Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 1 of 43 Exhibit A [Plan] 870098 1 Desc Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 2 of 43 Desc UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA In re: Chapter 11 Philadelphia Newspapers, LLC, et al.. Case No. 09-11204 (SR) Debtors. Jointly Administered FOURTH AMENDED JOINT CHAPTER 11 PLAN AS OF JUNE 28.2010 The above-captioned debtors and debtors in possession (collectively, the "Debtors") and PN Purchaser Co, LLC (the "Purchaser" and, together with the Debtors, the "Plan Proponents") hereby submit their Fourth Amended Joint Chapter 11 Plan dated as of June 28, 2010. Dated: Philadelphia, Pennsylvania June 28, 2010 PROSKAUERROSE LLP Mark K. Thomas Paul V. Possinger Peter J. Young Three First National Plaza 70 West Madison, Suite 3800 Chicago, Illinois 60602-4342 Telephone: (312)962-3550 Facsimile: (312)962-3551 AKIN GUMP STRAUSS HAUER & FELD LLP Fred S. Hodara Abid Qureshi Alexis Freeman One Bryant Park New York, New York 10036 Telephone: (212) 872-1000 Facsimile: (212) 872-1002 Counsel for the Purchaser Counsel for the Debtors and Debtors in Possession DILWORTH PAXSON LLP Lawrence G. McMichael Anne M. Aaronson 1500 Market St., Suite 3500E Philadelphia, PA 19102 Telephone: (215)575-7000 Facsimile: (215) 575-7200 DRINKER BIDDLE & REATH LLP Andrew C. Kassner Andrew J. Flame One Logan Square Suite 2000 Philadelphia, PA 19103-6996 Telephone: (215)988-2700 Facsimile: (215)988-2757 Co-Counsel for the Debtors and Debtors in Possession Co-Counsel for the Purchaser ' The Debtors in these Chapter 11 Cases, along with the last four digits of each Debtor's federal tax identification number, are: Philadelphia Media Holdings, LLC (4680), PMH Acquisition, LLC (1299), Broad Street Video, LLC (4665), Philadelphia Newspapers, LLC (3870), Philadelphia Direct, LLC (4439), Philly Online, LLC (5185), PMH Holdings, LLC (1768), Broad Street Publishing, LLC (4574) and Philadelphia Media, LLC (0657). 870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 3 of 43 Desc Table of Contents Page No. ARTICLE I DEFINITIONS, INTERPRETATION AND EXHIBITS Definitions Rules of Interpretation Exhibits 1 1 15 16 ARTICLE II CLASSIFICATION OF CLAIMS AND INTERESTS Generally Unclassified Claims Unimpaired Classes Impaired Classes Entitled to Vote Impaired Classes Deemed to Reject 16 16 16 16 16 17 ARTICLE m PROVISIONS FOR TREATMENT OF CLASSES OF CLAIMS AND INTERESTS Satisfaction of Claims and Interests Unclassified Claims, Classified Unimpaired and Impaired Claims and Classified Interests Adminisfrative Claims Priority Tax Claims Class 1: Miscellaneous Secured Claims Class 2: Miscellaneous Priority Claims Class 3: Prepetition Senior Secured Claims Class 4: Prepetition Unsecured Debt Claims Class 5: General Unsecured Claims Class 6: Interests Class 7: Insider Claims ARTICLE r v ACCEPTANCE OR REJECTION OF THE PLAN; CRAMDOWN Acceptance by Impaired Classes of Claims and Interests Voting Classes Ballot Instructions Cramdown ARTICLE V PROVISIONS GOVERNING DISTRIBUTIONS UNDER THE PLAN Timing of Distributions Disfributions to Holders of Allowed Claims Liquidating Trust -i870099 1 17 17 17 17 18 18 18 19 19 19 20 20 20 20 20 20 20 21 21 21 22 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 4 of 43 Disfribution Account Delivery of Distributions Method of Cash Disfributions Failure to Negotiate Checks Unclaimed Disfributions Limitation on Disfribution Rights Fractional Dollars Compliance With Tax Requirements Character of Disfributions De Minimis Disfributions Desc 22 23 23 23 23 24 24 24 24 24 ARTICLE VI EXECUTORY CONTRACTS AND UNEXPIRED LEASES; INDEMNIFICATION OBLIGATIONS; BENEFIT PROGRAMS Treatment of Executory Contracts and Unexpired Leases Cure of Defauhs for Assumed Contracts and Leases Bar Date for Claims for Reiection Damages Treatment of Rejection Claims Executory Contracts and Unexpired Leases Entered Into and Other Obligations Incurred After the Petition Date Benefit Programs 26 26 ARTICLE VII MEANS FOR IMPLEMENTATION OF THE PLAN The Sale Real Property LLC Issuance of Plan Securities Listing of Plan Securities and Transfer Restrictions Dissolution of the Debtors and Resignation of Managers Organizational Documents Section 1145 Exemption Liquidating Trust Disfribution Account Treatment of Transfer of Assets: Valuation of Assets Powers and Duties of the Liquidation Trustee Powers of the Purchaser Powers and Duties of the Disfribution Agent Application of Sale Proceeds Distribution of Interests in Purchaser and Real Property LLC Transfer of the Excluded Assets 26 26 26 26 27 27 27 27 28 28 28 29 30 30 31 31 31 -ii870099 1 25 25 25 25 25 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 5 of 43 Desc Transfer of the Balance Sheet Cash Transfer of the Post Closing Cash Approval of Agreements Corporate Action ARTICLE V m PRESERVATION OF CAUSES OF ACTION AND RIGHT TO DEFEND AND CONTEST Preservation of Rights Rights of Action Setoffs No Payment or Distribution Pending Allowance Resolution of Disputed Claims ARTICLE IX CONDITIONS TO CONSUMMATION OF THE PLAN Confirmation Order Conditions to Effective Date Waiver of Conditions to Consummation Effect of Failure or Absence of Waiver of Conditions Precedent to the Effective Date of the Plan ARTICLE X EFFECTS OF CONFIRMATION Injunction. Releases. Indemnification bv Real Property LLC Other Documents and Actions Term of Injunctions or Stays Preservation of Insurance Guaranties Subordination Rights No Successor Liability ARTICLE XI RETENTION OF JURISDICTION Exclusive Jurisdiction of Bankruptcy Court Failure of Bankruptcy Court to Exercise Jurisdiction ARTICLE XII MISCELLANEOUS PROVISIONS Binding Effect of Plan Withdrawal of the Plan Final Order Modification of the Plan Business Days -iii870099 1 31 31 32 32 32 32 32 33 33 33 33 33 34 34 34 35 35 36 37 37 37 37 38 38 38 38 38 40 41 41 41 41 41 41 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 6 of 43 Severability Governing Law Dissolution of Committee Payment of Statutory Fees Post-Confirmation Operating Reports Notices Filing of Additional Documents Section 1125 of the Bankruptcy Code Section 1146 Exemption Time No Attorneys' Fees No Injunctive Relief Continued Confidentiality Obligations No Admissions or Waivers Entire Agreement Waiver Bar Date for Professionals -IV870099 1 Desc 42 42 42 42 42 42 43 43 44 44 44 44 44 44 44 45 45 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 7 of 43 Desc mTRODUCTION This fourth amended joint chapter 11 plan (as fiirther amended or modified hereafter in accordance with its terms, the "Plan"), dated as of June 28, 2010, is proposed by Debtors Philadelphia Media Holdings, LLC, PMH Acquisition, LLC, Broad Sfreet Video, LLC, Philadelphia Newspapers, LLC, Philadelphia Direct, LLC, Philly Online, LLC, PMH Holdings, LLC, Broad Sfreet Publishing, LLC and Philadelphia Media, LLC and the Purchaser. Reference is made to the Disclosure Statement, originally Filed on October 27, 2009 and supplemented on April 6, 2010 and May 19, 2010, accompanying the Plan for a discussion of the Debtors' history, business, resuUs of operations, historical financial information, properties, projections for fiiture operations and risk factors, a summary and analysis of the Plan, and certain related matters. The Debtors and the Purchaser are co-proponents of the Plan within the meaning of section 1129 of the Bankruptcy Code. SUBJECT TO CERTAIN RESTRICTIONS AND REQUIREMENTS SET FORTH IN SECTION 1127 OF THE BANKRUPTCY CODE, BANKRUPTCY RULE 3019 AND THE PLAN, THE PLAN PROPONENTS RESERVE THE RIGHT TO ALTER, AMEND, MODIFY, REVOKE OR WITHDRAW THE PLAN PRIOR TO ITS SUBSTANTIAL CONSUMMATION. Capitalized terms used herein shall have the meanings set forth in Article I hereof The Debtors have obtained Bankruptcy Court authority to have the Chapter 11 Cases jointly administered for adminisfrative and procedural purposes only. Accordingly, the Plan is being proposed as a joint plan of the Debtors for adminisfrative and procedural purposes only. The Plan is not premised upon the substantive consolidation of the Debtors or the Chapter 11 Cases and nothing herein shall be otherwise construed. The Debtors, however, reserve the right to seek substantive consolidation by motion or amendment to the Plan if they conclude that substantive consolidation is necessary or appropriate for effectuation of the Plan. Claims against, and Interests in, the Debtors (other than Adminisfrative Claims and Priority Tax Claims) are classified in Article II hereof and treated in Article III hereof ARTICLE I DEFINITIONS, INTERPRETATION AND EXHIBITS. Section 1.01. Definitions. Unless the context requires otherwise, the following terms shall have the following meanings whether presented in the Plan or the Disclosure Statement with initial capital letters or otherwise. As used herein: "Additional Equity Issuance" shall have the meaning set forth in Section 7.12 herein. "Administrative Claim" means a Claim for: (a) any cost or expense of adminisfration (including, without limitation, the Professional Fee Claims) of any of the Chapter 11 Cases asserted or arising under sections 503, 507(a)(1), 507(b) or 1114(e)(2) of the Bankruptcy Code including, but not limited to (i) any actual and necessary post Petition Date cost or expense of preserving the Debtors' respective Estates or operating the businesses of the Debtors, (ii) any post Petition Date cost, indebtedness or confractual obligation duly and validly incurred or assumed by the Debtors in the ordinary course of their respective businesses. 870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 8 of 43 Desc (iii) compensation or reimbursement of expenses of Professionals to the extent Allowed by the Bankruptcy Court under sections 330(a) or 331 of the Bankruptcy Code, and (iv) all Allowed Claims that are entitled to be freated as Admmisfrative Claims pursuant to a Final Order of the Bankruptcy Court under section 546 of the Bankruptcy Code; (b) any fees or charges assessed against the Debtors' respective Estates under section 1930 of title 28 of the United States Code; (c) any Allowed adminisfrative Claim or superpriority Claim granted to the Prepetition Senior Agent pursuant to the Cash Collateral Order; and (d) Claims of the DIP Lenders in connection with the DIP Financing Facility. "Affiliate" shall have the meaning set forth in section 101(2) of the Bankruptcy Code. "Allowed" means, with reference to any Claim, (a) any Claim against any of the Debtors that has been listed by the Debtors in the Schedules, as such Schedules may have been amended by the Debtors from time to time in accordance with Bankruptcy Rule 1009, as liquidated in amount and not Disputed or contingent, and with respect to which no confrary Proof of Claim has been Filed, (b) any Claim specifically allowed under the Plan, (c) any Claim the amount or existence of which has been determined or allowed by a Final Order, or (d) any Claim as to which a Proof of Claim has been timely Filed before the Bar Date, provided that at the time of the Effective Date the Debtors have not identified such Claim as being objectionable in part or in whole and no Objection to the allowance thereof has been Filed by the Claims Objection Deadline; provided, however, that the term Allowed, with reference to any Claim, shall not include (x) any unliquidated Claim or (y) interest or attorneys' fees on or related to any Claim that accruesfromand after the Petition Date unless otherwise expressly provided for in the Plan. "Allowed Claim" means a Claim that is Allowed. "Allowed Interest" means an Interest that is Allowed. "Asset Purchase Agreement" means that certain Asset Purchase Agreement dated as of April 28, 2010, as it may be modified or amended, by and among the Debtors, as sellers, and Purchaser, as buyer, which provides for the sale of certain or substantially all of the Debtors' assets, and was determined by the Debtors pursuant to the Sale and Bid Procedures to be the highest or otherwise best offer for such assets at the Auction, and which has been approved by the Court. "Auction" means the auction for the sale of the Debtors' assets that was held in accordance with the Sale and Bid Procedures. "Avoidance Actions" means any and all Causes of Action which a trustee, debtor in possession, the Estates or other appropriate party in interest may assert under sections 502, 510, 541, 542, 543, 544, 545, 547, 548, 549, 550, 551, or 553 of the Bankruptcy Code (other than those which are released or dismissed as part of and pursuant to the Plan) or under other similar or related state or federal statutes or common law, includingfraudulentconveyance laws. "Backstop Fees" means an aggregate amount not to exceed 5% of Purchaser Common Equity (calculated after giving effect to disfributions being made to Holders of Allowed Class 4 Claims) payable to the Purchaser, as agent for the Backstop Lenders, the -2870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 9 of 43 Desc ultimate recipients thereof, in consideration for such parties' election to pay the Purchase Price and the Cash-Out Disfribution. "Backstop Lender" means a Holder of an Allowed Class 3 Prepetition Senior Secured Claim that elected to enter into a backstop commitment agreement with the Purchaser to pay the Purchase Price and the Cash-Out Disfribution. "Balance Sheet Cash" means all of the Debtors' Cash, excluding Resfricted Cash (as defined in the Asset Purchase Agreement), as of the Effective Date. "Ballof' means the forms of ballots accompanying the Disclosure Statement upon which Holders of Impaired Claims and Interests entitled to vote on the Plan shall, among other things, indicate their acceptance or rejection of the Plan in accordance with the instructions regarding voting. "Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as codified in titie 11 of the United States Code, 11 U.S.C. ยงยง 101 et seq., as in effect on the Petition Date, together with all amendments and modifications thereto that subsequently may be made applicable to the Chapter 11 Cases. "Bankruptcy Court" means the United States Bankruptcy Court for the Eastern Disfrict of Pennsylvania or, if such court ceases to exercise jurisdiction over these proceedings, the court or adjunct thereof that exercises jurisdiction over the Chapter 11 Cases. "Bankruptcy Rules" means: (a) the Federal Rules of Bankruptcy Procedure and the Official Bankruptcy Forms, as amended and promulgated under section 2075 of title 28 of the United States Code; (b) the Federal Rules of Civil Procedure, as amended and promulgated under section 2072 of title 28 of the United States Code; (c) any local rules applicable to the Bankruptcy Court; and (d) any standing orders governing practice and procedure issued by the Bankruptcy Court, each as in effect on the Petition Date, together with all amendments and modifications thereto that were subsequently made applicable to the Chapter 11 Cases or proceedings therein, as the case may be. "Bar Date" means the applicable bar date by which a Proof of Claim must be, or must have been. Filed, as established by an order of the Bankruptcy Court. "Business Day" means any day which is not a Saturday, a Sunday, a "legal holiday" as defined in Bankruptcy Rule 9006(a), or a day on which banking institutions in the State of Pennsylvania are authorized or obligated by law, executive order or governmental decree to be closed. "Cash" means money, currency and coins, negotiable checks, balances in bank accounts and other lawfiil currency of the United States of America and its equivalents. "Cash Collateral Order" means the interim or Final Order, as in effect from timeto-time, entered by the Bankruptcy Court authorizing and approving the Debtors' use of cash collateral pursuant to section 363 of the Bankruptcy Code, and any extensions, amendments, or stipulations affecting the terms thereof -3870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 10 of 43 Desc "Cash-Out Disfribution" means the pro rata amount of the Disfributable Cash equal to the ratio of the particular Cash-Out Lender's Allowed Prepetition Senior Secured Claim to the aggregate amount of all Prepetition Senior Secured Claims, which may be paid in multiple disfributions, the first of which occurring on the Effective Date in accordance with Section 3.07 herein, and fiirther distributions occurring as reasonably practicable following a determination that any Disputed Adminisfrative Claims are Allowed. "Cash-Out Lender" means a Holder of an Allowed Class 3 Prepetition Senior Secured Claim who elects on the Ballot submitted to vote such Claim to receive the Cash-Out Disfribution. "Causes of Action" means any and all actions. Claims, rights, defenses, thirdparty claims, damages, executions, demands, crossclaims, counterclaims, suits, choses in action, controversies, agreements, promises, rights to legal remedies, rights to equitable remedies, rights to payment and claims whatsoever, whether known, unknown, reduced to judgment, not reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured. Disputed, undisputed, secured or unsecured and whether asserted or assertable directly, indirectly or derivatively, at law, in equity or otherwise, accruing to the Debtors, including, but not limited to, the Avoidance Actions. "Chapter 11 Cases" means the cases under chapter 11 of the Bankruptcy Code commenced by the Debtors in the Bankruptcy Court on the Petition Date. "City of Philadelphia Claim" means the Allowed amount of that certain Claim of the City of Philadelphia for real estate taxes relating to the Real Property. "Claim" shall have the meaning set forth in section 101(5) of the Bankruptcy Code. "Claims Objection Deadline" means the latest of: (a) 120 days after the Effective Date; (b) 75 days after the date on which any Claim is Filed; or (c) such other date as may be fixed by the Bankruptcy Court, whether fixed before or after the date specified in clauses (a) and (b) above. "Class" means each class, subclass or category of Claims or Interests as classified in Article II of the Plan. "Class 3 Liquidating Trust Interests" means the right to receive from the Liquidating Trust 50% of any aggregate recoveries from the Transferred Avoidance Actions in excess of $1.5 million (net of the reasonable costs and expenses incurred by the Liquidation Trustee in carrying out his, her or its duties atfributable to such beneficial interests). "Committee" means the official committee of unsecured creditors appointed in the Chapter 11 Cases pursuant to section 1102(a) of the Bankruptcy Code by the United States Trustee, as the membership of such committee isfromtime to time constituted and reconstituted. "Committee Members" means the members of the Committee. -4870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 11 of 43 Desc "Confirmation" means the entry by the Bankruptcy Court of the Confirmation Order. "Confirmation Date" means the date on which the Clerk of the Bankruptcy Court enters the Confirmation Order on the docket of the Bankruptcy Court with respect to the Chapter 11 Cases within the meaning of Bankruptcy Rules 5003 and 9021. "Confirmation Hearing" means the hearing held before the Bankruptcy Court to consider Confmnation of the Plan pursuant to sections 1128 and 1129 of the Bankruptcy Code. "Confirmation Order" means the order entered by the Bankruptcy Court confirming the Plan pursuant to section 1129 of the Bankruptcy Code, in form and substance acceptable to the Purchaser, subject to the Debtors' consent, which consent shall not be unreasonably withheld, and in consultation with the Prepetition Senior Agent and the DIP Agent, provided that the Prepetition Senior Agent and the DIP Agent shall have consent rights solely with respect to issues that affect them in their capacities as Prepetition Senior Agent and DIP Agent, such consent not to be unreasonably withheld. "Conshohocken Real Property" means the parcel of real property commonly known as 800 River Road, Conshohocken, Pennsylvania. "Creditor" means any Person that is the Holder of any Claim against any of the Debtors. "Day(s)" means, unless expressly otherwise provided, calendar day(s). "Debtors" shall have the meaning set forth in the Infroduction. "DIP Agent" means Citizens Bank of Pennsylvania, in its capacity as Adminisfrative Agent, Collateral Agent, Co-Syndication Agent and Lead Arranger under the DIP Financing Facility. "DIP Financing Facility" means the post-petition financing facility provided to the Debtors by the DIP Lenders pursuant to the DIP Financing Order and related documents. "DIP Financing Order" means the interim or Final Order, as in effect from timeto-time, entered by the Bankruptcy Court authorizing the Debtors to enter into the DIP Financing Facility pursuant to section 364 of the Bankruptcy Code, and any extensions or amendments thereof "DIP Lenders" means the banks, financial institutions, and other lender parties to the DIP Financing Facility from time to time, each in their capacity as such. "Disallowed" means, with respect to any Claim or Interest or portion thereof, any Claim against or Interest in the Debtors which: (a) has been withdrawn, in whole or in part, by agreement of the Debtors and the Holder thereof; (b) has been withdrawn, in whole or in part, by the Holder thereof; or (c) has been disallowed, in whole or part, by Final Order of a court of 870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 12 of 43 Desc competent jurisdiction. In each case a Disallowed Claim or a Disallowed Interest is disallowed only to the extent of disallowance or withdrawal. "Disallowed Claim" means a Claim, or any portion thereof, that is Disallowed. "Disallowed Interest" means an Interest, or any portion thereof, that is Disallowed. "Disclosure Statemenf means the Debtors' Disclosure Statement with Respect to the Second Amended Joint Chapter 11 Plan Dated originally Filed on October 27, 2009 and supplemented on April 6, 2010 and May 19, 2010, including all exhibits, appendices, schedules and annexes, if any, attached thereto, as submitted by the Debtors, as the same may be altered, amended, supplemented or modified from time to time, and which was prepared and disfributed in accordance with sections 1125 and 1126(b) of the Bankruptcy Code and Bankruptcy Rule 3018. "Disputed" means any Claim or Interest that has been neither Allowed nor Disallowed. "Disputed Claim" means a Claim, or any portion thereof, that is Disputed. For purposes of the Plan, a Claim that has been neither Allowed nor Disallowed shall be considered a Disputed Claim. "Disfributable Cash" means the amount of the Purchase Price plus Balance Sheet Cash, less the amount necessary to pay Allowed Adminisfrative Claims, Allowed Priority Tax Claims, Allowed Miscellaneous Secured Claims, Allowed Miscellaneous Priority Claims and the Unsecured Creditor Fund. "Disfribution Account" means an account or accounts, as applicable, maintained by the Distribution Agent into which (a) the Balance Sheet Cash shall be fransferred by the Debtors and (b) the Purchase Price will be delivered, and, in each case, the proceeds therefrom will be disfributed by the Disfribution Agent in accordance with the Plan. "Disfribution Account Claims" shall have the meaning set forth in Section 5.04 herein. "Distribution Agent" means such Entity or Entities that are designated, in accordance with Rule 3016-l(e) of the Local Rules of the United States Bankruptcy Court for the Eastern Disfrict of Pennsylvania, by the Purchaser, subject to the Debtors' consent, which consent shall not be unreasonably withheld, to (a) accept the Purchase Price from the Purchaser; (b) make disfributions to Holders of Allowed Adminisfrative Claims, Allowed Priority Tax Claims, Allowed Miscellaneous Priority Claims, Allowed Miscellaneous Secured Claims in accordance with the Plan; (c) transfer the Unsecured Creditor Fund to the Liquidating Trust; (d) disburse Purchaser Common Equity and Real Property LLC Equity in accordance with the Plan; (e) pay the Cash-Out Lenders; (f) promptly pay to the Purchaser the Remaining Cash, as agent for the ultimate recipients thereof; and (g) accept the Balance Sheet Cash from the Debtors. 870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 13 of 43 Desc "Effective Date" means the first Business Day following the date on which all conditions to consummation set forth in Article IX of the Plan have been satisfied or waived (if capable of bemg duly and expressly waived), provided that no stay of the Confirmation Order is then in effect. "Entity" means any individual, corporation, limited or general partnership, joint venture, association, joint stock company, limited liability company, estate,frustee.United States Trustee, unincorporated organization, government, governmental unit (as defined in the Bankruptcy Code), agency or political subdivision thereof "Equity Disfribution" means a pro rata amount of 97.7% of the Purchaser Common Equity equal to the ratio of the particular Equity Disfribution Lender's Allowed Prepetition Senior Secured Claim to the aggregate amount of all Equity Distribution Lenders' Allowed Prepetition Senior Secured Claims, subject to dilution by the Management Incentive Plan, Backstop Fees and any Additional Equity Issuance. "Equity Disfribution Lender" means a Holder of an Allowed Class 3 Prepetition Senior Secured Claim who elects on the Ballot submitted to vote such Claim to receive the Equity Disfribution, as opposed to the Cash-Out Disfribution. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rules issued thereunder. "Estate for Years" shall have the meaning ascribed to it in the Asset Purchase Agreement. "Estates" means the estates created in the Chapter 11 Cases pursuant to section 541 of the Bankruptcy Code upon commencement of the Chapter 11 Cases. "Exculpated Persons" means to the maximum extent permitted by the Bankruptcy Code and applicable law (a) the Debtors; (b) the Prepetition Senior Agent; (c) the Prepetition Senior Secured Lenders; (d) the Purchaser; (e) the Real Property LLC; (f) the Committee; (g) the DIP Agent; (h) the DIP Lenders; and (i) as to the parties listed in (a) through (h), any of their respective members, officers, directors, shareholders, employees, advisors, attorneys or agents acting in such capacity on or after the Petition Date. "Exit Facility" means the Commitment Letter dated April 21, 2010. "Federal Governmental Unif means the United States and/or any department, agency or instrumentality of the United States (but not a United Statesfrusteewhile serving as a trustee in a case under title 11 of the United States Code). "File, Filed or Filing" means file, filed or filing with the Bankruptcy Court in the Chapter 11 Cases. "Final Decree" means the final decree entered by the Bankruptcy Court after the Effective Date and pursuant to section 350(a) of the Bankruptcy Code and Bankruptcy Rule 3022. -7870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 14 of 43 Desc "Final Order" means an order or judgment of the Bankruptcy Court, or other court of competent jurisdiction, as entered on the docket of such court, the operation or effect of which has not been stayed, reversed, vacated, modified or amended, and as to which order or judgment (or any revision, modification, or amendment thereof) of the time to appeal, petition for certiorari, or seek review or rehearing has expired and as to which no appeal, petition for certiorari, or petition for review or rehearing was filed or, if filed, remains pending; provided, however, that the possibility that a motion may be filed pursuant to Rules 9023 or 9024 of the Bankruptcy Rules or Rules 59 or 60(b) of the Federal Rules of Civil Procedure shall not mean that an order or judgment is not a Final Order. "General Unsecured Claims" means all Claims, including Litigation Claims and Rejection Claims, that are not Adminisfrative Claims, Priority Tax Claims, Miscellaneous Secured Claims, Miscellaneous Priority Claims, Prepetition Senior Secured Claims, Prepetition Senior Deficiency Claims, Prepetition Unsecured Debt Claims or Insider Claims. "Holder" means an Entity holding a beneficial interest in a Claim or Interest and, when used in conjunction with a Class or type of Claim or Interest, means a holder of a beneficial interest in a Claim or Interest in such Class or of such type. "Impaired" means, when used with reference to a Claim or Interest, a Claim or Interest that is impaired within the meaning of section 1124 of the Bankruptcy Code. "Impaired Claim" means a Claim which is Impaired. "Insider" shall have the meaning set forth in section 101(31) of the Bankruptcy Code. "Insider Claims" means any Claim of an Insider against any of the Debtors, other than any Claim of an Insider that is either a Prepetition Unsecured Debt Claim or a Claim for indemnification under the Debtors' organizational documents, employment agreements, internal policies or otherwise. "Interests" means any and all equity interests, ownership interests or shares in the Debtors issued by the Debtors prior to the Petition Date (including, without limitation, all capital stock, stock certificates, common stock, preferred stock, partnership interests, membership and other interests in a limited liability company, rights, options, warrants, contingent warrants, convertible or exchangeable securities, investment securities, subscriptions or other agreements and confractual rights to acquire or obtain such an interest or share in the Debtors, partnership interests in the Debtors' stock appreciation rights, conversion rights, repurchase rights, redemption rights, dividend rights, preemptive rights and liquidation preferences, puts, calls or commitments of any character whatsoever relating to any such equity, ownership interests or shares of capital stock of the Debtors or obligating the Debtors to issue, fransfer or sell any shares of capital stock) whether or not certificated, transferable, voting or denominated "stock" or a similar security, and any Claim or Cause of Action related to or arising from any of the foregoing. "Liens" means, with respect to any asset or Property (or the rents, revenues, income, profits or proceeds therefrom), and in each case, whether the same is consensual or -8870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 15 of 43 Desc nonconsensual or arises by confract, operation of law, legal process or otherwise: (a) any and all mortgages, liens, pledges, attachments, charges, leases evidencing a capitalizable lease obligation, conditional sale or other title retention agreement, or other security interest or encumbrance or other legally cognizable security devices of any kind in respect of any asset or Property, or upon the rents, revenues, income, profits or proceeds therefrom; or (b) any arrangement, express or implied, under which any Property is fransferred, sequestered or otherwise identified for the purpose of subjecting or making available the same for the payment of debt or performance of any other obligation in priority to the payment of general unsecured Creditors. "Liquidating Trust" means the trust to be established in accordance with Section 7.08 of the Plan. "Liquidating Trust Agreemenf' means the agreement to be executed among the Liquidation Trustee, the Debtors, the Purchaser and the Committee establishing the Liquidatmg Trust. "Liquidating Trust Documents" means the Liquidating Trust Agreement and any ancillary documents relating thereto, each of which shall be subject to the consent of the Purchaser. "Liquidation Trustee" means the trustee of the Liquidating Trust who shall be selected by the Committee. "Litigation Claims" means Claims relating to pending litigation or other filed or unfiled Causes of Action against any of the Debtors as of their respective Petition Dates, other than such Claims which have been settled on or prior to the Effective Date. "Management Incentive Plan" means the management incentive plan of the Purchaser, which management incentive plan will be established and implemented by the board of the Purchaser, pursuant to which a to be determined percent of Purchaser Common Equity shall be allocable to certain officers, directors, employees, and consultants of Purchaser. "Miscellaneous Priority Claims" means any Claim against the Debtors entitled to priority pursuant to section 507(a) of the Bankruptcy Code, other than a Priority Tax Claim or an Adminisfrative Claim. "Miscellaneous Secured Claims" means any Secured Claim other than the Secured Claims of the Prepetition Senior Agent or the Prepetition Senior Secured Lenders. "Montgomery County Claim" means the Allowed amount of that certain Claim of Montgomery County for real estate taxes relating to the Conshohocken Real Property. "Net Unsecured Creditor Fund" means the Unsecured Creditor Fund less expenses of the Liquidating Trust incurred in connection with resolving Claims in Class 5 and in administering the Unsecured Creditor Fund. -9870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 16 of 43 Desc "Objection" means any objection, application, motion, complaint or any other legal proceeding seeking, in whole or in part, to Disallow, determine, liquidate, classify, reclassify or establish the priority, expunge, subordinate or estimate any Claim (including the resolution of any request for payment of any Adminisfrative Claim) or Interest other than a Claim or an Interest that is Allowed. "Organizational Documents" means the certificate of formation, or the Certificate of Incorporation and by-laws, of, as the case may be, for Purchaser, and the certificate of formation and limited liability agreement for Real Property LLC. "Parent" means Philadelphia Media Holdings, LLC, a Delaware limited liability company. "Person" means and mcludes a natural person, individual, partnership, corporation (as defined in section 101(a) of the Bankruptcy Code), or organization including, without limitation, corporations, limited partnerships, limited liability companies, general partnerships, joint ventures, joint stock companies, trusts, land trusts, business frusts, unincorporated organizations or associations, or other organizations, irrespective of whether they are legal entities, governmental bodies (or any agency, instrumentality or political subdivision thereof), or any other form of legal entities; provided, however, "Person" does not include governmental units, except that a governmental unit that (a) acquires an asset from a Person (i) as a result of the operation of a loan guarantee agreement or (ii) as receiver or liquidating agent of a Person; (b) is a guarantor of a pension benefit payable by or on behalf of a Debtor or an Affiliate of a Debtor of; or (c) is the legal or beneficial owner of an asset of (i) an employee pension benefit plan that is a governmental plan, as defined in section 414(d) of the Internal Revenue Code of 1986 or (ii) an eligible deferred compensation plan, as defined in section 457(b) of the Internal Revenue Code of 1986, shall be considered for purposes of section 1102 of the Bankruptcy Code to be a Person with respect to such asset or such benefit. "Petition Date" means the date on which the Debtors Filed their respective petitions for relief commencing the Chapter 11 Cases. For the Subsidiary Debtors, the Petition Date is February 22, 2009, and for the Parent, the Petition Date is June 10, 2009. "Plan" means this Fourth Amended Joint Chapter 11 Plan dated as of June 28, 2010, including all exhibits, appendices, schedules and annexes, if any, attached hereto, as submitted by the Plan Proponents, including the Plan Supplement, as such Plan may be altered, amended, supplemented or modified from time to time in accordance with the provisions of the Bankruptcy Code, the Bankruptcy Rules, the Confirmation Order and the terms and conditions of Section 12.04 of the Plan. "Plan Documents" means, collectively, the Disclosure Statement, the Plan, the Plan Supplement, the Confirmation Order, any exhibit to the Plan or any other Plan document (including any provision that purports to be preemptory or supervening). "Plan Proponents" shall have the meaning set forth in the Introduction. "Plan Securities" means Purchaser Common Equity and Real Property LLC Equity. -10870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 17 of 43 Desc "Plan Supplement" means the supplement to this Plan to be Filed with the Bankruptcy Court prior to the Confirmation Hearing. "Post Closing Cash" means all of the Debtors' Cash excluding Balance Sheet Cash but specifically including all Resfricted Cash (as defined in the Asset Purchase Agreement) and all Cash acquired after the Effective Date. "Prepetition Mezzanine Lenders" means the lenders party to the Prepetition Mezzanine Note Purchase Agreement. "Prepetition Mezzanine Note Purchase Agreemenf means that certain Purchase Agreement dated June 29, 2006 by and among Debtor Philadelphia Newspapers, LLC, as borrower, the other Subsidiary Debtors, as guarantors, and the Prepetition Mezzanine Lenders, as lenders. "Prepetition Senior Agent" means Citizens Bank of Permsylvania, as adminisfrative and collateral agent under the Prepetition Senior Secured Credit Agreement. "Prepetition Senior Deficiency Claims" means the Claims of the Prepetition Senior Secured Lenders arising under the Prepetition Senior Secured Credit Agreement, and any related agreements, instruments and other documents, including, without limitation, any contingent Claims for outstanding Prepetition Senior Secured Letters of Credit issued under the Prepetition Senior Secured Credit Agreement, excluding the Prepetition Senior Secured Claims, which shall be deemed to be waived. "Prepetition Senior Secured Claims" means the Claims of the Prepetition Senior Secured Lenders arising under the Prepetition Senior Secured Credit Agreement, and any related agreements, instruments and other documents, including, without limitation, any contingent claims for outstanding Prepetition Senior Secured Letters of Credit issued under the Prepetition Senior Secured Credit Agreement, and any reimbursement obligations for any drawing under Letters of Credit and the Hedge Agreement referred to in the definition of "Obligation" in the Prepetition Senior Secured Credit Agreement, but only to the extent that such Claim is a secured claim as determined by section 506(a)(1) of the Bankruptcy Code. "Prepetition Senior Secured Credit Agreemenf means the Credit and Guaranty Agreement dated as of June 29, 2006, as amended, pursuant to which the Prepetition Senior Secured Lenders agreed to provide loans and other financial accommodations to Philadelphia Newspapers, LLC, guaranteed by the other Subsidiary Debtors. "Prepetition Senior Secured Lenders" means the lender parties from time to time party to the Prepetition Senior Secured Credit Agreement and any Lender Counterparties (as defined in the Prepetition Senior Secured Credit Agreement), and any successors or assigns of any of the foregoing. "Prepetition Senior Secured Letters of Credif means any letter of credit issued under the Prepetition Senior Secured Credit Agreement that was outstanding as of the Petition Date. -11870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 18 of 43 Desc "Prepetition Unsecured Debt Claims" means the Claims of the Prepetition Mezzanine Lenders arising under the Prepetition Mezzanine Note Purchase Agreement. "Priority Tax Claim" means any and all Claims accorded priority in payment pursuant to section 507(a)(8) of the Bankruptcy Code, including the Real Property Tax Claims. "Pro Rata Share" means, with respect to any Claim, a proportionate share, so that the ratio of the consideration distributed on account of an Allowed Claim in a Class to the consideration disfributed on account of all Allowed Claims in that Class is the same as the ratio such Claim bears to the total amount of all Allowed Claims in that Class (plus Disputed Claims in that Class until Disallowed). "Professional Fee Claim" means an Allowed Claim for compensation and/or reimbursement of expenses pursuant to sections 327, 328, 330, 331 or 503(b) of the Bankruptcy Code relating to services incurred on and after the Petition Date and prior to and including the Effective Date in coimection with an application by the Professionals in the Chapter 11 Cases made to and approved by the Bankruptcy Court. "Professionals" means any professional employed in these Chapter 11 Cases pursuant to sections 327 or 1103 of the Bankruptcy Code or any Professional entitied to compensation pursuant to sections 327, 328, 330, 331, 503(b)(2) or (4), or 1103 of the Bankruptcy Code. "Proof of Claim" means a proof of Claim Filed agamst any of the Debtors in the Chapter 11 Cases. "Property" means all assets or property of the Debtors' respective Estates of any nature whatsoever, real or personal, tangible or intangible, including confract rights, accounts and Causes of Action, previously or now owned by the Debtors, or acquired by the Debtors' respective Estates, as defined in section 541 of the Bankruptcy Code. "Purchase Price" means the "Base Purchase Price" as defined in the Asset Purchase Agreement "Purchased Assets" means assets acquired by the Purchaser under the Asset Purchase Agreement. "Purchaser" means PN Purchaser Co, LLC, a Delaware limited liability company, which may be converted to a Delaware corporation prior to the Effective Date, as the purchaser under the Asset Purchase Agreement. "Purchaser Common Equity" means the shares of common equity of the Purchaser to be disfributed pursuant to the Plan. "Real Property" means, collectively, the parcels of real property commonly known as: (a) 400 North Broad Sfreet, Philadelphia, Pennsylvania; (b) 1501-1525 Callowhill Street, Philadelphia, Pennsylvania; (c) 1527-1547 Callowhill Sfreet, Philadelphia, Pennsylvania; and (d) 1540 Hamilton Sfreet, Philadelphia, Pennsylvania. -12870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 19 of 43 Desc "Real Property LLC" means the Pennsylvania or Delaware limited liability company that will be established for the benefit of the Prepetition Senior Secured Lenders to be disfributed pursuant to the Plan. "Real Property LLC Equity" means the equity interests of the Real Property LLC. "Real Property Tax Claims" means the City of Philadelphia Claim and the Montgomety County Claim. "Reinstated or Reinstatement" means: (a) leaving unaltered the legal, equitable, and confractual rights to which a Claim entitles the Holder of such Claim so as to leave such Claim Unimpaired in accordance with section 1124 of the Bankruptcy Code; or (b) notwithstanding any confractual provision or applicable law that entitles the Holder of such Claim to demand or receive accelerated payment of such Claim after the occurrence of a default (i) curing any such default that occurred before or after the Petition Date, other than a default of a kind specified in section 365(b)(2) of the Bankruptcy Code; (ii) reinstating the maturity of such Claim as such maturity existed before such default; (iii) compensating the Holder of such Claim for any damages incurred as a result of any reasonable reliance by such Holder on such confractual provision or such applicable law; and (iv) not otherwise altering the legal, equitable, or confractual rights to which such Claun entitled the Holder of such Claim; provided, however, that any confractual right that does not pertain to the pajonent when due of principal and interest on the obligation on which such Claim is based, including, but not limited to, financial covenant ratios, negative pledge covenants, covenants or restrictions on merger or consolidation, and affirmative covenants regarding corporate existence or which prohibit certain fransactions or actions contemplated by the Plan, or conditioning suchfransactionsor action on certain factors, shall not be required to be reinstated in order to accomplish Reinstatement. "Rejection Claims" means: (a) Claims of any non-Debtor counterparty to any unexpired lease of nonresidential real property or any executory confract arising on account of the rejection of such lease or confract during the adminisfration of these Chapter 11 Cases under section 365 of the Bankruptcy Code or pursuant to the Plan or the Asset Purchase Agreement; and (b) any Claims arising from the termination of or withdrawal from any pension plan of the Debtors qualified under ERISA. "Releasees" means each of: (a) the DIP Agent; (b) the DIP Lenders; (c) the Prepetition Senior Agent; (d) the Prepetition Senior Secured Lenders; (e) the Purchaser; (f) the Real Property LLC; (g) the Committee and the members thereof in their capacity as such; (h) the Debtors; and (i) with respect to each of the foregoing entities in clauses (a) through (h), such entities' subsidiaries, affiliates, managed accounts orfiinds,officers, directors, members, current and former members of any advisory boards, current and former holders of member interests or other units of equity in Parent, principals. Insiders (as defined in the Bankruptcy Code), employees, agents, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, and other Professionals, solely in their respective capacities as representatives of any of the foregoing. "Remaining Cash" means the balance of the Purchase Price remaining in the Distribution Account after giving effect to the payments, transfers, and distributions contemplated by clauses (b), (c) and (e) of the definition of "Distribution Agent." -13870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 20 of 43 Desc "Sale" means the sale of certain or substantially all of the Debtors' assets under or in cormection with the Plan and the Asset Purchase Agreement. "Sale and Bid Procedures" means the sale, bid and auction procedures set forth in that certain Order (a) Approving Procedures for the Sale of Certain of the Debtors' Assets; (b) Scheduling an Auction; (c) Approving Assumption and Assignment Procedures; (d) Approving Form of Notice; and (e) Granting Related Relief, entered by the Court on October 15, 2009, as amended by that certain Order (A) Approving Amended Procedures for the Sale of Certain of the Debtors' Assets; (B) Scheduling an Auction; (C) Approving Assumption and Assignment Procedures; (D) Approving Form of Notice; and (E) Granting Related Relief on April 7, 2010 (Docket No. 1879). "Sale Documents" means the Asset Purchase Agreement, the Schedule of Assumed Contracts, and any schedules, exhibits or other documents attached thereto or contemplated thereby, in each case as amended from time to time in accordance with their terms. "Schedule of Assumed Confracts" means the schedule listing certain executory confracts and unexpired leases to be assumed by the Debtors and assigned to the Purchaser or Real Property LLC, as applicable, imder or in connection with the Asset Purchase Agreement, which schedule shall be set forth in or as an attachment or exhibit to the Asset Purchase Agreement. "Schedules" means the schedules of assets and liabilities and statements of financial affairs Filed by any of the Debtors m the Chapter 11 Cases, as required by section 521 of the Bankruptcy Code, as the same may have been or may be amended, modified or supplemented. "Secured Claim" means any Claim arising before the Petition Date that is: (a) secured in whole or part, as of the Petition Date, by a Lien which is valid, perfected and enforceable under applicable law on Property in which the Debtors' respective Estates has an interest and is not subject to avoidance under the Bankruptcy Code or applicable non-bankruptcy law; or (b) subject to setoff under section 553 of the Bankruptcy Code, but, with respect to both case (a) and (b), only to the extent of the value of the assets or Property securing any such Claim or the amount subject to setoff, as the case may be. "Secured Parties" means the Prepetition Senior Secured Lenders and each other Person with secured obligations under or pursuant to the Prepetition Senior Secured Credit Agreement or related security agreement. "Securities Act" means the Securities Act of 1933, as amended. "Subsidiary Debtors" means all of the Debtors other than the Parent. "Subsidiary Interests" means any and all authorized, issued and outstanding Interests in any of the Subsidiary Debtors as of the Petition Date. "Tax" means any tax, charge, fee, levy, impost or other assessment by any federal, state, local or foreign governmental authority, including, without limitation, income, -14870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 21 of 43 Desc excise, property, sales,fransfer,employment, payroll,franchise,profits, license, use, ad valorem, estimated, severance, stamp, occupation and withholding tax, together with any interest, penalties, fines or additions attributable to, imposed on, or collected by any such federal, state, local or foreign governmental authority. "Transferred Avoidance Actions" means all Avoidance Actions of the Debtors other than Avoidance Actions agamst any of the Releasees. "Unclaimed Property" means any distribution of Cash or any other Property made to the Holder of an Allowed Claim pursuant to the Plan that is returned to the Debtors, the Disfribution Agent, or the Liquidation Trustee as undeliverable and no appropriate forwarding address is received prior to the date on which the Final Decree is entered in the Chapter 11 Cases, in the case of a distribution made in the form of a check, is not negotiated and no request for reissuance is made as provided for in Section 5.07 of the Plan. "Unimpaired" means any Claun that is not Impaired within the meaning of section 1124 of the Bankruptcy Code. "United States Trustee" means the United States Trustee appointed under section 581(a)(3) of title 28 of the United States Code to serve in the Eastern Disfrict of Pennsylvania. "Unsecured Creditor Fund" means Cash m the amount of $1,090,000 to be fijnded by the Purchaser upon the Effective Date and used to fijnd the Liquidating Trust in accordance with Section 7.08 of the Plan. "Unsecured Liquidating Trust Interests" means the beneficial interests in the Liquidating Trust, other than the Class 3 Liquidating Trust Interests. "U.S. Trustee's Fee Claims" means any fees assessed against the Debtors' Estates pursuant to section 1930(a)(6) of title 28 of the United States Code. "Voting Agent" means The Garden City Group, Inc. "Voting Deadline" means June 18, 2010, at 5:00 p.m. (prevailing Eastern time). Section 1.02. Rules of Interpretation. All references to "the Plan" herein shall be construed, where applicable, to include references to this document and all its exhibits, appendices, schedules and annexes, if any (and any amendments thereto made in accordance with the Bankruptcy Code). Whenever from the context it appears appropriate, each term stated in either the singular or the plural shall include the singular and the plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, feminine and the neuter. The words "herein," "hereof," "hereto," "hereunder," and other words of similar import refer to the Plan as a whole and not to any particular paragraph, subparagraph, or clause contained in the Plan. The words "includes" and "including" are not limiting and mean that the things specifically identified are set forth for purposes of illusfration, clarity or specificity and do not in any respect qualify, characterize or limit the generality of the class within which such things are included. The captions and headings in the Plan are for convenience of reference only and shall -15870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 22 of 43 Desc not limit or otherwise affect the provisions hereof Any term used m the Plan that is not defined in the Plan, either in Article I hereof or elsewhere, but that is used in the Bankruptcy Code or the Bankruptcy Rules shall have the meaning assigned to that term in (and shall be construed in accordance with the rules of construction under) the Bankruptcy Code or the Bankruptcy Rules (with the Bankruptcy Code confrolling in the case of a conflict or ambiguity). Without limiting the preceding sentence, the rules of construction set forth in section 102 of the Bankruptcy Code shall apply to the Plan, unless superseded herein. In computing any period of time prescribed or allowed by the Plan, the provisions of Bankruptcy Rule 9006(a) and Section 12.15 hereof shall apply, but Bankruptcy Rule 9006(a) shall govern. Section 1.03. Exhibits. All Exhibits to the Plan, including the Plan Supplement, are incorporated into and are a part of the Plan as if set forth in full herein, regardless of when Filed. ARTICLE II CLASSIFICATION OF CLAIMS AND INTERESTS Section 2.01. Generally. Pursuant to section 1122 of the Bankruptcy Code, set forth below is a designation of Classes of Claims and Interests. A Claim or an Interest is classified in a particular Class only to the extent that the Claim or Interest qualifies within the description of the Class and is classified in a different Class to the extent the Claim or Interest qualifies within the description of that different Class. A Claim or Interest is placed in a particular Class for the purpose of receiving disfributions pursuant to the Plan only to the extent that such Claim or Interest is an Allowed Claim or an Allowed Interest in that Class and such Claim or Interest has not been paid, released, settled or otherwise satisfied prior to the Effective Date. Section 2.02. Unclassified Claims. In accordance with section 1123(a)(1) of the Bankruptcy Code, Adminisfrative Claims (including Claims of the DIP Lenders in connection with the DIP Financing Facility) and Priority Tax Claims are not classified and are excluded from the Classes designated in this Article II of the Plan. Thefreatmentaccorded Administrative Claims and Priority Tax Claims is set forth in Article III of the Plan. Section 2.03. Unimpaired Classes. The Plan classifies the following Unimpaired Claims and Unimpaired Interests that are not entitled to vote on the Plan. Pursuant to section 1126(f) of the Bankruptcy Code, each Holder of a Claim or Interest in the following Classes is conclusively presumed to have accepted the Plan in respect of such Claims or Interests and is not entitled to vote to accept or reject the Plan: Class 1 shall consist of all Miscellaneous Secured Claims. Class 2 shall consist of all Miscellaneous Priority Claims. Section 2.04. Impaired Classes Entitied to Vote. The Plan classifies the following Classes as the only Impaired Classes that may receive a disfribution under the Plan and that are entitled to vote to accept or reject the Plan: Class 3 shall consist of the Prepetition Senior Secured Claims. -16870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 23 of 43 Desc Class 4 shall consist of Prepetition Unsecured Debt Claims. Class 5 shall consist of the General Unsecured Claims. Section 2.05. Impaired Classes Deemed to Reject. The Plan classifies the following Impaired Classes of Interests and Claims as Impaired Classes that are not entitled to vote to accept or reject the Plan. Pursuant to section 1126(g) of the Bankruptcy Code, each Holder of an Interest or Claim in these Classes is conclusively presumed to have rejected the Plan in respect of such Interests or Claims because the Plan does not entitle the Holders of such Interests and Claims to receive or retain any Property under the Plan on account of such Interests or Claims. Accordingly, Holders of such Interests and Claims are not entitled to vote to accept or reject the Plan: Class 6 shall consist of all Interests in the Debtors. Class 7 shall consist of all Insider Claims. ARTICLE III PROVISIONS FOR TREATMENT OF CLASSES OF CLAIMS AND INTERESTS Section 3.01. Satisfaction of Claims and Interests. The freatment of and consideration to be received by Holders of Allowed Claims or Allowed Interests pursuant to this Article III and the Plan shall be in full satisfaction, settlement, release, extinguishment and discharge of their respective Claims against or Interests in the Debtors and the Debtors' respective Estates, except as otherwise provided in the Plan or the Confirmation Order. Section 3.02. Unclassified Claims. Classified Unimpaired and Impaired Claims and Classified Interests. Adminisfrative Claims and Priority Tax Claims are freated in accordance with section 1129(a)(9)(A) and section 1129(a)(9)(C) of the Bankruptcy Code, respectively. Such Claims are Unimpaired under the Plan and, in accordance with section 1123(a)(1) of the Bankruptcy Code, are not designated as Classes of Claims for purposes of this Plan and for purposes of sections 1123, 1124, 1126 and 1129 of the Bankruptcy Code. In addition, Class 1 Claims and Class 2 Claims are classified as Classes of Claims and Interests that are Unimpaired. In accordance with section 1126(f) of the Bankruptcy Code, the Holders of Claims or Interests in such Classes are conclusively presumed to have accepted the Plan and are not entitled to vote to accept or reject the Plan. Class 3 Claims, Class 4 Claims and Class 5 Claims are Impaired and the Holders thereof are entitled to vote to accept or reject the Plan on account of such Allowed Claims. Class 6 Interests and Class 7 Claims are Impaired under the Plan and the Holders thereof will neither receive nor retain any Property on account of such Interests and Claims and, pursuant to section 1126(g) of the Bankruptcy Code, Holders of such Claims and Interests are conclusively presumed to have rejected the Plan and are not entitled to vote to accept or reject the Plan on account of such Claims and Interests. Section 3.03. Adminisfrative Claims. Administrative Claims are Unimpaired. Unless otherwise provided for herein, each Holder of an Allowed Administrative Claim shall receive in full satisfaction, settlement, release, extinguishment and discharge of such Claim: (a) the amount of such unpaid Allowed Claim in Cash on or as soon as reasonably practicable -17870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 24 of 43 Desc after the later of (i) the Effective Date, (ii) the date on which such Adminisfrative Claim becomes Allowed, or (iii) a date agreed to in writing by the Debtors, the Liquidation Trustee or the Purchaser, as the case may be, and the Holder of such Adminisfrative Claim; or (b) such other freatment on such other terms and conditions as may be agreed upon in writing by the Holder of such Claim and the Debtors, the Liquidation Trustee or the Purchaser, as the case may be, or as the Bankruptcy Court may order. Further, consistent with the provisions of the DIP Financing Order, all costs and expenses of the Prepetition Senior Agent reimbursable pursuant to Section 10.02(a) of the Prepetition Senior Secured Credit Agreement and incurred as of the Effective Date, including, without limitation, attorneys' fees, together with an accrual sufficient to effectuate all fransactions contemplated by this Plan, including, without limitation, the Asset Purchase Agreement, shall be paid to the Prepetition Senior Agent on the Effective Date. Section 3.04. Priority Tax Claims. Priority Tax Claims are Unimpaired. Each Holder of an Allowed Priority Tax Claim shall receive, at the option of the Debtors or the Purchaser, as the case may be, in full satisfaction, settlement, release, extinguishment and discharge of such Priority Tax Claim: (a) the amount of such unpaid Allowed Priority Tax Claim in Cash on or as soon as reasonably practicable after the later of (i) the Effective Date, (ii) the date on which such Priority Tax Claim becomes Allowed, and (iii) a date agreed to by the Debtors or the Purchaser, as the case may be, and the Holder of such Priority Tax Claim; or (b) such other treatment on such other terms and conditions as may be agreed upon in writing by the Holder of such Priority Tax Claim and the Debtors or the Purchaser, as the case may be, or as the Bankruptcy Court may order. Prior to the Effective Date, the Plan Proponents, by mutual agreement, shall have the right to prepay at any time, in whole or in part, any Allowed Priority Tax Claim without premium or penalty of any sort or nature. Section 3.05. Class 1: Miscellaneous Secured Claims. Class 1 Miscellaneous Secured Claims are Unimpaired. Each Holder of an Allowed Class 1 Miscellaneous Secured Claim shall receive, in the discretion of the Plan Proponents, by mutual agreement, or the Liquidation Trustee, as the case may be, in fiill satisfaction, settlement, release, extinguishment and discharge of such Claim: (a) Cash equal to the amount of such Allowed Miscellaneous Secured Claim on or as soon as practicable after the later of (i) the Effective Date, (ii) the date that such Miscellaneous Secured Claim becomes Allowed, and (iii) a date agreed to by the Plan Proponents, by mutual agreement, or the Distribution Agent, as the case may be, and the Holder of such Class 1 Miscellaneous Secured Claim; (b) Reinstatement of such Allowed Miscellaneous Secured Claim; (c) the Property securing such Miscellaneous Secured Claim; or (d) such other freatment on such other terms and conditions as may be agreed upon in writing by the Holder of such Claim and the Plan Proponents, by mutual agreement, or the Liquidation Trustee, as the case may be. Section 3.06. Class 2: Miscellaneous Priority Claims. Class 2 Miscellaneous Priority Claims are Unimpaired. Each Holder of an Allowed Class 2 Miscellaneous Priority Claim shall receive in fiill satisfaction, settlement, release, extinguishment and discharge of such Claim: (a) the amount of such unpaid Allowed Claim in Cash on or as soon as reasonably practicable after the later of (i) the Effective Date, (ii) the date on which such Class 2 Claim becomes Allowed, and (iii) a date agreed to by the Plan Proponents, by mutual agreement, or the Liquidation Trustee, as the case may be, and the Holder of such Class 2 Miscellaneous Priority -18870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 25 of 43 Desc Claim; or (b) such otherfreatmenton such other terms and conditions as may be agreed upon in writing by the Holder of such Claim and the Debtors or the Purchaser, as the case may be. Section 3.07. Class 3: Prepetition Senior Secured Claims. Class 3 Prepetition Senior Secured Claims are Impaired. The Prepetition Senior Secured Claims shall together be deemed Allowed in the aggregate amount of $318,763,725.00. The Prepetition Senior Secured Claims shall not be subject to reduction, disallowance, subordination, set off or counterclaim. In fiill and final satisfaction of the Prepetition Senior Secured Claims, each Holder of a Prepetition Senior Secured Claim (i) may elect on the Ballot to receive and shall receive on the Effective Date, subject to the terms of and in accordance with the Asset Purchase Agreement, (a) its pro rata amount of the Cash-Out Disfribution or (b) its pro rata amount of the Equity Distribution, and (ii) shall receive on the Effective Date (a) its Pro Rata Share of Real Property LLC Equity, and (b) its Pro Rata Share of the Class 3 Liquidating Trust Interests. Holders of Class 3 Prepetition Senior Secured Claims shall be deemed to have consented to the waiver of the Prepetition Senior Deficiency Claims. Any Holder of an Allowed Class 3 Prepetition Senior Secured Claim that does not vote on the Plan shall be deemed to have elected to receive its pro rata amount of the Cash-Out Distribution. Section 3.08. Class 4: Prepetition Unsecured Debt Claims. Class 4 Prepetition Unsecured Debt Claims are Impaired. On or as soon as reasonably practicable after the later of (a) the Effective Date, or (b) the date on which such Prepetition Unsecured Debt Claim becomes Allowed, Holders of Allowed Class 4 Prepetition Unsecured Debt Claims shall receive, in full and final satisfaction of the Prepetition Unsecured Debt Claims (i) a Pro Rata Share of 2.3% of the Purchaser Common Equity, subject to dilution for any Additional Equity Issuance (and any equity fees payable to the purchasers of such Additional Equity Issuance solely with regard to such Additional Equity Issuance), and (ii) its Pro Rata Share of the Unsecured Liquidating Trust Interests. Section 3.09. Class 5: General Unsecured Claims. (Class 5A - General Unsecured Claims Against Philadelphia Media Holdings, LLC; Class 5B - General Unsecured Claims Against PMH Acquisition, LLC; Class 5C - General Unsecured Claims Against Broad Sfreet Video, LLC; Class 5D - General Unsecured Claims Against Philadelphia Newspapers, LLC; Class 5E - General Unsecured Claims Against Philadelphia Direct, LLC; Class 5F General Unsecured Claims Against Philly Online, LLC; Class 5G - General Unsecured Claims Against PMH Holdings, LLC; Class 5H - General Unsecured Claims Against Broad Sfreet Publishing, LLC; and Class 51 - General Unsecured Claims Against Philadelphia Media, LLC). Class 5 General Unsecured Claims against each respective Debtor are Impaired. General Unsecured Claims include all Claims, including Litigation Claims and Rejection Claims, that are not Administrative Claims, Priority Tax Claims, Miscellaneous Secured Claims, Miscellaneous Priority Claims, Prepetition Senior Secured Claims, Prepetition Senior Deficiency Claims, Prepetition Unsecured Debt Claims or Insider Claims. Each Holder of an Allowed General Unsecured Claim shall receive in fiill satisfaction, settlement, release, extinguishment and discharge of such Claim its Pro Rata Share of (i) the Net Unsecured Creditor Fund and (ii) the Unsecured Liquidating Trust Interests. -19870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 26 of 43 Desc Section 3.10. Class 6: Interests. Class 6 Interests are Impaired. Holders of Class 6 Interests shall not receive or retain any Property under the Plan on account of such Interests. On the Effective Date, all Interests shall be cancelled. Section 3.11. Class 7: Insider Claims. Class 7 Insider Claims are Impaired. Holders of Class 7 Insider Claims shall not receive or retain any Property under the Plan on account of such Insider Claims. On the Effective Date, all Insider Claims shall be extinguished. ARTICLE IV ACCEPTANCE OR REJECTION OF THE PLAN; CRAMDOWN Section 4.01. Acceptance by Impaired Classes of Claims and Interests. Pursuant to section 1126(c) of the Bankruptcy Code, an Impaired Class of Claims shall have accepted the Plan if (a) the Holders of at least two-thirds (2/3) in dollar amount of the Allowed Claims actually voting in such Class (other than Claims held by any Holder designated pursuant to section 1126(e) of the Bankruptcy Code) have timely and properly voted to accept the Plan, and (b) more than one-half (1/2) in number of the Holders of such Allowed Claims actually voting in such Class (other than Claims held by any Holder designated pursuant to section 1126(e) of the Bankruptcy Code) have timely and properly voted to accept the Plan. No Class of Interests is entitled to vote on the Plan pursuant to section 1126 of the Bankruptcy Code. Section 4.02. Voting Classes. Except as otherwise required by the Bankruptcy Code or the Bankruptcy Rules or as otherwise provided in this Section 4.02, the Holders of Claims in Classes 3, 4 and 5 shall be entitied to vote to accept or reject the Plan in accordance with Section 4.01 of the Plan. Classes of Clauns Unimpaired under the Plan (Miscellaneous Secured Claims (Class 1) and Miscellaneous Priority Claims (Class 2)) shall not be entitled to vote to accept or reject the Plan, and shall be conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. The Class of Interests and Class of Claims that are Impaired under the Plan and whose Holders neither receive nor retain any Property on account of such Claims and Interests under the Plan (Interests (Class 6) and Insider Claims (Class 7)) shall not be entitled to vote to accept or reject the Plan and shall be conclusively presumed to have rejected the Plan. Adminisfrative Claims and Priority Tax Claims are Unimpaired and not classified under the Plan and hence are not entitled to vote to accept or reject the Plan pursuant to section 1126(g) of the Bankruptcy Code. Section 4.03. Ballot Instructions. Each Holder of a Claim or Interest entitied to vote on the Plan will be asked to complete and return a Ballot to the Voting Agent, which will compile the votes so received. Any questions as to the validity, form, and eligibility (including time of receipt) of Ballots will be resolved by the Bankruptcy Court upon application or at the Confirmation Hearing. Section 4.04. Cramdown. If all applicable requirements for Confirmation of the Plan are met as set forth in section 1129(a)(1) through (13) of the Bankruptcy Code except subsection (8) thereof, the Plan Proponents may request that the Bankruptcy Court confirm the Plan in accordance with section 1129(b) of the Bankruptcy Code, notwithstanding the requirements of section 1129(a)(8) thereof, on the bases that the Plan is fair and equitable, and -20870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 27 of 43 Desc does not discriminate unfairly, with respect to each Class of Claims or Interests that is Impaired under, and has not accepted, the Plan. ARTICLE V PROVISIONS GOVERNING DISTRIBUTIONS UNDER THE PLAN Section 5.01. Timing of Distributions. Except as specifically set forth in the Plan, disfributions of Property will be made to Holders of Allowed Claims in accordance with Article III of the Plan. If a Claim is not an Allowed Claim as of the applicable disfribution date, disfributions will be made only if and when the Claim is Allowed, and then in accordance with Article III of the Plan and, with respect to the cure of defaults for assumed executoty contracts and unexpired leases. Section 6.02 of the Plan, and in each case, subject to Article VIII of the Plan. Disfributions to be made as of the Effective Date on account of Claims that are Allowed as of the Effective Date and are entitled to receive distributions under the Plan shall be made on the Effective Date or as soon as reasonably practicable thereafter. Distributions to be made after the Effective Date shall be made on dates to be established by the Distribution Agent or Liquidation Trustee, as applicable, pursuant to the terms of this Plan, taking into account the establishment of reserves for Disputed Claims and the Disfribution Agent's and Liquidation Trustee's right to defer disfributions if the amount of the Cash to be disfributed on a particular date is insufficient to justify the costs of effectuating the disfribution. Section 5.02. Disfributions to Holders of Allowed Claims. Except as otherwise provided herein, the Liquidation Trustee, the Disfribution Agent, the Purchaser, or the Real Property LLC shall make all disfributions required under the Plan in a manner consistent with the Plan. Disfributions to Holders of Allowed Claims will be made in accordance with Article III of the Plan. On the Effective Date, the Purchaser shall deliver the Purchase Price to the Disfribution Agent, who will deposit the Purchase Price into the Disfribution Account. On the Effective Date, the Debtors shall deliver the Balance Sheet Cash to the Disfribution Agent, who will deposit the Balance Sheet Cash into the Disfribution Account. From the Distribution Account, the Disfribution Agent will make Cash disfributions in accordance with the Plan, deliver the Unsecured Creditor Fund to the Liquidation Trustee, and promptly pay to the Purchaser the Remaining Cash, as agent for the ultimate recipients thereof The Liquidation Trustee will make distributions to the beneficiaries of the Liquidating Trust in accordance with the Plan. The Disfribution Agent and the Liquidation Trustee shall be entitled to establish reserves for Disputed Claims to provide for payment of such Claims if and when Allowed. If any dispute arises as to the identity of a Holder of an Allowed Claim who is to receive any disfribution, the Liquidation Trustee, the Disfribution Agent, the Debtors, the Purchaser, or the Real Property LLC shall, as appropriate and in lieu of making such distribution to such Holder, delay such distribution until the disposition thereof shall be determined by Final Order of the Bankruptcy Court or by written agreement among the interested parties to such dispute. Notwithstanding anything herein to the contrary, the Purchaser, the Real Property LLC, and the Distribution Agent, as applicable, shall be responsible for: (i) conveying equity interests in Purchaser to Equity Disfribution Lenders, Holders of Allowed Claims in Class 4, and the Purchaser, as agent for the Backstop Lenders; (ii) making distributions to Cash-Out Lenders; (iii) conveying interests in Real Property LLC or its nominee to Holders of Allowed Claims in Class 3; (iv) conveying the Unsecured Creditor Fund to the Liquidating Trust; and (v) satisfying -21870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 28 of 43 Desc Allowed Adminisfrative Expense Claims, Allowed Priority Tax Claims, Allowed Miscellaneous Priority Claims and Allowed Miscellaneous Secured Claims. Section 5.03. Liquidating Trust. The Liquidating Trust shall be established to receive the Unsecured Creditor Fund and certain Property of the Debtors not conveyed to the Purchaser or Real Property LLC hereunder or in accordance with the Asset Purchase Agreement, including the Transferred Avoidance Actions, and to disfribute such Property and the proceeds of such Property in accordance with the Plan. On the Effective Date, the Unsecured Creditor Fund, and the Transferred Avoidance Actions shall be fransferred to and vested in the Liquidating Trust, free and clear of any Claims, Liens and Interests to be managed and used by the Liquidation Trustee for the sole purposes of carrying out the Plan and effectuating the disfributions provided herein. The Liquidating Trust shall qualify as a liquidating frust as described in Treasury Regulation section 301.7701 - 4(d) and shall be treated as a grantor trust for United States federal income tax purposes. The Committee shall appoint the Liquidation Trustee, who shall have the authority to manage the day-to-day operations of the Liquidating Trust, including, without limitation, by disposing of the assets of the Liquidating Trust, appearing as a party in interest, calculating disfributions, paying taxes and such other matters as more particularly described in Section 7.11 of the Plan and the Liquidating Trust Agreement. Notwithstandmg anything herein to the confrary, the Liquidation Trustee shall be responsible for making disfributions from (i) the Net Unsecured Creditor Fund to the Holders of Allowed Class 5 Claims and (ii) the Liquidating Trust to Holders of Allowed Class 3 Claims, Allowed Class 4 Claims, and Allowed Class 5 Claims in satisfaction of Class 3 Liquidating Trust Interests and Unsecured Liquidating Trust Interests. Expenses and fees of the Liquidating Trust, including the expenses of the Liquidation Trustee and his representatives and professionals, will be satisfied from the assets of the Liquidating Trust and its proceeds, as set forth in the Liquidating Trust Agreement. Section 5.04. Disfribution Account. One or more Distribution Accounts shall be established to receive the Purchase Price and the Balance Sheet Cash. On the Effective Date, the Disfribution Agent shall: (a) make Cash disfributions from the Distribution Account to Holders of Allowed Adminisfrative Claims, Allowed Priority Tax Claims, Allowed Miscellaneous Priority Claims and Allowed Miscellaneous Secured Claims in accordance with the Plan (collectively, the "Disfribution Account Claims"): (b) transfer the Unsecured Creditor Fund to the Liquidation Trustee; (c) make distributions to the Cash-Out Lenders in accordance with this Plan; and (d) fransfer to the Liquidation Trustee amounts necessary to establish and fiind a Disfribution Account for the purpose of administering and resolving Disputed Adminisfrative Claims and disfributing Cash to Holders of Administrative Claims if and when they become Allowed after the Adminisfrative Clauns bar date approved by the Bankruptcy Court. Upon payment of the Disfribution Account Claims, fransfer of the Unsecured Creditor Fund, and payment to the Cash-Out Lenders, the Disfribution Agent shall promptly pay to the Purchaser the Remaining Cash, as agent for the ultimate recipients thereof The Liquidation Trustee shall be authorized to hold and control a Disfribution Account for the purpose of administering and resolving Disputed Administrative Claims and disfributing Cash to Holders of Adminisfrative Claims if and when they become Allowed after the Administrative Claims bar date approved by the Bankruptcy Court. Each Disfribution Account shall be extinguished following payment of all disfributions made therefrom in accordance with the Plan. -22870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 29 of 43 Desc Section 5.05. Delivery of Distributions. Disfributions to Holders of Allowed Claims shall be made by the Purchaser, the Liquidation Trustee or the Disfribution Agent, as applicable: (a) at the last known addresses of such Holders or (b) at the addresses set forth in any written notices of address changes delivered to the Debtors, the Purchaser, the Liquidation Trustee, or the Disfribution Agent. If any Holder's disfribution is returned as undeliverable, no further distributions to such Holder shall be made unless and until the Liquidation Trustee or the Disfribution Agent, as applicable, is notified of such Holder's then current address, at which time all missed disfributions shall be made to such Holder without interest. Disfributions of equity interests in the Purchaser shall be made by the Disfribution Agent at the Purchaser's expense. The Prepetition Senior Agent shall cooperate with all reasonable requests of the Distribution Agent to make distributions pursuant to the Plan. Section 5.06. Method of Cash Disfributions. Any Cash payment to be made pursuant to the Plan may be made by Cash, draft, check, wire fransfer, or as otherwise required or provided in any relevant agreement or applicable law at the option of the Purchaser, Liquidation Trustee or Disfribution Agent, as applicable. Section 5.07. Failure to Negotiate Checks. Checks issued in respect of disfributions under the Plan shall be null and void if not negotiated within sixty (60) days after the date of issuance. Any amounts returned to the Debtors, the Liquidation Trustee, the Disfribution Agent, or the Purchaser in respect of such non-negotiated checks shall be forwarded to (if necessary) and held by the Liquidation Trustee or the Disfribution Agent, as applicable. Requests for reissuance for any such check shall be made directly to the issuer of the check by the Holder of the Allowed Claim with respect to which such check originally was issued. All amounts represented by any voided check will be held until the earlier of: (a) one (1) month after date on which the check is voided, or (b) the date on which the Bankruptcy Court enters the Final Decree, and all requests for reissuance by the Holder of the Allowed Claim in respect of a voided check are required to be made prior to such date. Thereafter, all such amounts shall be deemed to be Unclaimed Property, in accordance with Section 5.08 of the Plan, and all Holders of Claims in respect of void checks shall be forever barred, estopped and enjoined from asserting a claim to such fiinds in any manner against the Debtors or their respective assets, the Liquidation Trustee, the Disfribution Agent, or the Purchaser. Section 5.08. Unclaimed Disfributions. All Property distributed on account of Claims must be claimed prior to the date on which the Bankruptcy Court enters the Final Decree, or, in the case of a disfribution made in the form of a check, must be negotiated and a request for reissuance be made as provided for in Section 5.07 of the Plan. All Unclaimed Property will be retained by and will vest in the Liquidating Trust or the Purchaser, as applicable. All flill or partial payments made by the Debtors and received by the Holder of a Claim prior to the Effective Date will be deemed to be payments under the Plan for purposes of satisfying the obligations of the Debtors, the Purchaser, the Distribution Agent, or the Liquidation Trustee pursuant to the Plan. Nothing contained in the Plan shall require the Debtors, the Disfribution Agent, the Liquidation Trustee, or the Purchaser to attempt to locate any Holder of an Allowed Claim other than by reviewing the records of the Debtors and any Claims Filed in the Chapter 11 Cases. Pursuant to section 1143 of the Bankruptcy Code, all Claims in respect of Unclaimed Property shall be deemed Disallowed and the Holder of any Claim Disallowed in accordance with this Section 5.08 will be forever barred, expunged, estopped and enjoined from asserting -23870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 30 of 43 Desc such Claim in any manner against the Debtors, the Disfribution Agent, the Liquidation Trustee, or the Purchaser, or their respective assets. Section 5.09. Limitation on Disfribution Rights. If a claimant holds more than one Claim in any one Class, all Claims of the claimant in that Class will be aggregated into one Claim and one distribution will be made with respect to the aggregated Claim. Section 5.10. Fractional Dollars. Notwithstanding any other provision of the Plan, Cash disfributions of fractions of dollars will not be made; rather, whenever any payment of afractionof a dollar would be called for, the actual payment made shall reflect a rounding of suchfractionto the nearest whole dollar (up or down), with half dollars being rounded down. To the extent that Cash remains undisfributed as a resuh of the rounding of such fraction to the nearest whole cent, such Cash shall befreatedas Unclaimed Property pursuant to Section 5.08 of this Plan. Section 5.11. Compliance With Tax Requirements. In connection with each disfribution with respect to which the filing of an information return (such as an Internal Revenue Service Form 1099 or 1042) or withholding is required, the Debtors, the Liquidation Trustee, the Purchaser, or the Real Property LLC, as appropriate, shall file such information return with the Internal Revenue Service and provide any required statements in connection therewith to the recipients of such distribution or effect any such withholding and deposit all moneys so withheld as required by law. With respect to any Person from whom a tax identification number, certified tax identification number or other tax information required by law to avoid withholding has not been received by the Debtors, the Liquidation Trustee, the Purchaser, or the Real Property LLC within thirty (30) days from the date of such request, the Debtors, the Liquidation Trustee, the Purchaser, or the Real Property LLC, at their or its option, withhold the amount required and disfribute the balance to such Person or decline to make such disfribution until the information is received. Section 5.12. Character of Disfributions. The Debtors shall freat all disfributions to Holders of Prepetition Senior Secured Claims and Prepetition Unsecured Debt Claims pursuant to this Plan as repayments of principal amounts due with respect to such Claims, with no amounts allocable to the payment of any accrued but unpaid interest thereon. Consistent with that freatment. Holders of Prepetition Senior Secured Claims and Prepetition Unsecured Debt Claims covenant and agree to treat the entire amount of such distributions as repayments of principal amounts due on their Claims and shall not allocate any portion of such disfributions to accrued but unpaid interest. Section 5.13. De Minimis Disfributions. No Cash payment of less than twentyfive ($25.00) dollars shall be made to any Holder of an Allowed Claim on account of such Allowed Claim. -24870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 31 of 43 Desc ARTICLE VI EXECUTORY CONTRACTS AND UNEXPIRED LEASES; INDEMNIFICATION OBLIGATIONS; BENEFIT PROGRAMS Section 6.01. Treatment of Executory Contracts and Unexpired Leases. All executory confracts and unexpired leases of the Debtors shall be deemed rejected by the Debtors as of the Effective Date, except for any executory confract or unexpired lease that: (a) has previously been assumed, assumed and assigned, or rejected pursuant to an order of the Bankruptcy Court on or prior to the Confirmation Date, (b) is the subject of a pending motion to assume, assume and assign, or reject as of the Confirmation Date, or (c) is listed on the Schedule of Assumed Contracts, provided, however, that the Debtors in cooperation with the Purchaser or the Purchaser acting alone shall have the right to amend the Schedule of Assumed Confracts in any maimer and time set forth in the Asset Purchase Agreement or by any other means approved by the Court or to delete any executory confract or unexpired lease listed therein, thus providing for its rejection pursuant to this Section 6.01 or to add any executory contract or unexpired lease thereto, thus providing for its assumption and assignment pursuant to this Section 6.01 and the terms of the Asset Purchase Agreement. The assumption, assumption and assignment, and rejection of executory leases and unexpired confracts under this Plan shall be governed by the terms of the Asset Purchase Agreement, the Sale Documents and other orders of the Court. Section 6.02. Cure of Defaults for Assumed Confracts and Leases. The cure of all defaults under executory confracts and unexpired leases to be assumed and assigned imder the Asset Purchase Agreement, including the resolution of all objections to the adequacy of assurance of future performance under such confracts and leases and as to the adequacy of amounts proposed to cure defaults under such confracts and leases, shall be governed by the terms and conditions of the Sale and Bid Procedures, the Asset Purchase Agreement, the Sale Documents, any order approving the Asset Purchase Agreement or authorizing the Sale, and other orders of the Court. All such cure amounts shall be satisfied by the Purchaser. Section 6.03. Bar Date for Claims for Rejection Damages. Claims arising out of the rejection of any executory confract or unexpired lease pursuant to Article VI of the Plan must be Filed with the Bankruptcy Court no later than the later of (a) twenty (20) days after the Effective Date, or (b) thirty (30) days after the entry of an order rejecting such executory contract or unexpired lease. Any Claim not Filed within such time period shall be forever barred. The Debtors, the Purchaser, and the Liquidation Trustee shall have the right to object to any Claim arising out of the rejection of an executory confract or unexpired lease pursuant to the terms of Section 8.05 of this Plan. Section 6.04. Treatment of Rejection Claims. The Bankruptcy Court shall determine any objections Filed in accordance with Section 8.05 hereof at a hearing to be held on a date to be determined by the Bankruptcy Court. Subject to any statutory limitation, including, but not limited to the limitations contained in sections 502(b)(6) and 502(b)(7) of the Bankruptcy Code, any Claims arising out of the rejection of executory contracts and unexpired leases shall, pursuant to section 502(g) of the Bankruptcy Code, be Impaired and treated as Class 5 Claims in accordance with Section 3.09 of the Plan. -25870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 32 of 43 Desc Section 6.05. Executory Contracts and Unexpired Leases Entered Into and Other Obligations Incurred After the Petition Date. On the Effective Date, all confracts, leases, and other agreements entered into by any or all of the Debtors on or after the Petition Date, which agreements have not been terminated in accordance with their terms on or before the Effective Date or conveyed to the Purchaser or the Real Property LLC, shall be deemed assumed and assigned to the Liquidation Trustee. Section 6.06. Benefit Programs. Except and to the extent previously rejected by an order of the Bankruptcy Court on or before the Effective Date, all officer, director or employee compensation and benefit programs of the Debtors entered into before or after the Petition Date and not since terminated, shall be deemed to be, and shall be treated as though they are, executory confracts that are rejected under Section 6.01 of the Plan, except for any such program that is specifically assumed under Section 6.01 of the Plan. ARTICLE VII MEANS FOR IMPLEMENTATION OF THE PLAN Section 7.01. The Sale. The Confirmation Order shall authorize a sale of certain or substantially all of the Debtors' assets under sections 365, 1123(a)(5), 1123(b)(4), 1129(b)(2)(A), 1141, 1145 and 1146(a) of the Bankruptcy Code under the terms and conditions of the Asset Purchase Agreement free and clear of any Claims, Liens, Interests or encumbrances, other than Assumed Liabilities and Encumbered Assets as defined in the Asset Purchase Agreement. Any Sale conducted via Auction shall be conducted in accordance with applicable orders of the Court, including, without limitation, the Sale and Bid Procedures Order (prior to entry of the Confirmation Order). Upon Confirmation, the Debtors shall be authorized and directed to take any and all actions necessary to consummate the Sale. Nothing in the Plan or the Confirmation Order releases, nullifies or enjoins the enforcement of any liability to a Federal Governmental Unit under police and regulatory statutes or regulations that any Entity would be subject to as the owner or operator of Property after the date of entry of the Confirmation Order. Nothing in this Plan or the Confirmation Order authorizes thefransferor assignment to Purchaser of any license, permit, regisfration, authorization or approval of or with respect to a Federal Governmental Unit without Purchaser's complying with all applicable legal requirements under non-bankruptcy law governing such transfers or assignments. Section 7.02. Real Property LLC. The Confirmation Order shall authorize the establishment of the Real Property LLC and the fransfer of (i) title to the Real Property, subject to the Estate for Years, and (ii) Post Closing Cash free and clear of any Claims, Liens, Interests or encumbrances to the Real Property LLC on or after the Effective Date as applicable. On the Effective Date, the Real Property LLC Equity shall be distributed to Holders of Allowed Class 3 Claims in accordance with the Plan and the Debtors and Real Property LLC shall be authorized and directed to take any and all actions necessary to transfer title of the Real Property, subject to the Estate for Years, and Post Closing Cash to the Real Property LLC. On the Effective Date, Real Property LLC shall enter into an unsecured indemnity agreement with the Prepetition Senior Agent and the DIP Agent. Section 7.03. Issuance of Plan Securities. The issuance of the Plan Securities, including the shares of the Purchaser Common Equity and the Real Property LLC Equity, -26870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 33 of 43 Desc options, or other equity awards reserved for the Management Incentive Program to be disfributed to the Holders of such beneficial interests as contemplated by the Plan is authorized without the need for any fiirther corporate, limited liability company or other action or without any fiarther action by a Holder of Claims or Interests. On the Effective Date, or as soon as reasonably practicable thereafter, (i) the Purchaser Common Equity shall be issued to (a) Equity Disfribution Lenders, (b) Holders of Allowed Prepetition Unsecured Debt Claims in accordance with the Plan, and (c) the Purchaser, as agent for the Backstop Lenders, and (ii) the Real Property LLC Equity shall be issued to Holders of Allowed Prepetition Senior Secured Claims. The amount of Purchaser Common Equity, if any, to be issued pursuant to the Management Incentive Plan and the terms thereof shall be determined by the Purchaser and set forth in the Plan Supplement. All of the Plan Securities and beneficial interests Purchaser and Real Property LLC issue pursuant to the Plan shall be duly authorized, validly issued and flilly paid and non-assessable. Each disfribution and issuance referred to in Article VII hereof shall be governed by the terms and conditions set forth herein applicable to such disfribution or issuance and by the terms and conditions of the instruments evidencing or relating to such distribution or issuance, which terms and conditions shall bind each Entity receiving such disfribution or issuance. The terms of the Purchaser Common Equity and Real Property LLC Equity will be described in the Plan Supplement. Section 7.04. Listing of Plan Securities and Transfer Resfrictions. The Purchaser and the Real Property LLC shall not be public reporting companies. The Purchaser and the Real Property LLC shall not be obligated to list the Purchaser Common Equity or the Real Property LLC Equity, as applicable, on any securities exchange. The Plan Securities may be subject to certain transfer and other resfrictions pursuant to, among other things, the Organizational Documents. Section 7.05. Dissolution of the Debtors and Resignation of Managers. The Debtors shall be dissolved effective upon filing a certificate of dissolution (or its equivalent) with the secretary of state or similar official of each jurisdiction of organization of each of the Debtors within forty-five days of the Effective Date. Any such certificates shall be executed on the Debtors' behalf by either Richard R. Thayer or Andrew Harrison. On the Effective Date, each of the managers and any other officers or directors of the Debtors shall be deemed to have resigned from all of their respective positions. Section 7.06. Organizational Documents. As of the Effective Date, the Organizational Documents of Purchaser and Real Property LLC shall be adopted by the Purchaser and Real Property LLC, respectively, to satisfy the provisions of the Plan and the Bankruptcy Code and shall include, among other things, a provision prohibiting the issuance of non-voting equity securities under Section 1123(a)(6) of the Bankruptcy Code. The Organizational Documents shall be Filed with the Plan Supplement. Section 7.07. Section 1145 Exemption. Pursuant to section 1145 of the Bankruptcy Code, the offering, issuance, and disfribution of any Plan Securities contemplated by the Plan and all agreements incorporated herein, including the Purchaser Common Equity (except Purchaser Common Equity issued to fimd Backstop Fees) and the Real Property LLC Equity shall be exempt from, among other things, the regisfration requirements of section 5 of the Securities Act and any and all federal, state and local laws requiring registration or licensing -27870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 34 of 43 Desc before the offering, issuance, distribution, or sale of securities. In addition, under section 1145 of the Bankruptcy Code, any Plan Securities contemplated by the Plan and any and all agreements incorporated therein, including the Purchaser Common Equity and the Real Property LLC Equity, will be freely tradable by the recipients thereof, subject to (1) the provisions of section 1145(b)(1) of the Bankruptcy Code relating to the definition of an underwriter in section 2(a)(l 1) of the Securities Act; (2) compliance with any rules and regulations of the Securities and Exchange Commission, if any, applicable at the time of any future fransfer of such securities or instruments; and (3) the restrictions, if any, in the Organizational Documents. Section 7.08. Liquidating Trust. The Liquidating Trust shall be established to receive on the Effective Date: (a) unless otherwise specifically provided for in this Plan, the Unsecured Creditor Fund; and (b) any assets not otherwise conveyed to the Purchaser, Real Property LLC, or the Disfribution Agent, all of which assets shall vest in the Liquidating Trust on the Effective Date free and clear of all Claims, encumbrances and Interests in accordance with section 1141 of the Bankruptcy Code, but subject to the ratable benefit of the Holders of Allowed Class 5 Claims, Allowed Class 4 Claims and Allowed Class 3 Claims to obtain the distributions provided for in this Plan. On the Effective Date, Unsecured Liquidating Trust Interests shall befransferredto the Holders of Allowed General Unsecured Claims and Allowed Prepetition Unsecured Debt Claims and the Class 3 Liquidating Trust Interests shall be fransferred to the Holders of Allowed Prepetition Senior Secured Claims. On the Effective Date, the Purchaser shall loan the Liquidating Trust $50,000 pursuant to loan documents to be included in the Plan Supplement. This loan will be secured by substantially all the assets of the Liquidating Trust and will provide that it is to be repaid on a first-out basis. Section 7.09. Disfribution Account. The Disfribution Account shall be established to receive on the Effective Date, unless otherwise specifically provided for in this Plan, the Purchase Price and the Balance Sheet Cash, which assets shall vest in the Disfribution Account on the Effective Date free and clear of all Claims, encumbrances and Interests in accordance with section 1141 of the Bankruptcy Code, but subject to the ratable benefit of the Holders of Allowed Distribution Account Claims, the Holders of Allowed Class 3 Claims, and Allowed Class 5 Claims to obtain the disfributions provided for in this Plan. On the Effective Date, the Disfribution Agent shall (i) make Cash disfributions from the Disfribution Account to Holders of Allowed Disfribution Account Claims, (ii) fransfer the Unsecured Creditor Fund to the Liquidation Trustee and (iii) pay the Cash-Out Lenders. Upon payment of the Disfribution Account Claims,fransferof the Unsecured Creditor Fund, and payment of the Cash-Out Lenders, the Disfribution Agent shall promptly pay to the Purchaser the Remaining Cash, as agent for the ultimate recipients thereof, and the Disfribution Account shall be extinguished. Section 7.10. Treatment of Transfer of Assets: Valuation of Assets. (a) The fransfer of the assets to the Disfribution Account and the Liquidating Trust, as applicable, will be made for the benefit of the beneficiaries thereof, but only to the extent such beneficiaries are entitled to distributions under the Plan. Upon completion of the fransfer of assets into the Disfribution Account and the Liquidating Trust, as applicable, the Debtors and the Purchaser will have no interest in, or with respect to, such assets, the Disfribution Account or the Liquidating Trust, except as otherwise expressly provided for herein. -28870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 35 of 43 Desc (b) Notwithstanding Sections 5.03, 7.08 and 7.09 of the Plan describing the actual fransfer of assets to the Liquidating Trust, solely for federal income tax purposes, all parties (including, without limitation, the Debtors, the Purchaser, the Disfribution Agent, the Liquidation Trustee and the beneficiaries) will freat the fransfer of assets to the Liquidating Trust, in accordance with the terms of the Plan, as (i) a deemed fransfer of such assets by the Debtors to the holders of Class 3, Class 4 and Class 5 Claims with each such holder receiving an undivided interest in the specific assets, the liquidation proceeds of which such holder is entitled to share in pursuant to Sections 3.07, 3.08 and 3.09 of the Plan, respectively, followed by (ii) a deemed fransfer of such assets by such holders to the Liquidating Trust. The foregoing shall apply whether or not such holders' Claims are Allowed as of the Effective Date, with each such holder deemed to have received assets, and to have contributed such assets to the Liquidating Trust, having a value that equals, as nearly as possible, the amount such holder would receive if, on the Effective Date, all Disputed Class 5 Claims arefreatedas Allowed Claims, and all assets fransferred to the Liquidating Trust are liquidated, converted to Cash and disfributed to the holders of Class 3, Class 4 and Class 5 Claims in accordance with the Plan. In exchange for the deemed transfer of assets to the Liquidating Trust described in this Section 7.10(b), the holders of Class 3, Class 4 and Allowed Class 5 claims as of the Effective Date will receive beneficial interests in the Liquidating Trust and will befreatedas the grantors and owners thereof; holders of Disputed Class 5 Claims as of the Effective Date will receive contingent beneficial interests in the Liquidating Trust and will become grantors and owners of the Liquidating Trust if and when, and to the extent that, their Class 5 Claims become Allowed Class 5 Claims. (c) The Liquidation Trustee shall make an initial good faith determination of the fair market value of the assetsfransferredto the Liquidating Trust as of the Effective Date, solely for the purpose of determining the income tax consequences to the parties of the transfer of the assets to the Liquidating Trust and for no other purpose, and the Liquidation Trustee shall apprise the beneficiaries thereof in writing of such valuation (and indicate in such writing each beneficiary's percentage ownership interest in the Liquidating Trust based on each such beneficiary's relative beneficial interest in the Liquidating Trust or portion thereof as of the Effective Date). This valuation shall be used consistently by all parties (including, without limitation, the Liquidation Trustee and the beneficiaries of the Liquidating Trust) for federal income tax purposes. (d) A similar good faith valuation of the fair market value of the assets fransferred to Real Property LLC shall be made by the Board of Managers of Real Property LLC as of the Effective Date, solely for the purpose of determining the income tax consequences to the parties of such fransfer of the assets and for no other purpose. The Board of Managers of Real Property LLC shall apprise the members thereof in writing of such valuation (and indicate in such writing each member's percentage ownership interest in such company as of the Effective Date). This valuation shall be used consistently by all parties (including, without limitation, the Debtors and the members of Real Property LLC) for federal income tax purposes. Section 7.11. Powers and Duties of the Liquidation Trustee. The Liquidation Trustee shall administer the Liquidating Trust and its assets in accordance with this Plan, the Liquidating Trust Agreement, and the other Liquidating Trust Documents and shall be responsible for, among other things, making distributions required under this Plan. From and after the Effective Date and continuing through the date of entry of a Final Decree, the -29870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 36 of 43 Desc Liquidation Trustee shall: (a) have and be entitled to exercise all rights and powers of the Debtors and the Estate, including but not limited to those provided for in the Bankruptcy Code, including section 1107 thereof, (b) possess all rights and powers granted m the Liquidating Trust Agreement, including the authority to direct the affairs of, and dissolve, the Debtors (and all bylaws, articles or certificates of incorporation, and related corporate documents are deemed amended by this Plan to permit and authorize such appointment), (c) possess the rights of a party in interest pursuant to section 1109(b) of the Bankruptcy Code for all matters arising in, arising under, or related to the Chapter 11 Cases and, in connection therewith, shall (i) have the right to appear and be heard on matters brought before the Bankruptcy Court or other courts, (ii) be entitled to notice and opportunity for hearing on all such issues, (iii) participate in all matters brought before the Bankruptcy Court, and (iv) receive notice of all applications, motions, and other papers and pleadings Filed in the Bankruptcy Court; (d) have the authority to act as and for and on behalf of the Debtors in all adversary proceedings and contested matters pending in the Bankruptcy Court and in all actions and proceedings pending elsewhere; (e) have the power to prosecute, compromise and settle Transferred Avoidance Actions; (f) have the right to object to Claims; (g) have the authority to retain such personnel or professionals (including, without limitation, legal counsel, financial advisors or other agents) as it deems appropriate and compensate such personnel and professionals as it deems appropriate, all without prior notice to or approval of the Bankruptcy Court; and (h) borrow money for such purposes asfinancingthe costs of prosecuting the Transferred Avoidance Actions, on terms and conditions it deems appropriate, upon Bankruptcy Court approval after notice and hearing. Professionals and personnel retained or employed by the Liquidating Trust or the Liquidation Trustee need not be disinterested as that term is defined in the Bankruptcy Code. Section 7.12. Powers of the Purchaser. In accordance with the terms of the Plan and the Asset Purchase Agreement, the Purchaser shall, among other things: (a) deliver the Purchase Price to the Disfribution Agent to (i) satisfy Allowed Disfribution Account Claims and (ii) fiand the Unsecured Creditor Fund; (b) satisfy all costs to cure and provide adequate assurance of performance with respect to all executory confracts and unexpired leases assumed and assigned to Purchaser; and (c) direct the disfribution of the Remaining Cash. From and after the Effective Date and continuing through the date of entry of a Final Decree, the Purchaser shall possess the rights of a party in interest pursuant to section 1109(b) of the Bankruptcy Code for all matters arising in, arising under, or related to the Chapter 11 Cases and, in connection therewith, shall: (a) have the right to appear and be heard on matters brought before the Bankruptcy Court or other courts; (b) have the right to object to Claims; (c) be entitled to notice and opportunity for hearing on all such issues; (d) participate in all matters brought before the Bankruptcy Court; and (e) receive notice of all applications, motions, and other papers and pleadings Filed in the Bankruptcy Court. On or after the Effective Date, the Purchaser may, in its sole discretion, issue additional shares of Purchaser Common Equity (the "Additional Equity Issuance") to one or more Equity Disfribution Lenders and/or Cash-Out Lenders for Cash and such Cash shall be used to fund thefransactionscontemplated by the Asset Purchase Agreement and the Plan (excluding the payments to the Cash-Out Lenders) and for other general corporate purposes of the Purchaser. Section 7.13. Powers and Duties of the Disfribution Agent. The Distribution Agent shall maintain the Disfribution Account in accordance with this Plan, and shall be responsible for, among other things, making distributions required under this Plan and conveying -30870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 37 of 43 Desc the Unsecured Creditor Fund to the Liquidating Trust. Except with respect to the Remaining Cash (which rights shall be vested in the Purchaser), from and after the Effective Date and continuing through the date of extinguishment of the Disfribution Account in accordance with this Plan, the Disfribution Agent shall possess the rights of a party in interest pursuant to section 1109(b) of the Bankruptcy Code for all matters arising in, arising under, or related to the Chapter 11 Cases and, in connection therewith, shall (i) have the right to appear and be heard on matters brought before the Bankruptcy Court or other courts, (ii) have the right to object to Claims; (iii) be entitled to notice and opportunity for hearing on all such issues, (iv) participate in all matters brought before the Bankruptcy Court, and (v) receive notice of all applications, motions, and other papers and pleadings Filed in the Bankruptcy Court. Section 7.14. Application of Sale Proceeds. Immediately upon consummation of the Sale and contemporaneously with the occurrence of the Effective Date (which shall occur on the same date), the Purchaser shall transfer the Purchase Price to the Disfribution Agent, who will place such Purchase Price in the Disfribution Account, without setoff or reduction of any kind or for any purpose. After all disfributions under the Plan are made from the Distribution Account in accordance with the terms of the Plan, the Remaining Cash will be promptly paid to the Purchaser, as agent for the ultimate recipients thereof Section 7.15. Disfribution of Interests in Purchaser and Real Property LLC. The Distribution Agent shall disfribute (i) a pro rata amount of 97.7% of the Purchaser Common Equity for disfribution to Equity Disfribution Lenders in accordance with Section 3.07 hereof, subject to dilution by the Management Incentive Program, Backstop Fees and any Additional Equity Issuance, (ii) a Pro Rata Share of the Real Property LLC Equity to Holders of Allowed Class 3 Claims in accordance with Section 3.07 hereof, and (iii) a pro rata amount of 2.3% of the Purchaser Common Equity for disfribution to Holders of Allowed Class 4 Claims in accordance with Section 3.08 hereof, subject to dilution for any Additional Equity Issuance (and any equity fees payable to the purchasers of such Additional Equity Issuance solely with regard to such Additional Equity Issuance). Section 7.16. Transfer of the Excluded Assets. On the Effective Date, the Debtors shall fransfer to the Liquidating Trust for the benefit of the Holders of Class 5 Claims those Excluded Assets (as defined in the Asset Purchase Agreement) not otherwise provided in the Plan to befransferredto the Distribution Agent or the Real Property LLC (Post Closing Cash and the Real Property), provided, however, that Transferred Avoidance Actions shall be fransferred to the Liquidating Trust for the benefit of Holders of Class 3, 4 and 5 Claims as provided in the other applicable sections of this Plan. Section 7.17. Transfer of the Balance Sheet Cash. On the Effective Date, the Debtors shall transfer all of their right, title and interest in and to the Balance Sheet Cash to the Disfribution Account to be disfributed in accordance with this Plan. Section 7.18. Transfer of the Post Closing Cash. Subsequent to the Effective Date, the Debtors shall transfer all of their right, title and interest in and to the Post Closing Cash to Real Property LLC. -31870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 38 of 43 Desc Section 7.19. Approval of Agreements. The solicitation of votes on the Plan shall be deemed a solicitation of the Holders of Claims for the approval of the Asset P*urchase Agreement and the Sale in accordance with the Sale and Bid Procedures Order. Entry of the Confirmation Order shall constitute approval of such agreements and fransactions and the Confirmation Order shall so provide. Section 7.20. Corporate Action. The entry of the Confirmation Order shall constitute authorization for the Debtors to take or to cause to be taken all limited liability company actions necessary or appropriate to consummate and implement the provisions of the Plan prior to, on and after the Effective Date, and all such actions taken or caused to be taken shall be deemed to have been authorized and approved by the Bankruptcy Court, including, without limitation, (a) the execution, delivery and consummation of the Asset Purchase Agreement and all of the fransactions contemplated therein, (b) the disfribution of the Plan Securities as provided herein, and (c) all other actions contemplated by the Plan (whether to occur before, on, or after the Effective Date). Subject to the terms and conditions of the Asset Purchase Agreement, all such actions shall be deemed to have occurred and shall be in effect pursuant to applicable non-bankruptcy law and the Bankruptcy Code, without any requirement of further action by the stockholders or directors of the Debtors. On or (as applicable) before the Effective Date, the appropriate officers and managers of the Debtors, the Purchaser, the Real Property LLC, the Distribution Agent or the Liquidation Trustee are, as applicable, authorized and directed to execute and deliver the agreements, documents and instruments contemplated by the Plan (or necessary or desfrable to effect thefransactionscontemplated by the Plan), the Plan Supplement and the Sale Documents in the name and on behalf of the Debtors. ARTICLE VIH PRESERVATION OF CAUSES OF ACTION AND RIGHT TO DEFEND AND CONTEST Section 8.01. Preservation of Rights. Except to the extent that any Claim is Allowed during the Chapter 11 Cases or expressly by this Plan, the Asset Purchase Agreement, the Confirmation Order, or other order of the Bankruptcy Court, nothing, including, but not limited to, the failure of the Debtors, the Liquidation Trustee, the Disfribution Agent or the Purchaser to object to a Claim or Interest for any reason during the pendency of the Chapter 11 Cases, shall affect, prejudice, diminish or impair the rights and legal and equitable defenses of the Debtors, the Disfribution Agent, Liquidation Trustee, or the Purchaser with respect to any Claim or Interest, including, but not limited to, all rights of the Debtors, the Distribution Agent, the Liquidation Trustee, or the Purchaser to contest or defend themselves against such Claims or Interests in any lawfiil manner or forum when and if such Claim or Interest is sought to be enforced by the Holder thereof. Section 8.02. Rights of Action. Except as otherwise provided in the Plan, the Asset Purchase Agreement or the Confirmation Order, all Transferred Avoidance Actions shall automatically befransferredto and become the property of the Liquidating Trust. Pursuant to section 1123(b)(3) of the Bankruptcy Code, the Liquidation Trustee (as a representative of the Debtors' Estates) will have the right to enforce and prosecute such Transferred Avoidance Actions against any Entity, that arose before the Effective Date, other than those expressly -32870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 39 of 43 Desc conveyed, released or compromised as part of or pursuant to the Plan or the Asset Purchase Agreement. Section 8.03. Setoffs. Except to the extent that any Claim is Allowed, the Debtors, the Liquidation Trustee, the Distribution Agent or the Purchaser, as applicable, may, but shall not be required to, set off against any Claims and the payments or disfributions to be made pursuant to the Plan in respect of such Claims, any and all debts, liabilities, Causes of Action and Claims of every type and nature whatsoever which the Estates, the Debtors, the Distribution Agent, the Liquidation Trustee, or the Purchaser may have against such Creditors, but neither the failure to do so nor the allowance of any such Claims, whether pursuant to the Plan or otherwise, shall constitute a waiver or release by the Debtors, the Disfribution Agent, the Liquidation Trustee, or the Purchaser of any such Claims or Causes of Action the Debtors, the Disfribution Agent, the Liquidation Trustee, or the Purchaser may have against such Creditors, and all such Claims and Causes of Action which are not expressly released, conveyed or compromised pursuant to the Plan, the Asset Purchase Agreement or the Sale Order shall be conveyed to the Liquidating Trust. Section 8.04. No Payment or Disfribution Pending Allowance. All references to Claims and amounts of Claims refer to the amount of the Claim Allowed by agreement of the Debtors, the Disfribution Agent, the Liquidation Trustee, or the Purchaser and the Holder of such Claim, by operation of law, by Final Order, or by this Plan. Notwithstanding any other provision in the Plan, no payment or disfribution shall be made on account of or with respect to any Claim to the extent it is a Disputed Claim unless and until the Disputed Claim becomes an Allowed Claim. Section 8.05. Resolution of Disputed Claims. Unless otherwise ordered by the Court after notice and a hearing, the Purchaser, the Real Property LLC, the Prepetition Senior Agent, the Disfribution Agent or the Liquidation Trustee, as applicable, shall have the right, on and after the Effective Date, to File Objections to Claims (except those specifically Allowed by this Plan) and shall serve a copy of each such objection upon the Holder of the Claim to which the Objection is made as soon as practicable, but in no event later than the applicable Claims Objection Deadlme. The foregoing deadlines may be extended by order of the Court. An Objection to any Claim shall be deemed properly served on the Holder thereof if the Liquidation Trustee or the Purchaser effects service in any of the following maimers: (a) in accordance with Rule 4 of the Federal Rules of Civil Procedure, as modified and made applicable by Federal Rule of Bankruptcy Procedure 7004; (b) by first class mail, postage prepaid, on the signatory on the Proof of Claim or other representative identified in the Proof of Claim or any attachment thereto; or (c) by first class mail, postage prepaid, on any counsel that has appeared on the Holder's behalf in the Chapter 11 Cases. ARTICLE IX CONDITIONS TO CONSUMMATION OF THE PLAN Section 9.01. Confirmation Order. The Confirmation Order shall not be entered unless and until all conditions to entry of the Confirmation Order set forth in the Asset Purchase Agreement have been met. -33870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 40 of 43 Desc Section 9.02. Conditions to Effective Date. The Plan shall not be consummated, and the Effective Date shall not occur, unless and until the following conditions have occurred or been duly waived (if waivable) pursuant to Section 9.03 below: a) the Bankruptcy Court shall have approved the information contained in the Disclosure Statement as adequate; b) the Confirmation Order shall have been entered and shall not be stayed, vacated, or otherwise rendered ineffective by order of a court of competent jurisdiction; c) all conditions precedent to the obligations of the Debtors and Purchaser under the Asset Purchase Agreement shall have been satisfied; d) thefransactionscontemplated in the Asset Purchase Agreement shall have been consummated; e) the Bankruptcy Court shall have entered an order (contemplated to be part of the Confirmation Order) authorizing and directing the Debtors to take all actions necessary or appropriate to enter into, implement, and consummate the documents created, amended, supplemented, modified or adopted in connection with the Plan; f) all authorizations, consents and regulatory approvals required, if any, in connection with the Plan's effectiveness shall have been obtained; g) the Committee shall have appointed the Liquidation Trustee, the Liquidating Trust Agreement and the other Liquidating Trust Documents shall have been executed, and the Liquidating Trust shall have received the Unsecured Creditor Fund; and h) no order of a court shall have been entered and shall remain in effect resfraining the Debtors from consummating the Plan. Section 9.03. Waiver of Conditions to Consummation. The conditions to consummation in Section 9.02 (other than Sections 9.02(a), (b), (d) and (e)) may be waived at any time by a writing signed by the Purchaser, in its sole discretion, without notice or order of the Bankruptcy Court or any further action other than proceeding to consummation of the Plan, provided, however, that in the event the Debtors determine in good faith that any such waiver would constitute a breach of the Debtors' fiduciary duties, the Debtors may seek to prevent any such waiver by seeking an order of the Bankruptcy Court on an expedited basis. The conditions to consummation in Section 9.02 and the Asset Purchase Agreement may only be waived in accordance with the terms of the Asset Purchase Agreement. Section 9.04. Effect of Failure or Absence of Waiver of Conditions Precedent to the Effective Date of the Plan. In the event that one or more of the conditions specified in Section 9.02 of the Plan have not been satisfied (or been waived), upon notification submitted jointly by the Debtors and the Purchaser to the Bankruptcy Court: (a) the Confirmation Order, -34870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 41 of 43 Desc automatically and without further order of the Bankruptcy Court, shall be, and shall be deemed, vacated, null and void, with no force or legal effect whatsoever; (b) no disfributions under the Plan shall be made; (c) all Property of the Estates shall revest in the Debtors' Estates; (d) the Debtors and all Holders of Claims and Interests shall be restored to the status quo ante as of the Day immediately preceding the Confirmation Date as though the Confirmation Date never occurred; (e) the Asset Purchase Agreement shall become null and void; and (f) the Debtors' obligations with respect to the Claims and Interests shall remain unchanged and nothing contained herein shall constitute or be deemed a waiver or release of any Claims or Interests by or against the Debtors or any other Person or Entity or to prejudice in any manner the rights of the Debtors or any Person or Entity in any further proceedings involving the Debtors. ARTICLE X EFFECTS OF CONFIRMATION Section 10.01. Injunction. (a) Discharged Claims and Terminated Interests. Pursuant to section 1141(d)(3) of the Bankruptcy Code, Confirmation will not discharge Claims against the Debtors; provided, however, that no Holder of a Claim against any Debtor may, on account of such Claim, seek or receive any payment or other disfribution from, or seek recourse against, any of the Debtors' respective successors or their respective property, except as expressly provided herein. Accordingly, except as otherwise provided herein, the Confirmation Order shall provide, among other things, that no Holder of a Claim against any Debtor may, on account of such Claim, seek or receive any payment or other distribution from, or seek recourse against, any of the Debtors' respective successors or their respective property, except that from and after the Confirmation Date, all Persons who have held, hold, or may hold Claims against or Interests in the Debtors are permanently enjoined from taking any of the following actions against the Purchaser, the Real Property LLC, the Liquidation Trustee, and the Disfribution Agent, or any of their property on account of such Claims or Interests: (A) commencing or continuing, in any manner or in any place, any action or other proceeding; (B) enforcing, attaching, collecting, or recovering in any manner any judgment, award, decree, or order; (C) creating, perfecting, or enforcing any Lien or encumbrance; and (D) commencing or continuing, in any manner or in any place, any action that does not comply with or is inconsistent with the provisions of the Plan; provided, however, that nothing contained herein shall preclude such Persons from exercising their rights pursuant to and consistent with the terms of the Plan. Notwithstanding anything to the confrary in the Plan, creditors' rights of setoff and recoupment are preserved, and the injunctions referenced in this section or Section 10.02 of the Plan shall not enjoin the valid exercise of such rights of setoff and recoupment. By accepting disfributions pursuant to the Plan, each Holder of an Allowed Claim or Allowed Interest shall be deemed to have specifically consented to the injunctions set forth in this Section 10.01. (b) Exculpation and Limitation of Liability. Except as otherwise specifically provided in the Plan, to the maximum extent permitted by the Bankruptcy Code and applicable law, none of the Liquidation Trustee, the Disfribution Agent, the Purchaser, the Real Property LLC, or any Exculpated Person shall have or incur any liability to any Person, including, without limitation, any Holder of a Claim or Interest or any other party in interest, or any of their respective agents, employees, representatives, financial advisors, attorneys or affiliates or any of -35870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 42 of 43 Desc their successors or assigns, for any act taken or omission made in connection with, relating to, or arising out of, the Chapter 11 Cases, Filing, negotiating, prosecuting, administering, formulating, implementing, soliciting support or acceptance of, confirming or consummating this Plan, the Asset Purchase Agreement, or the Property to be disfributed under this Plan, including all activities leading to the promulgation and Confirmation of the Plan, the Disclosure Statement (including any information provided or statement made in the Disclosure Statement or omitted therefrom), or any confract, instrument, release or other agreement or document created in connection with or related to the Plan or the adminisfration of the Debtors or these Chapter 11 Cases, provided, however, that the foregoing exculpation shall not apply to any act of gross negligence or willful misconduct. Nothing in the Plan or the Confirmation Order releases or precludes any Person, other than the Debtors, from any environmental liability towards a Federal Governmental Unit incurred as a result of said Person's ownership or operation of real property after Confirmation. Section 10.02. Releases. (a) Releases bv Debtors. Effective as of the Effective Date, and except as otherwise provided in the Plan or the Confirmation Order, for good and valuable consideration, the adequacy of which is hereby confirmed, the Debtors, in their individual capacities and as debtors in possession, will be deemed to have forever released, waived and discharged the Releasees from any and all Claims, obligations, suits, judgments, damages, demands, debts, rights. Causes of Action and liabilities (other than the rights of the Debtors, the Purchaser, the Real Property LLC, the Disfribution Agent or the Liquidation Trustee to enforce the Plan and the contracts, instruments, releases, indentures and other agreements or documents delivered thereunder), whether for tort, confract, violations of federal or state securities laws, or otherwise, whether liquidated or unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or imforeseen, then existing or thereafter arising, in law, equity or otherwise that are based in whole or part on any act, omission, fransaction, event or other occurrence, including actions in connection with indebtedness for money borrowed by the Debtors, taking place on or prior to the Effective Date in any way relating to the Debtors, the Chapter 11 Cases, or the Plan. (b) Releases by Holders of Claims and Interests. Effective as of the Effective Date, and except as otherwise provided in the Plan or the Confirmation Order, in consideration for the obligations of the Debtors under the Plan and the Asset Purchase Agreement and the payments, contracts, instruments, releases, agreements or documents to be entered into or delivered in connection with the Plan and the Asset Purchase Agreement, each Person (excluding any of the Debtors) that has held, currently holds or may hold a Claim or Interest, and any Affiliate of any such Person (as well as any trustee or agent on behalf of each such Person), shall be deemed to have forever waived, released and discharged the Releasees from any and all Claims, obligations, suits, judgments, damages, rights. Causes of Action and liabilities whatsoever (other than the right to enforce the performance of their respective obligations, if any, to the Debtors, the Purchaser, the Real Property LLC, the Disfribution Agent, or the Liquidation Trustee under the Plan, the Asset Purchase Agreement, the Liquidating Trust Agreement or the Liquidating Trust Documents, and the contracts, instruments releases and other agreements delivered under the Plan), whether liquidated or unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or unforeseen, then existing or thereafter -36870099 1 Case 09-14315-sr Doc 31-1 Filed 06/29/10 Entered 06/29/10 14:19:01 Exhibit A Page 43 of 43 Desc arising, in law, equity or otherwise that are based in whole or in part on any act or omission, fransaction, event or other occurrence taking place on or prior to the Effective Date in any way relating to the Debtors, the Chapter 11 Cases, the Plan, the Disclosure Statement or the Asset Purchase Agreement other than Claims or liabilities arising out of or relating to any act or omission that constitutes a failure to perform the duty to act in good faith and where such failure to perform constitutes willful misconduct, gross negligence, orfraud;provided, that this Section 10.02(b) shall not release any Person from any Claim or Cause of Action existing as of the Effective Date, based on (x) the Internal Revenue Code or any other domestic state, city or municipal tax code, (y) any liability that the Person may have as an owner or operator of real property after Confirmation under the environmental laws of the United States or any domestic state, city or municipality or (z) any criminal laws of the United States or any domestic state, city or municipality; provided further, however, that this Section 10.02(b) shall not release any natural person Releasee under subsection (i) of the defined term Releasees from any Claim or Cause of Action asserted against such natural person only if such Claim or Cause of Action was pending as of June 25, 2010 and is covered by insurance, to the extent of such insurance coverage. The Plaintiffs listed on Exhibit A to the Plan are not bound by the releases provided for in Section 10.02(b) of the Plan. (c) Injunction. Except as otherwise specifically provided herein, on the Effective Date, the Confirmation Order shall constitute an injunction permanently enjoining any Person (excluding any of the Debtors) that has held, currently holds or may hold a Claim, demand, debt, right. Cause of Action or liability that is released pursuant to this Section 10.02 of the Plan from enforcing or attempting to enforce any such Claim, demand, debt, right. Cause of Action or liability against any Releasee or any of their respective Property. Section 10.03. Indemnification by Real Property LLC. Without limiting any other indemnification rights, if any, that may be available to the Prepetition Senior Agent and the DIP Agent, on the Effective Date, the Real Property LLC shall enter into an unsecured indemnity agreement in favor of the Prepetition Senior Agent (and any sub-agent thereof), the DIP Agent and each related party of any of the foregoing Persons, on terms reasonably acceptable to the Prepetition Senior Agent and the DIP Agent. Section 10.04. Other Documents and Actions. The Debtors are authorized to execute such documents and take such other action as is necessary to effectuate the fransactions provided for in the Plan. Section 10.05. Term of Injunctions or Stays. Unless otherwise provided herein or in the Confirmation Order, all injunctions or stays provided for in the Chapter 11 Cases under -37870099 1