Kodak 2012 Annual Report Download - page 188

assignment does not delay or impede the consummation of the Transaction or impair the rights of Kodak under any of the Transaction
Documents and (B) such transfer will not increase the amount of Taxes to be incurred by Kodak in connection with the Transaction or reduce the
value to Kodak of the Transaction (after taking into account any indemnity obligations of Buyer under Section 5.8 ) or (ii) designate the party
listed on Schedule 8.3 to purchase certain of the Assigned Patents (such party referred to herein as Buyer’s “ Designee ”),
provided that (A) such
party agrees in writing to be bound by the terms and conditions hereof applicable to Buyer with respect to such Assigned Patents and the
purchase thereof by executing immediately following such designation an agreement in the form attached hereto as Exhibit H (such agreement,
the “ Joinder Agreement ”), (B) such designation occurs immediately after the execution and delivery of this Agreement, (C) following such
designation, Buyer will be obligated to purchase a substantial majority of the Assigned Patents and to pay a substantial majority of the sum of
the Closing Amount, and (D) the amount to be paid by Buyer’s Designee in License Fees (as provided under Section 5.14 ) will be greater than
the amount it will be required to pay pursuant to this Agreement corresponding to its portion of the sum of the Closing Amount, and (b) Kodak
may assign, delegate or transfer any of its rights or obligations under this Agreement to any of its Affiliates or to any purchaser or successor of
interest of all or substantially all of the business of Kodak to which the Assigned Patents pertain or pertained or any succeeding entity upon
consummation of a plan of reorganization or liquidation pursuant to Chapter 11 of the Bankruptcy Code, in each case provided that such transfer
will not increase the amount of Taxes to be incurred by Buyer (or its Designee, as applicable) in connection with the Transaction or reduce the
value to Buyer (or its Designee, as applicable) of the Transaction. Any attempted assignment or designation in violation of this Section 8.3 will
be void and without effect. Each of Buyer and Buyer’s Designee, as applicable, agrees that it will not assign, pledge or otherwise transfer any
Assigned Patents to any Third Party, or designate any Third Party to purchase any Assigned Patents, unless such assignment, pledge, transfer or
designation is effected in accordance with the terms of this Agreement and such Third Party expressly agrees to be bound with respect to such
Assigned Patents by all obligations of Buyer or Buyer’s Designee, as applicable, hereunder to Kodak that survive the Closing and no such
assignment, pledge or transfer will relieve Buyer or Buyer’s Designee, as applicable, of any its obligations under this Agreement. Subject to the
foregoing, this Agreement will benefit and bind the parties’ successors and permitted assigns.
Section 8.4 Survival . Except for the covenants and agreements of Kodak set forth in Section 5.3 (it being agreed and understood
that Kodak shall not be required to perform or comply with such covenant from and after the Closing), none of the (a) covenants or agreements
to be performed by either Kodak or Buyer (or Buyer’s Designee as applicable) prior to the Closing pursuant to this Agreement and
(b) representations and warranties of Kodak or Buyer (or Buyer’s Designee if applicable) contained in this Agreement shall survive Closing, and
neither Kodak nor Buyer (or Buyer’s Designee if applicable) shall have liability to the other party after Closing for any breach of any such
covenant, agreement, representation or warranty. Except as set forth in the immediately preceding sentence, the covenants and agreements of the
parties set forth in this Agreement will survive until fully performed or until such performance is expressly waived in writing by the other party.
Kodak’s right to indemnification pursuant to Section 5.4(c) and Section 8.5 shall survive indefinitely.
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