2003 Ruling 2003-0014473 - 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.

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the CCRA.

Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle de l'ADRC.

Principal Issues:

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

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

Position:

1. Yes.

2. No.

Reasons:

Deductibility under this provision is dependent upon there being a borrower and lender relationship between the parties to the XXXXXXXXXX note. There a good argument that a loan exists until such time as a mandatory conversion event occurs. The existence of the voting rights attached to the Special Securities is not intended to give X Co. a percentage interest in Y Co.'s property in excess of X Co.'s income interest in Y Co..

XXXXXXXXXX 							2003-001447

XXXXXXXXXX, 2003

Dear Sirs:

Re: Request for Advance Income Tax Ruling
XXXXXXXXXX "(X Co.")(XXXXXXXXXX )
XXXXXXXXXX, a trust to be established ("Y Co.")

This is in reply to your letter of XXXXXXXXXX in which you request an Advance Income Tax Ruling on behalf of the above named taxpayer. 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 taxpayer or a related person;

(ii) is being considered by a Tax Services Office or Taxation Center in connection with a previously filed tax return of the taxpayer or a related person;

(iii) is under objection by the taxpayer 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 by the Directorate.

Unless otherwise stated, all references to a statute are to the Income Tax Act R.S.C. 1985 (5th Supp.), 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

"Automatic Exchange" has the meaning set out in paragraph 14 below.

XXXXXXXXXX.

"capital property" has the meaning assigned by section 54.

"CCRA" means the Canada Customs and 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 X Co. XXXXXXXXXX Note to be redeemed.

"XXXXXXXXXX Notes" means XXXXXXXXXX notes, issuable in series, of X Co. to be acquired by Y Co..

"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" means XXXXXXXXXX.

"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 unless Y Co. is satisfied that such conditions are satisfied), except that the X Co. XXXXXXXXXX Note will not be repaid with or converted into or exchanged for debt of X Co. or any person related to X Co. within the meaning of the Act and, following the maturity of the X Co. XXXXXXXXXX Note, Eligible Investments will not include debt of X Co. or of any person related to X Co. within the meaning of the Act.

"Face Value" has the meaning set out in paragraph 6 below.

"Funding Note" has the meaning set out in paragraph 20 below.

XXXXXXXXXX.

"Holder Exchange Right" has the meaning set out in paragraph 12 below.

XXXXXXXXXX.

"XXXXXXXXXX Event" means one of the following events: XXXXXXXXXX.

XXXXXXXXXX.

XXXXXXXXXX.

"prescribed stock exchange in Canada" has the meaning assigned by section 3200 of the Regulations.

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

"public corporation" has the meanings assigned by subsection 89(1) and section 141.

"XXXXXXXXXX" means Y Co. Capital Securities - XXXXXXXXXX, as described in paragraph 6 below.

XXXXXXXXXX.

"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 that is not a Distribution Diversion Date.

"Regulations" means the Income Tax Regulations promulgated under the Act.

XXXXXXXXXX

"Series XXXXXXXXXX Preferred Share Cash Redemption Price" has the meaning set out in paragraph 26 below.

"Series XXXXXXXXXX Preferred Shares" means non-cumulative First Preferred Shares, Series XXXXXXXXXX of X Co., as described more fully in paragraphs 25 and following below.

"Series XXXXXXXXXX Preferred Shares" means non-cumulative First Preferred Shares, Series XXXXXXXXXX of X Co., as described more fully in paragraph 32 below.

"Share Exchange Agreement" means an agreement among X Co., Y Co. and a trustee for the holders of XXXXXXXXXX.

"Special Y Co. Securities" means voting units of beneficial interest in Y Co., issuable in series, as described in paragraph 4 below, which are owned by X Co.

XXXXXXXXXX.

"Surrender Price" has the meaning set out in paragraph 12 below.

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

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

"XXXXXXXXXX Event" means XXXXXXXXXX.

XXXXXXXXXX.

"X Co." means XXXXXXXXXX as described more fully in paragraph 1 below.

"X Co. Common Shares" means the common shares of X Co..

"X Co. XXXXXXXXXX Note" means the first series of XXXXXXXXXX Notes issued to Y Co. having an aggregate principal amount of $XXXXXXXXXX as described in paragraphs 20 and following below.

"Y Co." means XXXXXXXXXX, a trust to be established in XXXXXXXXXX pursuant to the laws of XXXXXXXXXX by X Co., as described more fully in paragraphs 3 and following below.

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

Facts

1. X Co. is XXXXXXXXXX a taxable Canadian corporation and a public corporation. Its Tax Services Office is XXXXXXXXXX and its Tax Centre is the XXXXXXXXXX Tax Centre. XXXXXXXXXX.

2. The authorized capital of X Co. consists of an unlimited number of X Co. Common Shares, and an unlimited number of First Preferred Shares and Second Preferred Shares, issuable in one or more series. Currently, X Co. Common Shares and Preferred Shares of X Co. are issued and outstanding. The X Co. Common Shares are listed on the XXXXXXXXXX and other stock exchanges 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

3. Y Co. will be established in XXXXXXXXXX by way of declaration of trust under the laws of XXXXXXXXXX and will be resident in Canada for purposes of the Act. The trustee of Y Co. will be XXXXXXXXXX, a taxable Canadian corporation resident in Canada. The capital of Y Co. will be represented by units of beneficial interest in Y Co.. Y Co. proposes to issue two classes of units, Y Co. Capital Securities and Special Y Co. Securities. Each class of units will be issuable in series.

4. The Special Y Co. Securities will have voting rights, will be owned at all material times by X Co. and will be issued in denominations of $XXXXXXXXXX. The Special Y Co. Securities will represent no more than XXXXXXXXXX% of all of the issued units of Y Co. (determined by fair market value and without regard to any voting rights attaching to the units of Y Co.). The Special Y Co. Securities will be issued to and paid for in cash by X Co. on or before the closing date for the sale of the Y Co. Capital Securities.

5. The Y Co. Capital Securities will represent the balance of the issued units of Y Co.. The Y Co. Capital Securities will be non-voting, except in certain limited circumstances involving changes in their terms and conditions and will be issued to the public.

6. It is proposed that the first series of Y Co. Capital Securities, being the XXXXXXXXXX, will be offered for investment to the public in Canada by way of prospectus for an issue price of $XXXXXXXXXX per unit (the "Face Value"). The expected aggregate amount of this offering is $XXXXXXXXXX. The XXXXXXXXXX on each Regular Distribution Date. The XXXXXXXXXX is non-cumulative and will be payable to holders of XXXXXXXXXX only to the extent that Y Co. earns XXXXXXXXXX.

7. If the Distribution Date is a Distribution Diversion Date, the XXXXXXXXXX will not be payable to the holders of the XXXXXXXXXX by Y Co.. In such circumstances, all of the XXXXXXXXXX, if any, of Y Co. will be payable by Y Co. to, and distributed to, holders of the Special Y Co. Securities. Once a Distribution Diversion Event is no longer continuing, the XXXXXXXXXX will once again become payable by Y Co. to, and distributed to, holders of the XXXXXXXXXX on the next Regular Distribution Date, as described above.

8. It is intended that Y Co. qualify as a unit trust as described in paragraph 108(2)(a).

9. The property of Y Co. from time to time will be limited to the X Co. XXXXXXXXXX Note (and any Series XXXXXXXXXX Preferred Shares or Series XXXXXXXXXX Preferred Shares into which the X Co. XXXXXXXXXX Note is converted or for which Y Co. may subscribe), any additional XXXXXXXXXX Notes of the X Co. issued to Y Co. in connection with future offerings of Y Co. Capital Securities, cash and amounts receivable from third parties, and other Eligible Investments.

10. Except upon the occurrence of a XXXXXXXXXX Event or XXXXXXXXXX Event, the XXXXXXXXXX will not be redeemable by Y Co. prior to XXXXXXXXXX. On or after XXXXXXXXXX, and on XXXXXXXXXX prior notice to holders, Y Co. may redeem on any Distribution Date all or part of 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, for each XXXXXXXXXX.

11. XXXXXXXXXX are redeemable at the option of Y Co. at any time upon the happening of a XXXXXXXXXX Event or a XXXXXXXXXX Event, XXXXXXXXXX , and on XXXXXXXXXX prior written notice. Where that redemption occurs prior to XXXXXXXXXX , Y Co. may redeem all, but not less than all, of XXXXXXXXXX, without the consent of the holders, for an amount in cash equal to the Early Redemption Price. Where that redemption occurs on or after XXXXXXXXXX, Y Co. may redeem all, but not less than all, of XXXXXXXXXX for an amount in cash equal to the Redemption Price.

12. Holders of XXXXXXXXXX will have the right (the "Holder Exchange Right") at any time to surrender their XXXXXXXXXX to Y Co. for a price (the "Surrender Price"), for the Face Value of each XXXXXXXXXX, equal to XXXXXXXXXX Series XXXXXXXXXX Preferred Shares, as described at paragraph 13 below. X Co. 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. 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. There is no intention to list the XXXXXXXXXX on any public securities exchange.

13. The surrender of XXXXXXXXXX by a holder thereof to Y Co. for Series XXXXXXXXXX Preferred Shares pursuant to the Holder Exchange Right, as described in paragraph 12, will be effected by Y Co.:

i. converting a corresponding principal amount of the X Co. XXXXXXXXXX Note held by it into Series XXXXXXXXXX Preferred Shares in accordance with the terms thereof as set out below and

ii. redeeming each such XXXXXXXXXX in consideration for the transfer to the holder thereof by Y Co. of the requisite number of Series XXXXXXXXXX Preferred Shares.

14. As required XXXXXXXXXX, if a XXXXXXXXXX Event occurs, each XXXXXXXXXX will automatically and mandatorily be exchanged (the "Automatic Exchange") for XXXXXXXXXX Series XXXXXXXXXX Preferred Shares.

15. The Automatic Exchange of XXXXXXXXXX for Series XXXXXXXXXX Preferred Shares as described above in paragraph 14 will be effected pursuant to the Share Exchange Agreement. Holders of the XXXXXXXXXX will automatically transfer their XXXXXXXXXX to X Co. and X Co. will issue Series XXXXXXXXXX Preferred Shares to such holders.

16. On and after XXXXXXXXXX may be purchased at any time, in whole or in part, by Y Co. at the direction of the holder of the Special Y Co. Securities XXXXXXXXXX. The purchases may be made in the open market or by tender or private contract at any price. XXXXXXXXXX so purchased will be cancelled and will not be reissued.

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

18. As long as any XXXXXXXXXX are outstanding and held by persons other than the X Co. or an affiliate of X Co., Y Co. may only be terminated with the approval of the holder of the Y Co. Special 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 Y Co. Capital Securities will not be entitled to initiate proceedings for the termination of Y Co.. Holders of XXXXXXXXXX and the holder of the Y Co. Special Securities will rank pari passu in the distribution of the property of Y Co. in the event of a termination of Y Co., after the discharge of the claims of creditors, if any. For this purpose, the entitlement of the holders of the XXXXXXXXXX will be based on the Early Redemption Price (if the termination is as a result of action taken by X Co. and occurs prior to XXXXXXXXXX) or the Redemption Price (in all other cases). So long as any XXXXXXXXXX are outstanding, X Co. will not approve the termination of Y Co. unless Y Co. has sufficient funds to pay the Early Redemption Price or the Redemption Price, as applicable.

19. Pursuant to the Share Exchange Agreement, X Co. will agree for the benefit of holders of XXXXXXXXXX that, if Y Co. fails to pay the XXXXXXXXXX in full on any Distribution Date which is not subject to a Distribution Diversion Event, X Co. will not pay dividends on any of its shares, in each case until the 12th month following Y Co.'s failure to pay the XXXXXXXXXX in full on the XXXXXXXXXX, unless Y Co. first pays such XXXXXXXXXX to the holders of XXXXXXXXXX.

20. Coincident with the issuance of the XXXXXXXXXX, X Co. proposes to issue to Y Co. the X Co. XXXXXXXXXX Note. The X Co. XXXXXXXXXX Note will have a principal amount of $XXXXXXXXXX and will mature on XXXXXXXXXX . Interest on the X Co. XXXXXXXXXX Note will be payable XXXXXXXXXX at a fixed market rate of approximately XXXXXXXXXX% per annum. Y Co. will subscribe for the X Co. XXXXXXXXXX Note using the proceeds from the issue of the XXXXXXXXXX. The proceeds from the subscription by X Co. for the Special Y Co. Securities, together with a certain amount to be borrowed by Y Co. from X Co. (or an affiliate of X Co.) under a credit facility, will be used by Y Co. to pay its expenses of the offering and to acquire a XXXXXXXXXX note (the "Funding Note") from X Co..

21. The X Co. XXXXXXXXXX Note will not be redeemable by X Co. prior to XXXXXXXXXX except upon the occurrence of a XXXXXXXXXX Event or a XXXXXXXXXX Event. The X Co. XXXXXXXXXX Note may, however, be redeemed in whole or in part by X Co. after XXXXXXXXXX, upon XXXXXXXXXX written notice of X Co., XXXXXXXXXX The redemption will be (i) in the case of a redemption prior to XXXXXXXXXX, for an amount equal to the greater of the XXXXXXXXXX Note Redemption Price and the XXXXXXXXXX.

22. Upon the occurrence of a XXXXXXXXXX Event or a XXXXXXXXXX Event, the X Co. XXXXXXXXXX Note will be redeemable in whole, at the option of X Co., without the consent of holders thereof, by the payment in cash of the same amounts as on a redemption of the X Co. XXXXXXXXXX Note described in paragraph 21 above. XXXXXXXXXX. If X Co. has redeemed the X Co. XXXXXXXXXX Note, Y Co. will be required to redeem all of the XXXXXXXXXX.

23. The X Co. XXXXXXXXXX Note will be a XXXXXXXXXX liability of X Co.. XXXXXXXXXX, failure by X Co. to make payment under the X Co. XXXXXXXXXX Note in accordance with the terms thereof will not entitle Y Co. to accelerate payment of the principal amount owing under the X Co. XXXXXXXXXX Note. The X Co. XXXXXXXXXX Note will be required to be repaid in full by X Co. at the maturity thereof, together with any accrued and unpaid interest thereon, in cash.

24. Each $XXXXXXXXXX of principal amount of the X Co. XXXXXXXXXX Note will be convertible at the option of the holder for XXXXXXXXXX Series XXXXXXXXXX Preferred Shares, having effectively the same financial attributes as the X Co. XXXXXXXXXX Note, except with respect to the non-cumulative dividend thereon, as described below. Y Co. will exercise its right to convert the X Co. 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 Y Co. to fulfil its obligations under the Holder Exchange Right. Upon any such conversion of the X Co. XXXXXXXXXX Note, the Series XXXXXXXXXX Preferred Shares so acquired by Y Co. will be delivered to the holders of the XXXXXXXXXX who have exercised the Holder Exchange Right in accordance with their respective entitlements.

25. Series XXXXXXXXXX Preferred Shares will have an issue price of $XXXXXXXXXX per share. The Series XXXXXXXXXX Preferred Shares will carry a fixed, non-cumulative preferential cash dividend at a rate per annum of approximately XXXXXXXXXX%.

26. The Series XXXXXXXXXX Preferred Shares will not be redeemable by X Co. prior to XXXXXXXXXX. On and after that date, X Co. 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 the issue price per share plus all declared and unpaid dividends to the date fixed for redemption (the "Series XXXXXXXXXX Preferred Share Cash Redemption Price"). X Co. may, XXXXXXXXXX, deliver fully-paid and freely tradable X Co. Common Shares for each Series XXXXXXXXXX Preferred Share so redeemed, the number of which will be determined by dividing the Series XXXXXXXXXX Preferred Share Cash Redemption Price by the greater of (i) $1.00 and (ii) XXXXXXXXXX.

27. On or after XXXXXXXXXX, X Co. 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.

28. Series XXXXXXXXXX Preferred Shares will be convertible at the option of the holder thereof into X Co. Common Shares, provided that any XXXXXXXXXX Event that has occurred is not then continuing, on the last day of XXXXXXXXXX in each year commencing on XXXXXXXXXX on XXXXXXXXXX prior written notice before the date fixed for exchange, into that number of fully-paid and freely tradable common shares of the X Co. determined by dividing $XXXXXXXXXX, together with any declared and unpaid dividends on the Series XXXXXXXXXX Preferred Shares to the date of exchange, by the greater of $1.00 and XXXXXXXXXX. Any such conversion will be effected by way of the transfer by the holder to X Co. of the Series XXXXXXXXXX Preferred Shares to be so converted in consideration for the applicable X Co. Common Shares. Upon receipt of notice of exercise of the exchange right, X Co. may, XXXXXXXXXX, at its option either (i) redeem the Series XXXXXXXXXX Preferred Shares proposed to be exchanged by the payment of the Series XXXXXXXXXX Preferred Share Cash Redemption Price, or (ii) require the holder to sell the Series XXXXXXXXXX Preferred Shares proposed to be exchanged to another purchaser or purchasers arranged by X Co. for an amount equal to the Series XXXXXXXXXX Preferred Share Cash Redemption Price.

29. 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 non-cumulative preferred shares of every other series of preferred shares of X Co. and in priority to the X Co. Common Shares and any other shares ranking junior to the Series XXXXXXXXXX Preferred Shares.

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

31. X Co. will undertake to list any Series XXXXXXXXXX Preferred Shares which are issued on a prescribed stock exchange in Canada.

32. The Series XXXXXXXXXX Preferred Shares will be identical to the Series XXXXXXXXXX Preferred Shares except that they will carry a fixed, non-cumulative preferential cash dividend at a rate of approximately XXXXXXXXXX% per annum. X Co. also will undertake to list any Series XXXXXXXXXX Preferred Shares which are issued on a prescribed stock exchange in Canada and similarly will make the election referred to in paragraph 30 above pursuant to Part VI.¹ of the Act with respect to the Series XXXXXXXXXX Preferred Shares.

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

Purpose of Proposed Transactions

The purpose of the Proposed Transactions is for X Co. XXXXXXXXXX and to use the borrowed monies represented by the X Co. XXXXXXXXXX Note for the purposes described above.

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 X Co. 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, X Co. will be entitled to, 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 X Co. in computing its income) as interest on the X Co. XXXXXXXXXX Note to the extent that the amount paid or payable is reasonable and is paid pursuant to a legal obligation to pay interest; and

B. Subsection 104(7.1) will not apply to deny a deduction to Y Co. of any amount it is otherwise entitled to under paragraph 104(6)(b) in respect of amounts payable to its unit holders pursuant to paragraph 6 above.

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

Your truly,

XXXXXXXXXX
Manager
Financial Institutions Section
Financial Industries Division
Income Tax Rulings Directorate

ENDNOTES

¹ The XXXXXXXXXX, the interest rate on the X Co. XXXXXXXXXX Notes and the dividend rates on the Series XXXXXXXXXX Shares and Series XXXXXXXXXX Shares will be determined based on market conditions at the time the XXXXXXXXXX are issued. Such rates set out in this ruling application are for illustrative purposes only.