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Case 1:20-bk-12043 Doc 665 Filed 03/31/21 Entered 03/31/21 19:37:22 Desc Main <br /> Document Page 6 of 9 <br /> 9. The Liquidating Trustee asserts that the first carve-out "preserves claims for the <br /> Settlement Payment Recovery Amount,which is not at issue here." (Obj.¶ 17.) While that is true, <br /> as far as it goes, the first carve-out does more than that as it relates to Cortland/AD. For example, <br /> it preserves Cortland/AD's rights under the Settlement Agreement (including, without limitation, <br /> the Debtors' release of Cortland/AD as a DIP Secured Party and a Prepetition Secured Party, and <br /> Cortland/AD's rights as a third party beneficiary of the Settlement Agreement pursuant to the <br /> provisions of Paragraph 12), and it preserves Cortland/AD's rights to participate in the Settlement <br /> Payment Recovery Amount pursuant to its rights vis-a-vis the lenders. As the Liquidating Trustee <br /> notes, however, those rights are not as issue here. <br /> 10. With respect to the second carve-out, the Liquidating Trustee tries to explain away <br /> this language by asserting that"the Lenders(understandably)did not want to release rights in their <br /> capacities as "buyer" under the APA." (Obj. ¶18.) The Lenders and the buyer, however, are not a <br /> party to the Joinder, and it is unclear what on what basis the Liquidating Trustee can offer <br /> testimony as to their input into the Joinder's language or their intent in doing so—or why it should <br /> be permitted to do so if the Joinder"could not be more unambiguous" as the Liquidating Trustee <br /> claims. (Id. ¶ 16.) <br /> 11. In any case, the rights of the Lenders and the buyer, were already preserved in the <br /> Settlement Agreement itself. (See Settlement Agreement ¶ 4(a).) Further, the language in the <br /> Joinder does not refer to the Lenders or the "buyer," it refers to the DIP Secured Parties and the <br /> Prepetition Secured Parties. While Cortland/AD is a DIP Secured Party and a Prepetition Secured <br /> Party (again, as defined in the Final DIP Order), it is not a Lender, nor was it the buyer of the <br /> Debtors' assets or a party to the APA. To the extent that Cortland/AD was releasing its own rights <br /> under the Joinder, it had no "rights and claims . . . relating to the sale of assets from certain of the <br /> 6 <br />