2021-03-09_GENERAL DOCUMENTS - C1980004 (7)

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Case 1:20-bk-12043 Doc 643 Filed 03/03/21 Entered 03/03/21 18:42:10 Desc Main Document Page 15 of 20 Paragraph 61.c(iii) but refers only to the Prepetition Lenders and the DIP Lenders, which does not include Cortland/AD. Further, the Sale Order does not otherwise amend or abrogate the Final DIP Order, and while perhaps redundant, certain paragraphs of the Sale Order specifically make that point. (See Final DIP Order ¶¶ 60 and 63 ("Except as expressly provided herein, all of the rights of the DIP Secured Parties and their assignees and designees under the DIP Facility and the Final DIP Order remain in full force and effect.").) 43. The only articulated basis for the Debtors' refusal to pay Cortland/AD's fees and expenses, is that Cortland/AD's rights under the Final DIP Order were somehow released by the Settlement Agreement and the Joinder. This is incorrect. 44. First, the Settlement Agreement did not address the right of the DIP Lenders and the Prepetition Lenders —to say nothing of the DIP Secured Parties or the Prepetition Secured Parties more broadly —to have their professional fees paid pursuant to the Final DIP Order, nor did it amend the provisions of Paragraph 61.c(iii) in the Sale Order. Instead, the Settlement Agreement left the settlement with respect to the DIP Lenders' and the Prepetition Lenders' professional fees set forth in Paragraph 61.c(iii) in the Sale Order in place. (See Settlement Agreement ¶ 8 ("The terms and provisions of the Sale Order shall remain in full force and effect, including all releases therein.").) This point was implicitly acknowledged by the Committee in the December 15 E-Mail to Stroock: it did not argue that the lenders' and agents' claims for professional fees had been released pursuant to the Settlement Agreement but instead assumed, incorrectly, that the budget worked out in the Sale Order with respect to the DIP Lenders' and Prepetition Lenders' professional fees also applied to the agents, and "the full amount of the lenders' fees under the budgets have already been paid. Per our settlement, there would be nothing more payable to the agent." (Ex. D.) As noted above, however, Cortland/AD was not a party to the 26594115v.2