Kodak 2012 Annual Report Download - page 189

Section 8.5 Indemnification . Effective as of the Closing, Buyer (and Buyer’s Designee, if applicable and solely with respect to the
Assigned Patents to be acquired by Designee) agrees to indemnify, defend and hold harmless Kodak, its affiliates, directors, officers,
shareholders, partners, members, attorneys, accountants, agents, representatives, advisors and employees, each in their capacity as such (the
“Indemnified Parties” ) from, against and in respect of any and all losses, costs, damages or expenses, including attorneys’ fees, imposed on,
sustained by, incurred or suffered by, or asserted against, any of the Indemnified Parties, whether in respect of third-
party claims, claims between
Buyer or Buyer’s Designee, as applicable, and Kodak, or otherwise, directly or indirectly arising out of or as a result of (a) the Assumed
Liabilities, (b) the use, possession, or ownership of the Assigned Assets following the Closing or (c) any claim brought against Kodak by a
counterparty to a Bidco DC/KISS Patent License Agreement (except for (i) any breach by Kodak of the provisions of Section 8.5 of any such
Bidco DC/KISS Patent License Agreement, or (ii) any claim of fraud; provided that, if it is determined that any such Indemnified Party is not
liable for fraud with respect to such claim, Buyer (and Buyer’s Designee, as applicable), shall pay to the Indemnified Parties promptly all losses,
costs, damages and expenses, including attorneys’ fees, imposed on, sustained by, incurred or suffered by, or asserted against, such Indemnified
Parties relating to such claim).
Section 8.6 Reliance . Each of Buyer and Buyer’s Designee, as applicable, and Kodak acknowledges that it is a sophisticated party
and has such knowledge and experience in financial and business matters as to be capable of evaluating independently the merits, risks and
suitability of entering into this Agreement and consummating the Transaction. Each of Buyer and Buyer’s Designee, as applicable, and Kodak is
dealing with the other on a professional arm’s-length basis and has expertise in assessing tax, legal, jurisdictional, regulatory and other risks
associated with entering into this Agreement and consummating the Transaction.
Section 8.7 Remedies; Injunctive Relief; No Recourse .
(a) Damages at law may be an inadequate remedy for the breach by Buyer (or Buyer’s Designee, as applicable) or Kodak of any of
its covenants, promises and agreements contained in this Agreement, and, accordingly, each of Buyer (and Buyer’s Designee, as applicable) and
Kodak shall be entitled to injunctive relief with respect to any such breach, including specific performance of such covenants, promises or
agreements or an order enjoining a party from any threatened, or from the continuation of any actual, breach of the covenants, promises or
agreements contained in this Agreement. The rights of Buyer (and Buyer’s Designee, as applicable) and Kodak set forth in this Section 8.7(a)
shall be in addition to any other rights which a party may have at law or in equity pursuant to this Agreement.
(b) Notwithstanding anything that may be expressed or implied in this Agreement, or any document or instrument delivered in
connection herewith, except as set forth under the Funding Commitment, by its acceptance of the benefits of this Agreement, Kodak covenants,
agrees and acknowledges that no Person other than Buyer (and Buyer’s Designee, if applicable) has any liability, obligation or commitment of
any nature, known or unknown, whether due or to become due, absolute, contingent or otherwise, under this Agreement and that,
notwithstanding that Buyer may be a limited partnership or limited liability company, Kodak has no right of recovery under this Agreement or
under any document or instrument delivered as provided in this Agreement (except as may be set forth under the Funding Commitment), and no
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