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corporation qualifies for and does not elect out of the application of Section 382(1)(5), Section <br />382 will not limit the size of the corporation' s NOL carryover on account of an ownership <br />change occurring as a result of the bankruptcy reorganization (subject to any preexisting Section <br />382 Limitation and after reduction of the corporation's NOL carryover by the aggregate amount <br />of all interest deductions in respect of debt exchanged for the corporation's stock during the <br />three prior taxable years and a portion of the current taxable year ending on the date of <br />Ownership Change (such interest hereinafter called "Disqualified Interest "). The corporation <br />will qualify under Section 382(1)(5) if the corporation's pre -bankruptcy shareholders and <br />holders of certain debt ("Qualifying Debt") own at least 50% of the voting power and value of <br />the stock of the corporation after the bankruptcy reorganization. Qualifying Debt is a claim <br />which (i) was held by the same creditor for at least 18 months prior to the bankruptcy filing or <br />(ii) arose in the ordinary course of a corporation's trade or business and has been owned, at all <br />times. by the same creditor. Indebtedness will be treated as arising in the ordinary course of a <br />corporation's trade or business if such indebtedness is incurred by the corporation in connection <br />with the normal, usual or customary conduct of the corporation's business. For the purpose of <br />determining whether a claim constitutes Qualifying Debt, special rules may apply to treat a <br />subsequent transferee as the transferor creditor. If the exchanges contemplated by the Plan <br />qualify under Section 382(1)(5), the Debtor' s NOL carryover will be available for future use <br />without any Section 382 Limitation (subject to any pre-existing Section 382 Limitation and after <br />reduction of the Debtor's NOLs by Disqualified Interest). However, under Section 382(1)(5), if <br />there is a second ownership change during the two-year period immediately following <br />consummation of the Plan, the Section 382 Limitation after the second Ownership Change shall <br />be zero. The determination of the application of Section 382(1)(5) is highly fact specific and <br />dependent on circumstances that are difficult to accurately assess; however, RPL is confident <br />that the Debtor will qualify for the Section 382(1)(5) special rule. If the exchanges do not qualify <br />under Section 382(1)(5) or the Debtor elects not to utilize Section 382(1)(5), the Debtor' s use <br />of its NOLs to offset taxable income earned after the Ownership Change will be subject to the <br />Section 382 Limitation. Since the Debtor is in bankruptcy, however, Section 382(1)(6) of the <br />Tax Code ("Section 382(1)(6)") will apply. Under Section 382(1)(6), the Section 382 Limitation <br />will be calculated by reference to the net equity value of the Debtor' s stock immediately after <br />the Ownership Change (rather than immediately before the Ownership Change, as is the case <br />under the general rule for non -bankruptcy ownership changes). Under Section 382(1)(6), the <br />net equity value of the Debtor's stock would be calculated by reflecting the increase in value of <br />such equity resulting from the surrender or cancellation of creditors' debt claims exchanged for <br />stock. In such case, it is impossible to predict what the net equity value of the Debtor <br />immediately after the exchanges contemplated by the Plan will be, and the Debtor's use of its <br />NOLs may be substantially limited after the Ownership Change. <br />V. Backup Withholding and Information Reporting. The Debtor will withhold <br />all amounts required by law to be withheld from payments under the Plan. The Debtor will <br />comply with all applicable reporting requirements of the Tax Code. <br />vi. Tax Consequences to Holders of Claims or Interests. Generally, a creditor <br />23 <br />