Exhibit 99.10
(MULTICURRENCY - CROSS BORDER)
ISDA
SCHEDULE
TO THE
MASTER AGREEMENT
dated as of April 4, 2006
between HUB INTERNATIONAL LIMITED PARTNERSHIP ("Party A")
AND
BANK OF MONTREAL ("Party B")
PART 1
TERMINATION PROVISIONS
(a) "SPECIFIED ENTITY" means in relation to Party A for the purpose of:-
Section 5(a)(v), the General Partner and all Affiliates
Section 5(a)(vi), the General Partner and all Affiliates
Section 5(a)(vii), the General Partner and all Affiliates
Section 5(b)(iv), the General Partner and all Affiliates
and in relation to Party B for the purpose of:-
Section 5(a)(v), Not Applicable
Section 5(a)(vi), Not Applicable
Section 5(a)(vii), Not Applicable
Section 5(b)(iv), Not Applicable
(b) "SPECIFIED TRANSACTION" will have the meaning specified in Section 14 of
this Agreement.
(c) The "CROSS DEFAULT" provisions of Section 5(a)(vi) will apply to Party A
and Party B.
"SPECIFIED INDEBTEDNESS" will have the meaning specified in Section 14,
provided that it will also include any obligation (whether present or
future, contingent or otherwise, as principal or surety or otherwise) in
respect of any Derivative Transaction and will not include (i) indebtedness
in respect of deposits received or (ii) any payment not made because of an
intervening change in law making such payment illegal, Force Majeure or act
of state, provided that the party had available sufficient funds to make
such payment at the time of non-payment.
"THRESHOLD AMOUNT" shall have the meaning set forth below; for purposes of
"THRESHOLD AMOUNT", "EQUITY" means the stockholders' equity including
retained earnings, total partnership capital, net assets, or total capital
and reserves, as the case may be, of the Party or its Credit Support
Provider.
"THRESHOLD AMOUNT" means in relation to Party A or any Credit Support
Provider of Party A, (i) zero with respect to Specified Indebtedness to
Party B or any Affiliate of Party B and (ii) USD 100,000 with respect to
other Specified Indebtedness.
"THRESHOLD AMOUNT" means, with respect to Party B, 2% of the Equity of
Party B.
(d) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(iv) will apply to
Party A and Party B.
(e) The "AUTOMATIC EARLY TERMINATION" provisions of Section 6(a) will not apply
to Party A and will not apply to Party B.
(f) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e) of this
Agreement:-
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(g) "TERMINATION CURRENCY" means Canadian Dollars.
(h) ADDITIONAL TERMINATION EVENT will apply. The following shall constitute an
Additional Termination Event as to which Party A shall be the Affected
Party:
(i) if the Notes (as defined in the Private Placement Memorandum) issued
under the Private Placement Memorandum dated June 10, 2003, as amended
and restated pursuant to the Amended and Restated Note Purchase
Agreement dated April 4, 2006 between Party A and the holders of the
Notes, are cancelled or prepaid on the part of Party A;
(ii) The General Partner is terminated or removed as the general partner of
Party A without the prior or simultaneous due appointment of a
successor general partner, acceptable to Party B in its sole
discretion.
PART 2
TAX REPRESENTATIONS
(a) PAYER REPRESENTATION. For the purpose of Section 3(e) of this Agreement,
Party A and Party B will each make the following representation:-
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from any
payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of this
Agreement) to be made by it to the other party under this Agreement. In
making this representation, it may rely on:-
(i) the accuracy of any representations made by the other party pursuant
to Section 3(f) of this Agreement;
(ii) the satisfaction of the agreement contained in Section 4(a)(i) or
4(a)(iii) of this Agreement and the accuracy and effectiveness of any
document provided by the other party pursuant to Section 4(a)(i) or
4(a)(iii) of this Agreement; and
(iii) the satisfaction of the agreement of the other party contained in
Section 4(d) of this Agreement;
provided that it shall not be a breach of this representation where
reliance is placed on clause (ii) and the other party does not deliver a
form or document under Section 4(a)(iii) by reason of material prejudice to
its legal or commercial position.
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(b) PAYEE REPRESENTATIONS. For the purpose of Section 3(f) of this Agreement,
Party A and Party B make the representations specified below, if any:-
(i) The following representation will apply to Party A:
It is fully eligible for the benefits of the "Business Profits" or
"Industrial and Commercial Profits" provision, as the case may be, the
"Interest" provision or the "Other Income" provision (if any) of the
Specified Treaty with respect to any payment described in such
provisions and received or to be received by it in connection with
this Agreement and no such payment is attributable to a trade or
business carried on by it through a permanent establishment in the
Specified Jurisdiction.
"Specified Treaty" means with respect to Party A as Payee, the income
tax convention between Canada and the United States of America.
"Specified Jurisdiction" means, with respect to Party A as Payee,
Canada.
(ii) The following representation will not apply to Party A and will apply
to Party B when Party B is acting through its Chicago office:-
Each payment received or to be received by it in connection with this
Agreement will be effectively connected with its conduct of a trade or
business in the United States of America.
(iii) The following representation will apply to Party A and will not apply
to Party B:-
It has been duly created or organized under the laws of the United
States of America or of any State of the United States of America, and
it is validly existing under those laws.
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PART 3
AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver the following documents, as applicable:
(a) Each party shall, as soon as practicable after demand, deliver to the other
Party any form or document reasonably requested by the other party,
including without limitation, any form or document required to enable such
other party to make payments hereunder without withholding for or on
account of Taxes or with such withholding at a reduced rate. Without
limiting the generality of the foregoing:
PARTY REQUIRED TO COVERED BY SECTION 3(D)
DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE DELIVERED REPRESENTATION
----------------- ------------------------- ----------------------------- -----------------------
Party A Form W-9 Upon execution of this Yes
Agreement
Party B Form W-8-ECI, with respect to Transactions Upon execution of this Yes
entered into by Party B's Chicago Office Agreement
Other documents to be delivered by each party concurrently with the
execution and delivery of this Agreement are:
PARTY REQUIRED
TO DELIVER FORM/DOCUMENT/ DATE BY WHICH COVERED BY SECTION 3(D)
DOCUMENT CERTIFICATE TO BE DELIVERED REPRESENTATION
-------------- -------------- --------------- -----------------------
Party A & B Incumbency Certificate Execution and delivery Yes
of Agreement
Party A and Party B Resolution or other Upon execution of this Agreement, Yes
documents evidencing the and if requested, each
authority of the party Confirmation
entering into this
Agreement and the persons
acting on behalf of such
party.
Party A Partnership Agreement, Upon execution of this Agreement Yes
certified to be in force
unamended as of the date
hereof
Party A Credit Support Document Upon execution of this Agreement Yes
listed in Part 4(f) of
this Schedule
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Party A Legal Opinions Execution and delivery No
in Substantially of Agreement
the form appended
as Exhibits IA, IB and IC
Party A Legal Opinions concerning Upon execution of this Agreement No
Party A's Credit Support
Provider, substantially in
the form of Exhibits IIA
and IIB
PART 4
MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a) of this Agreement:-
ADDRESS(ES) FOR NOTICES OR COMMUNICATIONS TO PARTY A:-
Address: Hub International Limited Partnership
c/o Hub International Limited
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Chief Legal Counsel
Facsimile: (▇▇▇-▇▇▇-▇▇▇▇
ADDRESS(ES) FOR NOTICES OR COMMUNICATIONS TO PARTY B:-
With respect to Transactions:
Address: Bank of Montreal
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: Manager, Confirmations
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇/6827
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Any other notice sent to Party B (including without limitation, any notice
in connection with Section 5, 6 or 9(b)) shall be copied to the following
address:
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Address: Bank of Montreal
IBG Documentation, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: Senior Manager, Documentation
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
(b) PROCESS AGENT. For purposes of Section 13(c) of this Agreement:-
Party A appoints as its Process Agent: Hub International Northeast, Inc.,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, to the attention of
its General Counsel, with a copy to Hub International Limited's Chief Legal
Counsel at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
Party B appoints as its Process Agent: its Office at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇.▇. ▇▇▇▇▇.
(c) OFFICES. The provisions of Section 10(a) will apply to this Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:-
Party A is not a Multibranch Party.
Party B is a Multibranch Party and, for purposes of this Agreement and each
Transaction entered into pursuant hereto, may act through its Chicago
Office.
(e) CALCULATION AGENT. The Calculation Agent is Party B, unless otherwise
specified in a Confirmation in relation to the relevant Transaction.
(f) CREDIT SUPPORT DOCUMENT(S). With respect to Party A, means the Guarantee
from Hub International Limited for the obligations of Party A under this
Agreement.
(g) CREDIT SUPPORT PROVIDER. With respect to Party A, means Hub International
Limited.
(h) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York (without reference to
choice of law doctrine).
(i) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) shall apply to all
Transactions.
(j) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement.
PART 5
OTHER PROVISIONS
(a) 2000 ISDA DEFINITIONS. The provisions of the 2000 ISDA Definitions (the
"Definitions"), published by the International Swaps and Derivatives
Association, Inc., are incorporated by reference in, and will be deemed to
be part of, this Agreement and each Confirmation as if set forth in full in
this Agreement or in such Confirmation, without regard to any revision or
subsequent edition thereof. In the event of any inconsistency between the
provisions of this Agreement and the Definitions, this Agreement will
prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Agreement or the Definitions, such Confirmation will
prevail for the purpose of the relevant transaction.
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(b) ILLEGALITY OR FORCE MAJEURE. As contemplated by Section 6 of this
Agreement, while neither party shall be obligated to violate any applicable
law by reason of Section 6 or this Part 5(b), each party shall retain its
right to payment pursuant to Section 6(e) if the other party does not
perform because of Illegality or Force Majeure.
(c) SET-OFF. Any amount (the "Early Termination Amount") payable to one party
(the "Payee") by the other party (the "Payer") under Section 6(e), in
circumstances where there is a Defaulting Party or one Affected Party in
the case where a Termination Event under Section 5(b)(iv) or 5(b)(v) has
occurred, will, at the option of the party ("X") other than the Defaulting
Party or the Affected Party (and without prior notice to the Defaulting
Party or the Affected Party), be reduced by its set-off against any
amount(s) (the "Other Agreement Amount") payable (whether at such time or
in the future or upon the occurrence of a contingency) by the Payee to the
Payer (irrespective of the currency, place of payment or booking office of
the obligation) under any other agreement(s) between the Payee and the
Payer or instrument(s) or undertaking(s) issued or executed by one party
to, or in favour of, the other party (and the Other Agreement Amount will
be discharged promptly and in all respects to the extent it is so set-off).
X will give notice to the other party of any set-off effected under this
Section.
For this purpose, either the Early Termination Amount or the Other
Agreement Amount (or the relevant portion of such amounts) may be converted
by X into the currency in which the other is denominated at the rate of
exchange at which such party would be able, acting in a reasonable manner
and in good faith, to purchase the relevant amount of such currency.
If an obligation is unascertained, X may in good faith estimate that
obligation and set-off in respect of the estimate, subject to the relevant
party accounting to the other when the obligation is ascertained.
Nothing in this Section shall be effective to create a charge or other
security interest. This Section shall be without prejudice and in addition
to any right of set-off, combination of accounts, lien or other right to
which any party is at any time otherwise entitled (whether by operation of
law, contract or otherwise).
(d) CONDITIONS TO CERTAIN PAYMENTS. Notwithstanding the provision of Section
6(e)(i)(3) and (4), as applicable, if the amount referred to therein is a
positive number, the Defaulting Party will pay such amount to the
Non-defaulting Party, and if the amount referred to therein is a negative
number, except to the extent set out below, the Non-defaulting Party shall
have no obligation to pay any amount thereunder to the Defaulting Party
unless and until the conditions set forth in (i) and (ii) below have been
satisfied, at which time there shall arise an obligation of the
Non-defaulting Party to pay to the Defaulting Party an amount equal to the
absolute value of such negative number less any and all amounts which the
Defaulting Party may be obligated to pay under Section 11 (the "Conditional
Payment Amount"):
(i) the Non-defaulting Party shall have received confirmation satisfactory
to it in its sole discretion (which may include an unqualified opinion
of its counsel) that (x) no further payments or deliveries under
Section 2(a)(i) or 2(e) in respect of Terminated Transactions will be
required to be made in accordance with Section 6(c)(ii) and (y) each
Specified Transaction shall have terminated pursuant to its specified
termination date or through the exercise by a party of a right to
terminate and all obligations owing under each such Specified
Transaction shall have been fully and finally performed;
(ii) all obligations (contingent or absolute, matured or unmatured) of the
Defaulting Party and any Affiliate of the Defaulting Party to make any
payment or delivery to the Non-defaulting Party or any Affiliate of
the Non-defaulting Party shall have been fully and finally performed;
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provided that if the Conditional Payment Amount exceeds the aggregate
amount of the obligations owing to the Non-defaulting Party and Affiliates
of the Non-defaulting Party by the Defaulting Party and Affiliates of the
Defaulting Party (including without limitation all obligations owing under
each Specified Transaction), the Non-defaulting Party shall pay the amount
of the excess to the Defaulting Party.
(e) RELATIONSHIP BETWEEN THE PARTIES. Each party will be deemed to represent to
the other party on the date on which it enters into a Transaction that
(absent a written agreement between the parties that expressly imposes
affirmative obligations to the contrary for that Transaction):
(i) NON-RELIANCE. It is acting for its own account, and it has made its
own independent decision to enter into that Transaction and as to
whether that Transaction is appropriate or proper for it based upon
its own judgment and upon advice from such advisors as it has deemed
necessary. It is not relying on any communication (written or oral) of
the other Party as investment advice or as a recommendation to enter
into that Transaction; it being understood that information and
explanations related to the terms and conditions of a Transaction
shall not be considered investment advice or a recommendation to enter
into that Transaction. No communication (written or oral) received
from the other party shall be deemed to be an assurance or guarantee
as to the expected results of that Transaction.
(ii) ASSESSMENT AND UNDERSTANDING. It is capable of assessing the merits of
and understanding (on its own behalf or through independent
professional advice), and understands and accepts the terms,
conditions and risks of that Transaction. It is also capable of
assuming, and assumes, the risks of that Transaction.
(iii) STATUS OF PARTIES. The other party is not acting as a fiduciary for
or an advisor to it in respect of that Transaction.
(f) TELEPHONE RECORDING. Each party (i) consents to the recording of telephone
conversations of trading and marketing personnel of the parties in
connection with this Agreement or any potential or actual Transaction
hereunder; (ii) agrees to obtain any necessary consent of and give notice
of such recording to its trading and marketing personnel; and (iii) agrees
that such recordings may be submitted in evidence in any proceeding
relating to this Agreement, subject to applicable rules of discovery and
evidence.
(g) ADDITIONAL DEFINITIONS. The following definition shall be added to Section
14 in its appropriate alphabetical place:
"DERIVATIVE TRANSACTION" means (a) any transaction which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap, equity or equity index
option, bond option, interest rate option, foreign exchange transaction,
cap transaction, floor transaction, collar transaction, currency swap
transaction, cross-currency rate swap transaction, currency option or any
other similar transaction (including any option with respect to any of
these transactions) and (b) any combination of these transactions.
"FORCE MAJEURE" is a natural or man-made disaster, armed conflict, riot,
civil disturbance, or similar event that materially disrupts transportation
or communication facilities in the relevant city where the party is to make
payment, or otherwise prevents the personnel of the party from performing
their duties in connection with such payment, and is beyond the control of
the party.
"GENERAL PARTNER" means Hub International Partners Limited, a corporation
incorporated under the laws of the Province of Ontario, in its capacity as
general partner of Party A, and its successors and assigns.
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"LIMITED PARTNERSHIP AGREEMENT" means, with respect to Party A, the limited
partnership agreement between the General Partner and the limited partners
of Party A dated as of , as amended, supplemented, restated or replaced
from time to time.
"PARTNERSHIP DOCUMENTATION" means, with respect to Party A, the Limited
Partnership Agreement, as any such agreement or document has been amended,
supplemented or replaced from time to time, together with any schedules,
exhibits, supplements and attachments thereto and the documents
incorporated by reference therein.
(h) WAIVER OF JURY TRIAL: EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
SUIT, ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, ANY CREDIT SUPPORT
DOCUMENT OR ANY TRANSACTION. EACH PARTY ACKNOWLEDGES THAT IT AND THE OTHER
PARTY HAVE ENTERED INTO THIS AGREEMENT AND ANY CREDIT SUPPORT DOCUMENT, AS
APPLICABLE, IN RELIANCE ON, AMONG OTHER THINGS, THE MUTUAL WAIVERS IN THIS
SECTION.
(i) RIGHT TO TERMINATE. Either party (the "Terminating Party") may, provided
that no Event of Default or Potential Event of Default exists with respect
to that party, elect to terminate any Transaction under this Agreement on
the fourth (4th) anniversary of the Effective Date of such Transaction or
every four (4) years thereafter, (the "Optional Termination Date"), by
providing at least thirty (30) days prior notice to the other party (the
"Other Party"). Notice may be provided by telephone but is to be followed
up with a written notice to be received by the Other Party prior to the
Optional Termination Date. In the event 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 the terminated 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. [NOTE TO DRAFT: CONSIDER WHETHER ANY AMENDMENT TO THIS
PARAGRAPH IS REQUIRED TO REFLECT AMENDED AND RESTATED MATURITY DATE AND
REPAYMENT PROVISIONS OF THE NOTES.]
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.
(j) COMMODITY EXCHANGE ACT. Each party represents to the other party on and as
of the date hereof and on each date on which a Transaction is entered into
among them that:
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(i) such party is an "eligible contract participant" as defined in the
U.S. Commodity Exchange Act, as amended (the "CEA").
(ii) neither this Agreement nor any Transaction has been executed or traded
on a "trading facility" as such term is defined in the CEA; and
(iii) the terms of this Agreement and each Transaction have been subject to
individual negotiation.
(k) BANKRUPTCY CODE. The parties hereto agree that each Transaction and this
Agreement are a "swap agreement" for purposes of 11 U.S.C. Section 101(53B)
and this Agreement is a "master agreement" for purposes of 11 U.S.C.
Section 101(53B), or any successor provision.
(l) LIMITED PARTNERSHIP PROVISIONS. The parties acknowledge and agree that, for
the purposes of Section 3 of the Agreement, the representations made by
Party A herein, shall be made by Party A on its own behalf and on behalf of
its General Partner. For greater certainty however, and without
duplication, Section 3 of this Agreement is hereby supplemented by adding
the following further representations on the part of Party A, which
representations will be deemed to be repeated on the date of each
Transaction:
(i) Party A represents to Party B (which representation will be deemed to
be repeated by Party A at all times until the termination of this
Agreement) that it is a limited partnership created under the laws of
the State of Delaware, its only general partner is Hub International
Partners Limited, a corporation incorporated under the laws of the
Province of Ontario, the general partner is in good standing under the
laws of the Province of Ontario and there are no other general
partners of the partnership.
(ii) The Partnership Agreement between the General Partner and the limited
partners of Party A is in full force and effect.
(iii) The General Partner has the power, authority and capacity to enter
into this Agreement, to execute and deliver this Agreement on behalf
of Party A, and to perform its obligations under the Partnership
Agreement, this Agreement and any Credit Support Document to which
Party A is a party, and has taken all necessary action to authorize
such execution, delivery and performance.
HUB INTERNATIONAL LIMITED PARTNERSHIP BANK OF MONTREAL
BY HUB INTERNATIONAL PARTNERS LIMITED
ITS GENERAL PARTNER
By: /s/ W. ▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
--------------------------------- ------------------------------------
Name: W. ▇▇▇▇ ▇▇▇▇▇ Name: ▇. ▇. ▇▇▇▇▇▇▇▇
------------------------------- ----------------------------------
Title: Authorized Signatory Title: Senior Manager Documentation
------------------------------ ---------------------------------
Date: April 4, 2006 Date:
------------------------------- ----------------------------------
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EXHIBIT IA
[Letterhead of Counterparty's U.S. Counsel]
[Date]
Bank of Montreal
First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Dear Sirs:
This opinion is furnished to you in connection with the ISDA Master
Agreement dated as of April 4, 2006 (the "Agreement") between Hub International
Limited Partnership (the "Counterparty") and Bank of Montreal (the "Bank").
Terms defined in the Agreement and used but not defined herein have the meanings
given to them in the Agreement.
We have acted as counsel to the Counterparty and Hub International
Partners Limited (the "General Partner") in connection with the execution and
delivery of the Agreement. We have examined the Agreement, the constating
documents of the Counterparty, including the partnership agreement dated between
the Counterparty and the General Partner (the "Partnership Agreement") and such
other documents as we have deemed necessary or appropriate for purposes of the
opinions expressed herein. We have also made such investigations and considered
such questions of law as we have considered necessary for the purpose of
rendering this opinion. In such examination we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as originals
and the conformity to original documents of all documents submitted to us as
copies, certified or otherwise.
We express no opinion with respect to the laws of any jurisdiction
other than the laws of the States of Delaware and New York and the laws of the
United States applicable therein. Insofar as our opinion relating to the General
Partner set forth in paragraphs 4, 5, 6 and 7 below assume due authorization,
execution and delivery of the Agreement by the General Partner under the laws of
the Province of Ontario and the federal laws of Canada applicable therein, we
understand that such matters are covered in the opinion of Canadian counsel to
the Counterparty and the General Partner delivered to you today.
Based on the foregoing we are of the opinion that:
1. The Counterparty is a limited partnership duly organized and validly
existing under the laws of the State of Delaware and has full power
and authority to perform its obligations under the Partnership
Agreement and the Agreement.
2. The General Partner is the sole general partner of the Counterparty.
3. The performance of the Agreement by the Counterparty has been duly
authorized by the Counterparty.
4. The General Partner has executed and delivered the Agreement on behalf
of the Counterparty.
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5. The performance, execution and delivery of the Agreement will not
conflict with or result in a breach of the constitutive documentation
of the Counterparty, including, without limitation, the Partnership
Agreement, or any indenture, agreement or other document or instrument
to which the Counterparty or the General Partner is a party or by
which either the Counterparty or the General Partner is bound or any
order of any court or any law or regulation applicable to the
Counterparty or the General Partner.
6. All consents, authorizations, appropriations, and approvals requisite
for the Counterparty's and the General Partner's performance of the
Agreement and the due execution and delivery of the Agreement by the
General Partner by or on behalf of the Counterparty have been duly
obtained and remain in full force and effect and no action by, and no
notice to or filing with any legislature, government, governmental
authority or regulatory body is required for such execution, delivery,
or performance.
7. The Agreement is a legal, valid, and binding obligation of the
Counterparty and the General Partner, enforceable against each of them
in accordance with its terms subject to the qualifications that the
enforceability of the Agreement may be limited by bankruptcy,
insolvency and other similar laws of general application affecting the
enforcement of creditors' rights generally.
This opinion is provided solely for your benefit and is not to be relied
upon for any purpose other than in respect of the Agreement or by any other
person.
Yours very truly,
30
EXHIBIT IB
[Letterhead of Counterparty's External Canadian Counsel]
[Date]
Bank of Montreal
First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Dear Sirs:
This opinion is furnished to you in connection with the ISDA Master
Agreement dated as of April 4, 2006 (the "Agreement") between Hub International
Limited Partnership (the "Counterparty") and Bank of Montreal (the "Bank").
Terms defined in the Agreement and used but not defined herein have the meanings
given to them in the Agreement.
We have acted as Canadian counsel to the Counterparty and Hub
International Partners Limited (the "General Partner") in connection with the
execution and delivery of the Agreement. We have examined the Agreement. We have
also made such investigations and considered such questions of law as we have
considered necessary for the purpose of rendering this opinion. In such
examination we have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals and the conformity to original
documents of all documents submitted to us as copies, certified or otherwise.
We express no opinion with respect to the laws of any jurisdiction
other than the laws of the Province of Ontario and the federal laws of Canada
applicable therein.
Based on the foregoing we are of the opinion that:
1. The performance, execution and delivery of the Agreement will not
conflict with or result in a breach of any law or regulation
applicable to the Counterparty or the General Partner.
2. All consents, authorizations, appropriations, and approvals from any
government, governmental authority or regulatory body requisite for
the Counterparty's and the General Partner's performance of the
Agreement and the due execution and delivery of the Agreement by the
General Partner by or on behalf of the Counterparty have been duly
obtained and remain in full force and effect and no action by, and no
notice to or filing with any legislature, government, governmental
authority or regulatory body is required for such execution, delivery,
or performance.
This opinion is provided solely for your benefit and is not to be relied
upon for any purpose other than in respect of the Agreement or by any other
person.
Yours very truly,
31
EXHIBIT IC
[Letterhead of Counterparty's Internal Canadian Counsel]
[Date]
Bank of Montreal
First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Dear Sirs:
This opinion is furnished to you in connection with the ISDA Master
Agreement dated as of April 4, 2006 (the "Agreement") between Hub International
Limited Partnership (the "Counterparty") and Bank of Montreal (the "Bank").
Terms defined in the Agreement and used but not defined herein have the meanings
given to them in the Agreement.
We have acted as Canadian counsel to the Counterparty and Hub
International Partners Limited (the "General Partner") in connection with the
execution and delivery of the Agreement. We have examined the Agreement, the
constating documents of the Counterparty and the General Partner, including the
partnership agreement dated between the Counterparty and the General Partner
(the "Partnership Agreement") and such other documents as we have deemed
necessary or appropriate for purposes of the opinions expressed herein. We have
also made such investigations and considered such questions of law as we have
considered necessary for the purpose of rendering this opinion. In such
examination we have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals and the conformity to original
documents of all documents submitted to us as copies, certified or otherwise.
We express no opinion with respect to the laws of any jurisdiction
other than the laws of the Province of Ontario and the federal laws of Canada
applicable therein.
Based on the foregoing we are of the opinion that:
3. The General Partner is a corporation duly organized and validly
existing under the laws of the Province of Ontario and has full power
and authority to perform its obligations under the Partnership
Agreement and under the Agreement and to execute and deliver the
Agreement by or on behalf of the Counterparty (in its capacity as the
general partner of the Counterparty).
4. The performance of the Agreement by the General Partner and the
execution and delivery of the Agreement by the General Partner by or
on behalf of the Counterparty have been duly authorized by all
necessary action on the part of the General Partner.
5. The General Partner has executed and delivered the Agreement on behalf
of the Counterparty.
32
6. The performance, execution and delivery of the Agreement will not
conflict with or result in a breach of the constitutive documentation
of the General Partner, including, without limitation, the Partnership
Agreement, or any indenture, agreement or other document or instrument
to which the Counterparty or the General Partner is a party or by
which either the Counterparty or the General Partner is bound or any
order of any court applicable to the Counterparty or the General
Partner.
7. All consents, authorizations, appropriations, and approvals (other
than from any government, governmental authority or regulatory body)
requisite for the Counterparty's and the General Partner's performance
of the Agreement and the due execution and delivery of the Agreement
by the General Partner by or on behalf of the Counterparty have been
duly obtained and remain in full force and effect.
This opinion is provided solely for your benefit and is not to be relied
upon for any purpose other than in respect of the Agreement or by any other
person.
Yours very truly,
33
EXHIBIT IIA
Letterhead of Credit Support Provider's External Canadian Counsel
Date
Bank of Montreal
First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Dear Sirs:
This opinion is furnished to you in connection with the ISDA Master
Agreement dated as of April 4, 2006 (the "Agreement") between Hub International
Limited Partnership ("Counterparty") and Bank of Montreal (the "Bank"), in
respect of which Hub International Limited (the "Credit Support Provider") has
provided credit support in the form of a Guarantee dated April 4, 2006 (the
"Credit Support Document") covering the obligations of the Counterparty. Terms
defined in the Agreement and used but not defined herein have the meanings given
to them in the Agreement.
We have acted as Canadian counsel to the Credit Support Provider in
connection with the execution and delivery of the Credit Support Document. We
have examined the Agreement and the Credit Support Document. We have also made
such investigations and considered such questions of law as we have considered
necessary for the purpose of rendering this opinion. In such examination we have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals and the conformity to original documents of all
documents submitted to us as copies, certified or otherwise.
We express no opinion with respect to the laws of any jurisdiction
other than the laws of the Province of Ontario and the laws of Canada applicable
therein.
Based on the foregoing we are of the opinion that:
1. The execution and delivery of the Credit Support Document and the
performance by the Credit Support Provider of its obligations
thereunder do not conflict with, or result in a breach of any law or
regulation affecting the Credit Support Provider.
2. No action by, notice to or filing with, or consent, authorization or
approval of, any governmental authority or regulatory body is required
in connection with the Credit Support Provider's execution, delivery
and performance of the Credit Support Document.
This opinion is provided solely for your benefit and is not to be relied
upon for any purpose other than in respect of the Agreement or by any other
person.
Yours very truly,
34
EXHIBIT IIB
Letterhead of Credit Support Provider's Internal Canadian Counsel
Date
Bank of Montreal
First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Dear Sirs:
This opinion is furnished to you in connection with the ISDA Master
Agreement dated as of April 4, 2006 (the "Agreement") between Hub International
Limited Partnership ("Counterparty") and Bank of Montreal (the "Bank"), in
respect of which Hub International Limited (the "Credit Support Provider") has
provided credit support in the form of a Guarantee dated April 4, 2006 (the
"Credit Support Document") covering the obligations of the Counterparty. Terms
defined in the Agreement and used but not defined herein have the meanings given
to them in the Agreement.
We have acted as Canadian counsel to the Credit Support Provider in
connection with the execution and delivery of the Credit Support Document. We
have examined the Agreement, the Credit Support Document, the Credit Support
Provider's constating documents and such other documents as we have deemed
necessary or appropriate for purposes of the opinions expressed herein. We have
also made such investigations and considered such questions of law as we have
considered necessary for the purpose of rendering this opinion. In such
examination we have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals and the conformity to original
documents of all documents submitted to us as copies, certified or otherwise.
We express no opinion with respect to the laws of any jurisdiction
other than the laws of the Province of Ontario and the laws of Canada applicable
therein.
Based on the foregoing we are of the opinion that:
1. The Credit Support Provider has been duly organized incorporated and
is validly existing and in good standing under the laws of the
Province of Ontario.
2. The execution and delivery of the Credit Support Document and the
performance by the Credit Support Provider of its obligations
thereunder have been duly authorized by the Credit Support Provider,
are within the corporate power of the Credit Support Provider and do
not conflict with, or result in a breach of, (i) the constating
documents of the Credit Support Provider, or (iii) any agreement,
decree, order, judgment, injunction or other instrument binding on or
affecting the Credit Support Provider.
3. The Credit Support Document has been duly authorized, executed and
delivered by the Credit Support Provider to the Bank.
6. The Credit Support Document constitutes a legal, valid and binding
obligation of the Credit Support Provider enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium, and other similar laws and equitable
principles of general application affecting the rights of
35
creditors, or limiting the availability of specific performance,
injunctive relief or any other equitable remedy.
This opinion is provided solely for your benefit and is not to be relied
upon for any purpose other than in respect of the Agreement or by any other
person.
Yours very truly,
36