Hearing date: August 20, 2012, at 2:30 p.m. Response Deadline: August 13, 2012 at 4:00 p.m.

Transcription

1 alg Doc 1813 Filed 08/03/12 Entered 08/03/12 18:21:47 Main Document Pg 1 of 19 Jorian Rose, Esq. BAKER HOSTETLER LLP 45 Rockefeller Plaza New York, New York T F jrose@bakerlaw.com Hearing date: August 20, 2012, at 2:30 p.m. Response Deadline: August 13, 2012 at 4:00 p.m. -and- Elizabeth Green, Esq. BAKER HOSTETLER LLP Sun Trust Center, Suite South Orange Avenue Orlando, FL T F egreen@bakerlaw.com Counsel for ATLC, Ltd. UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK x In re: : : EASTMAN KODAK COMPANY, et al. 1 : : Debtors. : : x Chapter 11 Case No (ALG) (Jointly Administered) MOTION FOR DETERMINATION THAT (I) ATLC, LTD. IS A SECURED CREDITOR WITH A VALID, PERFECTED, FIRST PRIORITY LIEN ON CERTAIN PATENT LICENSING AGREEMENT PROCEEDS, OR ALTERNATIVELY, THAT (II) EASTMAN KODAK COMPANY ABSOLUTELY ASSIGNED SUCH PROCEEDS TO ATLC, LTD. 1 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. (9182); Kodak (Near East) Ine. (7936); Kodak Americans, 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). 1

2 alg Doc 1813 Filed 08/03/12 Entered 08/03/12 18:21:47 Main Document Pg 2 of 19 TABLE OF CONTENTS Introduction 5 Jurisdiction and Venue...5 Background...6 Relief Requested...9 Argument..10 I. ATLC Holds a Valid, Perfected, First Priority Lien on the Assigned Proceeds...10 Page A. Kodak Granted ATLC a Security Interest in the Assigned Proceeds 10 B. ATLC s Security Interest Attached to the Assigned Proceeds and Was Automatically Perfected..14 II. Alternatively, Kodak Absolutely Assigned its Interest in the Assigned Proceeds to ATLC Conclusion 18 2

3 alg Doc 1813 Filed 08/03/12 Entered 08/03/12 18:21:47 Main Document Pg 3 of 19 TABLE OF AUTHORITIES Page(s) CASES Advanced Testing Technologies, Inc. v. Desmond (In Re Computer Eng g Assocs., Inc.), 337 F.3d 38 (1st Cir. 2003) Baxter Pharmaceutical Products, Inc. v. ESI Lederle Inc., 1999 WL , *5 (Del. Ch. 1999)..17 Commonwealth Financial Corp. v. DeWalt, 198 Ill. App. 3d 559 (Ill. App. 3d 1990) 13 Delta-T Corporation v. Applied Process Technology International, LLC, 2012 WL (Bankr. E.D. Va. 2012) 13, 15 Eagle Indus., Inc. v. DeVilbiss Health Care, Inc., 702 A.2d 1228 (Del. 1997)..10, 17 First Mortgage Co. of Pa. v. Fed. Leasing Corp., 456 A.2d 794 (Del. 1982)..14 Hickman v. Capano Group, L.P., 1979 WL 4634 (Del. Ch. 1979)..16 MBIA Insurance Corp. v. Royal Indemnity Corp., 426 F.3d 204 (3d Cir. 2005)...10, 17 In re Bollinger Corp., 614 F.2d 924 (3d Cir. 1980)..11, 12, 14 In re CPM Energy Systems, Corp., 116 B.R. 411 (Bankr. D. Del. 1990).11 In re Wood, 67 B.R. 321 (W.D.N.Y. 1986)..16 Rhone-Poulenc Basic Chams. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192 (Del. 1992) 10, 17 PNC Bank, Delaware v. Berg, 1997 WL (Del. Super. 1997)..13 Street Search Partners, L.P. v. Ricon Intern., L.L.C., 2006 WL (Del. Super. May 12, 2006)...14 Vigil Bros. Construction, Inc. v. Concrete Equipment Co., Inc., 193 B.R. 513 (9th Cir. BAP 1996)...16 STATUTES AND RULES 11 U.S.C

4 alg Doc 1813 Filed 08/03/12 Entered 08/03/12 18:21:47 Main Document Pg 4 of 19 TABLE OF AUTHORITIES (continued) Page(s) STATUTES AND RULES (continued) 11 U.S.C U.S.C U.S.C U.S.C U.S.C U.S.C U.S.C Fed. R. Bank. P Fed. R. Bank. P Fed. R. Bank. P Del. Code Ann. tit Del. Code Ann. tit Del. Code Ann. tit Del. Code Ann. tit Del. Code Ann. tit Del. Code Ann. tit Del. Code Ann. tit N.J. Stat. Ann. 12A:

5 alg Doc 1813 Filed 08/03/12 Entered 08/03/12 18:21:47 Main Document Pg 5 of 19 ATLC, LTD. ( ATLC ) seeks a determination that pursuant to the Representation Agreement (as defined below), Eastman Kodak Company ( Kodak ) granted ATLC a security interest in a certain percentage of the proceeds ( Licensing Proceeds ) flowing from patent licensing agreements negotiated by ATLC on Kodak s behalf. As a result, ATLC holds a valid, perfected, first priority lien on such proceeds. Alternatively, ATLC seeks a determination that Kodak absolutely assigned that portion of the Licensing Proceeds to ATLC. ATLC files this Motion pursuant to an agreement with the Debtors. Both ATLC and the Debtors believe this Court may properly decide the dispute introduced in this Motion pursuant to a contested matter under Rule 9014 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ). In support of the Motion, ATLC states as follows: INTRODUCTION Kodak retained ATLC to document patent infringing products and to negotiate patent licensing agreements on Kodak s behalf with the manufacturers of the infringing products. ATLC was solely responsible for paying all reverse engineering costs and other out-of-pocket expenses it incurred while negotiating the patent licensing agreements. In exchange, Kodak assigned ATLC a percentage of the Licensing Proceeds (the Assigned Proceeds ). The Representation Agreement and the circumstances surrounding its execution demonstrate that Kodak granted a security interest in the Assigned Proceeds to ATLC, or absolutely assigned the Assigned Proceeds to ATLC. In either case, ATLC seeks this Court s determination of ATLC s rights with respect to the Assigned Proceeds. JURISDICTION AND VENUE On January 19, 2012 (the Petition Date ), each of the Debtors (the Debtors ), commenced with this Court a voluntary case under chapter 11 of the Bankruptcy Code. The Debtors chapter 11 cases are being jointly administered pursuant to Bankruptcy Rule 1015(b). 5

6 alg Doc 1813 Filed 08/03/12 Entered 08/03/12 18:21:47 Main Document Pg 6 of 19 Since the Petition Date, the Debtors have operated their businesses and managed their properties as debtors-in-possession pursuant to Section 1107(a) and 1108 of the Bankruptcy Code. This Court has jurisdiction over this Motion pursuant to 28 U.S.C. 157 and This matter is a core proceeding within the meaning of 28 U.S.C. 157(b)(2). Venue is proper in this Court under 28 U.S.C and The statutory predicates for the relief requested herein are Sections 105 and 506 of the Bankruptcy Code and Bankruptcy Rule BACKGROUND As the Court is aware, Kodak owns or controls certain patents related to digital still cameras, digital video cameras and integrated digital cameras (the Patents ). Pursuant to the Kodak/ATLC Representation Agreement, effective as of July 30, 1998, as amended 2 (the Representation Agreement ), Kodak retained ATLC as Kodak s exclusive representative to represent Kodak in patent license negotiations with respect to the licensing of [digital still camera] Patents to third parties. A redacted copy of the Representation Agreement is attached to this Motion as Exhibit A. 3 In the Representation Agreement, ATLC agreed to use its best efforts to obtain patent license agreements on terms satisfactory to Kodak. The Representation Agreement also provided that ATLC would pay all costs and expenses, including reverse engineering costs, incurred in patent license negotiations on Kodak s behalf. In exchange, and for the purposes of securing ATLC s right to receive its percentage of the future proceeds, Kodak assigned ATLC 2 The Representation Agreement was amended by (i) the First Amendment, executed by the parties on or about April 10, 2001, (ii) the Second Amendment, executed by the Parties on or about May 29, 2003, (iii) the Third Amendment, executed by the Parties on or about October 9, 2003; and (iv) the Fourth Amendment, executed by the Parties on or about June 2, Kodak consented to ATLC filing the attached redacted version of the Representation Agreement. 6

7 alg Doc 1813 Filed 08/03/12 Entered 08/03/12 18:21:47 Main Document Pg 7 of 19 the Assigned Proceeds, which were comprised of a percentage of the Licensing Proceeds from future patent licensing agreements negotiated by ATLC: Out of the net proceeds as defined hereafter, received by Kodak from patent license agreements entered into pursuant to this Agreement with, or from judgments against, a third party, a percentage of said net proceeds is hereby assigned to ATLC. Representation Agreement, Section 6 [emphasis added]. The Representation Agreement also provided that ATLC was entitled to receive its Assigned Proceeds even if Kodak collected the Licensing Proceeds after expiration or termination of the Representation Agreement. Finally, the Representation Agreement provided that Kodak would not sell or transfer either the Patents, or its right to collect Licensing Proceeds under the patent licensing agreements negotiated by ATLC, unless the buyer agreed to provide the Assigned Proceeds to ATLC. For the next eight years, from 1998 to 2006, Kodak and ATLC operated under the Representation Agreement without dispute. ATLC successfully negotiated at least twenty-one (21) patent license agreements on Kodak s behalf, and regularly received its Assigned Proceeds in accordance with the terms of the Representation Agreement. Beginning in 2006, however, ATLC became aware that Kodak wrongfully retained ATLC s Assigned Proceeds. As a result, ATLC commenced litigation against Kodak in the District Court for the Middle District of Florida for breach of contract, declaratory judgment, and accounting (the Lawsuit ). Shortly thereafter, in May 2006, Kodak terminated ATLC s right to act as Kodak s exclusive representative under the Representation Agreement and ATLC ceased representing Kodak. In accordance with the Representation Agreement, Kodak s obligation to forward the Assigned Proceeds to ATLC continued despite Kodak s termination of ATLC. ATLC and Kodak resolved the Lawsuit pursuant to the terms and conditions of the Settlement Agreement and Release, effective as of August 27, 2007 (the Settlement 7

8 alg Doc 1813 Filed 08/03/12 Entered 08/03/12 18:21:47 Main Document Pg 8 of 19 Agreement ). A redacted copy of the Settlement Agreement is attached to this Motion as Exhibit B. 4 Under the Settlement Agreement, Kodak agreed to pay ATLC a lump sum plus thirty-four (34) equal quarterly payments of a sum certain commencing on September 30, 2007, and ending on December 31, 2015, in exchange for ATLC dismissing the Lawsuit with prejudice. Consistent with the Representation Agreement, the Settlement Agreement reflects that Kodak intended to assign the Assigned Proceeds to ATLC under the Representation Agreement, and that ATLC s right, title and interest in the Assigned Proceeds survived execution of the Settlement Agreement: Kodak will continue paying ATLC its assigned percentage of the net proceeds received by Kodak from patent license agreements entered between Kodak and third parties with whom ATLC had substantial negotiations or provided substantial support services as of the date of the execution of this [Settlement] Agreement and the expiration dates of those agreements. Settlement Agreement, Paragraph 6 [emphasis added]. On April 2, 2012, the Debtors filed a motion (Doc. No. 767) (the Rejection Motion ) to reject the Representation Agreement and Settlement Agreement. ATLC filed an objection (Doc. No. 1094) (the Objection ), arguing that both agreements were non-executory because ATLC had performed all of its material obligations under the agreements, and other than restrictive covenants, the only remaining obligation under either agreement was Kodak s obligation to pay ATLC. Prior to a hearing on the Debtors Rejection Motion and ATLC s Objection, the parties reached a consensual resolution and submitted to the Court an agreed order, which was entered following this Court s May 10, 2012 hearing. See Doc. No (the Agreed Order ). The Agreed Order expressly reserved ATLC s right to assert its ownership or secured status with 4 Kodak consented to ATLC filing the attached redacted version of the Settlement Agreement. 8

9 alg Doc 1813 Filed 08/03/12 Entered 08/03/12 18:21:47 Main Document Pg 9 of 19 respect to the Assigned Proceeds or any other priority claim or right with respect thereto. See Agreed Order, Paragraph 3. Recently, the Debtors filed their motion for, among other things, an order conditionally authorizing the sale of the Debtors patent assets (Doc. No. 1361) (the Bid Procedures Motion ). After negotiating with the Debtors regarding the Bid Procedures Motion s potential effect on ATLC s rights with regard to the Assigned Proceeds, ATLC and the Debtors drafted agreed language to be included in the Debtor s proposed order granting the Bid Procedures Motion. This Court s order (Doc. No. 1590) (the Bid Procedures Order ) specifically reserved ATLC s right to assert an ownership or secured interest in the Assigned Proceeds. See Bid Procedures Order, paragraph 31. In sum, since the Petition Date, ATLC and the Debtors have attempted to reach a consensual resolution concerning ATLC s rights with respect to the Assigned Proceeds, or at a minimum, protect ATLC s rights in the event the parties could not reach a consensual resolution. Unfortunately, the parties have been unable to agree, necessitating the filing of this Motion. Having reserved its rights, and in anticipation of the Debtors sale of its patents and related patent licensing agreements, ATLC files this Motion seeking a judicial determination of its rights with respect to the Assigned Proceeds. RELIEF REQUESTED By this Motion, ATLC respectfully requests entry of an order: (i) determining that ATLC holds a valid, perfected, first priority lien on the Assigned Proceeds; or alternatively, (ii) determining that ATLC owns the Assigned Proceeds; and (iii) granting all further relief that is appropriate under the circumstances. 9

10 alg Doc 1813 Filed 08/03/12 Entered 08/03/12 18:21:47 Main Document Pg 10 of 19 ARGUMENT I. ATLC Holds a Valid, Perfected, First Priority Lien on the Assigned Proceeds. A. Kodak Granted ATLC a Security Interest in the Assigned Proceeds. The Representation Agreement unambiguously provides that a percentage of the Proceeds received by Kodak pursuant to the patent licensing agreements negotiated by ATLC is hereby assigned to ATLC : Out of the net proceeds as defined hereafter, received by Kodak from patent license agreements entered into pursuant to this Agreement with, or from judgments against, a third party, a percentage of said net proceeds is hereby assigned to ATLC. Representation Agreement, Section 6 [emphasis added]. Here, the parties agreed that Delaware law would govern the Representation Agreement. 5 Delaware law is clear that unambiguous written agreements should be enforced according to their terms, without using extrinsic evidence to interpret the intent of the parties, to vary the terms of the contract or to create an ambiguity. MBIA Insurance Corp. v. Royal Indemnity Corp., 426 F.3d 204, 210 (3d Cir. 2005) (citing Eagle Indus., Inc. v. DeVilbiss Health Care, Inc., 702 A.2d 1228, 1232 (Del. 1997)); Rhone-Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1196 (Del. 1992) (concluding that words must be given their ordinary meaning and should not be torture[d] to impart ambiguity where none exists. ). In fact, when Kodak and ATLC later executed the Settlement Agreement, they acknowledged that the Representation Agreement assigned the after-acquired Assigned Proceeds 5 Kodak and ATLC agreed that the Representation Agreement shall be subject to and governed by the laws of the state of Delaware. Representation Agreement, Section 13. New York courts routinely enforce contractual choiceof-law provisions. See Freedman v. Chemical Construction Corp., 43 N.Y. 2d 260, 265 (1977); accord Turtur v. Rothschild Registry Int l, 26 F.3d 304, 310 (2d Cir. 1994); see also Cargill v. Charles Kowsky Resources, Inc., 949 F.2d 51, 55 (2d Cir. 1991). 10

11 alg Doc 1813 Filed 08/03/12 Entered 08/03/12 18:21:47 Main Document Pg 11 of 19 to ATLC by referring to ATLC s interest in the Licensing Proceeds as its assigned percentage of the net proceeds : Kodak will continue paying ATLC its assigned percentage of the net proceeds received by Kodak from patent license agreements entered between Kodak and third parties with whom ATLC had substantial negotiations or provided substantial support services as of the date of the execution of this [Settlement] Agreement and the expiration dates of those agreements. Settlement Agreement, Section 6 [emphasis added]. The plain language of the Representation Agreement and the unambiguous phrase is hereby assigned to ATLC, establishes that Kodak assigned ATLC a percentage of the Licensing Proceeds flowing from the patent licensing agreements negotiated by ATLC. Because the plain language of the Representation Agreement conclusively demonstrates that Kodak assigned ATLC the Assigned Proceeds, the remaining question is whether that assignment took the form of an absolute assignment, or an assignment as security. Article 9 of the UCC as enacted in Delaware governs any transaction (regardless of its form) which is intended to create a security interest in personal property. Del. Code Ann. tit (Del. Code Ann. tit et seq. is referred to herein as the Delaware UCC ). Pursuant to Delaware law, no formal security agreement is required [to create a security interest] if there is a writing or writings signed by the debtor describing the collateral which demonstrates an intent to create a security interest in the collateral. In re CPM Energy Systems, Corp., 116 B.R. 411, (Bankr. D. Del. 1990) (citing In re Bollinger Corp., 614 F.2d 924 (3d Cir. 1980)) (discussing the minimal formal requirements for the creation of a security agreement and concluding that transaction as a whole evidenced creation of a security interest). Kodak intended to grant ATLC a security interest in the Assigned Proceeds. The Representation Agreement is clearly a writing, executed by Kodak, that identifies the collateral, 11

12 alg Doc 1813 Filed 08/03/12 Entered 08/03/12 18:21:47 Main Document Pg 12 of 19 and further plainly states that Kodak intended to assign a portion of the Licensing Proceeds. More than once, Kodak states that a percentage of said net proceeds is hereby assigned to ATLC. See J. White and R. Summers Uniform Commercial Code 31-3 (5th Ed. 2006) ( Even unorthodox documents containing words such as collateral, pledge, to secure, security, assignment language, and lienholder are likely to be upheld as adequate security agreements, even when not explicitly labeled as such. ) (internal citations omitted). As further evidence that Kodak intended to grant ATLC a security interest - rather than merely promising to pay ATLC for its expertise - the Representation Agreement also provides that in the event the Representation Agreement was terminated, ATLC s right to receive the Assigned Proceeds would continue. Additionally, Kodak agreed in the Representation Agreement that in the event Kodak sold or assigned a patent license agreement that was negotiated by ATLC, any future buyer or assignee must agree to continue furnishing the Assigned Proceeds to ATLC in accordance with the Representation Agreement. Based on the plain language of the Representation Agreement, Kodak intended to grant ATLC a security interest in the Assigned Proceeds - to conclude otherwise would render the language of the Representation Agreement meaningless. Finally, it is important to remember that for eight (8) years ATLC discovered entities that were infringing on Kodak s patents and thereafter successfully negotiated extremely profitable patent license agreements on Kodak s behalf with the infringers. In return, Kodak timely furnished ATLC the Assigned Proceeds. To ignore the plain language of the Representation Agreement, and the course of conduct of the Parties for eight (8) years, would be a violation of the general rule that one should not exalt the form of the security agreement over its substance. See Bollinger, 614 F.2d at 929 (finding course 12

13 alg Doc 1813 Filed 08/03/12 Entered 08/03/12 18:21:47 Main Document Pg 13 of 19 of dealing between the parties indicated intent to create a security interest.). In the instant case, Kodak intended to, and did in fact, grant ATLC a security interest in the Assigned Proceeds. The Assigned Proceeds qualify as an account or payment intangible under the Delaware UCC. The Delaware UCC defines an account as a right to payment of a monetary obligation, whether or not earned by performance, (i) for property that has been or is to be sold, leased, licensed, assigned or otherwise disposed of. Del. Code Ann. tit (a)(2). To the extent a security agreement includes accounts receivable, contracts, or contract rights, they are subsumed within the definition of an account. See PNC Bank, Delaware v. Berg, 1997 WL , *8 (Del. Super. 1997) (finding assignment of attorneys hourly billing and contingency fee contract constituted assignment of contract rights and therefore accounts under Delaware UCC). In the instant case, Kodak granted ATLC a security interest a portion of its right to receive payment from future patent licensing agreements to ATLC. And Kodak s contractual right to monetary payment, whether due now or in the future, and whether contingent upon some action or inaction on Kodak s part, constitutes an account under the UCC. See Delta-T Corporation v. Applied Process Technology International, LLC, 2012 WL , *15 (Bankr. E.D. Va. 2012) (quoting Commonwealth Financial Corp. v. DeWalt, 198 Ill. App. 3d 559, 561 (Ill. App. 3d 1990)) (both interpreting standard UCC definition of account ) (stating that it does not matter whether payment is due immediately or in the future, the right to payment is still an account. ). Alternatively, if the Assigned Proceeds do not qualify as an account, they qualify as payment intangibles. See Del. Code Ann. tit (a)(61) (defining payment intangible as a general intangible under which the account debtor s principal obligation is a monetary obligation. ). Therefore, under Delaware law, the Assigned Proceeds are either an account or a payment intangible. 13

14 alg Doc 1813 Filed 08/03/12 Entered 08/03/12 18:21:47 Main Document Pg 14 of 19 B. ATLC s Security Interest Attached to the Assigned Proceeds and Was Automatically Perfected. ATLC s security interest in the Assigned Proceeds attached upon execution of each of the individual patent licensing agreements. Under the Delaware UCC, a security interest attaches to collateral when it becomes enforceable against the debtor with respect to the collateral, unless an agreement postpones the time of attachment. Del. Code Ann. tit A security interest becomes enforceable when: (1) value has been given; (2) the debtor has rights in the collateral or the power to transfer rights in the collateral to a secured party; and (3) one of the following conditions is met: (A) the debtor has authenticated a security agreement that provides a description of the collateral Del. Code Ann. tit (b). All three elements must be satisfied for a security interest to attach. In re Bollinger Corp., 614 F.2d at 926. ATLC gave value to Kodak. Under Delaware law, value has been given when a person acquires rights generally, in return for any consideration sufficient to support a simple contract. Del. Code Ann. tit Delaware courts have consistently found that the consideration needed to make a contract enforceable may consist[] of a benefit to the promisor, or detriment to a promisee. Street Search Partners, L.P. v. Ricon Intern., L.L.C., 2006 WL , *4 (Del. Super. May 12, 2006); First Mortgage Co. of Pa. v. Fed. Leasing Corp., 456 A.2d 794, (Del. 1982). In accordance with the terms of the Representation Agreement, ATLC used its expertise to locate entities infringing on Kodak s patents and thereafter negotiate patent license agreements on Kodak s behalf. Furthermore, ATLC was required to pay all out of pocket expenses related to the licensing agreements without reimbursement from Kodak. See 14

15 alg Doc 1813 Filed 08/03/12 Entered 08/03/12 18:21:47 Main Document Pg 15 of 19 Representation Agreement, Sections 3 and 4. As a result of ATLC s efforts, Kodak reaped the benefit of at least twenty-one (21) patent licensing agreements. Kodak had rights to the Assigned Proceeds and the power to transfer its rights in those proceeds upon execution of each of the patent licensing agreements. Here, Kodak s contractual right to payment its accounts or payment intangibles arose at the when Kodak agreed to license its Patents to third parties in exchange for the Licensing Proceeds. See Delta-T Corporation, 2012 WL , *30 (Bankr. E.D. Va. 2012) (finding security interest attaches to account when account comes into existence). Additionally, nothing in the patent licensing agreements restricted Kodak s rights to the Licensing Proceeds. Finally, it is undisputed that Kodak authenticated the Representation Agreement, which provides a description reasonably identifying the Assigned Proceeds. Section of the Delaware UCC provides that a security agreement need only provide a description that reasonably identifies what is described. Del. Code Ann. tit Here, the Representation Agreement defines the terms substantial negotiations and substantial support services, and provides that ATLC s security interest would attach to the Assigned Proceeds if either of those conditions were met. Upon attachment, ATLC s security interest in the Assigned Proceeds was automatically perfected. Pursuant to the Delaware UCC, New Jersey law governs perfection of ATLC s security interest. 6 Under New Jersey law, a security interest automatically attaches to an assignment of accounts or payment intangibles, which does not by itself or in conjunction with other assignments to the same assignee transfer a significant part of the assignor s outstanding 6 See Del. Code Ann. tit and 9-307(e). 15

16 alg Doc 1813 Filed 08/03/12 Entered 08/03/12 18:21:47 Main Document Pg 16 of 19 accounts or payment intangibles. See N.J. Stat. Ann. 12A:9-309(2). ATLC has been unable to locate any cases under New Jersey law interpreting what qualifies as a significant part of an assignor s accounts or payment intangibles. Other courts considering this issue have applied the following three tests in order to determine whether a significant part of assignor s accounts or payment intangibles were assigned: (1) the percentage of accounts test, under which a court determines what percentage of the total accounts of the assignor were assigned and whether that percentage constitutes a significant part of the whole; (2) a casual and isolated transaction test, under which a court considers whether the assignee is in the business of commercial financing and whether the assignee regularly takes assignments of debtor s accounts or payment intangibles as part of its business; and (3) a combination of the two. See Vigil Bros. Construction, Inc., v. Concrete Equipment Co., Inc., 193 B.R. 513, 518 (9th Cir. BAP 1996). In the instant case, Kodak s assignment of the Assigned Proceeds, which, as stated herein are either an account or payment intangible under the Delaware UCC, meets both the percentage of accounts test and casual and isolated transaction test. At most, Kodak assigned ATLC a fifteen (15) percent interest in the Licensing Proceeds. That fifteen (15) percent interest represents an insignificant percentage of Kodak s overall accounts and payment intangibles, which were at all relevant times in the billions of dollars. Additionally, ATLC did not regularly take assignments of accounts or payment intangibles in the course and scope of its business. Accordingly, because Kodak did not assign a significant part of its accounts or payment intangibles to ATLC, ATLC s security interest in the Assigned Proceeds was automatically perfected upon execution of the patent licensing agreements. See In re Wood, 67 B.R. 321, 323 (W.D.N.Y. 1986); Hickman v. Capano Group, L.P., 1979 WL 4634, *5 (Del. Ch. 1979). 16

17 alg Doc 1813 Filed 08/03/12 Entered 08/03/12 18:21:47 Main Document Pg 17 of 19 II. Alternatively, Kodak Absolutely Assigned its Interest in the Assigned Proceeds to ATLC. If Kodak did not grant ATLC a security interest in the Assigned Proceeds, then Kodak absolutely assigned the Assigned Proceeds to ATLC; to interpret the plain language of the Representation Agreement in any other way renders the language hereby assigned to ATLC meaningless. Under Delaware law, it is axiomatic that unambiguous written agreements should be enforced according to their terms. See MBIA Insurance Corp. v. Royal Indemnity Corp., 426 F.3d 204, 210 (3d Cir. 2005) (citing Eagle Indus., Inc. v. DeVilbiss Health Care, Inc., 702 A.2d 1228, 1232 (Del. 1997)). Furthermore, words such as assigned should be given their ordinary meaning and not torture[d] to impart ambiguity where none exists. Rhone-Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1196 (Del. 1992) Moreover, Delaware courts have found that assignment is a legal term having an unequivocal, accepted definition. Baxter Pharmaceutical Products, Inc. v. ESI Lederle Inc., 1999 WL , *5 (Del. Ch. 1999) (adopting Restatement (Second) of Contract 317 definition of assignment). In the instant case, the Representation Agreement, and the Settlement Agreement that memorializes Kodak s intent to assign a portion of the Licensing Proceeds to ATLC, were heavily negotiated documents and the word choice was intentional, not haphazard. Advanced Testing Technologies, Inc. v. Desmond (In Re Computer Eng g Assocs., Inc.), 337 F.3d 38, 46 (1st Cir. 2003)(holding that for an assignment to be effective, no specific or magic words are necessary.) To be an absolute assignment, the assignor must divest itself of all rights, title and interest to the property being assigned. An act or words that show an intention to transfer all interests to the assignee are sufficient for a valid assignment. Id. Here, the Representation Agreement s words plainly show that Kodak assigned a portion of the net proceeds. Further, 17

18 alg Doc 1813 Filed 08/03/12 Entered 08/03/12 18:21:47 Main Document Pg 18 of 19 the Representation Agreement acknowledges that because Kodak was divested of its interest in the Assigned Proceeds as a result of the assignment, Kodak was expressly prohibited from selling or transferring either the Patents - or the right to collect the Licensing Proceeds - unless the buyer agreed to provide ATLC the Assigned Proceeds as they were collected. See Representation Agreement, Section 8. Coupled with this contractual language is the fact that all patent licensing agreements negotiated by ATLC included provisions requiring Kodak and the licensee to copy ATLC on all notices and royalty reports. As a result of the foregoing, it is reasonable to conclude that if Kodak did not grant ATLC a security interest in the Assigned Proceeds, then it absolutely assigned its interest in the Assigned Proceeds to ATLC. CONCLUSION For the foregoing reasons, ATLC, Ltd. respectfully requests entry of an order: (i) determining that ATLC holds a valid, perfected, first priority lien on the Assigned Proceeds; or alternatively, (ii) determining that ATLC owns the Assigned Proceeds; and (iii) granting all further relief that is appropriate under the circumstances. 18

19 alg Doc 1813 Filed 08/03/12 Entered 08/03/12 18:21:47 Main Document Pg 19 of 19 Dated: August 3, 2012 New York, New York Respectfully submitted, /s/ Jorian Rose Jorian Rose, Esq. BAKER HOSTETLER LLP 45 Rockefeller Plaza New York, New York T F jrose@bakerlaw.com -and- Elizabeth Green, Esq. BAKER HOSTETLER LLP Sun Trust Center, Suite South Orange Avenue Orlando, FL T F egreen@bakerlaw.com Counsel for ATLC, Ltd. 19

20 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 19 of 51 Exhibit PageID A -814 Representation Agreement Pg 1 of 15 EXHIBIT "A" EXHIBIT "A"

21 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 20 of 51 Exhibit PageID A -815 Representation Agreement Pg 2 of 15 EXHIBIT "A" EXHIBIT "A"

22 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 of 51 Exhibit PageID A -816 Representation Agreement Pg 3 of 15 EXHIBIT "A" EXHIBIT "A"

23 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 22 of 51 Exhibit PageID A -817 Representation Agreement Pg 4 of 15 EXHIBIT "A" EXHIBIT "A"

24 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 23 of 51 Exhibit PageID A -818 Representation Agreement Pg 5 of 15 EXHIBIT "A" EXHIBIT "A"

25 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 24 of 51 Exhibit PageID A -819 Representation Agreement Pg 6 of 15 EXHIBIT "A" EXHIBIT "A"

26 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 25 of 51 Exhibit PageID A -820 Representation Agreement Pg 7 of 15 EXHIBIT "A" EXHIBIT "A"

27 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 26 of 51 Exhibit PageID A -821 Representation Agreement Pg 8 of 15 EXHIBIT "A" EXHIBIT "A"

28 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 27 of 51 Exhibit PageID A -822 Representation Agreement Pg 9 of 15 EXHIBIT "A" EXHIBIT "A"

29 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 28 of 51 Exhibit PageID A -823 Representation Agreement Pg 10 of 15 EXHIBIT "A" EXHIBIT "A"

30 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 29 of 51 Exhibit PageID A -824 Representation Agreement Pg 11 of 15 EXHIBIT "A" EXHIBIT "A"

31 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 30 of 51 Exhibit PageID A -825 Representation Agreement Pg 12 of 15 EXHIBIT "A" EXHIBIT "A"

32 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 31 of 51 Exhibit PageID A -826 Representation Agreement Pg 13 of 15 EXHIBIT "A" EXHIBIT "A"

33 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 32 of 51 Exhibit PageID A -827 Representation Agreement Pg 14 of 15 EXHIBIT "A" EXHIBIT "A"

34 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 33 of 51 Exhibit PageID A -828 Representation Agreement Pg 15 of 15 EXHIBIT "A" EXHIBIT "A"

35 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 2 of 51 Exhibit PageID B Settlement Agreement Pg 1 of 50

36 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 3 of 51 Exhibit PageID B Settlement Agreement Pg 2 of 50

37 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 4 of 51 Exhibit PageID B Settlement Agreement Pg 3 of 50

38 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 5 of 51 Exhibit PageID B Settlement Agreement Pg 4 of 50

39 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 6 of 51 Exhibit PageID B Settlement Agreement Pg 5 of 50

40 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 7 of 51 Exhibit PageID B Settlement Agreement Pg 6 of 50

41 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 8 of 51 Exhibit PageID B Settlement Agreement Pg 7 of 50

42 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 9 of 51 Exhibit PageID B Settlement Agreement Pg 8 of 50

43 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 10 of 51 Exhibit PageID B -805 Settlement Agreement Pg 9 of 50

44 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 11 of 51 Exhibit PageID B -806 Settlement Agreement Pg 10 of 50

45 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 12 of 51 Exhibit PageID B -807 Settlement Agreement Pg 11 of 50

46 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 13 of 51 Exhibit PageID B -808 Settlement Agreement Pg 12 of 50

47 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 14 of 51 Exhibit PageID B -809 Settlement Agreement Pg 13 of 50

48 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 15 of 51 Exhibit PageID B -810 Settlement Agreement Pg 14 of 50

49 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 16 of 51 Exhibit PageID B -811 Settlement Agreement Pg 15 of 50

50 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 17 of 51 Exhibit PageID B -812 Settlement Agreement Pg 16 of 50

51 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 of 51 Exhibit PageID B -813 Settlement Agreement Pg 17 of 50

52 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 19 of 51 Exhibit PageID B -814 Settlement Agreement Pg 18 of 50

53 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 20 of 51 Exhibit PageID B -815 Settlement Agreement Pg 19 of 50

54 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 of 51 Exhibit PageID B -816 Settlement Agreement Pg 20 of 50

55 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 22 of 51 Exhibit PageID B -817 Settlement Agreement Pg 21 of 50

56 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 23 of 51 Exhibit PageID B -818 Settlement Agreement Pg 22 of 50

57 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 24 of 51 Exhibit PageID B -819 Settlement Agreement Pg 23 of 50

58 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 25 of 51 Exhibit PageID B -820 Settlement Agreement Pg 24 of 50

59 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 26 of 51 Exhibit PageID B -821 Settlement Agreement Pg 25 of 50

60 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 27 of 51 Exhibit PageID B -822 Settlement Agreement Pg 26 of 50

61 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 28 of 51 Exhibit PageID B -823 Settlement Agreement Pg 27 of 50

62 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 29 of 51 Exhibit PageID B -824 Settlement Agreement Pg 28 of 50

63 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 30 of 51 Exhibit PageID B -825 Settlement Agreement Pg 29 of 50

64 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 31 of 51 Exhibit PageID B -826 Settlement Agreement Pg 30 of 50

65 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 32 of 51 Exhibit PageID B -827 Settlement Agreement Pg 31 of 50

66 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 33 of 51 Exhibit PageID B -828 Settlement Agreement Pg 32 of 50

67 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 34 of 51 Exhibit PageID B -829 Settlement Agreement Pg 33 of 50

68 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 35 of 51 Exhibit PageID B -830 Settlement Agreement Pg 34 of 50

69 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 36 of 51 Exhibit PageID B -831 Settlement Agreement Pg 35 of 50

70 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 37 of 51 Exhibit PageID B -832 Settlement Agreement Pg 36 of 50

71 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 38 of 51 Exhibit PageID B -833 Settlement Agreement Pg 37 of 50

72 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 39 of 51 Exhibit PageID B -834 Settlement Agreement Pg 38 of 50

73 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 40 of 51 Exhibit PageID B -835 Settlement Agreement Pg 39 of 50

74 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 41 of 51 Exhibit PageID B -836 Settlement Agreement Pg 40 of 50

75 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 42 of 51 Exhibit PageID B -837 Settlement Agreement Pg 41 of 50

76 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 43 of 51 Exhibit PageID B -838 Settlement Agreement Pg 42 of 50

77 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 44 of 51 Exhibit PageID B -839 Settlement Agreement Pg 43 of 50

78 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 45 of 51 Exhibit PageID B -840 Settlement Agreement Pg 44 of 50

79 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 46 of 51 Exhibit PageID B -841 Settlement Agreement Pg 45 of 50

80 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 of 51 Exhibit PageID B -842 Settlement Agreement Pg 46 of 50

81 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 48 of 51 Exhibit PageID B -843 Settlement Agreement Pg 47 of 50

82 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 49 of 51 Exhibit PageID B -844 Settlement Agreement Pg 48 of 50

83 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 50 of 51 Exhibit PageID B -845 Settlement Agreement Pg 49 of 50

84 Case alg 6:11-cv GAP-GJK Doc Document Filed 08/03/ Entered Filed 09/15/11 08/03/12 Page 18:21:47 51 of 51 Exhibit PageID B -846 Settlement Agreement Pg 50 of 50