Case Doc 307 Filed 01/14/16 Entered 01/14/16 18:08:24 Desc Main Document Page 1 of 37

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1 Document Page 1 of 37 UNITED STATES BANKRUPTCY COURT DISTRICT OF CONNECTICUT HARTFORD DIVISION In re: Chapter 11 Case No (AMN) CURTIS JAMES JACKSON, III, Debtor. / JOINT PLAN OF SLEEK AUDIO, LLC, SUNTRUST BANK AND LASTONIA LEVISTON FOR THE INDIVIDUAL CHAPTER 11 REORGANIZATION OF CURTIS J. JACKSON, III UNDER CHAPTER 11 OF THE BANKRUPTCY CODE Sleek Audio, LLC, SunTrust Bank, and Lastonia Leviston (collectively herein the Proponents ) hereby propose the following Individual Plan of Reorganization Under Chapter 11 of the Bankruptcy Code ( Plan ) for Curtis J. Jackson, III (the Debtor ) pursuant to sections 1121(c) and 1123 of title 11 of the United States Code. Reference is made to the Disclosure Statement distributed contemporaneously herewith for a discussion of certain matters germane to the Plan and for a summary and analysis of the Plan and certain related matters. All holders of Claims who are entitled to vote on the Plan are strongly encouraged to read the Plan and the Disclosure Statement in their entirety before voting to accept or reject the Plan. Article I Definitions and Construction of Terms The following terms utilized in the Plan shall have the following definitions: 1.1 Additional Real Estate means any real property owned by the Debtor other than real property securing the Class II Claim. 1.2 Additional Property means collectively all Personal Property and Additional Real Estate. 1.3 Administrative Expense Claim means any right to payment constituting a cost or expense of administration of the Chapter 11 Case and entitled to priority under sections 503(b) and 507(a)(2) of the Bankruptcy Code, including, without limitation, (a) any actual and necessary costs and expenses of preserving the estate of the Debtor, (b) any actual and necessary costs and expenses of operating the businesses of the Debtor, (c) any costs and expenses of the Trustee in connection with the administration and implementation of the Plan, (d) any indebtedness or obligations incurred or assumed by the Debtor or under the Plan in connection with the conduct of the Debtor s businesses, including, without limitation, for the acquisition or lease of property or an interest in property or the rendition of services, (e) all compensation and reimbursement of expenses to the extent Allowed by the Bankruptcy Court under Sections 330 or 503 of the Bankruptcy Code, including, without limitation claims asserted by one or more of the Proponents or their professionals and which are approved pursuant to Section 503(b)(3)(D) v12

2 Document Page 2 of 37 and/or 503(b)(4) of the Bankruptcy Code, and (f) any fees or charges assessed against the estate of the Debtor under section 1930 of Chapter 123 of title 28 of the United States Code. 1.4 Allowed means with reference to any Claim (including any Administrative Expense Claim): (a) any Claim against the Debtor, proof of which was filed within the applicable period of limitation fixed by the Bankruptcy Court in accordance with Rule 3003(c)(3) of the Bankruptcy Rules or if no proof of Claim was so filed, any Claim against the Debtor which has been listed by the Debtor in the Schedules, as such Schedules may be amended from time to time in accordance with Rule 1009 of the Bankruptcy Rules prior to the closing of the Chapter 11 Case, as fixed, liquidated, non-contingent and undisputed in amount (or as to which the applicable proof of Claim has been withdrawn or Disallowed) (i) as to which no objection to the allowance thereof, or action to equitably subordinate or otherwise limit recovery with respect thereto, has been interposed within the applicable period of limitation fixed by the Plan, the Bankruptcy Code, the Bankruptcy Rules or a Final Order, (ii) as to which no action has been commenced to avoid such Claim within the applicable period of limitation fixed by the Plan, or (iii) as to which an objection has been interposed, to the extent such Claim has been allowed (whether in whole or in part) by a Final Order, (b) any Claim to the extent that it has been allowed by a Final Order; provided, however, that Claims Allowed solely for the purpose of voting to accept or reject the Plan pursuant to an order of the Bankruptcy Court shall not be considered Allowed Claims hereunder unless otherwise specified herein or by Final Order. Allowed Claims shall not, for any purpose under the Plan, include interest, penalties or late charges on such Claims from and after the Petition Date unless otherwise expressly provided for in the Plan or by Final Order. In addition, Allowed Claim shall not include any Claim subject to disallowance in accordance with section 502(d) of the Bankruptcy Code. 1.5 Avoidance Actions means any action authorized by Chapter 5 of the Bankruptcy Code, including, specifically, with respect thereto, 544, 545, 546, 547, 548, 549, 550 and 553 of the Bankruptcy Code. 1.6 Bankruptcy Code means title 11 of the United States Code, as amended from time to time, as applicable to the Chapter 11 Case. 1.7 Bankruptcy Court means the United States Bankruptcy Court for the District of Connecticut, having jurisdiction of and over the Chapter 11 Case, and to the extent of any reference under section 157 of title 28 of the United States Code, the unit of such District Court under section 151 of title 28 of the United States Code. 1.8 Bankruptcy Rules means the Federal Rules of Bankruptcy Procedure as promulgated by the United States Supreme Court under section 2075 of title 28 of the United States Code, as amended from time to time, and any Local Rules of the Bankruptcy Court. 1.9 Bar Date means any date established by the Bankruptcy Code, Bankruptcy Rules or Final Order as the deadline to file a proof of Claim Business Day means any day other than a Saturday, Sunday or any other day on which commercial banks in Hartford, Connecticut are required or authorized to close by law or executive order. 2

3 Document Page 3 of Case Professionals means all persons retained and/or to be compensated by the Estate pursuant to sections 326, 327, 328, 330, 503(b) and 1103 of the Bankruptcy Code or retained post-confirmation to perform professional services for the Estate and specifically includes the parties described on Schedule Cash means the equivalent of legal tender of the United States of America, however paid or transmitted, and includes Scheduled Cash as defined herein Cause(s) of Action means, without limitation, (i) all pending suits to which the Debtor was a party, whether as plaintiff or defendant as of the date the Confirmation Order becomes a Final Order, and (ii) any and all other actions, causes of action, liabilities, obligations, rights, suits, damages, judgments, claims and demands whatsoever, whether known or unknown, existing or hereafter arising, whether pending or not, in law, equity or otherwise, to which the Debtor had any rights or obligations whatsoever, based in whole or in part upon any act or omission or other event occurring prior to the Petition Date, during the course of the Chapter 11 Case (including through the Effective Date) or through the completion of the Plan, including, without limitation, all Avoidance Actions arising under Chapter 5 of the Bankruptcy Code Chapter 11 Case means the case under chapter 11 of the Bankruptcy Code commenced by the Debtor, styled In re Curtis James Jackson, III Chapter 11 Case No , pending before the Bankruptcy Court Claim has the meaning provided in section 101(5) of the Bankruptcy Code Class means a category of holders of Claims or Equity Interests as set forth in Article III of the Plan Confirmation Date means the date on which the Confirmation Order is entered on the docket in the Chapter 11 Case Confirmation Hearing means the hearing held by the Bankruptcy Court to consider confirmation of the Plan pursuant to section 1129 of the Bankruptcy Code, as such hearing may be adjourned or continued from time to time Confirmation Order means the order of the Bankruptcy Court confirming the Plan pursuant to section 1129 of the Bankruptcy Code Debtor means Curtis James Jackson, III whether in his capacity as debtor in possession in the Chapter 11 Case pursuant to sections 1101, 1107(a) and 1108 of the Bankruptcy Code or otherwise Debtor Monthly Distribution means Cash paid monthly by the Trustee to the Debtor as determined by the Trustee under Section 5.6(b) hereof Debtor Retained Property has the meaning given to such term in Section 5.3(a) hereof. 3

4 Document Page 4 of Disallowed Claim means (a) a Claim, or any portion thereof, that has been disallowed by a Final Order, (b) a Claim that was not scheduled by the Debtor as a fixed, liquidated, non-contingent and undisputed Claim and which has not been timely filed or deemed timely filed with the Bankruptcy Court pursuant to either the Bankruptcy Code or any Final Order, or (c) a Claim that is expressly disallowed under the terms of the Plan Disclosure Statement means the disclosure statement relating to the Plan, including, without limitation, all exhibits and schedules thereto, as the same may be amended, supplemented, or modified from time to time and as approved by the Bankruptcy Court pursuant to section 1125 of the Bankruptcy Code Disputed means every Claim (i) which has been or hereafter is listed in the Debtor s Schedules as unliquidated, disputed or contingent or which is not listed in the Debtor s Schedules, (ii) which is specifically disputed under a particular provision of the Plan, (iii) as to which a timely objection has been interposed under the Plan and not withdrawn or determined by a Final Order, (iv) as to which a request for estimation in accordance with section 502(c) of the Bankruptcy Code and Bankruptcy Rule 3019 has been made and not withdrawn or determined by a Final Order, or (v) as to which a proof of Claim was required to be filed by order of the Bankruptcy Court but as to which a proof of Claim was not timely or properly filed. A Claim that is Disputed by the Trustee as to its amount only, shall be deemed Allowed in the amount the Trustee admits is owing, if any, and Disputed as to the excess Disputed Claims Reserve means any required Cash reserve to be created by the Trustee in amounts sufficient for the Trustee to make distributions under the Plan on account of all Disputed Claims if such Disputed Claims become Allowed Claims Distribution(s) mean payments of Cash to be made in accordance with the Plan Distribution Record Date means the date on which the Order approving the Disclosure Statement under section 1125 of the Bankruptcy Code is signed Domestic Support Obligations has the meaning provided in Section 101(14A) of the Bankruptcy Code, as such obligations may be modified from time to time by a court of appropriate jurisdiction Effective Date means that day which is the first Business Day following the day that the Confirmation Order becomes a Final Order. Code Entity shall have the meaning set forth in section 101(15) of the Bankruptcy 1.32 Estate means the estate of the Debtor in the Chapter 11 Case, created pursuant to section 541 of the Bankruptcy Code upon the commencement of the Chapter 11 Case Final Order means an order of the Bankruptcy Court or any other court of competent jurisdiction as to which the time to appeal, petition for certiorari, or move for reargument or rehearing has expired and as to which no appeal, petition for certiorari or other proceedings for re-argument or rehearing shall then be pending or as to which any right to 4

5 Document Page 5 of 37 appeal, petition for certiorari or other proceedings for re-argument or rehearing shall have been waived in writing in form and substance satisfactory to the Proponents and the Trustee or in the event that an appeal, writ of certiorari or re-argument or rehearing thereof has been sought, such order of the Bankruptcy Court or other court of competent jurisdiction shall have been upheld by the highest court to which such order was appealed, or from which certiorari, re-argument or rehearing was sought and the time to take any further appeal, petition for certiorari or other proceedings for re-argument or rehearing shall have expired, provided, however, that the possibility that a motion under Rule 59 or Rule 60 of the Federal Rules of Civil Procedure, or any analogous rule under the Bankruptcy Rules or applicable state court rules of civil procedure, may be filed with respect to such order shall not cause such order not to be a Final Order Impaired means when used with reference to a Claim, a Claim that is impaired within the meaning of section 1124 of the Bankruptcy Code Income After Withholdings means (i) all amounts paid or payable to the Debtor which would be considered gross income for purposes of the United States Internal Revenue Code ( IRC ), plus amounts that are excluded from gross income under provisions of the IRC, including without limitation, refunds of federal, state or local taxes, insurance proceeds, gifts and inheritances, tax-exempt interest and dividends, and damages and settlements, to which the Debtor may at any time be or become entitled to receive, and (ii) any other amounts payable to or received by the Debtor on account of anything or matter whatsoever, and from any source whatsoever, including, without limitation, accounts receivable, instruments, settlements, equity interests, entitlements, proceeds of loans, contract rights (including without limitation, rights arising under personal services contracts, recording contracts, publishing contracts), fees, per diem payments of any kind, reimbursements, royalties and payments made or payable pursuant to any and all copyrights or other intellectual property of any kind or nature held by the Debtor (all such copyrights and rights thereunder being deemed herein to be specifically enumerated for all purposes under applicable law), dispositions of property, and distributions from trusts and other legal entities, in each case less any amounts actually withheld at source by the payor of such amounts for the account of the Debtor, or which the Debtor may reasonably elect to have withheld, in each case as may be required by applicable federal, state, or local law relating to the payment of taxes Interest means, unless the Trustee determines that the holder of an Allowed Claim is entitled to a higher rate of interest under an enforceable agreement, or other applicable law, post-petition interest at the prime rate of interest as announced by JPMorgan Chase Bank, N.A. as of the Effective Date, in any case computed from and after the Petition Date, on the thenoutstanding principal amount of an Allowed Claim Lien has the meaning set forth in section 101(37) of the Bankruptcy Code (but a lien that has or may be avoided pursuant to an Avoidance Action shall not constitute a Lien) Net Cash Proceeds means the Cash proceeds of any disposition of any Property after payment of all related expenses of such disposition which may be required to be paid under applicable law or agreement to effectuate such disposition Net Sale Proceeds means the Net Cash Proceeds of the disposition of any Property of the Estate disposed of under a Sale Order or otherwise under the terms of the Plan by 5

6 Document Page 6 of 37 Trustee, after payment of all related expenses which may be required to be paid under applicable law or agreement to effectuate such transaction Other Priority Claim means any Claim, other than an Administrative Expense Claim, a Priority Tax Claim, or a Domestic Support Obligation entitled to priority in right of payment under section 507(a) of the Bankruptcy Code over unsecured Claims, but only to the extent entitled to such priority Personal Property means all Property of the Debtor as of the Effective Date other than real Property and Related Entities Interests Petition Date means July 13, 2015, the date the Debtor filed the voluntary petition for relief under Chapter 11 of the Bankruptcy Code Plan means this Plan of Reorganization including, without limitation, any exhibits, supplements, appendices and schedules hereto, either in its present form or as the same may be altered, amended or modified from time to time Post-Confirmation Committee means the Committee which shall be formed or reconstituted pursuant to Article VII of the Plan Priority Tax Claim means any Claim of a governmental unit of the kind specified in sections 502(i) and 507(a)(8) of the Bankruptcy Code, including any Claim of such governmental unit for post-petition interest as set forth under applicable law and Section 511 of the Bankruptcy Code Proceeds means the Cash proceeds of any disposition of any Property, including, without limitation, any Net Cash Proceeds and Net Sale Proceeds, and the Cash proceeds of any Causes of Action Professional Compensation Escrow means a non-interest bearing escrow account to be established by the Trustee to be held by a financial institution acceptable to the Trustee pending payment of any such Claim of Case Professionals that is Allowed by Final Order Property means all real, personal, tangible and intangible property of the Debtor of any kind, including, without limitation, the right to receive any other property (including, without limitation, royalties and advance payments on account of royalties, whether payable to the Debtor from record companies, licensing sources, performing rights societies, or publishers) on account of any stock, membership, partnership or other property interest held by the Debtor, and any property of the kind or nature accounted for on the Debtor s balance sheet as of the Petition Date, whether or not subject to any Lien Pro Rata means, when used with reference to a distribution of property to holders of Allowed Claims in a particular Class, proportionately so that with respect to a particular Allowed Claim in such Class the ratio of (a)(i) the amount of property to be distributed on account of such Claim to (ii) the amount of such Claim, is the same as the ratio of (b)(i) the 6

7 Document Page 7 of 37 amount of property to be distributed on account of all Allowed Claims in such Class of Claims to (ii) the amount of all Allowed Claims in such Class of Claims Related Entities means each of the business entities described on Schedule 9 hereto, and any other corporation, partnership, limited liability company, or other business entity at any time hereafter identified in which the Debtor holds a controlling interest under applicable state law Related Entity Contract Party means any Entity that has contracted with any Related Entity for the performance of services or the delivery of goods by the Related Entity in exchange for the payment of money or the delivery of Property to the Related Entity or to the Debtor Related Entities Interests means any ownership, membership, shareholder, partnership or other interest of any kind of the Debtor in or on account of any of the Related Entities, however evidenced Related Entities Organizational Documents means all articles of incorporation or organization, certificates of incorporation or formation, partnership certificates, limited liability company agreements, operating agreements, by-laws, partnership agreements, or other organizational documents of the Related Entities Sale means a sale of some or all of the Property of the Debtor after notice and hearing as set forth in the Plan pursuant to section 363(b) of the Bankruptcy Code, as approved by a Sale Order Sale Order means a Final Order approving a Sale Scheduled Cash means all Cash and marketable securities (including without limitation the proceeds of any brokerage account held by the Debtor) held in any of the accounts identified in Item 2 of Schedule B of the Schedules, including all such Cash and marketable securities as of the date of the filing of the Chapter 11 Case as therein identified, in the aggregate amount of not less than $10,554, Schedules means the schedules of assets and liabilities and the statement of financial affairs filed with the Bankruptcy Court by the Debtor under section 521 of the Bankruptcy Code and Bankruptcy Rule 1007 and the Official Bankruptcy Forms of the Bankruptcy Rules, as such schedules and statements have been or may be supplemented or amended from time to time Secured Claim means any Claim, to the extent reflected in the Debtor s Schedules or a proof of claim as a Secured Claim, which is actually secured by a Lien on collateral to the extent of the value of such collateral, as determined in accordance with section 506(a) of the Bankruptcy Code, or, in the event that such Claim is subject to permissible setoff under section 553 of the Bankruptcy Code, to the extent of such permissible setoff, including Secured Tax Claims and Class II Secured Claims. 7

8 Document Page 8 of SunTrust Deficiency Unsecured Claim shall have the meaning set forth in Section 4.2 (b) of the Plan Tax Obligations has the meaning given to such term in Section 5.6(b)(i)(C) of the Plan Trustee means Richard M. Coan, of New Haven Connecticut Trustee Accounts means the bank accounts opened by the Trustee as described in Article V of the Plan Trustee Appointment means the power of attorney appointment granted to the Trustee as described in Article V of the Plan Unimpaired means, when used with reference to a Claim, a Claim that is not impaired within the meaning of section 1124 of the Bankruptcy Code Unsecured Claim means a Claim which is not a Secured Claim or a Claim which is entitled to priority under Section 507 of the Bankruptcy Code United States Trustee means the United States Trustee appointed under section 591, title 28, United States Code to serve in the District of Connecticut Interpretation; Application of Definitions and Rules Construction. Whenever from the context it appears appropriate, each term stated in either the singular or the plural shall include both the singular and the plural and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, feminine and neuter. Unless otherwise specified, all section, article, schedule or exhibits references in the Plan are to the respective Section in, Article of, Schedule to, or Exhibit to, the Plan. The words herein, hereof, hereto, hereunder and other words of similar import refer to the Plan as a whole and not to any particular section, subsection or clause contained in the Plan. The rules of construction contained in section 102 of the Bankruptcy Code shall apply to the construction of the Plan. A term used herein that is not defined herein, but that is used in the Bankruptcy Code, shall have the meaning ascribed to that term in the Bankruptcy Code. The headings in the Plan are for convenience of reference only, and shall not limit or otherwise affect the provisions of the Plan. Unless otherwise indicated herein, all references to dollars means United States dollars. Article II Treatment of Administrative Expense Claims and Priority Tax Claims 2.1 Non-Classification. As provided in section 1123(a) of the Bankruptcy Code, Administrative Expense Claims and Priority Tax Claims are not classified for purposes of voting on or receiving distributions under the Plan. All such Claims are instead treated separately pursuant to the terms set forth in this Article II. 2.2 Administrative Expense Claims. Except to the extent that any Entity entitled to payment of an Allowed Administrative Expense Claim agrees to a different treatment, each holder of an Allowed Administrative Expense Claim (other than Allowed Administrative 8

9 Document Page 9 of 37 Expense Claims for professional compensation and reimbursement of expenses which are specifically addressed in Section 2.3 below) shall receive Cash in an amount equal to such Allowed Administrative Expense Claim on the later of the Effective Date and the date such Administrative Expense Claim becomes an Allowed Administrative Expense Claim, or as soon thereafter as is practicable, provided, however, that Allowed Administrative Expense Claims representing liabilities incurred in the ordinary course of business by the Debtor postpetition as of the Effective Date, to the extent not already paid by the Debtor prior to the Effective Date, shall be paid in full in Cash by the Trustee on the later of the Effective Date or pursuant to their ordinary business terms. 2.3 Professional Compensation and Reimbursement Claims. Upon receipt of the Cash described in Article V of the Plan the Trustee shall establish and fund the Professional Compensation Escrow as set forth therein. All Entities seeking an award by the Bankruptcy Court of compensation for services rendered and reimbursement of expenses incurred through and including the Effective Date under sections 330 or 331 of the Bankruptcy Code or entitled to the priorities established under sections 503(b)(2), 503(b)(3), 503(b)(4) or 503(b)(5) of the Bankruptcy Code shall (a) file their respective final applications for allowance of compensation for services rendered and reimbursement of expenses incurred through the Effective Date by not later than the date which is forty five (45) days after the Effective Date or such other date as is fixed by the Bankruptcy Court and (b) if granted such an award by the Bankruptcy Court, be paid by the Trustee in full in Cash in such amounts as are Allowed by the Bankruptcy Court (i) on the date upon which such Administrative Expense Claim becomes an Allowed Administrative Expense Claim or as soon thereafter as is practicable, (ii) upon such other terms as may be mutually agreed upon between such holder of an Administrative Expense Claim and the Trustee, or (iii) in accordance with the terms of any applicable order entered by the Bankruptcy Court. 2.4 Priority Tax Claims. Except to the extent that the Trustee determines to make payments to the holder of a Priority Tax Claim in accordance with the provisions of Section 1129(a)(9)(C) of the Bankruptcy Code, or the holder of an Allowed Priority Tax Claim has been paid prior to the Effective Date or agrees to a different treatment, the Trustee shall pay to each holder of an Allowed Priority Tax Claim, in full and complete settlement, satisfaction and discharge of its Allowed Priority Tax Claim, Cash in an amount equal to such Allowed Priority Tax Claim on the later of the Effective Date and the date such Priority Tax Claim becomes an Allowed Priority Tax Claim, in each case with interest as may be required by the Bankruptcy Code and provided under applicable non-bankruptcy law. 2.5 Domestic Support Obligations. On the Effective Date, the Trustee shall make any payments to the Debtor which may be required to permit the Debtor to comply with any unfunded obligations on account of Domestic Support Obligations arising under Section 1129(a)(14) of the Bankruptcy Code, and the Debtor shall immediately remit such payments to the parties entitled thereto. No payments shall thereafter be made by the Trustee on account of any Domestic Support Obligations of the Debtor, as amounts necessary for the Debtor to continue to pay all ongoing Domestic Support Obligations after the Effective Date are the ongoing personal obligation of the Debtor and included within the amount of the Debtor Monthly Distribution as otherwise set forth in the Plan. 9

10 Document Page 10 of 37 Article III Classification of Claims and Equity Interests Claims, other than Administrative Expense Claims and Priority Tax Claims are classified for all purposes, including voting, confirmation and distribution pursuant to the Plan, as set forth below. Class I Other Priority Claims Unimpaired/Deemed to Accept Class II Secured Claim of SunTrust Mortgage Impaired May Vote Class III Unsecured Claims Impaired May Vote Class IV Unimpaired Claims Unimpaired/Deemed to Accept 4.1 Class I Other Priority Claims. Article IV Treatment of Claims and Equity Interests (a) Impairment and Voting. Class I is unimpaired by the Plan. Each holder of an Allowed Other Priority Claim is conclusively presumed to have accepted the Plan and is not entitled to vote to accept or reject the Plan. Set forth on Schedule 1 is a list of the holders of Other Priority Claims, and the amount of their respective Priority Claims, as identified by the Debtor in the Schedules or proofs of Claim filed with the Court in accordance with the Bankruptcy Code and the Bankruptcy Rules as of the Bar Date. (b) Treatment. Except to the extent that a holder of an Allowed Other Priority Claim agrees to a different treatment, the Trustee shall pay to each holder of an Allowed Other Priority Claim, in full and complete settlement, satisfaction and discharge of its Allowed Other Priority Claim, Cash in an amount equal to such Allowed Other Priority Claim on the later of the Effective Date and the date such Other Priority Claim becomes an Allowed Other Priority Claim, or as soon thereafter as is practicable. 4.2 Class II Secured Claim of SunTrust Mortgage. (a) Impairment and Voting. Class II is impaired by the Plan and is entitled to vote on the Plan. Pursuant to Bankruptcy Rule 3013, Schedule 2 sets forth the identity of the holder of the Claim in this class and the amount of its Claim, as identified by the Debtor in the Schedules and/or as reflected by the proof of Claim filed with the Court in accordance with the Bankruptcy Code and the Bankruptcy Rules as of the Bar Date. The Class II Claim set forth on Schedule 2 is deemed an Allowed Claim and an Allowed Secured Claim under the Plan, and to the extent the value of the Property that secures the Class II Allowed Secured Claim is determined (whether by sale as provided in the Plan, subsequent foreclosure following abandonment of such Property as set forth herein, or determination of the Bankruptcy Court) to exceed the amount of such Allowed Claim as of the Petition Date, the amount of such Allowed Secured Claim shall further include the amounts set forth in Section 506(b) of the Bankruptcy Code. 10

11 Document Page 11 of 37 (b) Treatment. As an Allowed Secured Claim, the holder of the Class II Secured Claim shall retain all adequate protection payments, if any, received by such holder during the Chapter 11 Case, and shall further receive, in full satisfaction of such Allowed Secured Claim, Cash in an amount equal to such Allowed Secured Claim on the later of: (i) the Effective Date; (ii) the date such Claim becomes an Allowed Secured Claim; and (iii) the date the Property securing such Allowed Secured Claim is sold by the Trustee after the Effective Date with the consent of the holder of such Allowed Secured Claim and the Trustee has received the Net Proceeds of such Sale in immediately available funds. Subject to the provisions of Section 5.3(a), any Cash Proceeds of any such sale in excess of the amount of the Allowed Secured Claim secured by such Property shall be retained by the Trustee and distributed in accordance with the remaining terms and conditions of the Plan. Notwithstanding any other provision of this Section 4.2, the Trustee, in the exercise of the Trustee s reasonable judgment may at any time abandon the Property securing such Claim upon giving not less than 30 days advance notice thereof to the holder of such Claim, and such abandonment shall terminate any treatment of such Claim as an Allowed Secured Claim hereunder and any payment obligation to the holder of such Claim as an Allowed Secured Claim under the Plan, provided however, that to the extent the Class II Claim is not satisfied in full through a sale as set forth in this Section 4.2, or foreclosure after abandonment, the holder of the Class II Claim shall be deemed to hold a Class III Claim in the amount of any deficiency between the amount recovered on account of the Class II Allowed Secured Claim through sale or foreclosure after abandonment and the amount of the Class II Claim (herein the SunTrust Deficiency Unsecured Claim ). The holder of any SunTrust Deficiency Unsecured Claim shall give prompt written notice of the existence of such Claim to the Trustee, and upon the giving of such notice, such Claim shall be deemed Allowed as a Class III Claim, and paid in accordance with the treatment provided to Class III Claims, except to the extent an objection to such Claim is filed by the Trustee in accordance with Section 10.1(c) of the Plan, and such Claim is thereafter disallowed by an order of the Bankruptcy Court. (c) Interest Payments. Commencing on the 10 th business day of the first full month after the Effective Date, the Trustee shall pay interest to the holder of the Allowed Class II Secured Claim monthly in arrears on the outstanding principal amount of the Allowed Secured Claim at the non-default rate of interest per annum in effect under the loan documents pertaining to the Class II Allowed Secured Claim as of the Petition Date (as there adjusted annually in accordance with the loan documents), until the earlier of satisfaction of the Allowed Secured Claim as set forth above, and the date such Property may be abandoned as set forth above. Notwithstanding the foregoing, such payments shall be made only to the extent permitted by Section 506(b) of the Bankruptcy Code, and the holder of such Allowed Secured Claim shall be required to make payment to the Trustee in an amount equal to any interest payments received pursuant to this Section 4.2(c) subsequently determined by the Bankruptcy Court or by agreement to have been impermissible under Section 506(b) of the Bankruptcy Code. (d) Retention of Liens; Effectiveness of Loan Documents. The holder of the Class II Allowed Secured Claim shall retain the Liens (or replacement Liens), if any, securing its Allowed Secured Claim until (i) full and final payment of such Allowed Secured Claim is made as provided herein or after foreclosure upon abandonment as set forth in subsection (b) hereof, or (ii) such Lien is otherwise terminated in accordance with this Plan. Upon such termination, such Liens shall be deemed null and void and shall be unenforceable for all purposes. Upon the Sale of any of the Property, the Liens attaching to such Property shall transfer to the Net Proceeds of such Sale. Further, pending satisfaction of the Class II Claim through sale or foreclosure, the loan documents pertaining to the Class II Claim shall remain in full force and effect, provided, 11

12 Document Page 12 of 37 however, that the remedies available to the holder of the Class II Claim under its retained security interest and the loan documents giving rise to its claim, including the right to exercise secured party rights, shall be exercisable only in the event the Trustee defaults on the payment obligations with respect to Class II hereunder, or in the event that the Property securing the Class II Allowed Secured Claim is abandoned by the Trustee in accordance with the provisions of the Plan. 4.3 Class III Unsecured Claims. (a) Impairment and Voting. Class III is impaired by the Plan. Each holder of an Allowed Unsecured Claim (other than Unsecured Claims treated in Class IV below) is entitled to vote to accept or reject the Plan. Set forth on Schedule 3 is a list of the holders of Unsecured Claims treated under Class III of the Plan, and the amount of their respective Unsecured Claims, as identified by the Debtor in the Schedules or proofs of Claim filed with the Court in accordance with the Bankruptcy Code and the Bankruptcy Rules as of the Bar Date. All Unsecured Claims in Class III, and set forth on Schedule 3 shall be deemed allowed solely for purposes of voting on the Plan. (b) Treatment. Each holder of an Allowed Unsecured Claim shall receive payments of Cash from the Trustee as provided in Article V of the Plan, up to and including 100% of the full amount of their Claims, with Interest, in full and complete settlement, satisfaction and discharge of such Allowed Unsecured Claim. 4.4 Class IV Unimpaired Claims. All claims in Class IV of the Plan, as set forth in subclasses (A)-(C) below are unimpaired and conclusively presumed to have accepted the Plan and thus not entitled to vote to accept or reject the Plan. (a) Class IV(A). Class IV(A) shall consist of the holders of Unsecured Claims in the amount of $8,000 or less. Set forth on Schedule 4 is a list of the holders of unsecured Claims in the amount of $8,000 or less, and the amount of their respective Claims, as identified by the Debtor in the Schedules or proofs of Claim filed with the Court in accordance with the Bankruptcy Code and the Bankruptcy Rules as of the Bar Date. Each holder of a Claim in Class IV(A) shall receive, on the Effective Date, a single payment of Cash from the Trustee as provided in Article V of the Plan in the amount of 100% of the full amount of their Claims, with interest, in full and complete settlement, satisfaction and discharge of such Claim. (b) Class IV(B). Class IV(B) shall consist of the Claim filed by the American Society of Composers, Authors and Publishers ( ASCAP ), in the amount of $1,294, ASCAP s rights with respect to the Debtor, as identified in the proof of Claim filed by ASCAP shall be retained and unaltered under the Plan, and ASCAP shall be permitted to continue to exercise its recoupment rights against the Debtor after confirmation of the Plan, until such time as its Claim is fully satisfied. ASCAP shall receive no payment or Distribution under the Plan on account of its Claim. (c) Class IV(C). Class IV(C) shall consist of the Allowed Secured Claim of Bentley Financial Services, in the amount of $130, The holder of such Allowed Secured Claim shall be paid by the Trustee from and after the Effective Date in the amounts and on the terms 12

13 Document Page 13 of 37 and conditions of the underlying agreements evidencing such Secured Claim, and the holder of such Allowed Secured Claim shall retain all of the rights provided to such holder under such agreements, without modification by the Plan, including without limitation, the Lien securing such Allowed Secured Claim. The Trustee shall retain the right to sell the Property securing such Allowed Secured Claim in accordance with the requirements of Section 1129(b)(2)(A)(ii) of the Bankruptcy Code. Subject to the provisions of Section 5.3(a), any Cash Proceeds of any such sale in excess of the amount of the Allowed Secured Claim secured by such Property shall be retained by the Trustee and distributed in accordance with the remaining terms and conditions of the Plan. The Trustee, in the exercise of the Trustee s reasonable judgment may at any time abandon the Property securing such Secured Claim upon giving not less than 30 days advance notice thereof to the holder of such Secured Claim. Article V Appointment of Trustee and Means of Implementation of the Plan 5.1 Appointment. On the Effective Date, the Trustee shall be deemed appointed for the purposes of administering the Plan as set forth herein, and shall have the fiduciary duties of a trustee under the laws of the State of Connecticut in connection with the performance of the Trustee s duties. The Trustee shall have, in addition to any powers and duties generally provided to a Trustee in the Bankruptcy Code (including, without limitation Section 1106(a)(1) thereof), the rights, powers and duties set forth in Article V hereof, including, without limitation, the duty to effectuate all of the terms and conditions of the Plan in accordance with the requirements hereof. The Trustee shall have standing, in all respects, to enforce all rights set forth in the Plan. 5.2 Turnover of Cash; Opening of Bank Accounts; Income After Withholdings. (a) On the Effective Date, the Trustee shall take immediate possession of all Scheduled Cash in the possession or control of the Debtor, and any Cash in the possession or control of any Related Entities to which the Debtor is entitled, and the Debtor, all representatives of the Debtor, and all officers and employees of the Related Entities shall cooperate with the Trustee to effectuate the immediate turnover of all such Cash and Scheduled Cash. The Confirmation Order shall constitute an Order of the Bankruptcy Court ordering and directing each financial institution, brokerage firm, or other Entity holding any Cash or Scheduled Cash on behalf of the Debtor as set forth in this Section 5.2(a) to immediately turn over all such Cash or Scheduled Cash to the Trustee, or to provide to the Trustee control over such accounts. The Trustee is authorized, on behalf of the Debtor to direct any Entity holding Scheduled Cash consisting of marketable securities to immediately liquidate all such marketable securities and to deliver the Net Cash Proceeds thereof to the Trustee. (b) The Trustee shall open new bank accounts in the name of the Trustee as required in the discretion of the Trustee to administer all Cash and any Proceeds which the Trustee may recover or become entitled to receive under the terms of the Plan (collectively herein the Trustee Accounts ). The Trustee Accounts shall be maintained at a financial institution or institutions acceptable to the United States Trustee. (c) Commencing as of the Effective Date and continuing until such time as all Class III Claims have been irrevocably paid in full with Interest as set forth in the Plan, one hundred percent (100%) of the Income After Withholdings of the Debtor shall be payable solely and 13

14 Document Page 14 of 37 exclusively to the Trustee for distribution under the terms of the Plan. The Confirmation Order shall constitute an Order of the Court (i) directing the Debtor to remit all such Income After Withholdings received by the Debtor to the Trustee, and (ii) directing each Entity (including, without limitation the Related Entities and each Related Entity Contract Party) served with the Confirmation Order, or otherwise directed by the Trustee in writing, to pay directly to the Trustee the full proper and timely amount of any Income After Withholdings payable to the Debtor. The Trustee is authorized to take such further actions as may be determined by the Trustee to effectuate the direct transfer to the Trustee by any Entity of all such Income After Withholdings due to the Debtor. The Trustee shall promptly serve the Confirmation Order upon the Debtor, all of the Related Entities, and upon each Related Entity Contract Party. 5.3 Liquidation of Property. (a) Promptly after the Effective Date, the Trustee shall conduct an inventory and appraisal of all Additional Property owned by the Debtor. The Debtor and each of the Related Entities shall cooperate in all respects with the Trustee in connection with such inventory and appraisal and shall make all Additional Property available to the Trustee for inspection and appraisal in connection therewith. The Trustee shall determine (after consultation with the Debtor and the Post-Confirmation Committee) the extent to which any Additional Property of the Debtor may be reasonably necessary for the continued use of the Debtor in the day to day operation of the Debtor s post-confirmation business, or for the Debtor s reasonable day to day maintenance, and shall permit the Debtor to retain any such Additional Property (herein the Debtor Retained Property ) for the Debtor s use, free and clear of the restrictions of the Plan. The Debtor Retained Property shall also specifically include, in accordance with the requirements of Section 1123(c) of the Bankruptcy Code (i) the amount of Cash, if any, received by the Trustee upon a disposition of the Property securing the Class II Claim, but not in excess of $75,000, and (ii) the Net Cash Proceeds, if any, of the sale of any automobiles comprising Additional Property, but not in excess of $3, (b) Promptly after the Effective Date the Trustee shall take such steps as the Trustee may determine, after consultation with the Post-Confirmation Committee, to liquidate or abandon some or all of the Additional Property of the Debtor other than the Debtor Retained Property. The Net Sale Proceeds of the liquidation of the Additional Property shall be deposited into the Trustee Accounts for distribution by the Trustee in accordance with the terms of the Plan. The Debtor and each of the Related Entities shall cooperate in all respects with the Trustee in connection with such liquidation, including, without limitation, by allowing the Trustee to conduct one or more auctions at the Debtor s residence(s), as the Trustee may determine reasonably so as to maximize the Net Sale Proceeds. The Debtor is enjoined from taking any steps to impede any such liquidation of the Additional Property. Any proposed abandonment of any Property by the Trustee shall be subject to the provisions of Section 554 of the Bankruptcy Code, provided that the Trustee shall not seek to abandon any Property without consultation with the Post-Confirmation Committee. 5.4 Reservation and Preservation of Causes of Action. (a) On the Effective Date any and all Causes of Action including, without limitation, Avoidance Actions, shall be reserved and preserved by, and for the benefit of, the holders of Claims under the Plan. Until such time as all Class III Claims have been irrevocably paid in full 14

15 Document Page 15 of 37 with Interest as set forth in the Plan, all Causes of Action may be prosecuted solely and exclusively by the Trustee for the benefit of the Estate. (b) The Trustee is granted the full power to bring and prosecute, or to continue to prosecute or defend any Cause of Action including those actions listed on Schedule 5 attached hereto, as determined by the Trustee in the Trustee s discretion after consultation with the Debtor and the Post-Confirmation Committee. Such power shall include the power to sue on behalf of the Debtor and the Estate, to collect any amounts due on any Cause of Action, and the power to compromise any claim described in such Cause of Action, including, without limitation, the power to terminate any pending appeal in any Cause of Action, and the power to deliver any release on behalf of the Debtor and the Estate in connection with any settlement. Except as otherwise provided in the Plan, in accordance with section 1123(b) of the Bankruptcy Code, the Trustee, shall retain and may in the Trustee s discretion and business judgment (except as otherwise limited by the Plan) enforce Causes of Action, Claims and defenses and counterclaims to all Claims asserted against the Debtor and the Estate, including but not limited to, setoff, recoupment, and any rights under section 502(d) of the Bankruptcy Code. (c) The Net Cash Proceeds of any Cause of Action shall be deposited into the Trustee Accounts for distribution by the Trustee in accordance with the terms of the Plan. 5.5 Related Entities/Post Confirmation Business (a) On the Effective Date: (A) any and all prior proxies granted by the Debtor with respect to the Related Entities Interests are hereby deemed revoked without any further action on the part of the Debtor, and (B) notwithstanding any provisions in the Related Entities Organizational Documents to the contrary, the Trustee is appointed as attorney in fact and proxy for the Debtor with full power of substitution and re-substitution with respect to all of the Related Entities Interests (the Trustee Appointment ). The Trustee Appointment is coupled with an interest sufficient in law to support an irrevocable proxy and shall be irrevocable until all Class III Claims have been irrevocably paid in full with Interest as set forth in the Plan. The Debtor shall take such further action or execute such other instruments as may be necessary in the determination of the Trustee to effectuate the intent of this proxy. The power of attorney granted herein is also a durable power of attorney and shall survive, inter alia, the death, disability or incapacity of the Debtor. The power of attorney and proxy granted to the Trustee pursuant to this Section 5.5(a) shall not expire or be subject to any time limitations imposed by the Related Entities Organizational Documents or by law (including but not limited to Section 212 of the Delaware General Corporation Law). The Debtor will not, and will not permit any Entity under the Debtor s control to, deposit any of the Related Entities Interests in a voting trust, grant any proxies with respect to the Related Entities Interests or subject any of the Related Entities Interests to any arrangement with respect to the voting of the Related Entities Interests other than as may be expressly authorized by the Trustee in writing. Each certificate representing Related Entities Interests shall, if required by the Trustee, be stamped or otherwise imprinted with a restrictive legend acceptable to the Trustee disclosing the power of attorney and proxy created hereby. Any ownership, membership, shareholder, partnership or other interest of the Related Entities of any kind that the Debtor purchases, acquires the right to vote or otherwise acquires actual or beneficial ownership of after the date of the entry of the Confirmation Order shall be subject to the terms of this Section 5.5(a) and shall constitute Related Entities Interests for all purposes of this Section 5.5(a). 15

16 Document Page 16 of 37 (b) From and after the Effective Date, and until all Class III Claims have been irrevocably paid in full with Interest as set forth in the Plan: (i) Subject to the other terms and conditions of the Plan the Debtor shall be free to conduct his business as reasonably determined by the Debtor, provided that (i) each and every aspect of the Debtor s post-confirmation business activities shall be subject to the express approval of the Trustee, (ii) the Debtor shall not enter into any contract for the provision of services or for the disposition of any Property without the written approval of the Trustee, and (iii) the Debtor shall at all times be subject to all of the restrictions of Article VI of the Plan. The Trustee s approval of any such business activity shall not be unreasonably withheld, and shall be consistent with the terms and conditions of the Plan pertaining to the payment of Income After Withholdings, and the delivery of Distributions hereunder. In considering the Debtor s business activities, the Trustee shall reasonably and in good faith consider all good faith proposals of the Debtor, and shall consult with the Debtor and the Post-Confirmation Committee. The Trustee shall have the right to request and receive accounting and other statements from third-party payors related to the Debtor and the Related Entities (including, without limitation, statements related to royalty and other payments), and the right to review such statements, including but not limited to the right to audit and collect any monies that may be due to the Debtor or the Related Entities and/or not fully, properly and timely paid to the Debtor or the Related Entities. The Trustee shall further have the right to receive and review any and all agreements, previous accounting statements, income statements, balance sheets and other financial information of the Debtor and the Related Entities and the right to take any action permissible under any applicable agreement or applicable law related to proper and full payment of any such amounts which may be due to the Debtor either directly or by or through the Related Entities or from any third-parties whether related or unrelated to the Related Entities. In connection with the review of such agreements financial information, the Trustee shall be bound at all times by any confidentiality restrictions in any applicable agreements, and shall, as necessary, consult with the Debtor and the Post-Confirmation Committee. The Trustee shall report the results of any determinations and actions made by the Trustee as set forth in this subsection to the Debtor and the Post- Confirmation Committee. (ii) The Trustee shall be solely and exclusively authorized, pursuant to the Trustee Appointment, to exercise all of the rights of the Debtor as a member, manager, officer, shareholder or other interest holder in each of the Related Entities, whether arising on account of the Debtor s ownership of the Related Entities Interests or otherwise, and during the term of the Plan, as it may be extended hereunder, the Debtor shall have no such rights. The Trustee shall have the authority to approve all day to day business decisions and operations of each of the Related Entities, and to bind the Related Entities, in each case to the fullest extent permitted by virtue of the terms and conditions of the Related Entities Interests and the Trustee Appointment. Notwithstanding any provisions in the Related Entities Organizational Documents to the contrary, the Trustee may, to the full extent the Debtor would otherwise have such right, vote and give consents, approvals, ratifications and waivers with respect to the Related Entities Interests, and otherwise act with respect to the Related Entities Interests as though the Trustee were the outright owner thereof. Without limiting the generality of the foregoing, the Trustee may vote and give consents, approvals, ratifications and waivers with respect to the Related Entities Interests to take any of the following actions: (A) amend, modify or waive the Related Entities Organizational Documents; (B) conduct the day-to-day business and internal affairs of a 16

17 Document Page 17 of 37 Related Entity or make any material change to the nature of the business conducted by a Related Entity; (C) issue additional equity interests or admit additional shareholders, partners, or members to a Related Entity; (D) incur any indebtedness, pledge or grant liens on any assets or guarantee, assume, endorse or otherwise become responsible for the obligations of any other Entity; (E) make any loan, advance or capital contribution in any Entity; (F) appoint or remove a Related Entity's auditors, accountants or financial advisors or make any changes in the accounting methods or policies of a Related Entity; (G) enter into, amend, waive or terminate any agreement to which a Related Entity is a party; (H) enter into or effect any transaction or series of related transactions involving the purchase, lease, license, exchange or other acquisition (including by merger, consolidation, acquisition of stock or acquisition of assets) by a Related Entity of any assets and/or equity interests of any Entity; (I) enter into or effect any transaction or series of related transactions involving the sale, lease, license, exchange or other disposition (including by merger, consolidation, sale of stock or sale of assets) by a Related Entity of any assets; (J) establish a subsidiary or enter into any joint venture or similar business arrangement; (K) settle any lawsuit, action, dispute or other proceeding or otherwise assume any liability or agree to the provision of any equitable relief by a Related Entity; (L) initiate or consummate an initial public offering or make a public offering and sale of any Related Entities Interests or any other securities; (M) make any investments in any other Entity; (N) dissolve, wind-up or liquidate a Related Entity or initiate a bankruptcy proceeding involving a Related Entity; (O) remove and elect directors, officers, managers, employees, and other agents for any Related Entity; and (P) authorize the payment of any dividends or distributions on account of any Related Entity Interests. It is the intent of the Plan that the Trustee control the Debtor s interests in the Related Entities to the maximum extent permissible under applicable law. The Debtor is enjoined from interfering in any way with the Trustee s rights and powers under this Section 5.5(b)(ii). In connection with the exercise of any of the foregoing rights, the Trustee shall, as reasonably determined by the Trustee, consult with the Debtor and the Post-Confirmation Committee. The Trustee shall take reasonable steps to keep the Debtor and the Post-Confirmation Committee advised of the actions taken by the Trustee as set forth in this subsection (ii), as circumstances permit. (iii) Commencing as of the Effective Date, the Trustee is authorized, after consultation with the Debtor and the Post-Confirmation Committee, to reject (subject to the conditions of Article XI of the Plan), or, to the extent authorized under the terms of any relevant agreement, terminate any existing agreement to which the Debtor or any Related Entity is a party, including, without limitation any agreement with a Related Entity Contract Party. The Trustee shall further have the right, after consultation with the Debtor and the Post-Confirmation Committee, to renegotiate any and all existing contracts or shareholder or member obligations and agreements related to the Debtor or the Related Entities (including, without limitation, any contracts relating to royalties or other payments due to the Debtor), to the extent permissible under applicable non-bankruptcy law. Any Entity providing goods or services to or for the Debtor or any of the Related Entities shall, at the request of the Trustee, deliver to the Trustee any and all books, records, financial information, and other documents of any kind relating to the Debtor or such Related Entity, and shall provide the Trustee with a full and complete accounting, acceptable to the Trustee in the Trustee s reasonable judgment, of all of the Debtor s or the Related Entity s business dealings with such Entity, including, without limitation, a detailed statement or statements relating to cash expenditures made on behalf of the Debtor or any of the Related Entities. The entry of the Confirmation Order shall serve to authorize each such Entity to comply with provisions of this Section 5.5(b), notwithstanding any action on the part of the 17

18 Document Page 18 of 37 Debtor, or any claim of confidentiality or privilege by the Debtor with respect to any such information. The Debtor is enjoined from taking any action to restrain or prohibit any Entity from complying with the Trustee s requests under this Section 5.5(b)(iii). (iv) The Trustee shall succeed and be entitled to all amounts in any way payable to or distributable to the Debtor by the Related Entities or on account of the Related Entities Interests, all of which amounts shall be deposited by the Trustee into the Trustee Accounts for distribution by the Trustee in accordance with the terms of the Plan. (v) The Trustee may, in the Trustee s discretion, and after consultation with the Debtor and the Post-Confirmation Committee, or at the direction of 100% of the members of the Post-Confirmation Committee, seek to market and sell any of the Related Entities Interests, or to exercise the Related Entities Interests so as to cause the liquidation, winding up and/or dissolution of any of the Related Entities, and the conversion of their respective assets to Net Cash Proceeds in accordance with applicable state law. Any such consensual Sale of the Related Entities Interests shall be approved by the Bankruptcy Court after notice to the Debtor and all creditors, and such hearing as the Bankruptcy Court may require. Any Net Sale Proceeds payable to the Debtor on account of any such Sale of the Related Entities Interests or any Net Cash Proceeds of any liquidation of the Related Entities shall be deposited by the Trustee into the Trustee Accounts for distribution by the Trustee in accordance with the terms of the Plan. 5.6 Distributions. Upon receipt of Cash as described in this Article V of the Plan the Trustee shall make Distributions from the Trustee Accounts as follows: (a) From the Cash delivered to the Trustee as described in Section 5.2(a), the Trustee shall promptly: (i) distribute any amounts determined by the Trustee as necessary to satisfy (A) the Allowed Priority Tax Claims, subject to the terms and limitations described in Section 2.4 of the Plan, (B) the Domestic Support Obligations described in Section 2.5 of the Plan, (C) the Allowed Administrative Expense Claims described in Section 2.2 of the Plan (other than Allowed Administrative Expense claims as to which payment may be deferred as set forth in Section 2.2 of the Plan and Allowed Administrative Expense Claims for professional compensation and reimbursement of expenses which are specifically addressed in Section 2.3), and (D) Unimpaired Claims described in Section 4.4(a)(i) in accordance with the provisions thereof; (ii) create the Professional Compensation Escrow and deposit in the Professional Compensation Escrow an amount reasonably determined by the Trustee to be sufficient for future distribution on account of Allowed Administrative Expense Claims for professional compensation and reimbursement of expenses in accordance with the terms of the Plan, and thereafter distribute the Proceeds of the Professional Compensation Escrow as required by Section 2.3 of the Plan; (iii) retain in the Trustee Accounts an amount of Cash reasonably determined by the Trustee to be sufficient for future distribution in accordance with the terms of the Plan on 18

19 Document Page 19 of 37 account of (A) any Other Priority Claims as described in Section 4.1(b) of the Plan, (B) other expenses of administration of the Plan, including without limitation, anticipated fees and expenses of the Trustee and professionals retained by the Trustee as set forth herein, (C) the amounts necessary to make the first scheduled Debtor Monthly Distribution as set forth herein, and (D) any necessary reserves as determined by the Trustee as set forth in this Section 5.6; (iv) distribute to the Debtor such amount as reasonably determined by the Trustee, after consultation with the Debtor and the Post-Confirmation Committee to permit the Debtor to satisfy any required reasonable post-confirmation obligations of the Debtor pending delivery of the initial Debtor Monthly Distribution as set forth in subsection (c)(i) below, and (v) subject to the provisions of Article X, promptly distribute the balance of the remaining Cash to the holders of Class III Claims pro rata, in partial satisfaction of Class III Claims. (b) Thereafter, the Trustee shall further make the following Distributions: (i) On the last business day of each month, commencing with the first full calendar month after which the Effective Date occurs, the Trustee shall make the Debtor Monthly Distribution, in accordance with the following provisions: (A) The amount of each Debtor Monthly Distribution shall be determined reasonably by the Trustee as set forth in subsection (C) hereof after consultation with the Debtor and the Post-Confirmation Committee, and shall include, minimally, the amount determined by the Trustee to be necessary to satisfy the Debtor s monthly payment on account of Domestic Support Obligations, and, as determined by the Trustee, Tax Obligations. Except for the first payment of the Debtor Monthly Distribution funded as set forth in Section 5.6(a)(iii) above, and except to the extent of any reserve created by the Trustee as set forth herein, no Scheduled Cash may be used to pay any Debtor Monthly Distribution. The Trustee may, after consultation with the Debtor and the Post- Confirmation Committee, in the Trustee s reasonable discretion, create one or more reserves for the payment of future Domestic Support Obligations and Tax Obligations, as may be determined reasonably by the Trustee based upon the timing of future required payments and anticipated post-confirmation Cash receipts. The Trustee shall consult with the Debtor, and have the authority to appear and be heard in connection with any non-bankruptcy proceedings initiated by or against the Debtor seeking to modify the amount of any Domestic Support Obligation. (B) Subject to the requirements of subsection (A) above, and the last sentence of subsection (C) below, the Trustee shall not be required to make a future Debtor Monthly Distribution to the extent that (I) at the time such payment is due the Trustee determines, taking into account all applicable facts and circumstances, and in the exercise of the Trustee s reasonable discretion, that the Debtor is not in full compliance with the obligations of the Debtor under the Plan, and (II) unless otherwise determined by the Trustee after consultation with the Post-Confirmation Committee, the Trustee has determined that as of the date such 19

20 Document Page 20 of 37 payment is due to be paid to the Debtor the Trustee has received Proceeds during the preceding month sufficient to make a simultaneous distribution to the holders of Allowed Class III Claims under Section 5.6(b)(ii) hereof that is at least equal to the amount of the Debtor Monthly Distribution, after taking into account any deferrals as described in Section 5.6(b)(ii) such that the amount of any Debtor Monthly Distribution shall not exceed the amount to be simultaneously distributed to the holders of Allowed Class III Claims in such month. (C) Under the terms of the Plan, the amount of the Debtor Monthly Distribution may, subject to the requirements of subsection (A) above, vary as reasonably determined by the Trustee taking into account all relevant facts and circumstances, and shall be dependent, in the first instance, on the ongoing good faith operation by the Debtor of the Debtor s post-confirmation business, the generation of Income After Withholdings as a result of the Debtor s good faith operation of his post-confirmation business activities, and the Debtor s good faith compliance with the terms and conditions of the Plan. Subject to the requirements of subsection (A) above, in determining the amount of the Debtor Monthly Distribution the Trustee shall, reasonably and in good faith, take into account (I) the reasonable anticipated disposable net income of the Debtor as reflected in the Schedules, (II) actual reasonable and ordinary monthly living expenses of the Debtor, as such expenses may vary from month to month, and as reasonably determined by the Trustee (III) post-confirmation tax obligations of the Debtor which may not be accounted for by withholdings (herein Tax Obligations ) as evidenced by supporting documentation as the Trustee may determine to be reasonably necessary to calculate such Tax Obligations, (IV) other changes in circumstance that occur after the Effective Date, including, without limitation, any Sale or liquidation of Property which reduces the monthly expenses of the Debtor, and (V) the Debtor s good faith in the performance of his ordinary postconfirmation business. In connection with the determination of the foregoing the Trustee shall consult reasonably and in good faith with the Debtor and with the Post-Confirmation Committee. Notwithstanding any other provision hereof relating to the amount of the Debtor Monthly Distribution, nothing in this Plan shall be construed to limit the reasonable discretion of the Trustee to enter into one or more agreements or understandings with the Debtor or any of the Related Entities, as determined by the Trustee in consultation with the Debtor and the Post-Confirmation Committee, to effectuate one more special bonuses or distributions, or other payments to the Debtor from the Cash received by the Trustee based upon the Debtor s performance of post-confirmation business activities as set forth in the Plan. (ii) On the last business day of each month, commencing with the first full calendar month after which the Effective Date occurs, and subject to Subsection 5.6(b)(i)(B) above and the provisions of Article X, the Trustee shall (unless such amount is determined by the Trustee to be de minimis) distribute pro rata to the holders of Allowed Class III Claims, not less than 100% of all Income After Withholdings of the Debtor received by the Trustee during the preceding month, provided, however, that the Trustee may, after consultation with the Post- Confirmation Committee, defer any monthly distribution as reasonably determined by the 20