Kodak 2012 Annual Report Download - page 191

Kodak is the terminating party, Buyer’s delivery of a written statement setting forth in reasonable detail all Termination Expenses incurred prior
to the date of such termination; provided Kodak shall have no obligation to pay any amount pursuant to this Section 8.8(b) if prior to such
termination, Buyer or Buyer’s Designee (if applicable) is in material breach of its obligations under this Agreement or if any License Participant
(as defined in the Funding Commitment) is in material breach of its obligations under the Funding Commitment, in each case (i) for which
Kodak provided written notice of such material breach prior to such termination and which material breach was incurable or remained uncured
within the earlier of (a) ten (10) days after written notice thereof and (b) such termination, and (ii) which material breach was not caused by a
prior material breach by Kodak of its obligations under this Agreement. To the extent Kodak fails to pay any amount of the Termination
Expenses if and when Kodak is required to pay such amount under this Section 8.8(b) , Buyer shall have an Administrative Expense Claim
against Kodak and its bankruptcy estate for such unpaid amount as set forth in the Conditional Sale Order.
(c) Buyer shall use commercially reasonable efforts to inform Kodak in writing promptly of each One Million US Dollars
($1,000,000) of Termination Expenses Buyer incurs (as determined based on Buyer’s good faith estimates) and, upon the reasonable request of
Kodak, to provide Kodak with its estimated allocation of such Termination Expenses. Kodak shall have the right to review the detail supporting
any statement provided hereunder or any of the related remittances and, for the purposes of verifying the amounts set forth on such statements or
remittances, Buyer shall provide to Kodak any supporting documentation reasonably requested by Kodak with respect to any such statement or
remittance.
Section 8.9 Schedules . The disclosure of any matter in the Disclosure Schedule referred to in Section 4.1 will be deemed to be a
disclosure for any representation or warranty made by Kodak in Section 4.1 to the extent the applicability of such disclosure to such
representation or warranty is reasonably apparent. The disclosure of any matter in the Disclosure Schedule will expressly not be deemed to
constitute an admission by Kodak, or otherwise to imply, that any such matter is material for the purposes of this Agreement. Prior to Closing,
Kodak shall deliver to Buyer and Buyer’s Designee, as applicable, updates to the Disclosure Schedule, if any, containing any additions and
changes to the Disclosure Schedule delivered on the date hereof to reflect matters or events which occur after the date hereof and which are
required in order for the representations and warranties set forth in Section 4.1 to be correct. The delivery of such updated Disclosure Schedule
shall not be deemed a waiver by Buyer or Buyer’s Designee, as applicable, of its closing condition contained in Section 6.2(a) but shall be taken
into account in determining the satisfaction of such condition.
Section 8.10 Governing Law . This Agreement will be governed by and construed in accordance with the Laws of the State of New
York without regard to principles of conflicts of law, to the extent they would result in application of the Laws of any other jurisdiction. The
parties hereby submit to the exclusive jurisdiction of the United States Bankruptcy Court for the Southern District of New York and any U.S.
federal appellate court therefrom (or, if the United States Bankruptcy Court for the Southern District of New York declines to or may not accept
authority or jurisdiction over a particular matter, the United States District Court for the Southern District of New York; or if the United States
District Court for the Southern District of New York declines to or may not accept jurisdiction over a particular
-
46
-