DISCRETION; PROVIDED, HOWEVER, THAT UIC SHALL GIVE HOME DEPOT
REASONABLE PRIOR WRITTEN NOTICE THEREOF AND THAT NO SUCH CHANGE SHALL, IN UIC'S
REASONABLE DETERMINATION, MATERIALLY IMPAIR THE PRESENT CHARACTER, REPUTATION OR
MARKET POSITION OF ANY MARK.
HOME DEPOT SHALL, AFTER RECEIPT OF SUCH WRITTEN
NOTICE FROM UIC, ADOPT AND BEGIN USING ANY AND ALL SUCH ADDITIONS, DELETIONS AND
CHANGES AS SOON AS REASONABLY PRACTICABLE AFTER UIC'S ADOPTION THEREOF.
NOTWITHSTANDING THE FOREGOING, IF UIC REQUIRES THAT ANY SUCH ADDITION, DELETION
OR CHANGE BE MADE, HOME DEPOT SHALL BE ENTITLED TO DISTRIBUTE AND SELL-DOWN ALL
EXISTING INVENTORY OF VIGORO-BRANDED PRODUCTS, AND USE EXISTING INVENTORY OF
PACKAGING AND LABEL STOCK, AND TO USE EXISTING ADVERTISING AND PROMOTIONAL
MATERIALS, UNLESS UIC NOTIFIES HOME DEPOT IN WRITING THAT SUCH USES OF
VIGORO-BRANDED PRODUCTS, PACKAGING AND LABEL STOCK OR PROMOTIONAL MATERIALS
ALLEGEDLY INFRINGE THE RIGHTS OF ANY PERSON.
IF ANY SUCH ADDITION, DELETION OR
CHANGE HAS NOT BEEN AGREED UPON IN ADVANCE BY, AND HAS A MATERIAL FINANCIAL
IMPACT ON, HOME DEPOT, UIC WILL BE RESPONSIBLE FOR ANY REASONABLE AND DIRECT
OUT-OF-POCKET EXPENSES INCURRED BY HOME DEPOT AS A RESULT OF UIC'S
IMPLEMENTATION OF SUCH ADDITION, DELETION OR CHANGE.
3.09
GOODWILL.
HOME DEPOT'S USE OF THE MARKS DURING THE TRADEMARK TERM,
AND ANY GOODWILL ARISING THEREFROM, SHALL INURE SOLELY TO THE BENEFIT OF UIC.
NOTWITHSTANDING THE FOREGOING, HOWEVER, SUCH GOODWILL SHALL BE TRANSFERRED TO
HOME DEPOT IN CONNECTION WITH ANY ASSIGNMENT OF THE MARKS PURSUANT TO ARTICLE
XI.
ANY GOODWILL ARISING FROM THE USE OF HOME DEPOT'S OWN TRADEMARKS SHALL
INURE SOLELY TO THE BENEFIT OF HOME DEPOT.
3.10
CO-BRANDING. HOME DEPOT SHALL NOT HAVE THE RIGHT TO USE THE MARKS
IN CONJUNCTION WITH ANY OTHER TRADEMARKS WITHOUT UIC'S PRIOR WRITTEN CONSENT,
WHICH SHALL NOT BE UNREASONABLY WITHHELD; PROVIDED, HOWEVER, THAT USUAL AND
CUSTOMARY ADVERTISING AND MERCHANDISING SHALL NOT BE DEEMED CO-BRANDING.
NOTWITHSTANDING THE FOREGOING, UIC SHALL HAVE NO OBLIGATION TO CONSENT TO THE
USE OF ANY OTHER MARK IN CONNECTION WITH THE VIGORO FERTILIZERS.
3.11
APPROVALS.
HOME DEPOT SHALL COMPLY WITH ALL APPLICABLE LAWS AND
REGULATIONS AND, AT ITS OWN EXPENSE, OBTAIN ALL APPROPRIATE FEDERAL, STATE OR
LOCAL GOVERNMENT LICENSES, PERMITS AND OTHER APPROVALS THAT MAY BE REQUIRED FOR
PERFORMANCE OF ITS RIGHTS AND OBLIGATIONS HEREUNDER, EXCEPT FOR SUCH LICENSES,
PERMITS AND OTHER APPROVALS RELATING TO THE MANUFACTURE OF VIGORO-BRANDED
8
PRODUCTS BY UIC, FOR WHICH UIC SHALL HAVE THE SOLE RIGHT AND RESPONSIBILITY
PURSUANT TO SECTION 6.07.
3.12
SECURITY INTEREST.
UIC WILL SUBMIT A REQUEST TO THE ADMINISTRATIVE
AGENT FOR THE CREDIT AGREEMENT TO GRANT A FIRST PRIORITY SECURITY INTEREST IN
THE MARKS TO HOME DEPOT.
IF THE GRANTING OF SUCH LIEN TO HOME DEPOT IS
CONSENTED TO BY REQUISITE PARTIES UNDER THE CREDIT AGREEMENT (AS SET FORTH
THEREIN), UIC WILL USE COMMERCIALLY REASONABLE EFFORTS TO GRANT HOME DEPOT A
FIRST PRIORITY SECURITY INTEREST IN THE MARKS, AND UIC AGREES TO TAKE SUCH
ADDITIONAL ACTION AND EXECUTE SUCH DOCUMENTS AS REASONABLY NECESSARY TO PERMIT
HOME DEPOT TO PERFECT SUCH SECURITY INTEREST.
TO THE