Kodak: 2nd-lien motion for discovery

7/31/2019 Kodak: 2nd-lien motion for discovery

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Proposed Hearing Date: June 13, 2012 at 10:00 a.m. (ET)

Proposed Objection Deadline: June 12, 2012 at 1:00 p.m. (ET)

AKIN GUMP STRAUSS HAUER & FELD LLP

One Bryant ParkNew York, New York 10036(212) 872-1000 (Telephone)

(212) 872-1002 (Facsimile)Michael S. StamerDavid H. BotterAbid Qureshi

Counsel to the Second Lien Noteholders Committee and

Special Counsel to the Second Lien Notes Trustee

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------------x:

In re: : Chapter 11:

EASTMAN KODAK COMPANY, et al. : Case No. 12-10202 (ALG):

Debtors. : (Jointly Administered)---------------------------------------------------------------x

MOTION OF THE SECOND LIEN NOTEHOLDERS COMMITTEEAND SECOND LIEN NOTES TRUSTEE FOR AN ORDER DIRECTING

PRODUCTION OF DOCUMENTS PURSUANT TO RULE 2004 OFTHE FEDERAL RULES OF BANKRUPTCY PROCEDURE

The ad hoc committee of certain holders (the Second Lien Noteholders Committee) of

the (i) 9.75% Senior Secured Notes (the 2018 Notes) due March 1, 2018 issued pursuant to

that certain Indenture dated March 5, 2010, as amended, supplemented or otherwise modified

from time to time (the 2018 Indenture), by and among Eastman Kodak Company, as issuer

(Kodak or the Company and, collectively with the above-captioned debtors and debtors in

possession, the Debtors), the guarantors as defined in the 2018 Indenture, and Wilmington

Trust, N.A. (the Second Lien Notes Trustee and, together with the Second Lien Noteholders

Committee, the Second Lien Parties), as successor indenture trustee to The Bank of New York

Mellon, N.A. and (ii) 10.625% Secured Notes (the 2019 Notes and, together with the 2018

12-10202-alg Doc 1316 Filed 06/06/12 Entered 06/06/12 11:01:10 Main DocumentPg 1 of 26

1210202120606000000000006

Docket #1316 Date Filed: 6/6/20


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Notes, the Second Lien Notes) due March 15, 2019 issued pursuant to that certain Indenture

dated March 15, 2011, as amended, supplemented or otherwise modified from time to time (the

2019 Indenture), by and among Kodak, as issuer, the guarantors as defined in the 2019

Indenture, and Wilmington Trust, N.A., as successor indenture trustee to The Bank of New York

Mellon, N.A., and the Second Lien Notes Trustee, hereby move for entry of an order directing

examinations and the production of documents pursuant to Rule 2004 of the Federal Rules of

Bankruptcy Procedure (Rule 2004) by the Debtors (the Motion). In support of the Motion,

the Second Lien Parties respectfully submit as follows:

PRELIMINARY STATEMENT

1. By this Motion, the Second Lien Parties are seeking the production of documentsrelating to the liabilities and financial condition of the Debtors, and the examination of certain

members of the Debtors management team, pursuant to Rule 2004. Notwithstanding that the

information sought in this Motion is of the sort that is routinely and readily provided by debtors to

their secured creditors, these Debtors have chosen to restrict or delay the Second Lien Parties

access to basic and critical financial diligence. While the Debtors have certainly provided some

information and limited access to management, much of that information has been slow in coming

and the meetings with management have been lacking in necessary detail. Moreover, upon

information and belief, the requested information is not only readily accessible to the Debtors

with little burden or expense, but in some instances likely already has been provided to the

Official Committee of Unsecured Creditors appointed in these cases (the Creditors

Committee).

2. The Second Lien Parties need to conduct detailed financial diligence of theDebtors has taken on new urgency as a result of recent, adverse events in these cases.

Specifically, on May 21, 2012, the Debtors suffered a significant setback in their efforts to



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monetize their IP portfolio and advance their overall reorganization efforts. An Administrative

Law Judge at the U.S. International Trade Commission ruled that one of Kodaks historically

most valuable patents was invalid (the Initial Determination). Following the announcement of

the Initial Determination, the trading prices of the unsecured bonds and the Second Lien Notes

dropped significantly and have not recovered. As a result, the Debtors need to preserve liquidity

and rapidly reorganize their core businesses, which have recently generated significant losses

and continue to burn cash at an alarming rate, has become critical. The Debtors most recent

monthly operating report demonstrates that this trend is continuing.

3.

Since the outset of these cases, the Second Lien Parties have made a series of

information requests to the Debtors relating to both the underlying value of the IP portfolio to be

retained by the Debtors and the value and operational viability of the Debtors core businesses.

Despite these repeated requests, the Debtors have either refused to provide critical information or

have shared information with the representatives of the Second Lien Parties at a slow pace that, at

this stage, is simply insufficient. Cooperation and transparency by the Debtors were critical

elements of both (i) the adequate protection agreement that the Debtors and the Second Lien

Parties struck at the beginning of these cases and (ii) the Second Lien Parties agreement not to

object to the Debtors recent request for an extension of exclusivity. The Debtors are not meeting

their obligations under both agreements, whether through timeliness or content, and therefore,

while the Second Lien Parties remain hopeful that reason will prevail and access to this

information will be consensually resolved, the Second Lien Parties are forced to file this Motion.

BACKGROUND

Information Requests

4. Since the petition date, the advisors to the Second Lien Parties (collectively, theProfessionals) made numerous requests of the Debtors and their advisors for critical



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information regarding the Debtors businesses, finances, and restructuring strategy. Immediately

following the commencement of these chapter 11 cases, the Second Lien Parties, through their

financial advisors Blackstone Advisory Partners (Blackstone), transmitted a lengthy diligence

list containing 39 requests. Over the course of the last several months, the Debtors have

responded to some of those requests and others remain outstanding. When the Debtors have

responded, it has been in piecemeal fashion over an unacceptably long period of time.

5. The Blackstone requests include access to basic financial information necessary tounderstand the operations and prospects of the Debtors proposed residual businesses, which the

Debtors assert will form the core of the reorganized enterprise. Although Blackstone has received

some important financial information, critical requests remain outstanding. Moreover, the

Debtors have been unwilling to make their management team sufficiently available to the

Professionals to answer critical questions about the businesses. Instead, since the commencement

of the chapter 11 cases, the Debtors have hosted a handful of meetings and conference calls for

brief periods of time that were insufficient to address the topics in appropriate detail.

6. There have also been significant shortcomings in the Debtors willingness toprovide basic information related to their intellectual property. Among other things, the Debtors

have refused to provide the model used in and supporting 284 Partners $2.2 - $2.6 billion

valuation of the Debtors Digital Capture and KISS patent portfolios (each as defined in the

Declaration of Michael J. Lasinski of 284 Partners LLC (the Lasinski Declaration)1 and

together, the IP Portfolio), the licenses underlying Kodaks licensing business and related

financials, Kodaks views on damages in pending IP litigations, business plan analyses for the IP

Portfolio, any additional non-privileged claims charts prepared by or for Kodak, and certain

1 The Lasinski Declaration is attached to Docket No. 16 as Exhibit C.



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information related to the prepetition sale process for the IP Portfolio (collectively, the IP

Information).

7. In addition, the Debtors have been withholding important litigation materialsrelevant to the value of the Debtors IP Portfolio (the Litigation Information) on the basis that

the advisors to the Second Lien Parties have not yet executed a common interest or joint defense

agreement. Counsel to the Second Lien Parties sent a proposed form of joint defense/common

interest agreement in February and, after repeated requests, finally received comments from the

Debtors on May 21, 2012, which were incorporated in an execution version returned to the

Debtors the next day. The Debtors subsequently decided that all of their existing non-disclosure

agreements, including with the Professionals, needed to be rationalized and conformed before

they would enter into the joint defense/common interest agreement. Although the Debtors

recently responded with comments on the revised non-disclosure agreements, as of the date

hereof, the revised non-disclosure agreements and the joint defense/common interest agreement

have not been executed.

8. The Debtors have offered two meritless and unprincipled justifications for theirrefusal to provide the foregoing diligence: first, that the Second Lien Noteholders Committee is

not an official committee and, second, that the Second Lien Parties are not restricted. However,

both the Second Lien Notes Trustee and UBS Securities, LLC (UBS), a second lien noteholder,

in its capacity as a potential lender (together, the Restricted Entities), entered into long-term

non-disclosure agreements with the Debtors. Notwithstanding that UBS is a Restricted Entity, the

Debtors have been unwilling to permit the Professionals to share with UBS the information they

have obtained. The Debtors also have delayed responding to comments to the revised UBS non-

disclosure agreement.



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Recent Developments Regarding the IP Portfolio and the Requested Information

9. On May 21, 2012, an Administrative Law Judge for the International TradeCommission issued the Initial Determination, holding, among other things, Kodaks patent 218

to be invalid. Immediately thereafter, the market price of Kodaks bonds crumbled 2: the

Second Lien Notes fell from 81 to 68.6, and the unsecured notes fell from the high-20s to the

mid- teens.3

10. On May 22, 2012, the Second Lien Parties sent a letter to counsel for the Debtors(attached hereto as Exhibit B) demanding production of the Requested Information (as defined

herein). The Debtors responded in a letter dated May 23, 2012 (attached hereto as Exhibit C, the

Response Letter), without providing (or agreeing to provide promptly) the Requested

Information. In the letter, the Debtors continued to put off the requests on the grounds that they

had agreed to provide the Requested Information later on a timetable [the Debtors] thought

reasonable. See Response Letter at 1.

11. On May 30, 2012, the Debtors filed their monthly operating report for April[Docket No. 1282]. During the first 14 weeks of the cases, the Debtors have burned through

approximately $125 million in cash.4

12. On May 31, 2012, the Debtors hosted Blackstone and the Creditors Committeefinancial advisors in Rochester for what was billed as a comprehensive meeting to discuss

2 Standard & PoorsLCD Daily Wrap-Up (May 21, 2012),

http://www.lcdcreditmarketnews.com/na/2012/05/21/LCD%20Daily%202012-05-21.pdf (Eastman Kodak bondscrumbled this afternoon on news that the company lost a ruling in an ongoing two-year legal fight against Apple andResearch in Motion over a patent for digital-image preview technology, a decision that may hurt the value of amajor patent portfolio the company is currently marketing.).

3 Zeke Faux, Kodak Court Loss Leaves Less for Bondholders: Corporate Finance, BLOOMBERG,May 29, 2012 (available at http://www.bloomberg.com/news/2012-05-29/kodak-court-loss-leaves-less-for-bondholders-corporate-finance.html).

4 This amount is extrapolated from publicly available sources.



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Kodaks commercial business, as well as an operational update. Though the meeting was

constructive, it was ultimately disappointing in that it was too limited in time, and the Company

confined the presentation to high-level strategic issues without providing the level of detail

necessary for the Professionals to begin to understand fully the Debtors businesses and

restructuring alternatives in order to participate effectively in the restructuring process.

13. On June 3, 2012, Blackstone provided to the Debtors financial advisors and theirChief Restructuring Officer a list of follow-up information requests, including a significant

number of repeat requests:

(i)

meeting in Rochester on Kodaks Annual Commitment Plan (ACP) and 4+8Outlook financials (commercial and follow-up on consumer), including businessdiscussion by strategic product group (SPG) covering current competitor fieldand dynamics, customers, products and services and industry overall;

(ii) meeting with the Debtors financial advisor Lazard Frres in respect of M&Aconsiderations, including sale preparation steps, business separation costs andrelated considerations, and value allocation among Debtors and non-Debtors;

(iii) follow-up discussion in respect of U.K. pension;(iv) KIFLs balance sheet, including detail of all receivables and payables;(v) detailed description of all other debt (German Sun Notes, etc.), including letters of

credit and leases;

(vi) weekly cash flow analyses through the end of 2012;(vii) consolidating balance sheet for the most recent quarter and 2011 FYE;(viii) 2012 ACP and 4+8 Outlook sales and gross profit by SPG by Debtor and non-

Debtor;

(ix) detailed schedule of all intercompany receivables and payables by legal entitywith designation as Debtor vs. non-Debtor;

(x) detailed breakdown of corporate and overhead expenses;(xi) detailed breakdown of R&D expense for 2011 and 2012 by SPG by Debtor

vs. non-Debtor;



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(xii) detailed breakdown of capital expenditures for 2011 and 2012 by SPG byDebtor vs. non-Debtor;

(xiii) description of transfer pricing policy, procedures and current calculations beingapplied in 2012;

(xiv) professional expenses schedule, historical and projected; and(xv) employee list (breakdown by segment, geography and function).

(collectively, the Financial Information and, together with the IP Information and the

Litigation Information, the Requested Information). The bolded requests (items (iv), (vii), (ix)

(xii), (xiv) and (xv)) are essentially repeat requests, as Blackstone has been seeking financial

reporting on a Debtors vs. non-Debtors basis for months.

14. In the twenty-four hours prior to filing this Motion and upon learning that thefiling of this Motion was imminent, the Debtors provided to Blackstone a number of the items

listed above. While the Second Lien Parties hope that this flow of information continues, in light

of the number and importance of the outstanding requests and the critical need for timely

compliance, the Motion remains necessary.

JURISDICTION AND VENUE

15. This Court has jurisdiction over this Motion pursuant to 28 U.S.C. 157 and1334. Venue is proper pursuant to 28 U.S.C. 1408 and 1409. The relief requested by this

Motion is predicated upon section 105(a) of title 11 of the United States Code (the Bankruptcy

Code) and Rule 2004.

RELIEF REQUESTED

16. By this Motion, the Second Lien Parties seek entry of an order pursuant to Rule2004 directing the Debtors to (a) provide the Requested Information to the Professionals,

(b) permit the Professionals to share the Requested Information with the Restricted Entities and



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(c) schedule examinations of the Debtors management to answer questions with respect to the

Requested Information.

BASIS FOR RELIEF

17. Rule 2004(a) provides that any party in interest may make a motion to obtain theexamination of any entity. Fed. R. Bankr. P. 2004(a). Rule 2004(b) states that the examination

may relate to, among other things, the acts, conduct, or property or to the liabilities and financial

condition of the debtor, or to any matter which may affect the administration of the debtors

estate. Fed. R. Bankr. P. 2004(b). Rule 2004(c) provides that the production of documentary

evidence may be compelled in the manner provided in Rule 9016, which permits the issuance of

a subpoena. Fed R. Bankr. P. 2004(c). The Requested Information falls squarely within the

scope of a permissible Rule 2004 examination.

18. The purpose of a Rule 2004 examination is to assist a party in interest indetermining the nature and extent of the bankruptcy estate, revealing assets [and] examining

transactions . . . . In re Recoton Corp., 307 B.R. 751, 755 (Bankr. S.D.N.Y. 2004).

Examinations under Rule 2004 may include within their scope any matter that may affect the

administration of the debtors estate and, in a chapter 11 case, any matter relevant to the case or

to the formulation of a plan. Moore v. Eason (In re Bazemore), 216 B.R. 1020, 1023 (Bankr. S.D.

Ga. 1998);In re Express One Intl, Inc., 217 B.R. 215, 216 (Bankr. E.D. Tex. 1998) (The

purpose of a Rule 2004 examination is to show the condition of the estate and to enable the

[c]ourt to discover its extent and whereabouts, and to come into possession of it, that the rights of

the creditor may be preserved.) (citingIn re Coffee Cupboard, Inc., 128 B.R. 509, 514 (Bankr.

E.D.N.Y. 1991)).

19. Rule 2004 is the basic discovery device used in bankruptcy cases, permitting theexamination of any party without the requirement of a pending adversary proceeding or contested



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matter. In re Symington, 209 B.R. 678, 683 (Bankr. D. Md. 1997) (internal quotations omitted).

These examinations are unfettered and broad in scope. In re GHR Energy Corp., 33 B.R. 451,

453 (Bankr. D. Mass. 1983). The scope of a 2004 examination is even broader than that of

discovery permitted under the [Federal Rules of Civil Procedure], which themselves contemplate

broad, easy access to discovery. In re Valley Forge Plaza Assocs.,109 B.R. 669, 674 (Bankr.

E.D. Pa. 1990). In fact, courts have often likened the broad scope of a 2004 examination to a

fishing expedition. In re Ionosphere Clubs, Inc.,156 B.R. 414, 432 (S.D.N.Y. 1993) (noting

the investigation is supposed to be a fishing expedition, as exploratory and groping as appears

proper to the [e]xaminer).

20. While the express language of Rule 2004 does not impose a good causestandard or other burden on the movant, some courts require a showing of good cause if the

subject of the discovery objects or seeks to quash particular discovery requests. See, e.g., ePlus,

Inc. v. Bernard Katz (In re Metiom, Inc.), 318 B.R. 263, 268 (S.D.N.Y. 2004) (describing good

cause standard as applicable upon objection by subject of discovery). In the event the Debtors

choose to object to this Motion, good cause clearly exists to justify granting the requested relief.

21. Rule 2004 grants any party in interest the right to examine a debtor. That right isparticularly compelling for the Second Lien Parties because they are prepetition secured creditors

a constituency routinely and properly provided with a debtors financial information and

because following the recent Initial Determination, market pricing suggests that the Second Lien



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Notes may be the fulcrum security in the Debtors chapter 11 cases.5 It has become critical to the

Second Lien Parties ability to protect their interest in their collateral and meaningfully participate

in this restructuring that the Requested Information be provided without further delay.

22. The Debtors consistently have maintained that the success of these chapter 11cases rests in large part on a successful sale of their IP Portfolio.6 In the wake of the Initial

Determination, which raises significant questions concerning the value of the IP Portfolio and the

success of the Debtors sale efforts, the Second Lien Parties have a pressing need to examine the

Debtors operations and financial condition. And despite the Debtors public optimism that the

Initial Determination is not final and could be overturned, the market is less confident of such an

outcome. The recent drop in the trading price of the unsecured bonds and the Second Lien Notes,

as well as the significant and continuing cash burn evidenced by the latest monthly operating

report, suggests that the value of the IP Portfolio (and, derivatively, the Debtors business as a

whole) is far less than the range set forth in the Lasinski Declaration.

23. Over the course of the last several weeks, the Second Lien Parties Professionalsrepeatedly have contacted the Debtors and their professionals with respect to the Requested

Information, only recently achieving some belated but insufficient progress. Upon

information and belief, much of the Requested Information is not only readily accessible without

burden or expense, but likely already has been provided to the Creditors Committee. Given the

5 See, e.g., Zeke Faux, Kodak Court Loss Leaves Less for Bondholders: Corporate Finance,BLOOMBERG, May 29, 2012 (available at http://www.bloomberg.com/news/2012-05-29/kodak-court-loss-leaves-

less-for-bondholders-corporate-finance.html ) (quoting an analyst for the market view that although Kodak said in aJanuary court filing that thered be enough money to pay off secured bondholders in full, That money seems toreally be gone, and theres not enough to cover the debt under a worst case scenario, which I think is where wereheaded.).

6 See, e.g., Mar. 20, 2012 Hrg Tr. 70:25-71:2 ([Mr. Glueckstein]: [W]e are moving forwardexpeditiously with a planned sale of a valuable intellectual property portfolio that is important to the debtor[s][re]organization efforts.); Jan. 19, 2012 Hrg Tr. 28:7-28:8 ([Mr. Torkin]: Now, I think Mr. Dietderich alludedto [the fact that] one of the central aspects of this case is our intellectual property.).



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current course of these cases, the Second Lien Parties simply cannot continue to sit by idly,

waiting for the Debtors to comply with their reasonable and customary requests for information

and access.

24. The Requested Information relates to the financial condition of the Debtors andthe administration of the Debtors estates, and will provide the Second Lien Parties and their

Professionals with the necessary information to, among other things, determine whether the

Debtors are adequately preserving the value of the Second Lien Parties collateral, as well as the

most prudent way to proceed in these chapter 11 cases to maximize estate value. The requested

examinations of the Debtors management will provide the Professionals with necessary detail

and color on the Requested Information. It is disturbing to the Second Lien Parties that the

Debtors are keeping this information so closely guarded and, in fact, exacerbates the Second Lien

Parties concern about the Debtors financial condition and the potential need for immediate

action to preserve the value of the Second Lien Parties collateral.

25. The Debtors reliance on the fact that the Second Lien Parties are not a statutorycommittee as justification for their refusal to respond in a timely manner to the Second Lien

Parties requests is misguided: not only does Rule 2004 provide any party in interest the ability to

examine a debtors financial condition, but here, where the market seems to suggest that the

Second Lien Parties may be the fulcrum class and the Second Lien Parties have organized an ad

hoc group that has participated beneficially in all aspects of these cases from day one, there is no

justification for restricting the information the Second Lien Parties Professionals receive.

Moreover, the Second Lien Notes Trustee and UBS, in its capacity as a potential lender, are

Restricted Entities pursuant to executed non-disclosure agreements with the Debtors and, as such,

are entitled to the Requested Information as well. Not only is such information routinely shared



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by a debtor with its secured creditors, but the Debtors reluctance to share such information with

the Professionals and the Restricted Entities is also antithetical to a consensual restructuring

process and a successful outcome of these chapter 11 cases.

26. Even absent the recent Initial Determination, it is critical for the Second LienParties to receive immediate and unfettered access to the Requested Information so that they can

assess all strategic alternatives in these chapter 11 cases. The Second Lien Parties are encouraged

by the Debtors eleventh hour cooperation and are hopeful that it will continue, but if compliance

and transparency can only be achieved through the intervention of the Court, the Second Lien

Parties respectfully request that the Court grant the Motion and direct the Debtors to provide the

Requested Information and examinations immediately.

REQUESTED DISCOVERY

27. The Requested Information includes the IP Information, the LitigationInformation and the Financial Information and is described in detail on the Appendix attached

hereto as Exhibit D.

WAIVER OF MEMORANDUM OF LAW

28. Because this Motion sets forth the authorities relied upon herein, the Second LienParties respectfully submit that the Motion itself satisfies the requirements of Rule 9013-1(b) of

the Local Rules of the Bankruptcy Court for the Southern District of New York regarding the

submission of a memorandum of law.

NOTICE

29. Notice of this Motion shall be provided to: (a) the Office of the United StatesTrustee; (b) counsel to the Debtors; (c) counsel to the Creditors Committee; (d) counsel to the

agent for the Debtors postpetition secured lenders; and (e) all parties requesting notice in the



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chapter 11 cases pursuant to Rule 2002 of the Federal Rules of Bankruptcy Procedure. The

Second Lien Parties respectfully submit that no other notice is necessary or required.

NO PRIOR REQUEST

30. No prior application for the relief sought in this Motion has been made to this orany other court in connection with the chapter 11 cases.

WHEREFORE, the Second Lien Parties respectfully request that the Court enter

an order, substantially in the form attached hereto as Exhibit A, (a) directing the Debtors

(i) within seven days of the date of this Order, to produce to the Professionals the Requested

Information, (ii) to permit the Professionals to share the Requested Information with the

Restricted Entities and (iii) if necessary, schedule examinations of the Debtors management to

answer questions with respect to the Requested Information; and (b) granting the Second Lien

Parties such other and further relief as this Court finds just and appropriate.

New York, New York AKIN GUMP STRAUSS HAUER & FELD LLPDated: June 6, 2012

By: /s/ Abid Qureshi

Michael S. StamerDavid H. BotterAbid QureshiOne Bryant ParkNew York, New York 10036(212) 872-1000 (Telephone)(212) 872-1002 (Facsimile)

Counsel to the Second Lien Noteholders Committee and

Special Counsel to the Second Lien Notes Trustee



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EXHIBIT A

Proposed Order



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UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------------x:

In re: : Chapter 11

:EASTMAN KODAK COMPANY, et al. : Case No. 12-10202 (ALG):

Debtors. : (Jointly Administered)---------------------------------------------------------------x

ORDER REQUIRING PRODUCTION OF DOCUMENTS PURSUANT TO

RULE 2004 OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE

Upon the Motion1 of the Second Lien Parties for entry of an order directing the

production by the Debtors of documents and access to management pursuant to Rule 2004 of the

Federal Rules of Bankruptcy Procedure (Rule 2004); and it appearing that the relief requested

is in the best interests of the Debtors estates, their creditors and all parties in interest; and it

appearing that the Court has jurisdiction over this matter pursuant to 11 U.S.C. 157 and 1334;

and it appearing that this is a core proceeding pursuant to 28 U.S.C. 157(b)(2); and it appearing

that venue is proper pursuant to 28 U.S.C. 1408 and 1409; and upon due deliberation and

sufficient cause appearing therefor, it is hereby

ORDERED, that

1. The Motion is granted in its entirety.2. The Debtors shall (a) within seven days of the date of this Order, produce to the

Professionals the Requested Information (as described in the Motion), (b) permit the

Professionals to share the Requested Information with the Restricted Entities and (c) make

available to the Professionals the Debtors management to answer questions with respect to the

Requested Information. To the extent the Debtors do not comply with this Order, the Second

1 Capitalized terms used but not otherwise defined herein shall have the meaning ascribed to them in theMotion.



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Lien Parties are authorized to proceed with formal discovery, including scheduling depositions

of the Debtors management team.

3. Copies of this Order shall be provided by the Debtors to the counterparties, if any,to the produced documents.

4. This Court retains jurisdiction with respect to all matters arising from or related tothe interpretation, implementation and enforcement of this Order.

5. This Order is effective immediately upon entry.Dated:__________

______________________________________HON. ALLAN L. GROPPERUNITED STATES BANKRUPTCY JUDGE



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EXHIBIT B

May 22, 2012 Letter from Akin Gump Strauss Hauer & Feld LLP



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EXHIBIT C

May 23, 2012 Letter from Sullivan & Cromwell LLP



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EXHIBIT D

Appendix of Requested Information

Information/Document

IP / Litigation Information

1. The model used in and supporting 284 Partners valuation of the Debtors Digital Capture andKISS patent portfolios.

2. The licenses underlying Kodaks licensing business and related financials.3. Kodaks views on damages in pending IP litigations.4. Kodaks business plan analyses for the IP Portfolio.5. Any additional non-privileged claims charts prepared by or for Kodak.6. Any pre-petition written expressions of interest in the purchase of the IP Portfolio.7. Details of any infringements or misappropriation or alleged infringements or misappropriation by

any third party of the intellectual property rights of the Company.

8. Copies of all correspondence dealing with actual infringement of patents, trademarks, or otherintellectual property.

Financial Information/Request

1. Meeting in Rochester on Kodaks Annual Commitment Plan (ACP) and 4+8 Outlook financials(commercial and follow-up on consumer), including business discussion by strategic productgroup (SPG) covering current competitor field and dynamics, customers, products and services

and industry overall.

Scheduled for June 7, 2012

2. Meeting with the Debtors financial advisor Lazard Frres in respect of M&A considerations,including sale preparation steps, business separation costs and related considerations, and value

allocation among Debtors and non-Debtors.

Scheduled for June 11, 2012

3.

Follow-up discussion in respect of U.K. pension.

4. KIFLs balance sheet, including detail of all receivables and payables.5. Detailed description of all other debt (German Sun Notes, etc.), including letters of credit and

leases.

Certain of the requested information provided on June 5, 2012; Professionals are reviewing to



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determine responsiveness

6. Weekly cash flow analyses through the end of 2012.Debtors have proposed to provide monthly reporting

7. Consolidating balance sheet for the most recent quarter and 2011 FYE.8. 2012 ACP and 4+8 Outlook sales and gross profit by SPG by Debtor and non-Debtor.

Debtors have stated this information is not available

9. Detailed schedule of all intercompany receivables and payables by legal entity with designation asDebtor vs. non-Debtor.

Debtors provided information on June 5, 2012; Professionals are reviewing to determine

responsiveness

10.Detailed breakdown of corporate and overhead expenses.11.Detailed breakdown of R&D expense for 2011 and 2012 by SPG by Debtor vs. non-Debtor.

Debtors provided consolidated information on June 5, 2012 and stated that it is not available on a

Debtor vs. non-Debtor basis; Professionals are reviewing to determine responsiveness

12.Detailed breakdown of capital expenditures for 2011 and 2012 by SPG by Debtor vs. non-Debtor.Debtors provided consolidated information on June 5, 2012 and stated that it is not available on a

Debtor vs. non-Debtor basis; Professionals are reviewing to determine responsiveness

13.Description of transfer pricing policy, procedures and current calculations being applied in 2012.

14.Professional expenses schedule, historical and projected.Debtors provided information on June 5, 2012; Professionals are reviewing to determine

responsiveness

15.Employee list (breakdown by segment, geography and function).Debtors provided information on June 5, 2012; Professionals are reviewing to determine

responsiveness


Kodak: 2nd-lien motion for discovery

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Transcript of Kodak: 2nd-lien motion for discovery