On Bank of Montreal Letterhead]
Exhibit 10.1
[On Bank of Montreal Letterhead]
HUB International Limited
00 Xxxx Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxx, XX
XXX, 00000-0000
| Attention: | Xxxxxx Xxxxx | ||
| Re: | Swap Transaction (Our Ref. No. 300323 / 353660) |
Dear Sir/Madam:
The purpose of this letter agreement is to set forth the terms and conditions of the Swap Transaction entered into between the BANK OF MONTREAL (“BMO”) and HUB International Limited (“Counterparty”) on the Trade Date specified below (the “Swap Transaction”). This letter agreement will constitute a “Confirmation” as referred to in the Agreement specified below.
The definitions and provisions contained in the 2000 ISDA Definitions, as published by the International Swaps and Derivatives Association, Inc., are incorporated into this Confirmation. In the event of any inconsistency between those definitions and provisions and this Confirmation, this Confirmation will govern.
This Confirmation evidences a complete binding agreement between BMO and the Counterparty. This Confirmation constitutes a Confirmation subject to the terms of a master agreement (the “Agreement”). The Agreement shall be in the form of the 1992 Master Agreement (Multicurrency-Cross Border) published by the International Swaps and Derivatives Association, Inc. (the “ISDA” Form) with such modifications as BMO and the Counterparty shall in good faith agree. Until BMO and the Counterparty execute and deliver the Agreement, (i) BMO and the Counterparty shall be deemed to have entered into an agreement in the form of the ISDA Form (without a Schedule), governed by the laws of the State of New York and (ii) this Confirmation, together with all other documents (each an “Other Confirmation”) confirming Specified Transactions (as defined in the ISDA Form) (this Swap Transaction together with such Specified Transactions, collectively, “Transactions”) heretofore, now or hereafter entered into between BMO and the Counterparty (except any Other Confirmation that expressly provides to the contrary), shall supplement, form a part of, and be subject to, an agreement in the form of such ISDA Form as if BMO and the Counterparty had executed an agreement in such form on the Trade Date of the first such Transaction between BMO and the Counterparty. Upon such execution and delivery of the Agreement, the terms thereof shall supercede such ISDA Form as applicable to this Swap Transaction and the other Transactions, and this Confirmation and the Other Confirmations shall supplement, form a part of, and be subject to, the Agreement.
| 1. | The terms of the particular Swap Transaction to which this Confirmation relates are as follows: |
| Trade Date: | 15 July 2003 | |
| Effective Date: | 16 June 2003 | |
| Termination Date: | 15 June 2010 | |
| USD Fixed Amount: | As specified in Schedule I attached initially USD 10,000,000.00 | |
| Fixed Rate Per Payer: | BANK OF MONTREAL | |
| Fixed Rate Payer Payment Dates: | Subject to adjustment in accordance with the Modified Following Business Day Convention: The 15 December and June of each year prior to and including the Termination Date, commencing with 15 December 2003. |
| Period End Date: | Unadjusted | |
| Fixed Rate and Fixed Rate Day Count Fraction: | 5.71% for the Initial Calculation Period and each succeeding Calculation Period on a basis of 30/360 (Unadjusted). | |
| Fees: | Not Applicable | |
| Business Days for USD Payment: | New York, Toronto | |
| USD Floating Amount: | As specified in Schedule I attached initially USD 10,000,000.00 | |
| Floating Rate Payer: | HUB International Limited | |
| Floating Rate Payer Payment Dates: | Subject to adjustment in accordance with the Modified Following Business Day Convention: The 15 December and June of each year prior to and including the Termination Date, commencing with 15 December 2003. | |
| Floating Rate for Initial Calculation Period: |
||
| (excluding the spread): | 1.11875% | |
| Calculation Agent: | BANK OF MONTREAL | |
| Fees: | Not Applicable | |
| Floating Rate Option: | USD-LIBOR-BBA | |
| Spread: | plus 2.54% | |
| Floating Rate Day Count Fraction: | Actual/360 | |
| Designated Maturity: | 3 MONTH | |
| Reset Dates: | First day of each Calculation Period, or Compounding Period, if Compounding is applicable. | |
| Compounding: | FLAT | |
| Compounding Dates: | The 15 September, December, March and June of each year subject to adjustment in accordance with the Modified Following Business Day Convention. | |
| Business Days for USD Payment: | New York, Toronto | |
| Business Days for Floating Rate Reset: |
London |
| 2. | MUTUAL RIGHT TO TERMINATE: | |
| Either party may, provided that no Event of Default or Potential Event of Default exists with respects to that party, elect to terminate this Swap Transaction on the 4th Anniversary of the Effective Date (the “Optional Termination Date”), by providing at least 5 days prior notice to the other party. Notice may be provided by telephone but is to be followed up with a written notice. In the event a party, (the “Terminating Party”) elects to terminate a Transaction pursuant to the foregoing, the Terminating Party shall at or prior to 2:00 p.m. Toronto time on the Optional Termination Date, determine the amount payable in respect of this Swap Transaction (the “Market Value”) by making the calculations required by Section 6(e)(i) of the Agreement as if the Optional Termination Date were an Early Termination Date designated as a result of the occurrence of an Event of Default with respect to the Terminating Party and the parties had specified Loss and the Second Method for that purpose. The Market Value will be paid by the relevant party on the second Business Day following the Optional Termination Date. | ||
| If there is a dispute between the parties as to the calculation of the Market Value, |
| (a) | the parties will consult with each other in an attempt to resolve the dispute; and | ||
| (b) | if the parties fail to resolve the dispute prior to 3:00 p.m. Toronto time on the Optional Termination Date, then Bank of Montreal shall recalculate the Market Value by making calculations required by Section 6(e)(i) of the Agreement as if the Optional Termination Date were an Early Termination Date designated as a result of the occurrence of an Event of Default with respect to the Terminating Party and the parties had specified Market Quotation and the Second Method for that purpose. |
| Promptly following a resolution pursuant to this paragraph, the Market Value will be paid by the relevant party on the second Business Day following the Optional Termination Date. | ||
| Upon Payment of such sum as provided herein, the obligations of both parties with respect to this Transaction shall be discharged in full. | ||
| 3. | Account Details |
| Payments to HUB International Limited: | ||
| USD | ||
| Please Advise | ||
| Payments to BANK OF MONTREAL: | ||
| USD | ||
| XXXXXX BANK INTERNATIONAL CORPORATION 0 XXXXX XXXXXX XXX XXXX XXX Account #: 00000000 ATTN: DERIVATIVES OPERATIONS. |
| 4. | Address for Notices in connection with the Swap Transaction. |
| (a) | BANK OF MONTREAL: | |||
| EMFISYS – DERIVATIVES OPERATIONS 000 XXXXXXXX XXXXXX XXXX XXXXX 000 XXXXXXX, XX XXXXXX, X0X 0X0 |
||||
| Attention: | Senior Manager Swap Desk |
|||
| Facsimile: | 000-000-0000 | |||
| Telex No: | 0621778 | |||
| Answerback: | ||||
| (b) | HUB International Limited: | |||
| 00 Xxxx Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxx, XX XXX, 00000-0000 |
||||
| Attention: | Xxxxxx Xxxxx | |||
| Telephone: Facsimile: |
8,000-000-0000 8,000-000-0000 |
| 5. | Offices: |
| (a) | The Office of BANK OF MONTREAL for the Swap Transaction is TORONTO, CANADA. | ||
| (b) | The Office of the Counterparty for the Swap Transaction is Chicago, USA. |
| 6. | Documents to be delivered: | Each party shall deliver to the other, at the time of its execution of this Confirmation, evidence of the specimen signature and incumbency of each person who is executing the Confirmation on the party’s behalf, unless such evidence has previously been supplied in connection with the Agreement and remains true and in effect. |
It is the express wish of the parties that this agreement and any related documents be drawn up and executed in English. Les parties conviennent que la prèsente convention et tous les documents s’y rattachant soient rèdigès et signès en anglais.
Please confirm that the foregoing correctly sets forth the terms of our agreement by executing this Confirmation and returning it to us.
Please contact Xxxxxx Xxxxxx at 000-000-0000 or Xxxxxx Xxxxxx-Xxxxxxx at 000-000-0000 if you have any questions or discrepancies.
BMO confirms and the Counterparty acknowledges that the Bank uses a computer-based system to execute and transmit Confirmations. The parties hereby acknowledge and accept the use and validity of Confirmations which have been executed by means of an electronically-produced signature, and which have been transmitted and
reproduced by telecopier or similar device. The parties acknowledge that in any legal proceedings between them respecting or in any way relating to this Confirmation, each hereby expressly waives any right to raise any defense or waiver of liability based upon the reproduction of this document by telecopier for evidentiary purpose, or the execution of this document by means of an electronically-produced signature. (Our Ref. No. 300323/353660)
Yours sincerely,
| BANK OF MONTREAL | |||
| By: | |||
| Name: | |||
| /s/ Xxxxxx Xxx
Xxxxxx Xxx |
|||
Confirmed as of the date first above written:
| HUB International Limited | |||
| By: | |||
| /s/ Xxxxxx Xxxxx
(Signature) |
|||
| Name: | |||
| Xxxxxx Xxxxx
(Please Print) |
|||
| Title: | VP & CFO
|
||
Schedule I.
Cashflow Schedule: BANK OF MONTREAL 000000/000000
Side 1
BANK OF MONTREAL pays USD FIXED to HUB International Limited
| Period Beg | Period End | Days | Payment Date | Notional Amount | Fixed Rate % | |||||||||||
| 15 Jun 2003 | 15 Dec 2003 | 180 | 15 Dec 2003 | 10,000,000.00 | 5.71 | |||||||||||
| 15 Dec 2003 | 15 Jun 2004 | 180 | 15 Jun 2004 | 10,000,000.00 | 5.71 | |||||||||||
| 15 Jun 2004 | 15 Dec 2004 | 180 | 15 Dec 2004 | 10,000,000.00 | 5.71 | |||||||||||
| 15 Dec 2004 | 15 Jun 2005 | 180 | 15 Jun 2005 | 10,000,000.00 | 5.71 | |||||||||||
| 15 Jun 2005 | 15 Dec 2005 | 180 | 15 Dec 2005 | 10,000,000.00 | 5.71 | |||||||||||
| 15 Dec 2005 | 15 Jun 2006 | 180 | 15 Jun 2006 | 10,000,000.00 | 5.71 | |||||||||||
| 15 Jun 2006 | 15 Dec 2006 | 180 | 15 Dec 2006 | 10,000,000.00 | 5.71 | |||||||||||
| 15 Dec 2006 | 15 Jun 2007 | 180 | 15 Jun 2007 | 10,000,000.00 | 5.71 | |||||||||||
| 15 Jun 2007 | 15 Dec 2007 | 180 | 17 Dec 2007 | 10,000,000.00 | 5.71 | |||||||||||
| 15 Dec 2007 | 15 Jun 2008 | 180 | 16 Jun 2008 | 10,000,000.00 | 5.71 | |||||||||||
| 15 Jun 2008 | 15 Dec 2008 | 180 | 15 Dec 2008 | 6,666,666.67 | 5.71 | |||||||||||
| 15 Dec 2008 | 15 Jun 2009 | 180 | 15 Jun 2009 | 6,666,666.67 | 5.71 | |||||||||||
| 15 Jun 2009 | 15 Dec 2009 | 180 | 15 Dec 2009 | 3,333,333.34 | 5.71 | |||||||||||
| 15 Dec 2009 | 15 Jun 2010 | 180 | 15 Jun 2010 | 3,333,333.34 | 5.71 | |||||||||||
Side 2
HUB International Limited pays USD 3 MONTH LIBOR T3750 to BANK OF MONTREAL
| Calc Date | Period Beg | Period End | Days | Payment Date | Notional Amount | |||||||||
| 12 Jun 2003 | 16 Jun 2003 | 15 Sep 2003 | 91 | 10,000,000.00 | ||||||||||
| 11 Sep 2003 | 15 Sep 2003 | 15 Dec 2003 | 91 | 15 Dec 2003 | 10,000,000.00 | |||||||||
| 11 Dec 2003 | 15 Dec 2003 | 15 Mar 2004 | 91 | 10,000,000.00 | ||||||||||
| 11 Mar 2004 | 15 Mar 2004 | 15 Jun 2004 | 92 | 15 Jun 2004 | 10,000,000.00 | |||||||||
| 11 Jun 2004 | 15 Jun 2004 | 15 Sep 2004 | 92 | 10,000,000.00 | ||||||||||
| 13 Sep 2004 | 15 Sep 2004 | 15 Dec 2004 | 91 | 15 Dec 2004 | 10,000,000.00 | |||||||||
| 13 Dec 2004 | 15 Dec 2004 | 15 Mar 2005 | 90 | 10,000,000.00 | ||||||||||
| 11 Mar 2005 | 15 Mar 2005 | 15 Jun 2005 | 92 | 15 Jun 2005 | 10,000,000.00 | |||||||||
| 13 Jun 2005 | 15 Jun 2005 | 15 Sep 2005 | 92 | 10,000,000.00 | ||||||||||
| 13 Sep 2005 | 15 Sep 2005 | 15 Dec 2005 | 91 | 15 Dec 2005 | 10,000,000.00 | |||||||||
| 13 Dec 2005 | 15 Dec 2005 | 15 Mar 2006 | 90 | 10,000,000.00 | ||||||||||
| 13 Mar 2006 | 15 Mar 2006 | 15 Jun 2006 | 92 | 15 Jun 2006 | 10,000,000.00 | |||||||||
| 13 Jun 2006 | 15 Jun 2006 | 15 Sep 2006 | 92 | 10,000,000.00 | ||||||||||
| 13 Sep 2006 | 15 Sep 2006 | 15 Dec 2006 | 91 | 15 Dec 2006 | 10,000,000.00 | |||||||||
| 13 Dec 2006 | 15 Dec 2006 | 15 Mar 2007 | 90 | 10,000,000.00 | ||||||||||
| 13 Mar 2007 | 15 Mar 2007 | 15 Jun 2007 | 92 | 15 Jun 2007 | 10,000,000.00 | |||||||||
| 13 Jun 2007 | 15 Jun 2007 | 17 Sep 2007 | 94 | 10,000,000.00 | ||||||||||
| 13 Sep 2007 | 17 Sep 2007 | 17 Dec 2007 | 91 | 17 Dec 2007 | 10,000,000.00 | |||||||||
| 13 Dec 2007 | 17 Dec 2007 | 17 Mar 2008 | 91 | 10,000,000.00 | ||||||||||
| 13 Mar 2008 | 17 Mar 2008 | 16 Jun 2008 | 91 | 16 Jun 2008 | 10,000,000.00 | |||||||||
| 12 Jun 2008 | 16 Jun 2008 | 15 Sep 2008 | 91 | 6,666,666.67 | ||||||||||
| 11 Sep 2008 | 15 Sep 2008 | 15 Dec 2008 | 91 | 15 Dec 2008 | 6,666,666.67 | |||||||||
| 11 Dec 2008 | 15 Dec 2008 | 16 Mar 2009 | 91 | 6,666,666.67 | ||||||||||
| 12 Mar 2009 | 16 Mar 2009 | 15 Jun 2009 | 91 | 15 Jun 2009 | 6,666,666.67 | |||||||||
| 11 Jun 2009 | 15 Jun 2009 | 15 Sep 2009 | 92 | 3,333,333.34 | ||||||||||
| 11 Sep 2009 | 15 Sep 2009 | 15 Dec 2009 | 91 | 15 Dec 2009 | 3,333,333.34 | |||||||||
| 11 Dec 2009 | 15 Dec 2009 | 15 Mar 2010 | 90 | 3,333,333.34 | ||||||||||
| 11 Mar 2010 | 15 Mar 2010 | 15 Jun 2010 | 92 | 15 Jun 2010 | 3,333,333.34 | |||||||||
