISTRATION OR SIMILAR TAXES WHICH NEVERTHELESS ARISE
OUT OF SUCH TRANSFER SHALL BE PAID BY HOME DEPOT.
E.
FURTHER ASSURANCES.
UIC SHALL EXECUTE AND DELIVER SUCH DOCUMENTS
AND TAKE SUCH FURTHER ACTIONS AS MAY BE NECESSARY TO CARRY OUT ANY ASSIGNMENT
REQUIRED BY THIS SECTION 11.01.
11.02
EFFECT OF ASSIGNMENT.
UPON ASSIGNMENT OF THE MARKS FROM UIC TO HOME
DEPOT, ALL TRADEMARK RIGHTS SHALL IMMEDIATELY TERMINATE, AND UIC SHALL HAVE NO
FURTHER OBLIGATIONS OR LIABILITIES WHICH ARISE BEFORE OR AFTER THE ASSIGNMENT
DATE WITH RESPECT TO SUCH MARKS; PROVIDED,
18
HOWEVER, THAT IF WITH RESPECT TO A MARK, PRIOR TO THE ASSIGNMENT DATE UIC IS
RESPONSIBLE FOR CLAIMS ASSOCIATED WITH ANY MARK PURSUANT TO SECTION 13.01(C),
THEN (Z) UIC SHALL CONTINUE TO BE RESPONSIBLE FOR ANY CLAIMS IN CONNECTION WITH
SUCH MARK THAT AROSE PRIOR TO THE ASSIGNMENT DATE.
ARTICLE XII.
WARRANTIES AND REPRESENTATIONS
12.01
AUTHORITY.
EXCEPT AS INDICATED IN ARTICLE II, EACH PARTY HEREBY
REPRESENTS AND WARRANTS TO THE OTHER THAT:
(I) IT HAS FULL CORPORATE POWER AND
AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO CARRY OUT ITS OBLIGATIONS
HEREUNDER; AND (II) THIS AGREEMENT HAS BEEN DULY AUTHORIZED BY ALL NECESSARY
ACTION ON ITS PART.
12.02
HOME DEPOT WARRANTIES.
A.
APPROVALS.
HOME DEPOT HEREBY REPRESENTS AND WARRANTS THAT, PRIOR
TO THE ASSIGNMENT DATE, HOME DEPOT SHALL COMPLY, AND SHALL CAUSE ANY THIRD PARTY
LICENSEES TO COMPLY, WITH ALL APPLICABLE LAWS AND REGULATIONS AND OBTAIN ALL
APPROPRIATE FEDERAL, STATE OR LOCAL GOVERNMENT LICENSES, PERMITS OR OTHER
APPROVALS NECESSARY FOR PERFORMANCE OF ITS RIGHTS AND OBLIGATIONS HEREUNDER.
12.03
DISCLAIMER.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO
PARTY MAKES ANY WARRANTIES AND EACH