alg Doc 2055 Filed 09/19/12 Entered 09/19/12 13:50:43 Main Document Pg 1 of 4 ) ) ) ) ) ) )

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1 alg Doc 2055 Filed 09/19/12 Entered 09/19/12 13:50:43 Main Document Pg 1 of 4 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: EASTMAN KODAK COMPANY, et al., 1 Debtors. ) ) ) ) ) ) ) Chapter 11 Case No (ALG) (Jointly Administered) ORDER APPROVING AGREEMENTS BY AND BETWEEN FELIX SCHOELLER NORTH AMERICA, INC., SCHOELLER TECHNOCELL GMBH & CO. KG; AND EASTMAN KODAK COMPANY Upon the motion (the Motion ) of Eastman Kodak Company and certain of its affiliates, as debtors and debtors in possession (collectively, the Debtors ), for entry of an order (this Order ) authorizing and approving various agreements by and between Felix Schoeller North America, Inc., Schoeller Technocell GmbH & Co. KG; and Eastman Kodak Company; and the Court having found that this Court has jurisdiction to consider and determine this matter pursuant to 28 U.S.C. 1334; and the Court having found that the Motion is a core proceeding pursuant to 28 U.S.C. 157(b)(2); and the Court having found that venue of this proceeding and the Motion in this District is proper pursuant to 28 U.S.C and 1409; and the Court having found that proper, timely, adequate, and sufficient notice, including notice of the Motion and the relief requested therein, has been provided in accordance with the Bankruptcy Rules and no other or further notice of the Motion is or shall be required; and the Court having reviewed the Motion and having heard arguments and testimony presented at the hearing before the Court 01: The Debtors in these chapter 11 cases, along with the last four digits of each Debtor s federal tax identification number, are: Eastman Kodak Company (7150); Creo Manufacturing America LLC (4412); Eastman Kodak International Capital Company, Inc. (2341); Far East Development Ltd. (2300); FPC Inc. (9183); Kodak (Near East), Inc. (7936); Kodak Americas, Ltd. (6256); Kodak Aviation Leasing LLC (5224); Kodak Imaging Network, Inc. (4107); Kodak Philippines, Ltd. (7862); Kodak Portuguesa Limited (9171); Kodak Realty, Inc. (2045); Laser- Pacific Media Corporation (4617); NPEC Inc. (5677); Pakon, Inc. (3462); and Qualex Inc. (6019). The location of the Debtors corporate headquarters is: 343 State Street, Rochester, NY

2 alg Doc 2055 Filed 09/19/12 Entered 09/19/12 13:50:43 Main Document Pg 2 of 4 (if any); and the Court having found that the relief requested in the Motion is in the best interests of the Debtors estates, their creditors and other parties in interest; and the Court having determined that the legal and factual bases set forth in the Motion establish just cause for the relief granted herein; and any objections (if any) to the Motion having been withdrawn or overruled on the merits; and after due deliberation and sufficient cause appearing, it is hereby ORDERED THAT: 1. The Motion is granted to the extent set forth herein. 2. The Debtors are authorized, pursuant to Bankruptcy Rule 9019 and sections 105 and 363 of the Bankruptcy Code, to enter into the New Schoeller Contracts. 3. Pursuant to Bankruptcy Rule 9019, the Agreement and all transactions contemplated thereunder and all terms and conditions of are approved, including, but not limited to, the Debtors entry into the New Schoeller Contracts, the resolution of the Schoeller Claim, and the mutual releases of claims between the Debtors and Schoeller. 4. The Debtors obligations pursuant to the Agreement and the Amendments shall constitute administrative expenses under section 503(b) of the Bankruptcy Code. 5. The Debtors are hereby authorized to execute and deliver such documents, and take and perform any and all actions, reasonably necessary or appropriate to implement and effectuate the relief requested in the Motion and granted in connection with this Order. 6. This Order shall be binding upon any trustee subsequently appointed in these cases under chapter 11 or chapter 7 of the Bankruptcy Code. 7. The notice requirements set forth in Local Rule (b) are satisfied. 8. This Order is immediately effective and enforceable, notwithstanding the possible applicability of Bankruptcy Rule 6004(h) or otherwise. 01:

3 alg Doc 2055 Filed 09/19/12 Entered 09/19/12 13:50:43 Main Document Pg 3 of 4 9. This Court retains jurisdiction with respect to all matters arising from or related to the enforcement of this Order. Dated: September 19, 2012 New York, New York s/allan L. Gropper Allan L. Gropper United States Bankruptcy Judge 01:

4 alg Doc 2055 Filed 09/19/12 Entered 09/19/12 13:50:43 Main Document Pg 4 of 4 Exhibit 1 Agreement 01:

5 ~ alg Doc Filed 09/19/12 Entered 09/19/12 13:50:43 Exhibit 1 Pg 1 of 13 AGREEMENT This Agreement (this "Agreement") is made as of the day of August, 2012 ~ (the "Calculation Date"), and is entered into by and between Felix Schoeller North America, Inc. ("FSNA"), Schoeller Technocell GmbH & Co. KG (f/k/a Felix Schoeller jr Foto- Und Spezialpapiere GmbH & Co. KG) ("FSG", together with FSNA and their respective affiliates, "Schoeller"); and Eastman Kodak Company, on its own behalf and on behalf of its debtor and non-debtor subsidiaries and affiliates (collectively "Kodak"). Schoeller and Kodak are each a "Party" and are hereafter referred to collectively as the "Parties." RECITALS: WHEREAS, Kodak and Schoeller are parties under various executory contracts (as heretofore amended from time to time, the "Schoeller Contracts") listed in the schedule attached hereto as Exhibit A; WHEREAS, pursuant to the Schoeller Contracts, Schoeller manufactures and provides to Kodak certain goods and related services, including but not limited to resin coated photographic base paper (support) for light-sensitive emulsion or inkjet coating, thermal sensitive film-laminated papers for use as image receptor, ink:jet printable papers in master rolls form or packaged for retail sale and electrostatic printable papers; WHEREAS, on January 19,2012 (the "Petition Date"), Kodak and certain ofits affiliated debtors and debtors in possession filed voluntary petitions for relief under Chapter 11 of title 11 of the United States Code (the "Bankruptcy Code") in the United States Bankruptcy Court for the Southern District ofnew York (the "Bankruptcy Court") in case numbers (ALG) through (ALG) (the "Bankruptcy Cases"); LEGAL02/33563

6 Pg 2 of 13 WHEREAS, on April 17, 2012, Schoeller caused a proof of claim ("Claim 1240") to be filed, which claim was assigned proof of claim number 1240 and which claim asserts a 503(b)(9) claim in the amount of$4,452,568.09; WHEREAS, on July 11, 2012, FSNA caused a proof of claim ("Claim 4223" ) to be filed, which claim was assigned proof of claim number 4233 and which claim asserts a general unsecured claim in the amount of$287,533.94; WHEREAS, on July 11, 2012, PSG caused a proof of claim ("Claim 4218" ) to be filed, which claim was assigned proof of claim number 4218 and which claim asserts a general unsecured claim in the amount of $4,068,570.63; WHEREAS, Kodak hereby represents and warrants that it has the authority to enter into this Agreement and the Schoeller Contract Amendments (as defined below) and to bind itself and all of its subsidiaries and affiliates to all such agreements; WHEREAS, for good and valuable consideration, the receipt and sufficiency of which is acknowledged, Schoeller and Kodak have agreed upon the terms of this Agreement by which the Parties agree to enter into the Schoeller Contract Amendments, and Kodak agrees to pay certain defaults, and compromise and settle ce1iain claims and credits owing under the Schoeller Contracts as of the Calculation Date, subject to (i) Bankruptcy Court approval ofthis Agreement and the Schoeller Contract Amendments and (ii) payment of all amounts to Schoeller pursuant to the terms hereof. NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS 1. Subject to Bankruptcy Court approval of this Agreement and the Schoeller Contract Amendments (pursuant to a final order of the Bankruptcy Court acceptable to Schoeller in its sole discretion, which order is no longer subject to appeal (the "Final Approval LEGAL02/

7 Pg 3 of 13 Order")), contemporaneously with execution of this Agreement, Kodak and Schoeller shall enter into certain amendments relating to the Schoeller Contracts which, among other changes, extend the term of applicability of the Schoeller Cont'racts and amend certain other terms thereof, substantially in the forms attached hereto as Exhibits Bl - BS (collectively, the "Schoeller Contract Amendments"). The Schoeller Contract Amendments shall have no legal force or effect until (i) entry of the Final Approval Order and (ii) payment of all amounts owing to Schoeller hereunder. 2. Kodak agrees that it will seek and use its best efforts to obtain Bankruptcy Comt approval to file the Schoeller Contract Amendments (Exhibits Bl-B5) under seal pursuant to Section 107 of the Bankruptcy Code prior to filing this Agreement with the Bankruptcy Court. If Kodak is unable to obtain Comt approval to file the Schoeller Contract Amendments under seal, Kodak agrees not to file the Schoeller Contract Amendments without Schoeller's prior written consent. Kodak and Schoeller acknowledge and agree that unredacted copies of the Schoeller Contract Amendments may be provided only to the Bankruptcy Comt, any official committee appointed in the Bankruptcy Cases, and the United States Trustee. 3. The Parties agree that upon entry of the Final Approval Order, this Agreement and the Schoeller Contract Amendments, including the underlying Schoeller Contracts, shall be deemed post-petition contracts and any and all amounts due and owing to Schoeller by Kodak on or after the Calculation Date under or pursuant to such agreements shall be deemed administrative expense priority claims pursuant to section 503 ofthe Bankruptcy Code under any circumstances. Schoeller shall be permitted and reserves the right to file and seek payment of any and all such administrative expense priority claims in the Bankruptcy Cases, if necessary. LEGAL02/

8 Pg 4 of The Parties agree that with respect to Claim 1240, Claim 4223 and Claim 4218 for goods delivered and services provided to Kodak under the Schoeller Contracts, Kodak owes Schoeller $5,184, (the "Schoeller Claim") in the aggregate as of the Calculation Date. 5. The Parties agree that in connection with certain credits owed under the Schoeller Contracts, as of the Calculation Date (i) Schoeller owes Eastman Kodak Company $425, (the "Kodak Credits"), and (ii) Schoeller owes cettain non-debtor foreign affiliates of Kodak $712, (the "Foreign Credits") in aggregate credits. 6. In settlement of any and all amounts owed to Schoeller under the Schoeller Contracts as of the Calculation Date, and in consideration of the mutual agreements set fmth herein, upon entry ofthe Final Approval Order: a. Within two (2) business days of entry of the Final Approval Order, Kodak shall wire to Schoeller in immediately available funds (pursuant to wire instructions to be provided to Kodak by Schoeller) the aggregate amount of $4,008, (the "Stipulated Payment," which amount is net of the Kodak Credits); and b. The remainder of the Schoeller Claim shall be deemed an allowed general unsecured Claim in the amount of$750, that shall be paid in accordance with any chapter 11 plan confirmed by the Bankruptcy Court. 7. Upon payment of the Stipulated Payment to Schoeller, Schoeller shall in the ordinary course of business apply the Foreign Credits against invoices issued thereafter for goods received and services provided to certain Kodak non-debtor foreign affiliates. 8. The Parties acknowledge and agree that the payments, credits and claims set fmth in paragraphs six (6) and seven (7) of this Agreement are inclusive of any and all amounts due and owing between the Parties as of the Calculation Date, and were calculated so as LEGAL02/

9 Pg 5 of 13 to account for any and all claims, reimbursements, credits, setoff or recoupment amounts, or payments. 9. The Parties agree that in the event that (i) the Bankruptcy Comt does not enter and docket a Final Approval Order in form and substance acceptable to Schoeller in its sole discretion on or before September 19, 2012, or (ii) Kodak fails to timely pay to Schoeller any amounts owing pursuant to this Agreement, then Schoeller shall have the right, in its sole discretion, to declare this Agreement and the Schoeller Contract Amendments void ab initio and of no force and effect, and in the event of any such declaration by Schoeller, all claims and rights of the Patties hereto shall be deemed reserved and nothing contained herein shall be deemed an admission or election of remedy by any Party hereto. l 0. Effective upon the entry of the Final Approval Order, Kodak and Schoeller hereby fully and forever discharge and release any and all claims against the other having accrued as of the Calculation Date, whether such claims are known or unknown, based on facts now in existence, whether known or unknown, including, without limitation, all claims and causes of actions under chapter 5 of the Bankruptcy Code, except that nothing contained herein shall release any obligations under this Agreement or under the Schoeller Contract Amendments. 11. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns, including, without limitation, any trustees, official committees or other fiduciaries appointed in Kodak's banlauptcy cases. 12. Each of the Parties agrees to perform such fmther acts, and execute and deliver such further documents, which may be reasonably necessary to effectuate the terms of this Agreement. LEGAL02/

10 Pg 6 of Kodak agrees that any and all motions or orders that it shall submit to the Bankruptcy Court to effectuate the terms of this Agreement will be in form and substance acceptable to both Schoeller and Kodak. 14. The Parties acknowledge and agree that any rule of law, as well as any other statute, law, ordinance, or common law principles or other authority of any jurisdiction of similar effect, or legal decision that would require interpretation of any ambiguities in this Agreement against the patiy who has drafted it is not applicable and is hereby waived. 15. This Agreement may be executed and delivered in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A signature sent by facsimile transmission or electronic mail on a counterpmi signature page shall be considered as binding and as admissible. LEGAL02/

11 Pg 7 of 13 Accepted and Agreed by Schoeller Technocell GmbH & Co. KG, on behalf of itself, and its subsidiaries and affiliates: Dr. Bernhard Klofat President Date Date I Felix Schoeller North America, Inc., on behalf of itself, and its subsidiaries and affiliates: / /"' ' -, ~ V1 ~ -~ /~J/1_ //~ '--~~/2 I /f/ (...:;;:> Michael Szidat President & CEO _ /~ """' Date Eastman Kodak Company on behalf of itself, and its ub iaries and affiliates: Senior Vice President Date LEGAL02/

12 Pg 8 of 13 Exhibit A Thermal Media Supply Agreement, effective January 1, 2008 Imaging Base Agreement, effective January 1, 2005 Inkjet Finished Project Agreement, effective January 1, 2011 Inkjet (Wide Roll) Product Agreement, effective January 1, 2011 Resin Coated Paper Base Agreement, effective January 1, 2006

13 Pg 9 of 13 Exhibit B1 IBA Second Extension and Third Amendment Agreement [DOCUMENT FILED UNDER SEAL]

14 Pg 10 of 13 Exhibit B2 Inkjet Finished Product First Extension and First Amendment Agreement [DOCUMENT FILED UNDER SEAL]

15 Pg 11 of 13 Exhibit B3 Inkjet (Wide Roll) Product Agreement First Extension and First Amendment Agreement [DOCUMENT FILED UNDER SEAL]

16 Pg 12 of 13 Exhibit B4 Resin Coated Paper Base Agreement Second Extension and Second Amendment Agreement [DOCUMENT FILED UNDER SEAL]

17 Pg 13 of 13 Exhibit B5 Thermal Media Supply First Extension and First Amendment Agreement [DOCUMENT FILED UNDER SEAL]