2006 Ruling 2006-0171431R3 - Innovative Instrument

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the CRA.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle de l'ARC.

Principal Issues:

1. Whether the XXXXXXXXXX note constitutes borrowed money to ACO for the purpose of paragraph 20(1)(c).

2. Whether subsection 104(7.1) will apply to deny a deduction to the Trust under paragraph 104(6)(b) of amounts payable to its unit holders.

Position:

1. Yes.

2. No.

Reasons:

1. In previous rulings, we concluded that deductibility under paragraph 20(1)(c) is dependent upon there being a borrower and lender relationship between the parties to the XXXXXXXXXX note. There is a good argument that a loan exists until such time as a mandatory conversion event occurs.

2. The existence of the voting rights attached to the Special Trust Securities is not intended to give ACO a percentage interest in the Trust's property in excess of ACO's income interest in the Trust.

XXXXXXXXXX 							2006-017143

XXXXXXXXXX, 2006

Dear XXXXXXXXXX:

Re: Advance Income Tax Ruling Request
XXXXXXXXXX
XXXXXXXXXX (to be established)____________

This is in reply to your letter of XXXXXXXXXX in which you requested an advance income tax ruling on behalf of the above named taxpayers. We also acknowledge the information provided in subsequent correspondence and during our various telephone conversations in connection with your request (XXXXXXXXXX).

We understand that, to the best of your knowledge and that of the taxpayers involved, none of the issues involved in the Ruling request:

(i) is in an earlier return of the taxpayers or a related person;

(ii) is being considered by a tax services office or tax centre in connection with a previously filed tax return of the taxpayers or a related person;

(iii) is under objection by the taxpayers or a related person;

(iv) is before the courts or, if a judgment has been issued, the time limit for appeal to a higher court has not expired; or

(v) is the subject of a ruling previously issued to the taxpayers by the Directorate.

Unless otherwise stated, all references to a statute are to the Income Tax Act R.S.C. 1985, 5th Supplement, c.1, as amended, (the "Act") and all terms and conditions used herein that are defined in the Act have the meaning given in such definition unless otherwise indicated.

Our understanding of the relevant definitions, the facts, proposed transactions and the purpose of the proposed transactions is as follows:

Definitions

"ACO" means XXXXXXXXXX as described more fully in 1 below.

"ACO Common Shares" means the common shares of ACO.

"ACO XXXXXXXXXX Note" means the XXXXXXXXXX Note to be issued to the Trust and described in 24 below.

"Automatic Exchange" has the meaning set out in 17 below.

XXXXXXXXXX.

XXXXXXXXXX.

"Business Day" means a day on which the trustee of the Trust is open for business in XXXXXXXXXX.

"Closing Date" means the date on which the Series A Securities will be issued.

"CRA" means the Canada Revenue Agency.

XXXXXXXXXX.

"XXXXXXXXXX Note Redemption Price" means an amount equal to $XXXXXXXXXX plus any accrued and unpaid interest thereon to, but excluding, the date of redemption per $XXXXXXXXXX principal amount of the ACO XXXXXXXXXX Note to be redeemed.

"Distribution Date" means the XXXXXXXXXX.

"Distribution Diversion Date" means the Distribution Date in respect of which a Distribution Diversion Event has occurred.

"Distribution Diversion Event", in respect of a particular Distribution Date, means XXXXXXXXXX.

"Distribution Period" means the period of time commencing on a Distribution Date and ending on the day preceding the next Distribution Date.

"Dividend Declaration Month" means a month in which ACO would normally declare a dividend, or would do so in absence of ACO's undertaking not to do so in the Share Exchange Agreement.

"Early Redemption Price" means the greater of the Redemption Price and the XXXXXXXXXX.

"Eligible Investments" means the Funding Note or any property, including money, securities, amounts receivable from third parties, mortgages, an interest in an Eligible Investment, and any debt obligation that is a qualified investment under the Act for plans and funds described in subsection 204.4(1) (except where the qualification of such property contains conditions regarding the annuitant, the beneficiary, the employer or the subscriber under the plan or fund unless the Trust is satisfied that such conditions are satisfied), except that the ACO XXXXXXXXXX Note will not be repaid with or converted into or exchanged for debt of ACO or any person related to ACO within the meaning of the Act and, following the maturity of the ACO XXXXXXXXXX Note, Eligible Investments will not include debt of ACO or of any person related to ACO within the meaning of the Act.

"Face Value" has the meaning set out in 7 below.

"Funding Note" has the meaning set out in 25 below.

XXXXXXXXXX.

"Holder Exchange Right" has the meaning set out in 14 below.

XXXXXXXXXX.

XXXXXXXXXX.

XXXXXXXXXX.

"principal amount" has the meaning assigned by subsection 248(1).

"public corporation" has the meaning assigned by subsection 89(1).

"Redemption Price" means $XXXXXXXXXX per XXXXXXXXXX, together with any accrued and unpaid XXXXXXXXXX to, but excluding, the date of redemption.

"Regular Distribution Date" means a Distribution Date other than a Distribution Diversion Date.

XXXXXXXXXX.

"XXXXXXXXXX" means the Trust Capital Securities, XXXXXXXXXX, as described in 7 and 8 below.

XXXXXXXXXX.

"Series XXXXXXXXXX Preferred Shares" means non-cumulative first preferred shares, Series XXXXXXXXXX of ACO, as described more fully in 37 below.

"Series XXXXXXXXXX Preferred Shares" means non-cumulative first preferred shares, Series XXXXXXXXXX of ACO, as described more fully in 30 and following below.

"Share Exchange Agreement" means an agreement between ACO, the Trust and XXXXXXXXXX, as trustee for the holders of XXXXXXXXXX.

"Special Trust Securities" mean voting units of beneficial interest in the Trust, issuable in series, as described more fully in 5 below, which are owned by ACO.

XXXXXXXXXX.

"Surrender Price" has the meaning set out in 14 below.

"XXXXXXXXXX Event" means XXXXXXXXXX.

"taxable Canadian corporation" has the meaning assigned by subsection 89(1).

"Trust" means XXXXXXXXXX, a trust to be established before Closing Date pursuant to the laws of XXXXXXXXXX by XXXXXXXXXX, as described more fully in 4 and following below.

"Trust Capital Securities" mean non-voting units of beneficial interest in the Trust, issuable in series, described in 5 below, which are offered for investment to the public.

XXXXXXXXXX.

Facts

1) ACO is XXXXXXXXXX a taxable Canadian corporation and a public corporation.

2) XXXXXXXXXX. Its tax services office is the XXXXXXXXXX TSO and its tax centre is the XXXXXXXXXX Tax Centre.

3) The authorized capital of ACO consists of an unlimited number of ACO Common Shares, an unlimited number of first preferred shares, issuable for a maximum aggregate consideration of $XXXXXXXXXX or the equivalent thereof in foreign currencies, and XXXXXXXXXX second preferred shares, issuable for a maximum aggregate consideration of $XXXXXXXXXX or the equivalent thereof in foreign currencies. ACO Common Shares and first preferred shares of ACO are currently issued and outstanding. The ACO Common Shares are listed on the XXXXXXXXXX and are widely held by members of the public. In connection with the Proposed Transactions, the Series XXXXXXXXXX Preferred Shares and the Series XXXXXXXXXX Preferred Shares have been or will be authorized.

Proposed Transactions

4) It is proposed that the Trust be established under the laws of XXXXXXXXXX by way of declaration of trust (the "Declaration of Trust") before Closing Date. The Trust will be resident in Canada for purposes of the Act. The trustee of the Trust will be XXXXXXXXXX, a taxable Canadian corporation resident in Canada. The capital of the Trust will be represented by units of beneficial interest in the Trust.

5) The Trust proposes to issue two classes of units, Trust Capital Securities and Special Trust Securities. The Special Trust Securities will represent not more than XXXXXXXXXX % of the total capital of the Trust represented by units (determined by fair market value and without regard to any voting rights attaching to the units of the Trust), will be voting, subscribed for with cash and will be owned at all material times by ACO. ACO will subscribe for XXXXXXXXXX units of Special Trust Securities for an aggregate price of $XXXXXXXXXX.

6) The Trust Capital Securities will account for the balance of the capital of the Trust represented by units. The Trust Capital Securities will be non-voting except in limited circumstances involving changes to their terms and conditions, and will be issued to the public.

7) It is proposed that XXXXXXXXXX be offered for investment to the public in Canada by way of prospectus for an issue price of $XXXXXXXXXX per unit ("Face Value"). The expected aggregate amount of this offering is between $XXXXXXXXXX and $XXXXXXXXXX.

8) XXXXXXXXXX¹ on each Regular Distribution Date up to and including XXXXXXXXXX, representing an XXXXXXXXXX % of the initial issue price. If the Closing Date is a date other than XXXXXXXXXX, the initial XXXXXXXXXX will be adjusted to reflect an XXXXXXXXXX% for the period from the Closing Date to XXXXXXXXXX . The XXXXXXXXXX² for the Distribution Dates after XXXXXXXXXX will be an amount equal to the result obtained by multiplying $XXXXXXXXXX by one-half of the sum of the Bankers' Acceptance Rate in effect during the Distribution Period immediately preceding the relevant Distribution Date plus XXXXXXXXXX%. The XXXXXXXXXX is non-cumulative and will be payable only to holders of XXXXXXXXXX only to the extent that the Trust earns XXXXXXXXXX.

9) The XXXXXXXXXX will not be payable by the Trust to holders of the XXXXXXXXXX in the event a Distribution Diversion Event occurs or is continuing. In such circumstances, all of the XXXXXXXXXX, if any, of the Trust will be payable by the Trust to, and distributed to, the holder of the Special Trust Securities. Once a Distribution Diversion Event no longer exists, the XXXXXXXXXX will once again be payable by the Trust to, and distributed to, holders of the XXXXXXXXXX on the next Regular Distribution Date, as described above.

10) It is intended that the Trust qualify as a unit trust as described in paragraph 108(2)(a) and a registered investment under the Act.

11) The property of the Trust from time to time will be limited to the ACO XXXXXXXXXX Note (and any Series XXXXXXXXXX Preferred Shares into which the ACO XXXXXXXXXX Note is converted), any additional XXXXXXXXXX notes of ACO issued to the Trust in connection with future offerings of the Trust Capital Securities, cash and amounts receivable from third parties, and other Eligible Investments.

12) Except upon the occurrence of a XXXXXXXXXX Event or XXXXXXXXXX Event, the XXXXXXXXXX will not be redeemable by the Trust prior to XXXXXXXXXX . On that date and on any Distribution Date thereafter, XXXXXXXXXX, and on XXXXXXXXXX prior notice to holders, the Trust may at its option redeem, in whole or in part, the then outstanding XXXXXXXXXX by (i) the payment of an amount in cash equal to the Early Redemption Price, in the case of a redemption prior to XXXXXXXXXX, and (ii) the payment of an amount in cash equal to the Redemption Price, in the case of a redemption on or after XXXXXXXXXX.

13) XXXXXXXXXX are redeemable at the option of the Trust at any time upon the occurrence of a XXXXXXXXXX Event or a XXXXXXXXXX Event, XXXXXXXXXX, and on XXXXXXXXXX prior written notice. Where a XXXXXXXXXX Event or a XXXXXXXXXX Event occurs prior to XXXXXXXXXX , the Trust may redeem all, but not less than all, of XXXXXXXXXX for an amount of cash equal to the Early Redemption Price. Where a XXXXXXXXXX Event or a XXXXXXXXXX Event occurs on or after XXXXXXXXXX, the Trust may redeem all, but not less than all, of XXXXXXXXXX for an amount of cash equal to the Redemption Price.

14) Holders of XXXXXXXXXX will have the right (the "Holder Exchange Right") at any time, XXXXXXXXXX prior written notice to the Trust and ACO, to surrender all or part of their XXXXXXXXXX to the Trust at a price (the "Surrender Price"), for each XXXXXXXXXX, equal to XXXXXXXXXX Series XXXXXXXXXX Preferred Shares issued for $XXXXXXXXXX each.

15) The Trust will have the right, at any time before such surrender is completed, to arrange for a substituted purchaser to purchase XXXXXXXXXX tendered for surrender so long as the holder of the XXXXXXXXXX so tendered has not withheld consent to the purchase of its XXXXXXXXXX. As the XXXXXXXXXX will not be listed on any public securities exchange, if a substituted purchaser is found, the price to be paid to the holders of the XXXXXXXXXX so tendered is intended to be a fair equivalent in cash of the Surrender Price and not less XXXXXXXXXX.

16) The surrender of XXXXXXXXXX by a holder thereof to the Trust for Series XXXXXXXXXX Preferred Shares pursuant to the Holder Exchange Right, as described in 15 above, will be effected as described hereafter. The Trust will:

a) convert a corresponding principal amount of the ACO XXXXXXXXXX Note held by it into Series XXXXXXXXXX Preferred Shares in accordance with the terms thereof as set out below; and

b) redeem each such XXXXXXXXXX in consideration for the transfer to the holder thereof by the Trust of the requisite number of Series XXXXXXXXXX Preferred Shares.

17) As required XXXXXXXXXX , each XXXXXXXXXX will be exchanged automatically (the "Automatic Exchange"), without the consent of the holder, for XXXXXXXXXX Series XXXXXXXXXX Preferred Shares upon the occurrence of any one of the following events (each a "XXXXXXXXXX Event"):

a) XXXXXXXXXX;

b) XXXXXXXXXX;

c) XXXXXXXXXX;

d) XXXXXXXXXX or

e) XXXXXXXXXX;

18) The Automatic Exchange as described in 17 above will be effected pursuant to the Share Exchange Agreement and the Declaration of Trust. Holders of the XXXXXXXXXX will automatically transfer their XXXXXXXXXX to ACO and ACO will issue the requisite number of Series XXXXXXXXXX Preferred Shares to such holders in accordance with their entitlements.

19) On and after the date that is XXXXXXXXXX years from the Closing Date, XXXXXXXXXX, the XXXXXXXXXX may be purchased by the Trust, in whole or in part, in the open market or by tender or private contract at any price. The XXXXXXXXXX so purchased will be cancelled and will not be reissued.

20) Eligible Investments of the Trust in which the Trust may reinvest the proceeds received by it upon the repayment of the ACO XXXXXXXXXX Note on the maturity thereof will exclude debt obligations of ACO or any person related to ACO for purposes of the Act. If any XXXXXXXXXX remain outstanding on the maturity of the ACO XXXXXXXXXX Note, the Trust will use the cash proceeds received by it on repayment of the ACO XXXXXXXXXX Note at that time to invest in property acquired from ACO for a price equal to the fair market value thereof, including securities, amounts receivable from third parties unrelated to ACO and other Eligible Investments.

21) As long as any XXXXXXXXXX are outstanding and held by any person other than ACO, the Trust may only be terminated with the approval of the holder of the Special Trust Securities XXXXXXXXXX (i) upon the occurrence of a XXXXXXXXXX Event or a XXXXXXXXXX Event prior to XXXXXXXXXX, or (ii) for any reason on any Distribution Date on or after XXXXXXXXXX. Holders of the Trust Capital Securities will not be entitled to initiate proceedings for the termination of the Trust.

22) Pursuant to the Share Exchange Agreement, ACO will agree for the benefit of the holders of XXXXXXXXXX that, as long as any XXXXXXXXXX are outstanding and held by any person other than ACO, ACO will not approve the termination of the Trust unless the Trust has sufficient funds to pay the Early Redemption Price or the Redemption Price, as applicable. Holders of XXXXXXXXXX and the holder of the Special Trust Securities will rank pari passu in the distribution of the property of the Trust in the event of a termination of the Trust, after the discharge of the claims of creditors, if any.

23) Pursuant to the Share Exchange Agreement, ACO will agree for the benefit of holders of XXXXXXXXXX that, if the Trust fails to pay the XXXXXXXXXX in full on any Distribution Date which is not subject to a Distribution Diversion Event, ACO will not pay dividends on any of its shares until the month commencing immediately after the XXXXXXXXXX month following the Trust's failure to pay the XXXXXXXXXX in full on the XXXXXXXXXX, unless the Trust first pays such XXXXXXXXXX, or the unpaid portion thereof, to the holders of XXXXXXXXXX.

24) Coincident with the issuance of the XXXXXXXXXX, ACO proposes to issue to the Trust the ACO XXXXXXXXXX Note. The ACO XXXXXXXXXX Note will be a deposit liability of ACO, will rank on a parity with all other deposit and unsubordinated liabilities of ACO, will have a principal amount equal to the aggregate amount of the XXXXXXXXXX issued at the Closing Date and will mature on XXXXXXXXXX. Interest on the ACO XXXXXXXXXX Note will be payable XXXXXXXXXX at a fixed annual rate of XXXXXXXXXX % up to and including XXXXXXXXXX, and thereafter at an annual rate equal to the Bankers' Acceptance Rate in effect during the immediately preceding Distribution Period plus XXXXXXXXXX%. If the Closing Date is a date other than XXXXXXXXXX, the initial interest payment on XXXXXXXXXX will be adjusted to reflect an annual yield of XXXXXXXXXX% for the period from the Closing Date to XXXXXXXXXX.

25) The Trust will subscribe for the ACO XXXXXXXXXX Note using the proceeds from the issue of the XXXXXXXXXX. The proceeds from the subscription by ACO for XXXXXXXXXX Special Trust Securities for an aggregate amount of $XXXXXXXXXX will be used by the Trust to pay its expenses of the offering and any excess funds may be used to acquire a XXXXXXXXXX note (the "Funding Note") from ACO. To the extent that there is a funding shortfall, the Trust will borrow a certain amount from ACO under a credit facility.

26) The ACO XXXXXXXXXX Note will not be redeemable by ACO prior to XXXXXXXXXX except upon the occurrence of a XXXXXXXXXX Event or a XXXXXXXXXX Event. The ACO XXXXXXXXXX Note may, however, be redeemed by ACO in whole or in part on that date and on any subsequent Distribution Date upon XXXXXXXXXX prior written notice of ACO, XXXXXXXXXX. The redemption will be (i) for an amount equal to the greater of the XXXXXXXXXX Note Redemption Price and the XXXXXXXXXX.

27) Upon the occurrence of a XXXXXXXXXX Event or a XXXXXXXXXX Event, the ACO XXXXXXXXXX Note will be redeemable in whole, at the option of ACO and without the consent of the Trust, by the payment in cash of the same amounts as on a redemption of the ACO XXXXXXXXXX Note described in 26 above, XXXXXXXXXX. If ACO has redeemed the ACO XXXXXXXXXX Note, the Trust will be required to redeem all of the XXXXXXXXXX.

28) Each $XXXXXXXXXX of principal amount of the ACO XXXXXXXXXX Note will be convertible at the option of the Trust for XXXXXXXXXX Series XXXXXXXXXX Preferred Shares. The Trust will exercise its right to convert the ACO XXXXXXXXXX Note in circumstances in which holders of the XXXXXXXXXX exercise the Holder Exchange Right to acquire Series XXXXXXXXXX Preferred Shares, so as to enable the Trust to fulfil its obligations under the Holder Exchange Right. Upon any such conversion of the ACO XXXXXXXXXX Note, the Series XXXXXXXXXX Preferred Shares so acquired by the Trust will be delivered to the holders of the XXXXXXXXXX who have exercised the Holder Exchange Right in accordance with their respective entitlements.

29) XXXXXXXXXX, failure by ACO to make payment under the ACO XXXXXXXXXX Note in accordance with the terms thereof will not entitle the Trust to accelerate payment of the principal amount owing under the ACO XXXXXXXXXX Note. The ACO XXXXXXXXXX Note will be required to be repaid in full by ACO at the maturity thereof, together with any accrued and unpaid interest thereon, in cash.

30) Series XXXXXXXXXX Preferred Shares will have an issue price of $XXXXXXXXXX XXXXXXXXXX per share. The Series XXXXXXXXXX Preferred Shares will carry a fixed, XXXXXXXXXX and non-cumulative preferential cash dividend, as and when declared by the Board of directors of ACO, equal to approximately $XXXXXXXXXX per share, representing an XXXXXXXXXX%.

31) The Series XXXXXXXXXX Preferred Shares will not be redeemable by ACO prior to XXXXXXXXXX. On and after that date, ACO may, XXXXXXXXXX, redeem all or any part of the outstanding Series XXXXXXXXXX Preferred Shares upon notice by the payment of cash in an amount equal to

a) $XXXXXXXXXX per share if redeemed on or prior to XXXXXXXXXX;

b) $XXXXXXXXXX per share if redeemed after XXXXXXXXXX and on or prior to XXXXXXXXXX;

c) $XXXXXXXXXX per share if redeemed after XXXXXXXXXX and on or prior to XXXXXXXXXX;

d) $XXXXXXXXXX per share if redeemed after XXXXXXXXXX and on or prior to XXXXXXXXXX; or

e) $XXXXXXXXXX per share if redeemed after XXXXXXXXXX,

plus, in each case, all declared and unpaid dividends up to but excluding the date fixed for redemption.

32) On or after XXXXXXXXXX, ACO may at any time, XXXXXXXXXX, purchase Series XXXXXXXXXX Preferred Shares for cancellation in the open market or by tender or private contract at any price.

33) The consideration for a redemption or a purchase by ACO of Series XXXXXXXXXX Preferred Shares may only be paid in cash.

34) Holders of Series XXXXXXXXXX Preferred Shares do not have any voting rights except in certain extraordinary circumstances. The Series XXXXXXXXXX Preferred Shares will rank equally with all other first preferred shares of every other series issued by ACO and in priority to the ACO Common Shares and any other shares ranking junior to the Series XXXXXXXXXX Preferred Shares.

35) Subject to and in accordance with the provisions of Part VI.1 of the Act, ACO will elect to pay the 40% tax on dividends on the Series XXXXXXXXXX Preferred Shares under Part VI.1 of the Act on dividends paid or deemed to be paid on the Series XXXXXXXXXX Preferred Shares.

36) ACO will undertake to list any Series XXXXXXXXXX Preferred Shares which are issued on the XXXXXXXXXX.

37) The Series XXXXXXXXXX Preferred Shares will be identical to the Series XXXXXXXXXX Preferred Shares except that they will carry a fixed, XXXXXXXXXX and non-cumulative preferential cash dividend, as and when declared by the Board of directors of ACO, equal to $XXXXXXXXXX per share, representing an XXXXXXXXXX%. ACO also will undertake to list any Series XXXXXXXXXX Preferred Shares which are issued on the XXXXXXXXXX and similarly will make the election referred to in 35 above pursuant to Part VI.1 of the Act with respect to the Series XXXXXXXXXX Preferred Shares.

38) ACO proposes to use the borrowed monies represented by the ACO XXXXXXXXXX Note for the purpose of earning income (other than exempt income) from business or property.

Purpose of Proposed Transactions

39) The purpose of the Proposed Transactions is for ACO XXXXXXXXXX, as proposed to be amended, and to use the borrowed monies represented by the ACO XXXXXXXXXX Note for the purposes described above.

40) XXXXXXXXXX.

Rulings

Provided that the preceding statements constitute a complete and accurate disclosure of all the relevant facts, proposed transactions, and purpose of the proposed transactions, and provided further that the proposed transactions are carried out as described above, our Rulings are as follows:

We confirm that

A. Provided that the proceeds from the issue of the ACO XXXXXXXXXX Note are used and continue to be used for the purpose of earning income from a business or property, and the proceeds are not used to acquire a life insurance policy or property the income from which would be exempt, ACO will be entitled, pursuant to paragraph 20(1)(c), to deduct in computing its income for a taxation year from a business or property the amount paid in the year or payable in respect of the year (depending on the method regularly followed by ACO in computing its income) as interest on the ACO XXXXXXXXXX Note to the extent that the amount paid or payable is reasonable and is paid pursuant to a legal obligation to pay interest.

B. Subsection 104(7.1) will not apply to deny a deduction to the Trust of any amount it is otherwise entitled to under paragraph 104(6)(b) in respect of amounts payable to its unit holders as described in 8 and 9 above.

The Rulings are given subject to the limitations and qualifications set out in Information Circular 70-6R5 and are binding on the CRA provided that the proposed transactions are completed before XXXXXXXXXX.

Yours truly,

XXXXXXXXXX
Manager
Charitable and Financial Institution Sectors
Financial Sector and Exempt Entities Division
Income Tax Rulings Directorate
Legislative Policy and Regulatory Affairs Branch
ENDNOTES

¹ The amount of the XXXXXXXXXX, in dollars and in percentage, on the XXXXXXXXXX, the interest rate on the ACO XXXXXXXXXX Note and the dividend rates on the Series XXXXXXXXXX Preferred Shares and Series XXXXXXXXXX Preferred Shares will be determined based on market conditions at the Date of Closing. Such amount and rates set out in this ruling are for illustrative purposes only.

² Alternatively, the dates herein of XXXXXXXXXX and the last day of XXXXXXXXXX of each year are all based on a Closing Date of XXXXXXXXXX and could be modified, but only to reflect a Closing Date other than XXXXXXXXXX.