Common use of Restructuring Transactions Clause in Contracts

Restructuring Transactions. Except with the prior written consent of Cetus, the Company and its current and future subsidiaries (including the Subsidiaries) shall prepare and file all Tax Returns consistent with (and, other than as required pursuant to a final determination within the meaning of Section l313(a) of the Code or corresponding provisions of state, local or foreign Law, shall not take a position inconsistent with) the First Lien Debt Contribution Agreement and the following: (a) The Exchange shall be treated as a taxable transfer of property consisting of the First Lien Debt to the Company solely in exchange for stock in the Company having an aggregate fuir market value as of the date of the Exchange equal to the amounts paid by Cetus for the First Lien Debt in the recent acquisitions thereof by Cetus pursuant to purchase from unrelated third parties for cash. The First Lien Debt and any stock of Sub I-A and Sub I-B actually or constructively issued in exchange therefor shall be treated as having the same aggregate fair market value for all purposes of the Contribution Agreement. (b) As a result of the Second Lien Debt Cancellation, IBP Holdings, LLC shall be treated as having recognized debt cancellation income (“Second Lien COD”) in an amount equal to the amount of Second Lien Debt less $11,987,498, which was recognized in 2010, all of which Second Lien COD shall be allocated entirely to the members of IBP Holdings, LLC as of immediately before the Second Lien Debt Cancellation. (c) As a result of the First Lien Debt Exchange, IBP Holdings, LLC shall be treated as having recognized debt cancellation income pursuant to Section 108(e)(8) of the Code with respect to the First Lien Debt (the “First Lien COD”) in an amount equal in the aggregate to the amount by which the adjusted issue price of the First Lien Debt at the time of the First Lien Debt Exchange exceeded the aggregate of all amounts paid by Cetus for the First Lien Debt, which the parties acknowledge and agree is the fair market value of the membership interests in IBP Holdings, LLC issued to Sub I-A and Sub I-B pursuant to the First Lien Debt Exchange. Pursuant to the second sentence of Section 108(e)(8) of the Code and the Restated LLC Agreement, the First Lien Debt COD will be allocated entirely to the members of IBP Holdings, LLC other than Sub I-A and Sub I-B. (d) The “closing of the books” method will be utilized to allocate tax items of IBP Holdings, LLC and IBP Holdings II to periods before and after the Closing.

Restructuring Transactions. Except (a) Within one (1) Business Day following the Registration Statements being declared effective by the SEC, the Company shall commence the Exchange Offer. The Exchange Offer shall remain open for twenty (20) Business Days (as such term is defined in the Exchange Act) , subject to extension with the prior written consent of Cetus, the Company and its current and future subsidiaries (including the Subsidiaries) shall prepare and file all Tax Returns consistent with (and, other than Requisite Supporting Noteholders or as otherwise required pursuant to a final determination within the meaning of Section l313(a) of the Code or corresponding provisions of state, local or foreign by Applicable Law, provided, however, that ION shall not take a position inconsistent withhave the unilateral right to extend the Exchange Offer one time for up to ten (10) Business Days. (b) The Exchange Offer shall provide each holder of Existing Second Lien Notes Claims with the First right to exchange each $1,000 of its Existing Second Lien Debt Contribution Agreement and Notes for the following: (ai) The Exchange shall be treated as a taxable transfer of property consisting of the First Lien Debt to the Company solely in exchange for stock in the Company having an aggregate fuir market value as of the date of the Exchange equal to the amounts paid by Cetus for the First Lien Debt in the recent acquisitions thereof by Cetus pursuant to purchase from unrelated third parties for cash. The First Lien Debt and any stock of Sub I-A and Sub I-B actually or constructively issued in exchange therefor shall be treated as having the same aggregate fair market value for all purposes of the Contribution Agreement.Consideration; and (bii) As a result payment of all accrued and unpaid interest on the Existing Second Lien Debt Cancellation, IBP Holdings, LLC shall be treated as having recognized debt cancellation income (“Second Lien COD”) Notes through the Closing Date in an amount equal to the amount of Second Lien Debt less $11,987,498, which was recognized in 2010, all of which Second Lien COD shall be allocated entirely to the members of IBP Holdings, LLC as of immediately before the Second Lien Debt Cancellationcash. (c) As a result Each holder of Existing Second Lien Notes Claims that validly tenders or exchanges its Existing Second Lien Notes Claims in the Exchange Offer on or before the tenth (10th) Business Day (subject to extension with the prior written consent of the First Lien Debt Exchange, IBP Holdings, LLC shall be treated Requisite Supporting Noteholders or as having recognized debt cancellation income pursuant to Section 108(e)(8otherwise required by Applicable Law) following the commencement of the Code with respect to the First Lien Debt Exchange Offer (the “First Lien CODEarly Exchange Deadline”) in an amount equal in the aggregate shall be entitled to the amount by which the adjusted issue price of the First Lien Debt at the time of the First Lien Debt Early Exchange exceeded the aggregate of all amounts paid by Cetus for the First Lien Debt, which the parties acknowledge and agree is the fair market value of the membership interests in IBP Holdings, LLC issued to Sub I-A and Sub I-B pursuant to the First Lien Debt Exchange. Pursuant to the second sentence of Section 108(e)(8) of the Code and the Restated LLC Agreement, the First Lien Debt COD will be allocated entirely to the members of IBP Holdings, LLC other than Sub I-A and Sub I-B.Premium. (d) The “closing conversion price of the booksNew Second Lien Convertible Notes shall be $3.00 per share (the “Conversion Price”). (e) Each holder of Existing Second Lien Notes that elects to exchange Existing Second Lien Notes in the Exchange Offer shall exchange all Existing Second Lien Notes held by it, and shall include in its letter of transmittal in connection with the Exchange Offer a certification that such holder has exchanged all Existing Second Lien Notes held by it. All Existing Second Lien Notes exchanged in connection with the Exchange Offer shall be retired at Closing. (f) The Company shall effect the Exchange Offer (i) pursuant to a registration statement filed under the Securities Act (together with any documents incorporated by reference therein and all exhibits thereto, the “Exchange Offer Registration Statement”) and the related prospectus (the “Exchange Offer Prospectus”) and, together with the Exchange Offer Registration Statement, the letter of transmittal and all amendments and supplements thereto and any documents or information incorporated by reference therein, the “Exchange Offer Documents”) and in compliance with the applicable provisions thereof, (ii) in compliance with the applicable provisions of the Securities Act and the Exchange Act (including Rule 10b-5, Section 14(e) and Regulation 14E promulgated thereunder) and (iii) in a manner that is in form and substance reasonably acceptable to the Requisite Supporting Noteholders. (g) Simultaneous with the commencement of the Exchange Offer, the Company agrees to seek to obtain consents (the “Consents”) from each holder of Existing Second Lien Notes for the amendment of the Existing Second Lien Notes Indenture so as to eliminate the covenants, defaults, events of defaults and other provisions set forth on Exhibit D. Holders of Existing Second Lien Notes shall be required to provide Consents as a condition to participating in the Exchange Offer. The Company shall not pay any fee or other consideration to the holders of Existing Second Lien Notes in connection with the Consents. Any executed Consents shall become effective only upon the Closing occurring. (h) The Company shall, in accordance with Applicable Law and its Organizational Documents, cause the Special Meeting to be held for the purpose of obtaining the following stockholder approvals: (i) the Restructuring Transactions, (ii) an amendment to ION’s Restated Certificate of Incorporation to increase the number of authorized shares, (iii) an amendment to ION’s Third Amended and Restated Long-Term Incentive Plan to increase the number of shares available for issuance as incentive awards thereafter, in an amount no greater than 10% of ION’s Common Stock outstanding after giving effect to the Restructuring Transactions on a fully diluted basis less any shares that vest under ION’s Third Amended and Restated Long-Term Incentive Plan as a result of the Restructuring Transactions and (iv) the Restructuring Transactions required by Rule 312 of the NYSE Listed Company Manual (collectively, the “Stockholder Approvals”). (i) All holders of Common Stock shall be granted the right to participate in the Rights Offering, which shall be effected pursuant to a registration statement filed under the Securities Act (together with any documents incorporated by reference therein and all exhibits thereto, the “Rights Offering Registration Statement,” method will and together with the Exchange Offer Registration Statement, the “Registration Statements”) and the related prospectus (the “Rights Offering Prospectus,” and together with the Exchange Offer Prospectus, the “Prospectuses”). The Rights Offering is expected to yield proceeds of at least $20 million and up to $50 million. The rights may be utilized exercised in exchange for either New Second Lien Convertible Notes or Common Stock. The Company shall use reasonable best efforts to allocate tax items obtain a commitment to backstop the Rights Offering. The form of IBP Holdingsbackstop commitment (the “Backstop Agreement”) may offer a backstop commitment fee in an aggregate amount no more than five (5) percent (%) of the aggregate amount of new money commitments received under the Backstop Commitment, LLC and IBP Holdings II payable in the form of either (i) Common Stock or (ii) New Second Lien Convertible Notes issued at par. The Rights Offering shall be registered with the SEC. (j) At the Closing, the Company shall issue the Series A Preferred Stock to periods before and after the New Second Lien Convertible Notes Indenture Trustee on behalf of the holders of the New Second Lien Convertible Notes. (k) At the Closing, the Company shall reserve for issuance an amount of Common Stock sufficient to allow for the exercise of all of the New Second Lien Convertible Notes that are immediately exercisable at the Closing. (l) At the Closing, the Company and each Supporting Noteholder shall execute a release agreement in favor of the other (the “Release”), which release shall be substantially in the form attached hereto as Exhibit E. (m) Each of the Restructuring Documents shall be consistent in all respects with, and shall contain, the terms and conditions set forth in this Agreement and shall otherwise be in form and substance reasonably acceptable to the Company and the Requisite Supporting Noteholders.

Restructuring Transactions. Except (a) On or prior to the Effective Date (or as soon as practicable thereafter), the following transactions shall occur in the following order, and the Debtors or Reorganized Debtors (as applicable) may take all actions necessary or appropriate to effectuate such transactions: (i) After entry of the Confirmation Order but prior to the Effective Date, and in anticipation of the Permian Corp. Asset Acquisition, the Backstop Parties pursuant to the Backstop Commitment Agreement shall (A) form New Permian Corp., (B) cause New Permian Corp. to conduct the Rights Offering, and (C) cause New Permian Corp. to enter into the Exchange Agreement with BBEP pursuant to which New Permian Corp. shall agree to acquire all of the New Permian LLC Equity on and subject to the occurrence of the Effective Date in consideration for conducting the Rights Offering, $775 million (less the amount of the Minimum Cash Balance), an amount of New Permian Corp. Shares necessary to satisfy distributions pursuant to Sections 4.5(c) and 4.6 with respect to Allowed Claims as of the Effective Date, and the assumption of the obligation to issue New Permian Corp. Shares with respect to, or on account of, Disputed General Unsecured Claims as to which the holder elected to receive New Permian Corp. Shares. (ii) On the Effective Date and in accordance with the prior written consent of Cetusprovisions hereof, the Company and its current and future subsidiaries (including the Subsidiaries) shall prepare and file all Tax Returns consistent with (and, other than as required pursuant to a final determination within the meaning of Section l313(a) of the Code or corresponding provisions of state, local or foreign Law, shall not take a position inconsistent with) the First Lien Debt Contribution Backstop Commitment Agreement and the following:Rights Offering, New Permian Corp. shall close the Rights Offering. Immediately thereafter, the Rights Offering and Minimum Allocation Rights Proceeds shall be released to New Permian Corp. and New Permian Corp. shall issue New Permian Corp. Shares to those Eligible Offerees that have validly exercised the Subscription Rights and to the Backstop Parties, as applicable, including in respect of the Minimum Allocation Rights and the Put Option Premium. Concurrent therewith (but not prior to), New Permian Corp. shall also issue, and on behalf of BBEP distribute, New Permian Corp. Shares pursuant to Sections 4.5(c) and 4.6, as applicable, with respect to Allowed Claims as of the Effective Date (other than any shares to be held back in respect of Disputed General Unsecured Claims in accordance with Article VII). (aiii) The On the Effective Date, (A) BBEP shall contribute the Legacy Contributed Assets to LegacyCo in exchange for LegacyCo Units representing all of the equity capital of LegacyCo pursuant to the LegacyCo Contribution Agreement (the “Legacy Asset Transfer”), and (B) BBEP shall contribute the Permian Assets to New Permian LLC in exchange for all of the New Permian LLC Equity pursuant to in the Permian Contribution Agreement (the “Permian Asset Transfer”). Such transfers shall be accompanied by the assumption by LegacyCo or New Permian LLC, as applicable, of certain liabilities and obligations as provided in the LegacyCo Contribution Agreement or Permian Contribution Agreement, as applicable, this Plan or the Confirmation Order, or as otherwise agreed between BBEP and LegacyCo or New Permian LLC, as applicable. Immediately after the Legacy Asset Transfer and the Permian Asset Transfer, BBEP shall be the sole member of LegacyCo and New Permian LLC. Each of LegacyCo and New Permian LLC shall be disregarded as an entity separate from BBEP for U.S. federal income tax purposes at all times on or before the Effective Date (including immediately after the Legacy Asset Transfer and the Permian Asset Transfer), unless, as to LegacyCo, the Requisite Consenting Second Lien Creditors determine (in their sole discretion) that LegacyCo elect to be treated as a corporation for U.S. federal income tax purposes (the “Corporation Election”). (iv) On the Effective Date, BBEP shall simultaneously (A)(i) distribute 92.5% of the LegacyCo Units received in consideration for the Legacy Asset Transfer to holders of Allowed Secured Notes Claims in satisfaction and discharge of their Claims as provided in Section 4.4(b), and (ii) transfer 7.5% of the LegacyCo Units received in consideration for the Legacy Asset Transfer to New Permian Corp. pursuant to the Exchange Agreement (the “LegacyCo Distribution and Transfer”), and (B) transfer to New Permian Corp. pursuant to the Exchange Agreement all of the New Permian LLC Equity received in consideration for the Permian Asset Transfer. Pursuant to the Exchange Agreement, and in consideration for the foregoing transfers to New Permian Corp., New Permian Corp. shall pay to BBEP $775 million (less the amount of the Minimum Cash Balance), an amount of New Permian Corp. Shares necessary to satisfy distributions pursuant to Sections 4.5(c) and 4.6 with respect to Allowed Claims as of the Effective Date, and the assumption of the obligation to issue New Permian Corp. Shares with respect to, or on account of, Disputed General Unsecured Claims as to which the holder elected to receive New Permian Corp. Shares (the “Permian Corp. Asset Acquisition”). Upon formation, and at the time of the Legacy Asset Transfer, LegacyCo shall be treated as a taxable disregarded entity for U.S. federal income tax purposes, such that BBEP will still be regarded prior to the LegacyCo Distribution and Transfer as owning the LegacyCo Contributed Assets, unless the Requisite Consenting Second Lien Creditors effect the Corporation Election. Accordingly, for U.S. federal income tax purposes, the Debtors, LegacyCo, all holders of Allowed Secured Notes Claims and New Permian Corp. shall (absent the Corporation Election) treat the LegacyCo Distribution and Transfer as (i) a distribution and transfer of property consisting the Legacy Contributed Assets, subject to certain liabilities and obligations, in a taxable exchange to the holders of Allowed Secured Notes Claims and New Permian Corp., followed by (ii) the contribution of the First Lien Debt Legacy Contributed Assets, subject to such liabilities and obligations, by the holders of Allowed Secured Notes Claims and New Permian Corp. to LegacyCo with LegacyCo being treated as a newly formed partnership for U.S. federal income tax purposes, unless otherwise required pursuant to a “final determination” to the Company solely in exchange for stock in contrary within the Company having an aggregate fuir market value as meaning of section 1313(a) of the date Tax Code. Upon formation, and at the time of the Exchange equal to the amounts paid by Cetus for the First Lien Debt in the recent acquisitions thereof by Cetus pursuant to purchase from unrelated third parties for cash. The First Lien Debt and any stock of Sub I-A and Sub I-B actually or constructively issued in exchange therefor Permian Corp. Asset Acquisition, New Permian LLC shall be treated as having a disregarded entity for U.S. federal income tax purposes, such that BBEP will still be regarded prior to the same aggregate fair market value Permian Corp. Asset Acquisition as owning the Permian Assets (which will be transferred to New Permian LLC pursuant to the Permian Contribution Agreement). Accordingly, for all purposes U.S. federal income tax purposes, the Debtors, New Permian LLC and New Permian Corp. shall treat the Permian Corp. Asset Acquisition as a taxable purchase of the Contribution Agreementunderlying Permian Assets unless otherwise required pursuant to a “final determination” to the contrary within the meaning of section 1313(a) of the Tax Code. (v) BBEP shall use the Cash consideration received pursuant to the Exchange Agreement (together with any Cash otherwise available) to satisfy any Cash distributions and other payments to be made on the Effective Date pursuant to or in connection with the Plan and Confirmation Order. (b) As a result On or after the Effective Date, the Reorganized Debtors may take all actions consistent with this Plan as may be necessary or appropriate to effect any transaction described in, approved by, contemplated by, or necessary to effectuate the Restructuring Transactions under and in connection with this Plan with the consent of the Requisite Consenting Second Lien Debt Cancellation, IBP Holdings, LLC shall be treated as having recognized debt cancellation income (“Second Lien COD”) in an amount equal to the amount of Second Lien Debt less $11,987,498, which was recognized in 2010, all of which Second Lien COD shall be allocated entirely to the members of IBP Holdings, LLC as of immediately before the Second Lien Debt CancellationCreditors and Requisite Commitment Parties. (c) As a result of the First Lien Debt Exchange, IBP Holdings, LLC shall be treated as having recognized debt cancellation income pursuant to Section 108(e)(8) of the Code with respect to the First Lien Debt (the “First Lien COD”) in an amount equal in the aggregate to the amount by which the adjusted issue price of the First Lien Debt at the time of the First Lien Debt Exchange exceeded the aggregate of all amounts paid by Cetus for the First Lien Debt, which the parties acknowledge and agree is the fair market value of the membership interests in IBP Holdings, LLC issued to Sub I-A and Sub I-B pursuant to the First Lien Debt Exchange. Pursuant to the second sentence of Section 108(e)(8) of the Code and the Restated LLC Agreement, the First Lien Debt COD will be allocated entirely to the members of IBP Holdings, LLC other than Sub I-A and Sub I-B. (d) The “closing of the books” method will be utilized to allocate tax items of IBP Holdings, LLC and IBP Holdings II to periods before and after the Closing.

Restructuring Transactions. Except (a) Within one (1) Business Day following the Registration Statements being declared effective by the SEC, the Company shall commence the Exchange Offer. The Exchange Offer shall remain open for twenty (20) Business Days (as such term is defined in the Exchange Act), subject to extension with the prior written consent of Cetus, the Company and its current and future subsidiaries (including the Subsidiaries) shall prepare and file all Tax Returns consistent with (and, other than Requisite Supporting Noteholders or as otherwise required pursuant to a final determination within the meaning of Section l313(a) of the Code or corresponding provisions of state, local or foreign by Applicable Law, provided, however, that ION shall not take a position inconsistent withhave the unilateral right to extend the Exchange Offer one time for up to ten (10) Business Days. (b) The Exchange Offer shall provide each holder of Existing Second Lien Notes Claims with the First right to exchange each $1,000 of its Existing Second Lien Debt Contribution Agreement and Notes for the following: (ai) The Exchange shall be treated as a taxable transfer of property consisting of the First Lien Debt to the Company solely in exchange for stock in the Company having an aggregate fuir market value as of the date of the Exchange equal to the amounts paid by Cetus for the First Lien Debt in the recent acquisitions thereof by Cetus pursuant to purchase from unrelated third parties for cash. The First Lien Debt and any stock of Sub I-A and Sub I-B actually or constructively issued in exchange therefor shall be treated as having the same aggregate fair market value for all purposes of the Contribution Agreement.Consideration; and (bii) As a result payment of all accrued and unpaid interest on the Existing Second Lien Debt Cancellation, IBP Holdings, LLC shall be treated as having recognized debt cancellation income (“Second Lien COD”) Notes through the Closing Date in an amount equal to the amount of Second Lien Debt less $11,987,498, which was recognized in 2010, all of which Second Lien COD shall be allocated entirely to the members of IBP Holdings, LLC as of immediately before the Second Lien Debt Cancellationcash. (c) As The conversion price of the New Second Lien Convertible Notes shall be a twenty-five (25) percent premium to the Deal Price but shall be no lower than $1.80 per share and no higher than $3.00 per share (the “Conversion Price”). (d) Each holder of Existing Second Lien Notes that elects to exchange Existing Second Lien Notes in the Exchange Offer shall exchange all Existing Second Lien Notes held by it, and shall include in its letter of transmittal in connection with the Exchange Offer a certification that such holder has exchanged all Existing Second Lien Notes held by it. All Existing Second Lien Notes exchanged in connection with the Exchange Offer shall be retired at Closing. (e) The Company shall effect the Exchange Offer (i) pursuant to a registration statement filed under the Securities Act (together with any documents incorporated by reference therein and all exhibits thereto, the “Exchange Offer Registration Statement”) and the related prospectus (the “Exchange Offer Prospectus”) and, together with the Exchange Offer Registration Statement, the letter of transmittal and all amendments and supplements thereto and any documents or information incorporated by reference therein, the “Exchange Offer Documents”) and in compliance with the applicable provisions thereof, (ii) in compliance with the applicable provisions of the Securities Act and the Exchange Act (including Rule 10b-5, Section 14(e) and Regulation 14E promulgated thereunder) and (iii) in a manner that is in form and substance reasonably acceptable to the Requisite Supporting Noteholders. (f) Simultaneous with the commencement of the Exchange Offer, the Company agrees to seek to obtain consents (the “Consents”) from each holder of Existing Second Lien Notes for the amendment of the Existing Second Lien Notes Indenture so as to eliminate the covenants, defaults, events of defaults and other provisions set forth on Exhibit D. Holders of Existing Second Lien Notes shall be required to provide Consents as a condition to participating in the Exchange Offer. The Company shall not pay any fee or other consideration to the holders of Existing Second Lien Notes in connection with the Consents. Any executed Consents shall become effective only upon the Closing occurring. (g) The Company shall, in accordance with Applicable Law and its Organizational Documents, cause the Special Meeting to be held for the purpose of obtaining the following stockholder approvals: (i) the Restructuring Transactions, (ii) an amendment to ION’s Restated Certificate of Incorporation to increase the number of authorized shares, (iii) an amendment to ION’s Third Amended and Restated Long-Term Incentive Plan to increase the number of shares available for issuance as incentive awards thereafter, in an amount no greater than 10% of ION’s Common Stock outstanding after giving effect to the Restructuring Transactions on a fully diluted basis less any shares that vest under ION’s Third Amended and Restated Long-Term Incentive Plan as a result of the First Lien Debt ExchangeRestructuring Transactions and (iv) the Restructuring Transactions required by Rule 312 of the NYSE Listed Company Manual (collectively, IBP Holdings, LLC the “Stockholder Approvals”). (h) All holders of Common Stock shall be treated as having recognized debt cancellation income granted the right to participate in the Rights Offering, which shall be effected pursuant to Section 108(e)(8a registration statement filed under the Securities Act (together with any documents incorporated by reference therein and all exhibits thereto, the “Rights Offering Registration Statement,” and together with the Exchange Offer Registration Statement, the “Registration Statements”) and the related prospectus (the “Rights Offering Prospectus,” and together with the Exchange Offer Prospectus, the “Prospectuses”). The Rights Offering is expected to yield proceeds of at least $20 million and up to $50 million. The rights may be exercised in exchange for either New Second Lien Convertible Notes or Common Stock. The Company shall use reasonable best efforts to obtain a commitment to backstop the Rights Offering. The form of backstop commitment (the “Backstop Agreement”) may offer a backstop commitment fee in an aggregate amount no more than five (5) percent (%) of the Code aggregate amount of new money commitments received under the Backstop Commitment, payable in the form of either (i) Common Stock or (ii) New Second Lien Convertible Notes issued at par. The Rights Offering shall be registered with respect the SEC. (i) At the Closing, the Company shall issue the Series A Preferred Stock to the First New Second Lien Debt Convertible Notes Indenture Trustee on behalf of the holders of the New Second Lien Convertible Notes. (j) At the Closing, the Company shall reserve for issuance an amount of Common Stock sufficient to allow for the exercise of all of the New Second Lien Convertible Notes that are immediately exercisable at the Closing. (k) At the Closing, the Company and each Supporting Noteholder shall execute a release agreement in favor of the other (the “First Lien CODRelease”) in an amount equal ), which release shall be substantially in the aggregate form attached hereto as Exhibit E. (l) Each of the Restructuring Documents shall be consistent in all respects with, and shall contain, the terms and conditions set forth in this Agreement and shall otherwise be in form and substance reasonably acceptable to the amount by which the adjusted issue price of the First Lien Debt at the time of the First Lien Debt Exchange exceeded the aggregate of all amounts paid by Cetus for the First Lien Debt, which the parties acknowledge and agree is the fair market value of the membership interests in IBP Holdings, LLC issued to Sub I-A and Sub I-B pursuant to the First Lien Debt Exchange. Pursuant to the second sentence of Section 108(e)(8) of the Code Company and the Restated LLC Agreement, the First Lien Debt COD will be allocated entirely to the members of IBP Holdings, LLC other than Sub I-A and Sub I-B. (d) The “closing of the books” method will be utilized to allocate tax items of IBP Holdings, LLC and IBP Holdings II to periods before and after the ClosingRequisite Supporting Noteholders.

Restructuring Transactions. Except with the prior written consent of CetusThe Borrower, the Company and its current and future subsidiaries (including the Subsidiaries) shall prepare and file all Tax Returns consistent with (andeach Lender, other than as required pursuant to a final determination within the meaning of Section l313(a) of the Code or corresponding provisions of state, local or foreign Law, shall not take a position inconsistent with) the First Lien Debt Contribution Agreement each Exiting Lender and the followingAgent agree that on the Restructuring Date the following transactions shall be deemed to occur automatically, without further action by any party hereto: (i) The Existing Credit Facility shall be replaced by the Restated Credit Facility and the Existing Credit Agreement shall be deemed to be amended and restated in its entirety in the form of this Agreement; (ii) Each Exiting Lender shall cease to be a party hereto and shall have no further obligation to extend credit hereunder; (iii) All Existing Obligations, to the extent not paid on the Restructuring Date, shall be renewed, extended and restated hereunder and shall continue to be outstanding hereunder and, as such, shall constitute Obligations hereunder, and nothing herein shall be construed to deem such Existing Obligations paid. Each Existing Lender shall, promptly after receipt of (a) The Exchange shall be treated as a taxable transfer the payment in immediately available funds of property consisting of the First Lien Debt all amounts owing to the Company solely in exchange for stock in the Company having an aggregate fuir market value as of the date of the Exchange equal to the amounts paid by Cetus for the First Lien Debt in the recent acquisitions thereof by Cetus such Existing Lender pursuant to purchase from unrelated third parties for cash. The First Lien Debt Section 4.1(xi), and any stock of Sub I-A and Sub I-B actually or constructively issued in exchange therefor shall be treated as having the same aggregate fair market value for all purposes of the Contribution Agreement. (b) As a result its Notes hereunder (in the case of Lenders only), return to the Borrower the promissory note (marked "Superseded" or, in the case of Exiting Lenders, "Cancelled") received by it in connection with the Existing Credit Agreement. The Borrower, each Lender, each Exiting Lender and the Agent agree that (a) the restructuring transactions provided in the foregoing clauses (i), (ii) and (iii) shall not be effective until the conditions set forth in Section 4.1 are satisfied and the initial Advance shall have been made hereunder; (b) all terms and conditions of the Second Lien Debt Cancellation, IBP Holdings, LLC Existing Credit Agreement which are amended and restated by this Agreement shall be treated as having recognized debt cancellation income (“Second Lien COD”) in an amount equal to the amount of Second Lien Debt less $11,987,498, which was recognized in 2010, all of which Second Lien COD shall be allocated entirely to the members of IBP Holdings, LLC as of immediately before the Second Lien Debt Cancellation. remain effective until such amendment and restatement becomes effective hereunder; (c) As a result the representations, warranties and covenants set forth herein shall become effective concurrently with the making of the First Lien Debt Exchange, IBP Holdings, LLC shall be treated as having recognized debt cancellation income pursuant to Section 108(e)(8) of the Code with respect to the First Lien Debt (the “First Lien COD”) in an amount equal in the aggregate to the amount by which the adjusted issue price of the First Lien Debt at the time of the First Lien Debt Exchange exceeded the aggregate of all amounts paid by Cetus for the First Lien Debt, which the parties acknowledge initial Advance hereunder; and agree is the fair market value of the membership interests in IBP Holdings, LLC issued to Sub I-A and Sub I-B pursuant to the First Lien Debt Exchange. Pursuant to the second sentence of Section 108(e)(8) of the Code and the Restated LLC Agreement, the First Lien Debt COD will be allocated entirely to the members of IBP Holdings, LLC other than Sub I-A and Sub I-B. (d) The “closing this Agreement (other than Section 9.7) shall terminate if the Restructuring Date shall not have occurred on or prior to June 30, 1996. Each Exiting Lender's execution hereof shall be deemed to evidence only its agreement with this Section 9.17 and its consent, solely in its capacity as an Existing Lender under the Existing Credit Agreement, to the amendments of the books” method will be utilized to allocate tax items of IBP Holdings, LLC and IBP Holdings II to periods before and after the ClosingExisting Credit Agreement embodied herein.