Kodak 2012 Annual Report Download - page 190

personal liability whatsoever shall attach to, be imposed upon or be incurred by, any former, current or future equity holders, controlling persons,
directors, trustees, officers, employees, advisors, agents, Affiliates, members, managers, general or limited partners, successors or assignees of
Buyer (and Buyer’s Designee, if applicable) or any former, current or future equity holder, controlling person, director, trustee, officer,
employee, advisor, agent, Affiliate, member, manager, general or limited partner, successor or assignee of any of the foregoing, whether by the
enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Law, or otherwise with
respect to each of the foregoing under this Agreement or under any document or instrument delivered as provided in this Agreement.
Notwithstanding the foregoing and for the avoidance of doubt, nothing in this
Section 8.7 shall release any License Participant (as defined in the
Funding Commitment) of such License Participant’s obligations to pay the amount it is required to pay under the Funding Commitment,
including the License Fees under Section 5.14 in accordance with the terms of the Funding Commitment and this Agreement.
(c) EXCEPT IN THE CASE OF FRAUD, WITHOUT WAIVING ANY OTHER RIGHTS OF THE PARTIES, INCLUDING ANY
RIGHT TO SEEK SPECIFIC PERFORMANCE OR SEEK OTHER EQUITABLE RELIEF OR ANY RIGHTS UNDER THE FUNDING
COMMITMENT AND EXCEPT FOR ANY LIABILITY OF BUYER PURSUANT TO SECTION 5.8 AND SECTION 8.5 , IN NO EVENT
SHALL (i) BUYER’S TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF THE CLOSING AMOUNT, SUCH
CLOSING AMOUNT BEING CALCULATED AS IF ALL LICENSE FEES ARE ACTUALLY RECEIVED BY KODAK, (ii) BUYER BE
LIABLE IN ANY MANNER WHATSOEVER FOR THE BREACH BY (X) ITS DESIGNEE HEREUNDER OF SUCH DESIGNEE’S
OBLIGATIONS HEREUNDER, OR (Y) ANY LICENSE PARTICIPANT (AS DEFINED IN THE FUNDING COMMITMENT) OF SUCH
LICENSE PARTICIPANT’S OBLIGATIONS UNDER THE FUNDING COMMITMENT OR UNDER ANY BIDCO DC/KISS PATENT
LICENSE AGREEMENT OR RETAINED PATENT LICENSE AGREEMENT, OR (iii) BUYER’S DESIGNEE BE LIABLE IN ANY
MANNER WHATSOEVER FOR THE BREACH BY BUYER OF BUYER’S OBLIGATIONS HEREUNDER (EXCEPT FOR ANY
LIABILITY PROVIDED FOR UNDER THE FUNDING COMMITMENT). THE PARTIES ACKNOWLEDGE THAT THESE
LIMITATIONS ON POTENTIAL LIABILITIES WERE AN ESSENTIAL ELEMENT IN SETTING CONSIDERATION UNDER THIS
AGREEMENT.
Section 8.8 Expenses .
(a) Except as otherwise expressly provided by this Agreement, all costs and expenses incurred in connection with this Agreement, the
Transaction and the FlashPoint Agreements will be borne by the party incurring the same.
(b) Notwithstanding the foregoing, if either party terminates this Agreement pursuant to Section 7.1(d) , then Kodak shall pay to
Buyer an amount equal to the Termination Expenses in same-day funds promptly, and in no event later than twenty (20) Business Days after the
earlier of (i) if Buyer is the terminating party, delivery of the written notice of termination required by Section 7.1 , such notice to include a
written statement setting forth in reasonable detail all Termination Expenses Buyer incurred prior to the date of such termination, and (ii) if
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