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2021-04-08_GENERAL DOCUMENTS - C1980004
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2021-04-08_GENERAL DOCUMENTS - C1980004
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Last modified
4/12/2021 11:00:45 AM
Creation date
4/12/2021 6:54:26 AM
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DRMS Permit Index
Permit No
C1980004
IBM Index Class Name
General Documents
Doc Date
4/8/2021
Doc Name Note
Case No. 20-12043 β(GRH)β Hopedale Mining LLC
Doc Name
Bankruptcy Notice
From
Porter Wright
To
DRMS
Permit Index Doc Type
General Correspondence
Email Name
JRS
JDM
GRM
CMM
CCW
Media Type
D
Archive
No
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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 βor 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 />G <br />
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