Exhibit 99.1
SECOND AMENDED AND RESTATED DISTRIBUTION
AGREEMENT
BY AND BETWEEN
THE BANK OF NOVA SCOTIA
AND
SCOTIA CAPITAL (USA) INC
_____________
THE BANK OF NOVA SCOTIA
US$11,789,336,191.28
SENIOR NOTES, SERIES A
___________
December 1, 2014
SECOND AMENDED AND RESTATED DISTRIBUTION
AGREEMENT
This Second Amended and Restated Distribution
Agreement (this “Agreement”) is made and entered into as of December 1, 2014 by and between The Bank of Nova
Scotia, a Canadian chartered bank (the “Bank”) and Scotia Capital (USA) Inc. (“SCUSA”).
WHEREAS, the Bank and SCUSA executed
a distribution agreement dated February 29, 2012, as amended and restated on December 28, 2012, and as further amended and restated
on August 8, 2013 (the “Existing Distribution Agreement”), and have agreed to amend and restate the Existing
Distribution Agreement in its entirety as set forth herein;
NOW, THEREFORE: The Bank proposes to
issue and sell from time to time its Senior Notes, Series A (such series of securities being hereinafter referred to as the “Series”
and any securities to be issued from time to time as part of such Series being hereinafter referred to individually as a “Security”
and collectively as the “Securities”), in an aggregate amount up to US$11,789,336,191.28 or the equivalent thereof
in other currencies or currency units, and agrees with SCUSA as set forth in this Agreement.
The Bank acknowledges and agrees that
SCUSA may use the Prospectus (as defined below) in connection with offers and sales of the Securities in market-making transactions
as contemplated in the prospectus, dated December 1, 2014, under the caption “Plan of Distribution -Market-Making Resale
by Affiliates” and in the prospectus supplement, dated December 1, 2014 under the caption “Supplemental Plan of Distribution”
(“Secondary Market Transactions”). The Bank further acknowledges and agrees that SCUSA is under no obligation
to effect any Secondary Market Transactions and, if it does so, it may discontinue effecting such transactions at any time without
providing any notice to the Bank. The term “SCUSA”, whenever used in this Agreement, shall include SCUSA, whether it
is acting in connection with a primary distribution or acting in connection with a Secondary Market Transaction, except as may
be specifically provided otherwise herein.
Subject to the terms and conditions stated
herein, and to the reservation by the Bank of the right to sell Securities directly on its own behalf, the Bank hereby (i) appoints
SCUSA as agent for the Bank for the purpose of soliciting and receiving offers to purchase Securities from the Bank when and as
instructed by the Bank pursuant to Section 3(a) hereof and (ii) agrees that, whenever it determines to sell Securities directly
to SCUSA as principal, it will enter into a separate agreement (each a “Terms Agreement”), substantially in
the form of Annex I hereto or in such other form as may be agreed by the parties to that particular agreement, relating
to such sale in accordance with Section 3(b) hereof. This Agreement shall not be construed to create either an obligation on the
part of the Bank to sell any Securities or an obligation of SCUSA to purchase Securities as principal. The Securities will be issued
under an indenture, dated as of January 11, 2010 (as such may be from time to time further amended, restated, supplemented or otherwise
modified, the “Indenture”), between the Bank and Computershare Trust Company, N.A., as U.S. Trustee (the “U.S.
Trustee”) and Computershare Trust Company of Canada, as Canadian Trustee (together with the U.S. Trustee, the “Trustee”).
The Securities shall have the maturity ranges, interest rates, if any, redemption provisions and other terms set forth in the Prospectus
referred to below, as it may be supplemented and amended from time to time (as more fully described in the definition of Prospectus
below), and such terms shall be evidenced in an officer’s certificate in accordance with the terms of the Indenture. The
Securities will be issued, and the terms and rights thereof established, from time to time by the Bank in accordance with the Indenture.
| 1. | Representations and Warranties of the Bank. The Bank
represents and warrants to, and agrees with, SCUSA that (provided, however, that
as of the Commencement Date, the Bank does not represent and warrant with respect to
the Time of Sale (as defined below), the Time of Sale Information (as defined below)
or the Issuer Free Writing Prospectus (as defined below)): |
| (a) | The Bank has prepared and filed with the Securities and Exchange Commission (the “Commission”) under the
Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Securities
Act”), a registration statement on Form F-3 (File No. 333-200089), including a prospectus, relating to the Securities.
Such registration statement, as amended at the time it becomes effective, including the information, if any, deemed pursuant to
Rule 430A, 430B or 430C under the Securities Act to be part of the registration statement at the time of its effectiveness (“Rule
430 Information”), is referred to herein as the “Registration Statement”; and as used herein, the
term “Preliminary Prospectus” means each prospectus included in such registration statement (and any amendments
thereto) before it becomes effective, any prospectus filed with the Commission pursuant to Rule 424(a) under the Securities Act
and the prospectus included in the Registration Statement at the time of its effectiveness that omits Rule 430 Information, and
the term “Prospectus” means the prospectus in the form first used (or made available upon request of purchasers
pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales of the Securities. Any supplement to the
Prospectus that sets forth only the terms of a specific offering of Securities is hereinafter called a “Pricing Supplement”.
Any reference in this Agreement to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein pursuant to Item 6 of Form F-3 under the Securities Act, as
of the effective date of the Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case may
be and any reference to “amend”, “amendment” or “supplement” with respect
to the Registration Statement, any Preliminary Prospectus or the Prospectus (including, in the case of a particular issue of Securities,
by the applicable Pricing Supplement) shall be deemed to refer to and include any documents filed after such date under the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange
Act”) that are deemed to be incorporated by reference therein. Capitalized terms used but not defined herein shall have
the meanings given to such terms in the Registration Statement and the Prospectus. |
| (b) | with respect to any issue of Securities to be sold pursuant to a Terms Agreement, at or prior to the time when sales of any
such Securities were first made (the “Time of Sale”), the Bank had prepared the Prospectus (collectively with
the information referred to in the next succeeding sentence, the “Time of Sale Information”): each preliminary
Pricing Supplement related to the sale of such Securities, each Pricing Supplement and each free-writing prospectus (as defined
pursuant to Rule 405 under the Securities Act) listed in the Terms Agreement or other agreement in respect of a specific offering
of Securities in the form of Schedule II to Annex I hereto; in addition, with respect to each offering of Securities
SCUSA has or will, at SCUSA’s election, either (a) orally provide final terms information as set out on Schedule II
to Annex I hereto or (b) provide a final Pricing Supplement containing final terms to prospective purchasers prior to confirming
sales; provided, however, that, subsequent to the date of the Terms Agreement, if the Bank and SCUSA have determined that
such Time of Sale Information included an untrue statement of material fact or omitted a statement of material fact necessary to
make the information therein, in the light of the circumstances under which it was made, not misleading and have agreed to provide
an opportunity to purchasers of the Securities to |
terminate their old purchase contracts and enter into
new purchase contracts, then “Time of Sale Information” will refer to the information available to purchasers
at the time of entry into the first such new purchase contract;
| (c) | The documents incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information, when
they were filed with the Commission conformed in all material respects to the requirements of the Exchange Act, of 1934, as amended,
and the rules and regulation of the Commission thereunder Exchange Act and none of such documents contained any untrue statement
of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated
by reference in the Registration Statement, the Prospectus or the Time of Sale Information, when such documents become effective
or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and will not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading. |
| (d) | the Registration Statement, the Time of Sale Information and the Prospectus comply and, as amended or supplemented, if applicable,
will comply as of the time of such amendment or supplement in all material respects with the Securities Act and, if applicable,
the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and as to the Registration Statement
and any amendment thereto, do not and will not, as of the applicable effective date of the Registration Statement and such amendment,
contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order
to make the statements therein not misleading and, as to the Prospectus and any amendment or supplement thereto, do not and will
not, as of their dates and applicable filing dates as to the Prospectus and such amendment or supplement, contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to
(i) any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Bank by or
on behalf of SCUSA expressly for use in the Prospectus as amended or supplemented relating to a particular issuance of Securities
or (ii) that part of the Registration Statement that constitutes the Statement of Eligibility under the Trust Indenture Act (Form
T-1) of the Trustee; |
| (e) | with respect to any issue of Securities to be sold pursuant to a Terms Agreement, the Time of Sale Information, at the Time
of Sale did not, and at the Closing Date (as defined in Annex I) will not, contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in writing to the Bank by or on behalf of SCUSA expressly
for use in such Time of Sale Information; |
| (f) | other than the Prospectus, as amended and supplemented, the Bank (including its representatives other than SCUSA (in the event
SCUSA is acting as agent)) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize,
approve or refer to any written communication (as defined in Rule 405 under |
the Securities Act) that constitutes an offer to sell
or solicitation of an offer to buy the Securities (each such communication by the Bank or its agents and representatives, other
than a communication referred to in clause (i) below, an “Issuer Free Writing Prospectus”) other than (i) any
document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act
or (ii) the documents listed on Schedule II to Annex I hereto and other written communications approved in writing
in advance by SCUSA; each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been
filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Prospectus, as amended
and supplemented, filed prior to first use of such Issuer Free Writing Prospectus, did not, and at the Closing Date or time of
settlement of such sale (in the case of Securities sold via an Agent) will not, contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements
or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to SCUSA
furnished in writing to the Bank by or on behalf of SCUSA expressly for use in any Issuer Free Writing Prospectus; and the Bank
is not an “ineligible issuer” or an “excluded issuer” and the offering is not an “excluded offering”,
in connection with the offering of the Securities pursuant to Rules 164, 405 and 433 under the Securities Act (or, if the Bank
is an “ineligible issuer” the Issuer Free Writing Prospectus contains only descriptions of the terms of the securities
in the offering or the offering);
| (g) | the Bank is not required to register as an “investment company,” as such term is defined in the Investment Company
Act of 1940, as amended (“Investment Company Act”); |
| (h) | the Bank has been duly organized and is validly existing as a bank listed on Schedule I to the Bank Act (Canada) (the
“Bank Act”), is duly qualified to carry on its business in each jurisdiction in which the conduct of its business
or the ownership, leasing or operation of its property and assets requires such qualification except to the extent that the failure
to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the results of operations,
business affairs or business prospects of the Bank and its subsidiaries, taken as a whole (a “Material Adverse Effect”)
and has all requisite power and authority (corporate and other) to conduct its businesses and to own, lease and operate its properties
and assets as described in the Prospectus and Time of Sale Information, except where failure to do so would not reasonably be expected
to have a Material Adverse Effect, and to execute, deliver and perform its obligations under this Agreement and any applicable
Terms Agreement and to issue, sell and deliver the Securities; |
| (i) | each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X under the Securities Act) (the “Significant
Subsidiaries”) of the Bank has been duly incorporated and is validly existing under the laws of the relevant jurisdiction
set forth opposite its name in Column 2 in Annex III to this Agreement, and each Significant Subsidiary is duly qualified
to carry on its business in each jurisdiction in which the conduct of its business or the ownership, leasing or operation of its
property and assets requires such qualification, except where the failure to be so qualified would not have a Material Adverse
Effect, and has all requisite power and authority (corporate and other) to conduct its business and to own, lease and operate its
properties and assets as described in the |
Time of Sale Information, except where failure to do
so would not reasonably be expected to have a Material Adverse Effect;
| (j) | each of the Bank and its Significant Subsidiaries has conducted and is conducting its business in compliance in all respects
with all applicable laws, rules and regulations of each jurisdiction in which its business is carried on and holds all licenses,
permits, approvals, consents, certificates, registrations and authorizations (whether governmental, regulatory or otherwise) from
the relevant regulatory or governmental authority in all such jurisdictions in which the Bank or its Significant Subsidiaries conduct
business, to enable its business to be carried on as now conducted and its property and assets to be owned, leased and operated,
except in each case where the failure to be in such compliance or to hold such license, permit, approval, consent, certificate,
registration or authorization would not have a Material Adverse Effect; and all such licenses, permits, approvals, consents, certificates,
registrations and authorizations are in good standing and in effect, except where the failure to be in good standing or in effect
would not have a Material Adverse Effect, and none of the same contains any term, provision, condition or limitation which will
have a Material Adverse Effect. |
| (k) | the Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities
Act that has been filed with the Commission not earlier than three years prior to the date hereof; and, to the knowledge of the
Bank, no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been received by the Bank; the Registration Statement has become effective;
no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are
pending before, or to the knowledge of the Bank, threatened by the Commission; |
| (l) | the consolidated financial statements of the Bank included or incorporated by reference in the Registration Statement (and
any amendments or supplements thereto), the Prospectus and the Time of Sale Information, together with the related schedules and
notes, present fairly in all material respects the consolidated financial position of the Bank and its subsidiaries at the dates
indicated and the consolidated results of operations and the consolidated changes in financial position of the Bank and its subsidiaries
for the periods specified; and such consolidated financial statements, together with the related schedules and notes, have been
prepared in conformity with International Financial Reporting Standards, as adopted in Canada, consistently applied throughout
the periods involved, except as disclosed therein; |
| (m) | the Indenture has been duly qualified under the Trust Indenture Act, complies as to form in all material respects with the
applicable provisions of the Trust Indenture Act and has been duly authorized by the Bank, and assuming the due authorization,
execution and delivery thereof by the Trustees, constitutes a legal, valid and binding obligation of the Bank, enforceable in accordance
with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or
similar laws affecting creditors’ rights generally and general principles of equity and subject to the qualification that
equitable remedies may only be granted in the discretion of a court of competent jurisdiction; |
| (n) | the Securities have been duly authorized by the Bank and, when executed and authenticated in accordance with the provisions
of the Indenture and delivered and paid |
for in accordance with the terms of this Agreement and
any Terms Agreement, will constitute valid and binding obligations of the Bank, enforceable in accordance with their terms, except
as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or similar laws affecting
creditors’ rights generally and general principles of equity and subject to the qualification that equitable remedies may
only be granted in the discretion of a court of competent jurisdiction, and the Securities will be entitled to the benefits of
the Indenture;
| (o) | the execution and delivery by the Bank of this Agreement and any applicable Terms Agreement and the performance by the Bank
of its obligations under this Agreement, the applicable Terms Agreement and the Indenture and the creation and issue of the Securities
and the sale of the Securities will not result in a breach of or default under, and will not create a state of facts which, after
notice or lapse of time or both, will result in a breach or default under, and will not conflict with: (i) any of the terms, conditions
or provisions of the Bank Act or the by-laws of the Bank (ii) any license, permit, approval, consent, certificate, registration
or authorization (whether governmental, regulatory or otherwise) issued to the Bank or any Significant Subsidiary or any agreement,
indenture, lease, document or instrument to which the Bank or any Significant Subsidiary is a party or by which it is contractually
bound at the Solicitation Time or Time of Delivery (each as defined below), except for breaches or violations which would not have
a Material Adverse Effect; or (iii) any statute, regulation or rule applicable to the Bank or any Significant Subsidiary, or any
judgment, order or decree of any governmental body, agency or court having jurisdiction over the Bank or any Significant Subsidiary,
except for breaches or violations which would not have a Material Adverse Effect; |
| (p) | all of the issued shares of capital stock of each Significant Subsidiary are validly authorized, issued and outstanding, are
fully paid and non-assessable and are owned directly or indirectly by the Bank, free and clear of all mortgages, liens, charges,
pledges, security interests, encumbrances, claims or demands whatsoever; |
| (q) | this Agreement has been duly authorized, executed and delivered by the Bank; |
| (r) | on or before the Time of Delivery, all actions required to be taken by or on behalf of the Bank, including the passing of all
requisite resolutions of its directors, will have occurred so as to validly authorize, issue and sell the Securities as contemplated
by this Agreement and the applicable Terms Agreement, and duly, punctually and faithfully perform all the obligations to be performed
by it under this Agreement and any applicable Terms Agreement; |
| (s) | no consent, approval, authorization or order of, or qualification with, any relevant regulatory or governmental authority having
jurisdiction over the Bank or any of its subsidiaries or any of their properties (“Governmental Authorization”)
is required in connection with the issuance and sale of the Securities or the consummation by the Bank of the transactions contemplated
by this Agreement, any applicable Terms Agreement or the Indenture, except such as have been, or will have been prior to Time of
Delivery, obtained under the laws of the provinces and territories of Canada, the Securities Act and the Trust Indenture Act and
such Governmental Authorizations as may be required under state securities or blue sky laws in connection with the distribution
of the Securities by the Agents; |
| (t) | there has not occurred any material adverse change, or any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as a
whole, from that set forth in the Prospectus or the Time of Sale Information; |
| (u) | there is no action, suit, proceeding, inquiry or investigation before or brought by any court or any federal, provincial, state,
municipal or other governmental department, commission, board, agency or body, domestic or foreign, now pending, or, to the knowledge
of the Bank, threatened against or affecting the Bank or any of its subsidiaries (i) other than proceedings described in all material
respects in the Prospectus as amended or supplemented, or the Time of Sale Information and proceedings that would not have a Material
Adverse Effect or a material adverse effect on the power or ability of the Bank to perform its obligations under this Agreement,
any applicable Terms Agreement, the Indenture or the Securities or to consummate the transactions contemplated by the Prospectus,
as amended or supplemented or (ii) that is required to be described in the Registration Statement, the Prospectus as amended or
supplemented or the Time of Sale Information, and is not so described; |
| (v) | except as set forth in the Prospectus or the Time of Sale Information, neither the Bank nor any of the Bank’s subsidiaries
is a party to any contract with or other undertaking to, or is subject to any governmental order by, or is a recipient of any presently
applicable supervisory letter or other written communication of any kind from, any governmental authority which has had or reasonably
would be expected to have a Material Adverse Effect; |
| (w) | except as disclosed in the Prospectus or the Time of Sale Information, there are no contracts, agreements or understandings
between the Bank and any person that would give rise to a valid claim against the Bank or any Agent for a brokerage commission,
finder’s fee or other like payment in connection with the offering of the Securities contemplated hereunder; |
| (x) | the Bank acknowledges and agrees that SCUSA (i) is acting solely in the capacity of an arm’s length contractual counterparty
to the Bank with respect to the offering of Securities contemplated hereby (including in connection with determining the terms
of the offering) and not as a financial advisor or a fiduciary to the Bank or any other person and (ii) is not advising the Bank
or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction; the Bank shall consult
with its own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal
of the transactions contemplated hereby, and SCUSA shall have no responsibility or liability to the Bank with respect thereto; |
| (y) | neither the Bank nor any of its subsidiaries nor, to the knowledge of the Bank, any director, officer, agent or employee of
the Bank or of any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation
by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”);
and the Bank and its subsidiaries have conducted their businesses in compliance with the FCPA and have instituted and maintain
policies and procedures designed to ensure continued compliance therewith; |
| (z) | the operations of the Bank and its subsidiaries are conducted and, to the knowledge of the Bank, have been conducted in all
material respects in compliance with the applicable |
anti-money laundering statutes of all jurisdictions to
which the Bank or its subsidiaries are subject and the rules and regulations thereunder, including the Bank Secrecy Act, as amended
by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001 (USA PATRIOT Act) (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding
by or before any court or governmental agency, authority or body or any arbitrator involving the Bank or any of its subsidiaries
with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Bank, threatened; and
| (aa) | none of the Bank, any of its subsidiaries or, to the knowledge of the Bank, any director, officer, agent or employee of the
Bank or any of its subsidiaries is an individual or entity (“Person”) that is currently the subject of any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC-administered
sanctions”), nor is located, organized or resident in a country or territory that is the subject of OFAC-administered
sanctions; and the Bank will not directly or indirectly use the proceeds of the offering of Securities hereunder, or lend, contribute
or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person, to fund activities of or business
with any Person, or in any country or territory, that at the time of such funding or facilitation, is the subject of OFAC-administered
sanctions, or in a manner that would otherwise cause any Person (including any Person involved in or facilitating the offering
of the Securities, whether as agent, advisor, or otherwise) to violate any OFAC-administered sanctions. |
| 2. | Representations and Warranties of SCUSA. SCUSA represents,
and warrants to, and agrees with, the Bank, that: |
| (a) | it will comply with all applicable laws and regulations in force in any jurisdiction in which it purchases, offers or sells
Securities or distributes the Prospectus or any other offering material and will obtain any consent, approval or permission required
by it for the purchase, offer or sale by it of Securities under the laws and regulations in force in any jurisdiction to which
it is subject or in which it makes such purchases, offers or sales; |
| (b) | it will not offer or sell any Securities acquired pursuant to this Agreement or any applicable Terms Agreement, directly or
indirectly, in Canada or to any resident of Canada, and further agrees that it will include a comparable provision in any sub-underwriting,
sub-dealer, banking group or selling group agreement or similar arrangement with respect to any Securities that may be entered
into by SCUSA; |
| (c) | (i) it has not made and will not make an offer of Securities to the public in the United Kingdom within the meaning of section
102B of the Financial Services and Markets Xxx 0000 (as amended) (“FSMA”) except to legal entities which are
authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely
to invest in securities or otherwise in circumstances which do not require the publication by the Bank of a prospectus pursuant
to the Prospectus Rules of the Financial Services Authority (“FSA”); (ii) it has only communicated or caused
to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity
(within the meaning of section 21 of FSMA) to persons who have professional experience in matters relating to investments falling
within Article 19(5) of the Financial Services and Markets Xxx 0000 (Financial Promotion) Order 2005 or in circumstances in which
section 21 of FSMA does not apply to the Bank; and (iii) it has complied with, and will comply with all applicable provisions |
of FSMA with respect to anything done by it in relation
to the Securities in, from or otherwise involving the United Kingdom;
| (d) | in relation to each member state of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant
Member State”), with effect from and including the date on which the Prospectus Directive is implemented in that Relevant
Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of Securities to
the public in that Relevant Member State prior to the publication of a prospectus in relation to the Securities which has been
approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State
and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except
that it may, with effect from and including the Relevant Implementation Date, make an offer of Securities to the public in that
Relevant Member State at any time: |
| (i) | to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated,
whose corporate purpose is solely to invest in securities; |
| (ii) | to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a
total balance sheet of more than (euro) 43,000,000 and (3) an annual net turnover of more than (euro) 50,000,000, as shown in its
last annual or consolidated accounts; or |
| (iii) | in any other circumstances which do not require the publication by the Bank of a prospectus pursuant to Article 3 of the Prospectus
Directive; |
| (e) | the Securities have not been registered under the Securities and Exchange Law of Japan and are not being offered or sold and
may not be offered or sold, directly or indirectly, in Japan or to, or for the account or benefit, of any resident of Japan, or
to, or for the account or benefit, of any resident for reoffering or resale, directly or indirectly, in Japan or to, or for the
account or benefit, of any resident of Japan except (A) pursuant to an exemption from the registration requirements of, or otherwise
in compliance with, the Securities and Exchange Law of Japan and (B) in compliance with the other relevant laws and regulations
of Japan; each agrees to provide any necessary information on Securities denominated or payable in Yen to the Bank (which shall
not include the names of clients) so that the Bank may make any required reports to the Ministry of Finance through its designated
agent; |
| (f) | the Securities may not be offered or sold by means of any document other than to persons whose ordinary business is to buy
or sell shares or debentures, whether as principal or agent, or in circumstances which do not constitute an offer to the public
within the meaning of the Companies Ordinance (Cap. 32) of Hong Kong, and no advertisement, invitation or document relating to
the Securities may be issued, whether in Hong Kong or elsewhere, which is directed at, or the contents of which are likely to be
accessed or read by, the public in Hong Kong (except if permitted to do so under the securities laws of Hong Kong) other than with
respect to the Securities which are or are intended to be disposed of only to persons outside Hong Kong or only to “professional
investors” within the meaning of the Securities and Futures Ordinance (Cap. 571) of Hong Kong and any rules made thereunder; |
| (g) | (i) neither the prospectus supplement nor any accompanying prospectus has been registered as a prospectus with the Monetary
Authority of Singapore. Accordingly, any prospectus supplement or any accompanying prospectus and any other document or material
in connection with the offer or sale, or invitation for subscription or purchase, of the Securities may not be circulated or distributed,
nor may the Securities be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly
or indirectly, to persons in Singapore other than (A) to an institutional investor under Section 274 of the Securities and Futures
Act, Chapter 289 of Singapore (the “SFA”), (B) to a relevant person, or any person pursuant to Section 275(1A), and
in accordance with the conditions, specified in Section 275 of the SFA or (C) otherwise pursuant to, and in accordance with the
conditions of, any other applicable provision of the SFA; and (ii) where the Securities are purchased under Section 275 by a relevant
person which is: (A) a corporation (which is not an accredited investor) the sole business of which is to hold investments and
the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor; or (B) a trust (where
the trustee is not an accredited investor) whose sole purpose is to hold investments and each beneficiary is an accredited investor,
shares, debentures and units of shares and debentures of that corporation or the beneficiaries’ rights and interest in that
trust shall not be transferable for 6 months after that corporation or that trust has acquired the shares under Section 275 except:
(A) to an institutional investor under Section 274 of the SFA or to a relevant person, or any person pursuant to Section 275(1A),
and in accordance with the conditions, specified in Section 275 of the SFA; (B) where no consideration is given for the transfer;
or (C) by operation of law; and |
| (h) | the issue of any Securities denominated in Swiss francs or carrying a Swiss franc-related element will be effected in compliance
with the relevant regulations of the Swiss National Bank, which currently require that such issues have a maturity of more than
one year, to be effected through a bank domiciled in Switzerland that is regulated under the Swiss Federal Law on Banks and Savings
Banks of 1934 (as amended) (which includes a branch or subsidiary located in Switzerland of a foreign bank) or through a securities
dealer which has been licensed as a securities dealer under the Swiss Federal Law on Stock Exchanges and Securities Trading of
1995 (except for issues of Securities denominated in Swiss francs on a syndicated basis, where only the lead manager need be a
bank domiciled in Switzerland); the relevant agent agrees to report certain details of the relevant transaction to the Swiss National
Bank no later than the time of delivery of the Securities. |
With regard to each Securities, the relevant
purchaser will be required to comply with those restrictions that the Bank and the relevant purchaser shall agree and as shall
be set out in the relevant Pricing Supplement.
For the purposes of this provision, the
expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means
the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered
so as to enable an investor to decide to purchase or subscribe the Securities, as the same may be varied in that member state by
any measure implementing the Prospectus Directive in that member state and the expression “Prospectus Directive” means
Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member State.
| 3. | Appointment of SCUSA as Agent. |
| (a) | On the basis of the representations and warranties herein contained, and subject to the terms and conditions herein set forth
SCUSA agrees that, if it is appointed by the Bank as an agent, upon receipt of instructions from the Bank, to act as agent of the
Bank and to use its reasonable efforts to solicit and receive offers to purchase a particular Security or Securities from the Bank
upon the terms and conditions set forth in the Prospectus as amended or supplemented from time to time SCUSA, as agent, shall solicit
offers to purchase only Securities having such terms, and shall solicit such offers only during such periods, as the Bank shall
instruct SCUSA. The appointment of SCUSA as agent hereunder is not exclusive and the Bank may from time to time offer Securities
for sale otherwise than to or through SCUSA. It is understood that if from time to time the Bank is approached by a prospective
agent offering to solicit a specific purchase of Securities, the Bank may enter into an agreement with such agent with respect
to such specific purchase upon such terms as the Bank and such agent may agree. |
These provisions shall not limit Section 5(e) hereof
or any similar provision included in any applicable Terms Agreement.
Procedural details relating to the issue and delivery
of Securities, the solicitation of offers to purchase Securities and the payment in each case therefor shall be as set forth in
the Administrative Procedures Memorandum attached hereto as Annex II as it may be amended from time to time by written agreement
between the Agents and the Bank (the “Administrative Procedure”). The provisions of the Administrative Procedure
(except as otherwise stated in any applicable Terms Agreement) shall apply to all transactions contemplated hereunder. Each Agent
and the Bank agree to perform the respective duties and obligations specifically provided to be performed by each of them in the
Administrative Procedure. The Bank will furnish to the U.S. Trustee a copy of the Administrative Procedure as from time to time
in effect.
The Bank reserves the right, in its sole discretion,
at any time when the Bank has instructed SCUSA, as agent, to solicit offers to purchase the Securities, to instruct SCUSA to suspend,
for any period of time or permanently, the solicitation of offers to purchase the Securities. As soon as practicable, but in any
event not later than one business day in New York City, after receipt of notice from the Bank, SCUSA will suspend solicitation
of offers to purchase Securities from the Bank until such time as the Bank has instructed such Agent to resume such solicitation.
During such period, the Bank shall not be required to comply with the provisions of Sections 5(g), 5(h), 5(i), 5(j) and 5(k) with
regard to SCUSA. Upon advising SCUSA that such solicitation may be resumed, however, the Bank shall simultaneously provide the
documents (if any) required to be delivered by Sections 5(g), 5(h), 5(k), 5(i), 5(j) and 5(k), and SCUSA shall have no obligation
to solicit offers to purchase the Securities until such documents have been received by such Agent. In addition, any failure by
the Bank to comply with its obligations hereunder, including its obligations to deliver the documents required by Sections 5(g),
5(h), 5(i), 5(j) and 5(k), with regard to any Agent shall automatically terminate such Agent’s obligations hereunder, including
its obligations to solicit offers to purchase the Securities hereunder as agent or to purchase Securities hereunder as principal.
The Bank agrees to pay SCUSA a commission, at the time
of settlement of any sale of a Security by the Bank as a result of a solicitation made by SCUSA, in an amount as may be agreed
between SCUSA and the Bank.
| (b) | Each sale of Securities by the Bank to SCUSA as principal shall be made in accordance with the terms of this Agreement and
(unless the Bank and SCUSA shall otherwise agree) a Terms Agreement which will provide for the sale of such Securities by the Bank
to, and the purchase thereof by, SCUSA; such Terms |
Agreement may also specify certain provisions relating
to the reoffering of such Securities by SCUSA; the commitment of SCUSA to purchase Securities as principal, whether pursuant to
any Terms Agreement or otherwise, shall be deemed to have been made on the basis of the representations and warranties of the Bank
herein contained and shall be subject to the terms and conditions herein set forth; each Terms Agreement shall specify the principal
amount of Securities to be purchased by SCUSA pursuant thereto, the price to be paid to the Bank for such Securities, any provisions
relating to rights of, and default by, SCUSA in the reoffering of the Securities and the time and date and place of delivery of
and payment for such Securities; such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’
letters and officers’ certificates pursuant to Section 5 hereof and such Terms Agreement may also include such other provisions
(including provisions that modify this Agreement insofar as it sets forth the agreement between the Bank and SCUSA) as the Bank
and SCUSA may agree upon.
For each sale of Securities by the Bank
to SCUSA as principal that is not made pursuant to a Terms Agreement, the Bank agrees to pay SCUSA a commission (or grant an equivalent
discount) as provided in Section 3(a) hereof and in accordance with the schedule set forth therein (or in such amount as may be
agreed between SCUSA and the Bank).
Each time and date of delivery of and
payment for Securities to be purchased from the Bank by SCUSA, whether set forth in a Terms Agreement or in accordance with the
Administrative Procedure, is referred to herein as a “Time of Delivery”.
| (c) | SCUSA agrees, with respect to any Security denominated in a currency other than U.S. dollars, and whether acting as agent,
as principal under any applicable Terms Agreement or otherwise (including, in the case of SCUSA, in any Secondary Market Transaction),
not to solicit offers to purchase or otherwise offer, sell or deliver such Security, directly or indirectly, in, or to residents
of, the country issuing such currency, except as permitted by applicable law. |
| 4. | Commencement Date. The date on which this Agreement
is executed shall be referred to herein as the “Commencement Date.” |
| 5. | Certain Agreements of the Bank. The Bank agrees with
SCUSA: |
| (i) | The Bank will file the final Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A,
430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus (to the extent required by Rule 433 under the
Securities Act); and will file promptly all reports and any information statements required to be filed by the Bank with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering or sale of the Securities; and the Bank will furnish copies
of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to SCUSA in New York City prior
to 10:00 |
A.M., New York City time, on the business day next
succeeding the date of this Agreement in such quantities as SCUSA may reasonably request. The Bank will pay the registration fees
for this offering within the time period required by Rule 456(b)(1)(i) under the Securities Act.
| (ii) | during the period from the Commencement Date and continuing for as long as may be required under applicable law, in the reasonable
judgment of SCUSA after consultation with the Bank, in order to offer and sell any Securities representing unsold allotments or
which have been repurchased by SCUSA and are to be sold in Secondary Market Transactions as contemplated by the Prospectus (the
“Secondary Transactions Period”), to make no amendment or supplement to the Registration Statement or the Prospectus,
except as required by law, if such amendment or supplement is reasonably objected to by SCUSA promptly after reasonable notice
thereof. |
| (iii) | that before preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, the Bank will
furnish to SCUSA and counsel for SCUSA a copy of the proposed Issuer Free Writing Prospectus for review and will not prepare, use,
authorize, approve, refer to or file any such Issuer Free Writing Prospectus to which SCUSA reasonably objects; |
| (iv) | before amending or supplementing the Registration Statement, the Prospectus or the Time of Sale Information prior to the Solicitation
Time or Time of Delivery, to furnish to SCUSA a copy of each such proposed amendment or supplement and not to file any such proposed
amendment or supplement to which SCUSA shall have reasonably objected in a timely manner by written notice to the Bank; |
| (v) | The Bank will advise SCUSA promptly, and confirm such advice in writing, (i) when the Registration Statement has become effective;
(ii) when any amendment to the Registration Statement has been filed or becomes effective; (iii) when any supplement to the Prospectus
or any amendment to the Prospectus or any Issuer Free Writing Prospectus has been filed; (iv) of any request by the Commission
for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments
from the Commission relating to the Registration Statement or any other request by the Commission for any additional information;
(v) of the issuance by the Commission of any order suspending the effectiveness of the Registration Statement or preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or the initiation or threatening of any proceeding for that
purpose or pursuant to Section 8A of the Securities Act; (vi) of the occurrence of any event within the Prospectus Delivery Period
as a result of which the Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the Time of Sale Information
or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading; of the receipt by the Bank of any notice
with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose; and the Bank will use its reasonable best efforts to prevent the issuance of
any such order suspending the effectiveness of the |
Registration Statement, preventing or suspending the
use of any Preliminary Prospectus or the Prospectus or suspending any such qualification of the Securities and, if any such order
is issued, will obtain as soon as possible the withdrawal xxxxxxx.xx the event of the issuance of any such stop order or of any
such order preventing or suspending the use of the Prospectus or Registration Statement or suspending any such qualification, to
use promptly its best efforts to obtain the withdrawal of such order;
| (b) | from time to time to take such action as SCUSA may reasonably request to qualify the Securities for offering and sale under
the securities laws of such states of the United States of America as SCUSA may reasonably request and to comply with such laws
so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete
the distribution of the Securities (including, in the case of SCUSA, in any Secondary Market Transactions during the Secondary
Transactions Period); provided, however, that in no event shall the Bank be obligated to qualify to do business in any jurisdiction
where it is not now so qualified, to file any general consent to service of process or to take any action that would subject it
to general service of process or to taxation in any jurisdiction where it is not now so subject; |
| (c) (i) | Subject to the following sentence, during the Prospectus Delivery Period (as defined below), to furnish SCUSA with copies of
the Prospectus as amended or supplemented (other than any Pricing Supplement (except as provided in the Administrative Procedures))
and of each Issuer Free Writing Prospectus in such quantities as SCUSA may reasonably request; as used herein, the term “Prospectus
Delivery Period” means such period of time after the first date of the public offering of the Securities as in the opinion
of counsel for SCUSA a prospectus relating to the Securities is required by law to be delivered (or required to be delivered but
for Rule 172 under the Securities Act) in connection with sales of the Securities by SCUSA or any dealer. SCUSA agrees that it
shall, to the maximum extent possible, deliver all Prospectuses, Pricing Supplements and Issuer Free Writing Prospectuses electronically
and that it shall accept printouts of .pdfs as good copies of Prospectuses, Pricing Supplements and Issuer Free Writing Prospectuses
unless acceptance of such copies is prohibited by law, rule or regulation; |
| (ii) (A) | if the delivery of a Prospectus is required during the Secondary Transactions Period, and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Securities Act, the Exchange Act or, if applicable, the Trust Indenture Act, to notify SCUSA
and request SCUSA, in its capacity as agent for the Bank, to suspend solicitation of offers to purchase Securities from the Bank
(and, if so notified, SCUSA shall cease such solicitations as soon as practicable, but in any event not later than one business
day in New York City later); and if the Bank shall decide to amend or supplement the |
Registration Statement or the Prospectus as then amended
or supplemented, or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply
with the Securities Act, the Exchange Act or, if applicable, the Trust Indenture Act, to so advise SCUSA promptly by telephone
(with confirmation in writing) and to prepare and cause to be filed promptly with the Commission an amendment or supplement to
the Registration Statement or the Prospectus as then amended or supplemented that will correct such statement or omission or effect
such compliance; provided, however, that if the Bank sells Securities to SCUSA as principal pursuant to a Terms Agreement,
the Bank shall be required to amend or supplement the Registration Statement or the Prospectus as then amended or supplemented,
or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities
Act, the Exchange Act or, if applicable, the Trust Indenture Act; and
| (B) | in connection with any sales of Securities to SCUSA pursuant to a Terms Agreement, if at any time prior to the Time of Delivery
or Closing Date (i) any event shall occur or condition shall exist as a result of which the Time of Sale Information as then amended
or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the
Time of Sale Information to comply with law, the Bank will immediately notify SCUSA thereof and forthwith prepare and, subject
to paragraph (a) above, file with the Commission (to the extent required) and furnish to SCUSA and to such dealers as SCUSA may
designate, such amendments or supplements to the Time of Sale Information as may be necessary so that the statements in the Time
of Sale Information as so amended or supplemented will not, in the light of the circumstances, be misleading or so that the Time
of Sale Information will comply with law; |
| (iii) | notwithstanding paragraph (ii) above, if during the period specified in such paragraph, SCUSA continues to own Securities purchased
from the Bank by SCUSA or SCUSA is otherwise required to deliver a prospectus in respect of transactions in the Securities (including,
in the case of SCUSA, in any Secondary Market Transactions during the Secondary Transactions Period), to promptly prepare and file
with the Commission such an amendment or supplement and furnish without charge to SCUSA as many copies as it may from time to time
during such period reasonably request of such amendment or supplement; provided, however, that the Bank may elect, upon
notice to SCUSA, not to comply with this paragraph (iii) with respect to any Secondary Market Transaction, but only for a period
or periods that the Bank reasonably determines are necessary in order to avoid premature disclosure of material, non-public information,
unless, notwithstanding such election, such disclosure would otherwise be required under this Agreement; and provided, further,
that no such period or periods described in the preceding proviso shall exceed 90 days in the aggregate during any period of 12
consecutive calendar months. Upon receipt of any such notice, SCUSA shall cease using the Prospectus or any amendment or |
supplement thereto in connection with Secondary Market
Transactions until it receives notice from the Bank that it may resume using such document (or such document as it may be amended
or supplemented);
| (d) | to make generally available to the Bank’s security holders and SCUSA as soon as practicable, but in any event not later
than eighteen months after the effective date (as defined in Rule 158(c) under the Securities Act) of the Registration Statement,
an earnings statement of the Bank and its subsidiaries (which need not be audited) covering a period of at least twelve months
beginning with the first fiscal quarter of the Bank occurring after the date of this Agreement which shall satisfy the provisions
of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder; provided, that the Bank
may make such earnings statements generally available by filing periodic reports with the Commission as may satisfy the earnings
statement requirement of Rule 158; |
| (e) | that, if required pursuant to the terms of a Terms Agreement, from the date of such Terms Agreement with SCUSA or other agreement
by SCUSA to purchase Securities as principal and continuing to and including the later of (i) the termination of the trading restrictions
for the Securities purchased thereunder, as notified to the Bank by SCUSA, and (ii) the related Time of Delivery, the Bank will
not, without the prior written consent of SCUSA, offer, sell, contract to sell or otherwise dispose of any debt securities of the
Bank which both mature more than 9 months after such Time of Delivery and are substantially similar to the Securities except pursuant
to this Agreement or any Terms Agreement, or except in an offering of Securities that are not and are not required to be registered
under the Act or except in connection with a firm commitment underwriting pursuant to an underwriting agreement that does not provide
for a continuous offering of medium-term debt securities; |
| (f) | that each acceptance by the Bank of an offer to purchase Securities hereunder (including any purchase from the Bank by SCUSA
as principal not pursuant to a Terms Agreement), and each execution and delivery by the Bank of a Terms Agreement with SCUSA, shall
be deemed to be an affirmation to SCUSA that the representations and warranties of the Bank contained in or made pursuant to this
Agreement are true and correct as of the date of such acceptance or of such Terms Agreement, as the case may be, as though made
at and as of such date, and an undertaking that such representations and warranties will be true and correct as of the settlement
date for the Securities relating to such acceptance or as of the Time of Sale or the Time of Delivery relating to such sale, as
the case may be, as though made at and as of such date (except that such representations and warranties shall be deemed to relate
to the Registration Statement, the Prospectus and the Time of Sale Information as amended and supplemented relating to such Securities); |
| (g) | that, if and to the extent that the Bank and SCUSA shall agree that the following requirements of this Section 5(g) shall be
applicable, reasonably in advance of each time an annual report on Form 40-F of the Bank is filed with the Commission, and each
time the Bank sells Securities to SCUSA as principal pursuant to a Terms Agreement and such Terms Agreement specifies the delivery
of an opinion or opinions by counsel to Bank as a condition to the purchase of Securities pursuant to such Terms Agreement (it
being understood that SCUSA will include such condition only when in its reasonable discretion such opinion would be appropriate
under the circumstances and after consultation with the Bank), the Bank shall furnish to such counsel such papers and |
information as they may reasonably request to enable
them to furnish to SCUSA the opinion or opinions referred to in Sections 8(b) and 8(c) hereof;
| (h) | that, if and to the extent that the Bank and SCUSA shall agree that the following requirements of this Section 5(h) shall be
applicable, reasonably promptly after each time an annual report on Form 40-F of the Bank is filed with the Commission and each
time the Bank sells Securities to SCUSA as principal pursuant to a Terms Agreement and such Terms Agreement specifies the delivery
of a written opinion under this Section 5(h) as a condition to the purchase of Securities pursuant to such Terms Agreement (it
being understood that SCUSA will include such condition only when in its reasonable discretion such opinion would be appropriate
under the circumstances and after consultation with the Bank), the Bank shall cause Osler, Xxxxxx & Harcourt LLP, Canadian
counsel for the Bank, to furnish SCUSA a written opinion, dated the date of such amendment, supplement or incorporation or the
Time of Delivery relating to such sale, as the case may be, in form satisfactory to SCUSA, to the effect that SCUSA may rely on
the opinion of such counsel referred to in Section 8(b) hereof which was last furnished to SCUSA to the same extent as though it
were dated the date of such letter authorizing reliance (except that the statements in such last opinion shall be deemed to relate
to the Registration Statement, the Prospectus and the Time of Sale Information as amended and supplemented to such date) or, in
lieu of such opinion, an opinion of the same tenor as the opinion of such counsel referred to in Section 8(b) hereof but modified
to relate to the Registration Statement, the Prospectus and the Time of Sale Information as amended and supplemented to such date; |
| (i) | that, if and to the extent that the Bank and SCUSA shall agree that the following requirements of this Section 5(i) shall be
applicable, reasonably promptly after each time an annual report on Form 40-F of the Bank is filed with the Commission and each
time the Bank sells Securities to SCUSA as principal pursuant to a Terms Agreement and such Terms Agreement specifies the delivery
of a written opinion under this Section 5(i) as a condition to the purchase of Securities pursuant to such Terms Agreement (it
being understood that SCUSA will include such condition only when in its reasonable discretion such opinion would be appropriate
under the circumstances and after consultation with the Bank), the Bank shall cause Xxxxx & Overy LLP, United States counsel
for the Bank, to furnish SCUSA a written opinion, dated the date of such amendment, supplement or incorporation or the Time of
Delivery relating to such sale, as the case may be, in form satisfactory to SCUSA, to the effect that SCUSA may rely on the opinion
of such counsel referred to in Section 8(c) hereof which was last furnished to SCUSA to the same extent as though it were dated
the date of such letter authorizing reliance (except that the statements in such last opinion shall be deemed to relate to the
Registration Statement, the Prospectus and the Time of Sale Information as amended and supplemented to such date) or, in lieu of
such opinion, an opinion of the same tenor as the opinion of such counsel referred to in Section 8(c) hereof but modified to relate
to the Registration Statement, the Prospectus and the Time of Sale Information as amended and supplemented to such date; and |
| (j) | that, if and to the extent that the Bank and SCUSA shall agree that the following requirements of this Section 5(j) shall be
applicable, reasonably promptly after each time an annual report on Form 40-F of the Bank is filed with the Commission and each
time the Bank sells Securities to SCUSA as principal pursuant to a Terms Agreement and such Terms Agreement specifies the delivery
of a letter under this Section 5(j) as a condition to the purchase of Securities pursuant to such Terms Agreement (it being understood
that |
SCUSA will include such condition only when in its reasonable
discretion such opinion would be appropriate under the circumstances and after consultation with the Bank), the Bank shall cause
KPMG LLP, chartered accountants (the “Auditors”), to furnish SCUSA a letter, dated the date of such amendment,
supplement or incorporation or the Time of Delivery relating to such sale, as the case may be, in form satisfactory to SCUSA, of
the same tenor as the letter referred to in Section 8(e) hereof but modified to relate to the Registration Statement, the Prospectus
and the Time of Sale Information as amended or supplemented to the date of such letter; provided, however, that, with respect
to any financial information or other matter, such letter may reconfirm as true and correct at such date as though made at and
as of such date, rather than repeat, statements with respect to such financial information or other matter made in the letter referred
to in Section 8(e) hereof which was last furnished to SCUSA;
| (k) | that, if and to the extent that the Bank and SCUSA shall agree that the following requirements of this Section 5(k) shall be
applicable, reasonably promptly after each time an annual report on Form 40-F of the Bank is filed with the Commission and each
time the Bank sells Securities to SCUSA pursuant to a Terms Agreement and such Terms Agreement specifies the delivery of a certificate
under this Section 5(k) as a condition to the purchase of Securities pursuant to such Terms Agreement, the Bank shall furnish or
cause to be furnished forthwith to SCUSA a certificate signed by an executive officer of the Bank, dated the date of such supplement,
amendment or incorporation or the Time of Delivery relating to such sale, as the case may be, to the effect that the statements
contained in the certificate referred to in Section 8(g) hereof which was last furnished to SCUSA are true and correct at such
date as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement,
the Prospectus and the Time of Sale Information as amended and supplemented to such date), or, in lieu of such certificate, a certificate
of the same tenor as the certificates referred to in said Section 8(g) but modified to relate to the Registration Statement, the
Prospectus and the Time of Sale Information as amended and supplemented to such date. |
| 6. | Certain Agreements of SCUSA. SCUSA hereby represents
and agrees that |
| (a) | it has not and will not use, authorize use of, refer to, or participate in the planning for use of, any “free writing
prospectus”, as defined in Rule 405 under the Securities Act (which term includes use of any written information furnished
to the Commission by the Bank and not incorporated by reference into the Registration Statement and any press release issued by
the Bank) other than (i) a free writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2)
under the Securities Act) that was not included (including through incorporation by reference) in the Prospectus, the Pricing Supplement
or a previously filed Issuer Free Writing Prospectus or Underwriter Free Writing Prospectus previously approved by the Bank pursuant
to clause (iii) below, (ii) any Issuer Free Writing Prospectus listed in the Terms Agreement or other agreement in respect of a
specific offering of Securities in the form of Schedule II to Annex I or prepared pursuant to Section 5(a) above or (iii) any free
writing prospectus prepared by SCUSA and approved by the Bank in advance in writing (each such free writing prospectus referred
to in clauses (i) or (iii), an “Underwriter Free Writing Prospectus”); |
| (b) | it has not and will not distribute any Underwriter Free Writing Prospectus referred to in clause (a)(iii) in a manner reasonably
designed to lead to its broad unrestricted dissemination; |
| (c) | it has not and will not, without the prior written consent of the Bank, use any free writing prospectus that contains the final
terms of the Securities unless such terms have previously been included in a free writing prospectus filed with the Commission;
provided, that SCUSA may use a term sheet containing such additional information as may be mandated by the relevant product supplement
or, if the relevant Securities are not a structured product, substantially in the form of Schedule III to Annex I hereto (unless
another form is mutually agreed by the Bank and SCUSA), the contents of which will be agreed with the Bank in the context of a
specific offering of Securities; provided, further, that SCUSA shall notify the Bank, and provide a copy of such term sheet to
the Bank, prior to, or substantially concurrently with, the first use of such term sheet; |
| (d) | it will, pursuant to reasonable procedures developed in good faith, retain copies of each free writing prospectus used or referred
to by it, in accordance with Rule 433 under the Securities Act; and |
| (e) | it is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering (and will promptly
notify the Bank if any such proceeding against it is initiated during the Prospectus Delivery Period). |
| 7. | Payment of Certain Expenses. The Bank covenants and
agrees with SCUSA that the Bank will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Bank’s counsel and the Bank’s accountants
in connection with the registration of the Securities under the Securities Act and all
other expenses in connection with the preparation, printing and filing of the Registration
Statement, the Prospectus and any Pricing Supplements, any Issuer Free Writing Prospectus,
any Time of Sale Information and all other amendments and supplements thereto and the
mailing and delivering of copies thereof to SCUSA, (ii) all costs and expenses related
to the transfer and delivery of the Securities, including any transfer or similar taxes
payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment
memorandum in connection with the offer and sale of the Securities under state securities
laws and all expenses in connection with the qualification of the Securities for offer
and sale under state securities laws as provided in Section 5(b) hereof, including filing
fees and the reasonable and documented fees and disbursements of counsel for SCUSA in
connection with such qualification and in connection with the Blue Sky or legal investment
memorandum, (iv) all filing fees and the reasonable and documented fees and disbursements
of counsel to SCUSA incurred in connection with the review and qualification of the offering
of the Securities by the Financial Industry Regulatory Authority, Inc. ("FINRA"),
(v) any fees charged by the rating agencies for the rating of the Securities, (vi) the
cost of the preparation, issuance and delivery of the Securities, (vi) the fees and expenses
of the Trustee and any agent of the Trustee and the reasonable fees and disbursements
of counsel for the Trustee in connection with the Indenture and the Securities, (vii)
the document production charges and expenses associated with printing this Agreement
and (viii) all other costs and expenses incident to the performance of the obligations
of the Bank hereunder for which provision is not otherwise made in this Section. It is
understood, however, that, except as provided in this Section, and Section 9 entitled
“Indemnification and Contribution”, SCUSA will pay all of its own costs and
expenses, including fees and disbursements of their counsel, transfer taxes payable on
resale of any of the Securities by them and any advertising expenses connected with any
offers they may make; provided, however, that the reasonable fees and disbursements
of SCUSA’s counsel for the establishment of the Securities shall be paid by the
Bank. |
| 8. | Conditions to the Obligations of SCUSA. The obligation
of SCUSA as agent of the Bank at any time (the “Solicitation Time”)
to solicit offers to purchase the Securities from the Bank and the obligation of SCUSA
to purchase Securities from the Bank as principal, pursuant to any Terms Agreement or
otherwise, shall in each case be subject, in SCUSA’s discretion, to the |
condition that all representations and warranties and
other statements of the Bank herein (and, in the case of an obligation of SCUSA under a Terms Agreement, in or incorporated by
reference in such Terms Agreement) are true and correct at and as of the Commencement Date and any applicable date referred to
in Section 5(k) hereof that is prior to such Solicitation Time or Time of Delivery, as the case may be, and at and as of such Solicitation
Time or at and as of both such Time of Delivery and Time of SCUSA Purchase, as the case may be (“Time of SCUSA Purchase”
shall mean, with respect to any obligation of SCUSA to purchase Securities as principal, the time when the related Terms Agreement
becomes effective or if there is no Terms Agreement, the time when SCUSA otherwise becomes committed to purchase the Securities);
the condition that prior to such Solicitation Time or Time of Delivery, as the case may be, the Bank shall have performed all of
its obligations hereunder theretofore to be performed; and the following additional conditions:
| (a) | (i) the Registration Statement shall have become effective; no stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A under the Securities Act shall be pending
before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with
the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under
the Securities Act) and in accordance with Section 5(a) hereof; and all requests by the Commission for additional information shall
have been complied with to the reasonable satisfaction of SCUSA; (ii) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate
the direction of the possible change, in the rating accorded any of the debt securities of the Bank or any of its Significant Subsidiaries
by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and (iii) there shall have not occurred any change, or any development involving a prospective change,
in the condition, financial or otherwise, or in the earnings, business or operations of the Bank and its subsidiaries, taken as
a whole, from that set forth in the Prospectus (exclusive of any amendments or supplements thereto prior to the Solicitation Time
or Time of Delivery, as the case may be), that, in the judgment of SCUSA, is material and adverse and makes it impracticable to
proceed with the solicitation by SCUSA of offers to purchase Securities from the Bank or the purchase by SCUSA of Securities from
the Bank as principal, as the case may be, on the terms and in the manner contemplated in the Terms Agreement, Registration Statement,
the Time of Sale Information and the Prospectus as first amended or supplemented relating to the Securities to be delivered at
the relevant Time of Delivery. |
| (b) | Osler, Xxxxxx & Harcourt LLP, Canadian counsel for the Bank, shall have furnished to SCUSA their written opinions,
dated the Commencement Date, should such opinion be jointly requested by the parties to this Agreement, and each applicable
date referred to in Section 5(h) hereof that is on or
prior to such Solicitation Time or Time of Delivery, as the case may
be, subject to such exceptions and qualifications as would be customary, to the effect that: |
| (i) | The Bank validly exists as a Schedule I bank under the Bank Act; |
| (ii) | The Bank has the corporate power to execute, deliver and perform its obligations under this Agreement, any applicable Terms
Agreement and the Indenture and to sell the Securities to be delivered on the Closing Date; |
| (iii) | All necessary corporate action has been taken by the Bank to authorize the execution and delivery of this Agreement and the
performance of its obligations hereunder and this Agreement has been, to the extent execution and delivery are matters governed
by the laws of the Province of Ontario or the federal laws of Canada applicable therein, duly executed and delivered by the Bank; |
| (iv) | All necessary corporate action has been taken by the Bank to authorize the execution and delivery of any applicable Terms Agreement
and the performance of its obligations thereunder and any applicable Terms Agreement has been, to the extent execution and delivery
are matters governed by the laws of the Province of Ontario or the federal laws of Canada applicable therein, duly executed and
delivered by the Bank; |
| (v) | All necessary corporate action has been taken by the Bank to authorize the creation, issuance, sale and delivery of the Securities
to be delivered on the Closing Date, and the Securities have been, to the extent issuance, execution and delivery are matters governed
by the laws of the Province of Ontario or the federal laws of Canada applicable therein, duly issued, executed and delivered by
the Bank. |
| (vi) | All necessary corporate action has been taken by the Bank to authorize the execution and delivery of the Indenture and the
performance of its obligations thereunder and the Indenture has been, to the extent execution and delivery are matters governed
by the laws of the Province of Ontario or the federal laws of Canada applicable therein, duly executed and delivered by the Bank.
The Indenture will, with respect to the provisions thereof governed by the laws of the Province of Ontario and the federal laws
of Canada applicable therein, constitute a legal, valid and binding obligation of the Bank enforceable in accordance with its terms; |
| (vii) | The execution and delivery of this Agreement, any applicable Terms Agreement and the Indenture, the fulfillment of the terms
of this Agreement, any applicable Terms Agreement and the Indenture by the Bank, and the issuance, sale and delivery of the Securities
do not and will not result in a breach of or default under, and do not and will not create a state of facts which, after notice
or lapse of time or both, will result in a breach of or default under: (a) any of the terms, conditions or provisions of the Bank
Act or the by-laws of the Bank; or (b) any law, statute, regulation or rule applicable to the Bank or its property or assets. |
| (viii) | The Indenture and the issuance of the Securities thereunder comply, to the extent applicable, with the provisions of the Bank
Act. No registration, filing or recording of the Indenture under the laws of the Province of Ontario or the federal laws of Canada
applicable therein is necessary or required for the issue of the Securities or the consummation of the transactions contemplated
by this Agreement or the Indenture, except such as have been made. |
| (ix) | All necessary corporate action has been taken by the Bank to authorize the execution and delivery of each of the Prospectus
and any applicable Pricing Supplement and the filing thereof with the Commission; |
| (x) | The statements in the Registration Statement under Part II of the registration statement on Form F-3 under the heading “Indemnification”,
insofar as such statements constitute statements of the laws of the Province of Ontario or the federal laws of Canada applicable
therein or purport to summarize provisions of agreements or instruments, have been reviewed by us and fairly summarize the matters
described therein and are accurate in all material respects; |
| (xi) | The form of global certificate representing the Securities to be delivered at the Time of Delivery has been approved by the
Bank and, to the extent applicable, complies with the provisions of the Bank Act; |
| (xii) | The statements in the Prospectus under the heading “Limitations on Enforcement of U.S. Laws Against the Bank, its Management
and Others” insofar as such statements constitute statements of Canadian federal or Ontario law, have been reviewed by us
and fairly summarize the matters described therein and are accurate in all material respects; |
| (xiii) | The submission by the Bank to the non-exclusive jurisdiction of the New York Courts (as defined below) in each of Section 15
of the Distribution Agreement and Section 1501 of the Indenture would be recognized and given effect by an Ontario Court (as defined
below) as a valid submission to the New York Courts; provided, that the provisions of the Distribution Agreement and the Indenture,
as applicable, dealing with service of process on the Bank are duly complied with; |
| (xiv) | An Ontario Court would give a judgment based upon a final and conclusive in personam judgment of a court of competent jurisdiction
in New York (a “New York Court”) for a sum certain, obtained against the Bank with respect to a claim arising out of
the Distribution Agreement or the Indenture (a “New York Judgment”) without reconsideration of the merits provided
that: |
| (A) | an action to enforce the New York Judgment must be commenced in an Ontario Court within any applicable limitation period; |
| (B) | an Ontario Court has discretion to stay or decline to hear an action on the New York Judgment if such judgment is under appeal,
or there is another subsisting judgment in any jurisdiction relating to the same cause of action; |
| (C) | an Ontario Court will render judgment only in Canadian dollars; and |
| (D) | an action in an Ontario Court on the New York Judgment may be affected by bankruptcy, insolvency or laws affecting the enforcement
of creditors’ rights generally; |
further, an Ontario Court will not give such judgment
if:
| (A) | the New York Judgment was obtained by fraud or in a manner contrary to the principles of natural justice; |
| (B) | the New York Judgment is for a claim which would be characterized as based on foreign revenue, expropriatory, or penal, or
other public law under Ontario Law (as defined below); |
| (C) | the New York Judgment is contrary to Public Policy (as defined below) or to an order made by the Attorney General of Canada
under the Foreign Extraterritorial Measures Act (Canada) or by the Competition Tribunal under the Competition Act (Canada) in respect
of certain judgments referred to in such statutes; or |
| (D) | the New York Judgment has been satisfied or is void or voidable under New York Law (as defined below); and |
| (xv) | In any proceeding in a court of competent jurisdiction in the Province of Ontario (an “Ontario Court”) for
the enforcement of the Distribution Agreement and the Indenture, an Ontario Court would apply the laws of State of New York (“New
York Law”), in accordance with the parties’ choice of New York Law in the Distribution Agreement and the Indenture,
to all issues which under the laws of the Province of Ontario and the federal laws applicable in the Province of Ontario (“Ontario
Law”) are to be determined in accordance with the chosen law of the contract, provided that: |
| (A) | The parties’ choice of New York Law is bona fide and legal and is not contrary to public policy, as such term is interpreted
under Ontario Law (“Public Policy”); |
| (B) | In any such proceeding, an Ontario Court: |
| (1) | will not take judicial notice of the provisions of New York Law but will only apply such provisions if they are pleaded and
proven by expert testimony; |
| (2) | will apply Ontario Law to matters which would be characterized as procedural under Ontario Law; |
| (3) | will apply provisions of Ontario Law that have overriding effect; |
| (4) | will not apply any New York Law if its application would be contrary to Public Policy; |
| (5) | will not apply any New York Law if such application would be characterized under Ontario Law as the direct or indirect enforcement
of a foreign revenue, expropriatory, penal or other public law; |
| (6) | will not enforce the performance of any obligation that is illegal under the laws of any jurisdiction in which the obligation
is to be performed; and |
| (7) | an Ontario Court has discretion to decline to hear an action if: (i) it is contrary to Public Policy; (i) it is not the
proper forum to |
hear such an action; or (iii) another action is properly
pending before, or a decision has been rendered by, a foreign authority relating to the same cause of action.
| (c) | Xxxxx & Overy LLP, United States counsel for the Bank, shall have furnished to SCUSA their written opinions, dated the
Commencement Date, should such opinion be jointly requested by the parties to this Agreement, and each applicable date referred to in Section
5(i) hereof that is on or prior to such Solicitation Time or Time of Delivery, as the case may be, subject to such assumptions,
qualifications, limitations and exceptions as would be
customary, to the effect that: |
| (i) | this Agreement and any applicable Terms Agreement have been duly executed and delivered by the Bank, to the extent such execution
and delivery are governed by the laws of the State of New York; |
| (ii) | the Indenture has been duly executed and delivered by the Bank, to the extent such execution and delivery are governed by the
laws of the State of New York, and is the valid and binding obligation of the Bank, enforceable against the Bank in accordance
with its terms; |
| (iii) | the Indenture has been duly qualified under the Trust Indenture Act; |
| (iv) | no authorization, approval or consent of, and no filing or registration with, any governmental or regulatory authority or agency
of the United States or of the State of New York is required on the part of the Bank for the execution, delivery or performance
by the Bank of this Agreement, the applicable Terms Agreement, the Indenture or the Securities, as applicable, (other than as have
been obtained and are in full force and effect under the Securities Act and the Trust Indenture Act or as may be required under
the federal securities laws, the securities or "blue sky" laws of any state, the Uniform Commercial Code of any state,
or to be obtained from or made to FINRA); |
| (v) | the execution and delivery by the Bank of this Agreement, the applicable Terms Agreement, the Indenture and the Securities
does not, and the performance by the Bank of its obligations thereunder will not, result in a violation of Applicable Law. “Applicable
Law” means the federal law of the United States of America, and the law of the State of New York (including the rules or
regulations promulgated thereunder or pursuant thereto, but not including any statutes, ordinances, administrative decisions, rules
or regulations of any political subdivision of the State of New York), that a New York lawyer exercising customary professional
diligence would reasonably be expected to recognize as being applicable to the Bank, this Agreement, the applicable Terms Agreement,
the Indenture or the Securities or the transactions governed by this Agreement, the applicable Terms Agreement, the Indenture or
the Securities; |
| (vi) | the discussions set forth in the Prospectus under the headings “Details of the Offering”, “Description
of the Debt Securities We May Offer” and “Plan of Distribution,” in each case, to the extent they
describe specific provisions of the Securities or legal conclusions with respect thereto currently applicable to the holders described
therein, are (subject to the qualifications set forth therein) fair summaries of such matters in all material respects; |
| (vii) | the Securities, when duly executed and issued under New York law by the Bank and when authenticated by the U.S. Trustee in
accordance with the Indenture and delivered and paid for as provided in this Agreement and the applicable Terms Agreement, will
be the valid and binding obligations of the Bank, enforceable against the Bank in accordance with their terms and entitled to the
benefits of the Indenture; |
| (viii) | the submission by the Bank to the non-exclusive jurisdiction of the U.S. federal and New York State courts located in The City
of New York pursuant each of the Distribution Agreement and the Indenture is effective, and the appointment of SCUSA for service
of process pursuant to Section 15 of this Agreement and Section 1501 of the Indenture is binding on the Bank; |
| (ix) | the discussions set forth in the Prospectus under the heading “Certain U.S. Federal Income Tax Considerations,”
to the extent that they constitute matters of United States federal income tax law or legal conclusions with respect thereto currently
applicable to holders described therein, are (subject to the qualifications set forth therein) fair summaries of such matters in
all material respects; and |
| (x) | the Bank is not required to register as an “investment company” (as such term is defined in the Investment Company
Act) under the Investment Company Act. |
Such counsel shall also state, in a separate letter,
words substantially to the following effect:
| (A) | the Registration Statement, when it became effective, and the Prospectus, as of the date thereof, appear on their face to be
appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations
of the Commission thereunder (assuming that such documents comport with Canadian law); except that, in each case, we express no
belief and make no statement with respect to (a) the financial, accounting and statistical data contained or incorporated by reference
in or omitted from the Registration Statement, the Time of Sale Information or the Final Prospectus, and (b) the exhibits
to the Registration Statement, including the Form T-1; and |
| (B) | if requested by SCUSA or the Bank in a reasonable time in advance of delivery of such opinion, our performance of the services
referred to in such opinion did not disclose any information that gave us reason to believe that (i) the Registration Statement,
as of the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact necessary
to make the statements therein not misleading; or (ii) (a) other than in the case of a sale of Securities by the Bank via an Agent,
the Time of Sale Information, at the Time of Sale (which such counsel may assume to be the date of the Terms Agreement), or (b)
the Prospectus, as amended or supplemented, as of the date of such amendment or supplement and as of the date of the related letter,
contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading; except that in the case of each of clause
(i) and (ii), we |
express no belief and make no statement with respect
to (a) the financial, accounting and statistical data contained or incorporated by reference in or omitted from the Registration
Statement, the Time of Sale Information or the Final Prospectus, and (b) the exhibits to the Registration Statement, including
the Form T-1.
Notwithstanding the foregoing, such letter furnished
on the Commencement Date shall not refer to the Time of Sale or the Time of Sale Information. In addition, in expressing the opinion
and beliefs in the previous paragraphs, such counsel shall not assume any responsibility for (and will not be required to express
any opinion or belief with respect to) the adequacy or accuracy of the derivation or compilation from the Bank’s financial
statements or financial records of any financial included, or incorporated by reference, in the Registration Statement, the Time
of Sale Information or the Prospectus.
| (d) | Not later than 10:00 a.m., New York City time, on the Commencement Date, each date of filing of 40-F’s with the SEC,
as described in Section 5(j), and with respect to any sale of Securities pursuant to a Terms Agreement which requires delivery
of a comfort letter in accordance with Section 5(j) on each applicable date referred to in Section 5(j) hereof that is on or prior
to such Solicitation Time or Time of Delivery, SCUSA shall have received, in form and substance reasonably satisfactory to SCUSA,
from the Auditor, statements and information of the type ordinarily included in accountants’ “comfort letters”
to SCUSA with respect to the financial statements and certain financial information contained in or incorporated by reference in
the Registration Statement, the Time of Sale Information and the Prospectus. |
| (e) | On or after the date hereof or of any applicable Terms Agreement there shall not have occurred any of the following: (i) trading
generally shall have been suspended or materially limited on, or by, as the case may be, any of the New York Stock Exchange or
the Toronto Stock Exchange, (ii) trading of any securities of the Bank shall have been suspended on any exchange or in any over-the-counter
market, (iii) a material disruption in securities settlement, payment or clearance services in the United States or Canada shall
have occurred, (iv) any moratorium on commercial banking activities shall have been declared by Federal or New York State, Canadian
federal or Ontario provincial authorities or (v) there shall have occurred any outbreak or escalation of hostilities, or any change
in financial markets or any calamity or crisis that, in the judgment of SCUSA, is material and adverse and, which, in the judgment
of SCUSA makes it impracticable to proceed with the solicitation of offers to purchase Securities or the purchase of the Securities
from the Bank as principal pursuant to the applicable Terms Agreement or otherwise, as the case may be, on the terms and in the
manner contemplated in the Prospectus as first amended or supplemented relating to the Securities to be delivered at the relevant
Time of Delivery. |
| (f) | The Bank shall have furnished or caused to be furnished to SCUSA a certificate signed by an executive officer of the Bank dated
the Commencement Date and each applicable date referred to in Section 5(k) hereof that is on or prior to such Solicitation Time
or Time of Delivery, as the case may be, to the effect set forth in Section 8(a)(i) and (ii) above and to the effect that the representations
and warranties of the Bank contained in this Agreement are true and correct as of the Commencement Date or such applicable date,
as the case may be, and that the Bank has complied with all of the agreements and |
satisfied all of the conditions on its part to be performed
or satisfied hereunder on or prior to the Commencement Date or such applicable date, as the case may be.
| 9. | Indemnification and Contribution. |
| (a) | The Bank agrees to indemnify and hold harmless SCUSA and each person, if any, who controls SCUSA within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of SCUSA within the meaning of Rule 405 under
the Securities Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal
or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus as amended or supplemented or any amendment or supplement thereto, any Issuer Free Writing Prospectus or Time of Sale
Information or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based upon information furnished in writing to the Bank
by SCUSA expressly for use therein. |
| (b) | (i) SCUSA agrees to indemnify and hold harmless the Bank, its directors, its officers who sign the Registration Statement and
each person, if any, who controls the Bank within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, to the same extent as the foregoing indemnity from the Bank to SCUSA, but only with reference to information relating to SCUSA
furnished to the Bank in writing by SCUSA expressly for use in the Registration Statement, the Time of Sale Information, any Issuer
Free Writing Prospectus, the Prospectus or any Preliminary Prospectus, in each case as amended or supplemented and (ii) SCUSA further
agrees to indemnify and hold harmless the Bank, its directors, its officers against any and all losses, claims, damages,
judgments, liabilities or expenses whatsoever to which it may become subject in connection with any action, suit, proceeding or
claim, public or private arising out of, relating to or in connection with, any violation by SCUSA of any applicable federal or
state law, rule or regulation or the applicable rules and regulations of FINRA, that is the result of negligence or willful misconduct
of SCUSA in connection with its purchase or sale of Securities. |
| (c) | In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding paragraphs, such person (the “indemnified party”) shall
promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party
to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees
and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i)
the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be |
inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that such fees and expenses shall be reimbursed as they are incurred. Such firm shall
be designated in writing by SCUSA in the case of parties indemnified pursuant to Section 9(a) and by the Bank in the case of parties
indemnified pursuant to Section 9(b). The indemnifying party shall not be liable for any settlement of any proceeding effected
without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if
(i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is an actual or potential party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such proceeding.
| (d) | If the indemnification provided for in Sections 9(a) and 9(b) hereof is unavailable as a matter of law to an indemnified party
in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under either such paragraph,
in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits
received by the Bank on the one hand, and SCUSA on the other, from the offering of the Securities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Bank on the one hand, and of SCUSA on the other, in connection
with the statements or omissions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Bank on the one hand, and SCUSA on the other, shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting expenses) received by the Bank bear to the total
underwriting commissions received by SCUSA, in each case as set forth in the table on the cover page of the Prospectus. The relative
fault of the Bank and of SCUSA shall be determined by reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Bank or
by SCUSA and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement
or omission. |
| (e) | The Bank and SCUSA agree that it would not be just and equitable if contribution pursuant to this Section 9 were determined
by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred
to in |
Section 9(d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Xxxxxxx 0, XXXXX
shall not be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten
by it and distributed to the public or placed by it as Agent were offered to the public exceeds the amount of any damages that
SCUSA has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section
9 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law
or in equity.
| (f) | The indemnity and contribution provisions contained in this Section 9 and the representations, warranties and other statements
of the Bank contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of
this Agreement, (ii) any investigation made by or on behalf of SCUSA, any person controlling SCUSA or any affiliate of SCUSA or
by or on behalf of the Bank, its officers or directors or any person controlling the Bank and (iii) acceptance of and payment for
any of the Securities. |
| 10. | Agency. SCUSA, as agent, in soliciting offers to
purchase Securities from the Bank and in performing the other obligations of SCUSA, as
agent hereunder (other than in respect of any purchase by an SCUSA as principal, pursuant
to a Terms Agreement or otherwise), is acting solely as agent for the Bank and not as
principal. SCUSA, as agent, will make reasonable efforts to assist the Bank in obtaining
performance by each purchaser whose offer to purchase Securities from the Bank was solicited
by SCUSA, as agent, and has been accepted by the Bank, but SCUSA, as agent, shall not
have any liability to the Bank in the event such purchase is not consummated for any
reason. If the Bank shall default on its obligation to deliver Securities to a purchaser
whose offer it has accepted, the Bank shall (i) hold SCUSA, as agent, harmless against
any loss, claim or damage arising from or as a result of such default by the Bank and
(ii) notwithstanding such default, pay to SCUSA, as agent, any commission to which it
would be entitled in connection with such sale. |
| 11. | Suspension or Termination; Additional Agents; Amendments. |
| (a) | The provisions of this Agreement relating to the solicitation of offers to purchase Securities from the Bank may be suspended
or terminated at any time by the Bank as to SCUSA or by SCUSA upon the giving of written notice of such suspension or termination
to SCUSA or the Bank, as the case may be. In the event of such suspension or termination with respect to any Agent, (x) this Agreement
shall remain in full force and effect with respect to any Agent as to which such suspension or termination has not occurred, (y)
this Agreement shall remain in full force and effect with respect to the rights and obligations of any party which have previously
accrued or which relate to Securities which are already issued, agreed to be issued or the subject of a pending offer at the time
of such suspension or termination (including all Securities that may be the subject of a Secondary Market Transaction at any time
during the Secondary Transactions Period) and (z) in any event, this Agreement shall remain in full force and |
effect insofar as the fourth paragraph of Section 3(a),
and Sections 5(d), 7, 9, and 10 hereof are concerned.
| (b) | The Bank, in its sole discretion, may appoint one or more additional parties to act as agents from time to time. |
| (c) | The Bank, in its sole discretion, may increase the aggregate initial offering price of the Securities from time to time without
consent of, or notice to, SCUSA, as agent. |
| 13. | Notices. All communications hereunder shall be in
writing and effective only upon receipt and if to SCUSA shall be delivered, mailed or
sent to SCUSA at the address set forth on the front page hereof; and if to the Bank shall
be delivered, mailed or sent to The Bank of Nova Scotia, 00 Xxxx Xxxxxx Xxxx, Xxxxxx
Plaza, 64th Floor, Toronto, Ontario M5H 1H1 Facsimile: 000-000-0000 Attention: Xxx Xxxxx;
provided, however, that any notice to SCUSA pursuant to Section 8(c) hereof shall
be delivered or sent by mail or facsimile transmission to SCUSA at its address will be
supplied to the Bank by SCUSA upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof. |
| 14. | Successors. This Agreement and any applicable Terms
Agreement shall be binding upon, and inure solely to the benefit of, SCUSA and the Bank,
and to the extent provided in Sections 8 and 9 hereof, the officers and directors of
the Bank and each person who controls SCUSA or the Bank, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall acquire
or have any right under or by virtue of this Agreement or any Terms Agreement. No purchaser
of any of the Securities through or from SCUSA hereunder shall be deemed a successor
or assign by reason merely of such purchase. |
| 15. | Submission to Jurisdiction; Appointment of Agent for Service. |
| (a) | The Bank irrevocably submits to the non-exclusive jurisdiction of any New York State or United States Federal court sitting
in The City of New York over any suit, action or proceeding arising out of or relating to this Agreement or any applicable Terms
Agreement, the Prospectus, the Registration Statement, or the transactions contemplated hereby or thereby. The Bank irrevocably
waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any
such suit, action or proceeding brought in such a court and any claim that any such suit, action or proceeding brought in such
a court has been brought in an inconvenient forum. To the extent that the Bank has or hereafter may acquire any immunity (on the
grounds of sovereignty or otherwise) from the jurisdiction of any court or from any legal process with respect to itself or its
property, the Bank irrevocably waives, to the fullest extent permitted by law, such immunity in respect of any such suit, action
or proceeding. |
| (b) | The Bank hereby irrevocably appoints Vice President, US Operations of The Bank of Nova Scotia, with offices at Xxx Xxxxxxx
Xxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 as its agent for service of process in any suit, action or proceeding described in the preceding
paragraph and agrees that service of process in any such suit, action or proceeding may be made upon it at the office of such agent.
The Bank waives, to the fullest extent permitted by law, any other requirements of or objections to personal jurisdiction with
respect thereto. The Bank represents and warrants that such agent has agreed to act as the Bank’s agent for service of process,
and the Bank agrees to take any and all action, |
including the filing of any and all documents and instruments,
that may be necessary to continue such appointment in full force and effect.
| 16. | Business Day. Time shall be of the essence in this
Agreement and any Terms Agreement. As used herein, “business day”
shall mean any day when the Commission’s office in Washington, D.C. is open for
business. |
| 17. | Judgment Currency. If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder into any currency
other than United States dollars, the parties hereto agree, to the fullest extent that
they may effectively do so, that the rate of exchange used shall be the rate at which
in accordance with normal banking procedures the relevant Agents could purchase United
States dollars with such other currency in The City of New York on the business day preceding
that on which final judgment is given. The obligation of the Bank with respect to any
sum due from it to SCUSA or any person controlling SCUSA shall, notwithstanding any judgment
in a currency other than United States dollars, not be discharged until the first business
day following receipt by SCUSA or controlling person of any sum in such other currency,
and only to the extent that SCUSA or controlling person may in accordance with normal
banking procedures purchase United States dollars with such other currency. If the United
States dollars so purchased are less than the sum originally due to SCUSA or controlling
person hereunder, the Bank agrees as a separate obligation and notwithstanding any such
judgment, to indemnify SCUSA or controlling person against such loss. If the United States
dollars so purchased are greater than the sum originally due to SCUSA or controlling
person hereunder, SCUSA or controlling person agrees to pay to the Bank an amount equal
to the excess of the dollars so purchased over the sum originally due to SCUSA or controlling
person hereunder. |
| 18. | Applicable Law. This Agreement shall be governed
by and construed in accordance with the internal laws of the State of New York. |
| 19. | Counterparts. This Agreement and any Terms Agreement
may be signed in two or more counterparts, each of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon the same instrument. |
[Remainder of Page Intentionally Left
Blank]
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Very truly yours, |
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THE BANK OF NOVA SCOTIA |
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By: |
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/s/ Xxxxxxx Xxxxxx |
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Name: |
Xxxxxxx Xxxxxx |
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Title: |
Managing Director, Secured and Capital Funding |
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| Accepted as of the date hereof: |
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SCOTIA CAPITAL (USA) INC. |
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By: |
/s/ Richard Agata |
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Name: |
Richard Agata |
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Title: |
Chief Compliance Officer |
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Xxxxx
X
Xxx
Xxxx xx Xxxx Xxxxxx
US$l,000,000,000
SENIOR NOTES, SERIES A
TERMS AGREEMENT
_____________, 201l
SCOTIA CAPITAL (USA) INC.
One Liberty Plaza
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The Bank of Nova Scotia, a Canadian chartered
bank (the “Bank”), proposes, subject to the terms and conditions stated herein and in the Second Amended and
Restated Distribution Agreement, dated December 1, 2014 (the “Amended and Restated Distribution Agreement”),
between the Bank on the one hand and Scotia Capital (USA) Inc. on the other, to issue and sell to you the securities specified
in the Schedule hereto (the “Purchased Securities”). Each of the provisions of the Amended and Restated Distribution
Agreement not specifically related to the solicitation by you, as agent of the Bank, of offers to purchase Securities is incorporated
herein by reference in its entirety, and shall be deemed to be part of this Terms Agreement to the same extent as if such provisions
had been set forth in full herein. Nothing contained herein or in the Amended and Restated Distribution Agreement shall make any
party hereto an agent of the Bank or make such party subject to the provisions therein relating to the solicitation of offers to
purchase Securities from the Bank, solely by virtue of its execution of this Terms Agreement. Each of the representations and warranties
set forth therein shall be deemed to have been made at and as of the date of this Terms Agreement, except that each representation
and warranty that refers to the Prospectus, the Registration Statement or the Time of Sale Information (as therein defined) in
Section 1 of the Amended and Restated Distribution Agreement shall be deemed to be a representation or warranty as of the date
of the Amended and Restated Distribution Agreement in relation to the Prospectus, the Time of Sale Information or the Registration
Statement, and also a representation and warranty as of the date of this Terms Agreement in relation to the Prospectus, the Time
of Sale Information or the Registration Statement, as the case may be, each as amended or supplemented to the date hereof and each
as amended or supplemented relating to the Purchased Securities that are the subject of this Terms Agreement. Unless otherwise
defined herein, terms defined in the Amended and Restated Distribution Agreement are used herein as therein defined.
An amendment and/or supplement to each
of the Prospectus and the Registration Statement, each in the form heretofore delivered to you is now proposed to be filed with
the Commission.
Subject to the terms and conditions set
forth herein and in the Amended and Restated Distribution Agreement incorporated herein by reference, the Bank agrees to issue
and sell to you, and you agree to purchase from the Bank at the time and place and at the purchase price set forth in the Schedule
hereto, the principal amount of Purchased Securities set forth in the Schedule hereto. You further agree that any Purchased Securities
offered and sold by you to initial purchasers will be offered and sold at the price to public, and in accordance with the provisions
relating to commissions and fees, if any, set forth in the Schedule hereto, unless you and the Bank otherwise agree
If the foregoing is in accordance with
your understanding, please sign and return to us counterparts hereof, and upon acceptance hereof by you this letter and such acceptance
hereof, including the provisions of the Amended and Restated Distribution Agreement incorporated herein by reference, shall constitute
a binding agreement between you and the Bank.
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Very truly yours, |
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THE BANK OF NOVA SCOTIA |
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By: |
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________________________________ |
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Name: |
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Title: |
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| Accepted as of the date hereof: |
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SCOTIA CAPITAL (USA) INC. |
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By: |
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________________________________ |
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Name: |
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Title: |
|
Schedule
I TO ANNEX I
[
TITLE OF PURCHASED SECURITIES:
Senior Notes, Series l
AGGREGATE PRINCIPAL AMOUNT:
[$]
PRICE TO PUBLIC:
%
of the principal amount of the Purchased Securities, plus accrued interest [, if any,] from
to [and
accrued amortization[, if any,] from
to ]
PURCHASE PRICE BY UNDERWRITERS:
%
of the principal amount of the Purchased Securities, plus accrued interest from
to [and accrued
amortization[, if any,] from to
]
[COMMISSION:
%
of the principal amount of the Purchased Securities]
FORM OF PURCHASED SECURITIES:
[Book-entry only form represented
by one or more global securities deposited with The Depository Trust Company (“DTC”) or its designated custodian, to
be made available for checking by the Representatives at least twenty-four hours prior to the Closing Date at the office of DTC.]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same-day) funds
CLOSING DATE:
a.m. (New York City time), , 201l
INDENTURE:
Indenture dated as of January 11, 2010, between the Bank
and Computershare Trust Company, N.A., as U.S. Trustee, and Computershare Trust Company of Canada, as Canadian Trustee
MATURITY DATE:
INTEREST RATE:
[ %]
[Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates, commencing ,
20 ]
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Purchased Securities may be redeemed, in whole or
in part at the option of the Bank, in the amount of [$
or an integral multiple thereof,
[on or after ,
at the following redemption prices (expressed
in percentages of principal amount). If [redeemed on or before _______, ___%, and if] redeemed during the 12-month period beginning
,
YEAR REDEMPTION PRICE
and thereafter at 100% of their principal amount, together
in each case with accrued interest to the redemption date.]
[on any interest payment date falling on or after ,
, at the election of the Bank, at a
redemption price equal to the principal amount thereof, plus accrued interest to the date of redemption.]]
[Other possible redemption provisions, such as mandatory
redemption upon occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Purchased Securities are entitled to the benefit
of a sinking fund to retire [$ ]
principal amount of Purchased Securities on
in each of the years through
at 100% of their principal
amount plus accrued interest[, together with [cumulative] [noncumulative] redemptions at the option of the Bank to retire an additional
[$ ]
principal amount of Purchased Securities in the years
through at 100%
of their principal amount plus accrued interest.]
[If Purchased Securities are extendable debt securities,
insert—
EXTENDABLE PROVISIONS:
Purchased Securities are repayable on ,
[insert date and
years], at the option of the holder, at their principal amount with accrued interest. The initial annual interest rate will
be
%, and thereafter the annual interest rate will be adjusted on ,
and to
a rate not less than %
of the effective annual interest rate on U.S. Treasury obligations with -year
maturities as of the [insert date 15 days prior to maturity date] prior to such [insert maturity date].]
[If Purchased Securities are floating rate debt securities,
insert—
FLOATING RATE PROVISIONS:
Initial annual interest rate will be %
through [and thereafter will be adjusted
[monthly] [on each , ,
and ]
[to an annual rate of % above the average
rate for -year [month] [securities] [certificates of deposit] issued by
and [insert names of banks].] [and the annual
interest rate [thereafter] [from through
] will be the interest yield equivalent of
the weekly average per annum market discount rate for -month
Treasury bills plus % of Interest Differential
(the excess, if any, of (i) the then-current weekly average per annum secondary market yield for -month
certificates of deposit over (ii) the then current interest yield equivalent of the weekly average per annum market discount rate
for -month Treasury bills); [from
and thereafter the rate will be the then-current interest yield equivalent plus %
of Interest Differential].]
DEFEASANCE PROVISIONS:
CLOSING LOCATION FOR DELIVERY OF PURCHASED SECURITIES:
DOCUMENTS TO BE DELIVERED:
The following documents referred to in the Amended and Restated
Distribution Agreement shall be delivered as a condition to the Closing:
[None]
[(1) The opinions and letter of counsel to the Bank referred
to in Sections 5(h) and 5(i).]
[(2) The accountants’ letter referred to in Section
5(j).]
[(3) The officers’ certificate referred to in Section
5(k).]
ADDITIONAL CLOSING CONDITIONS:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
OTHER TERMS:
[expense reimbursement upon termination]
Schedule
II TO ANNEX I
Form of Agreement between SCUSA and the Bank in Respect of
Time of Sale Information and pricing information for the Offering of [identify issue]
In connection with the offering of [identify issue]
of Bank of Nova Scotia (the “Bank”), Scotia Capital (USA) Inc. and the Bank agree as follows:
| a. | Time of Sale Information |
The preliminary pricing supplements that are to be included
in the Time of Sale Information are as follows:
[list each preliminary pricing supplement
to be included in the Time of Sale Information]
The Free Writing Prospectuses that are to be included in
the Time of Sale Information are as follows:
[list each Free Writing Prospectus
to be included in the Time of Sale Information]
| b. | Pricing Information Provided Orally by Scotia Capital (USA) Inc. |
The script to be used by SCUSA to confirm sales is as follows:
Schedule
III TO ANNEX I
Form of Agreement between Scotia Capital (USA) Inc. and the
Bank in Respect of a Term Sheet used to communicate Time of Sale Information and pricing information for the Offering of [identify
issue]
In connection with the offering of [identify issue]
of The Bank of Nova Scotia (the “Bank”), Scotia Capital (USA) Inc. (“SCUSA”) and the Bank
agree that the Term Sheet used to communicate Time of Sale Information and pricing information for the above-referenced offering
shall be as follows:
[JOINT BOOKRUNNERS/CO-MANAGERS]
[ISSUER NAME]
[securities offered]
| Issuer: |
|
| Symbol: |
|
| Securities offered: |
|
| Price to public: |
|
| Net proceeds: |
$[ ] |
| Closing date: |
[ ],201l |
| Final Maturity Date: |
|
| Use of Proceeds: |
|
| CUSIP: |
|
The issuer has filed a registration statement
(including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read
the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information
about the issuer and this offering. You may get these documents for free by visiting XXXXX on the SEC web site at xxx.xxx.xxx.
Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send to you the prospectus
if you request it by calling toll-free
and request to speak with the [Debt Syndicate Desk] .
Any disclaimer or other notice that may
appear below is not applicable to this communication and should be disregarded. Such disclaimer or notice was automatically generated
as a result of this communication being sent by Bloomberg or another email system.
Annex
II
ADMINISTRATIVE PROCEDURES MEMORANDUM
(DATED AS OF DECEMBER 1, 2014)
FOR
THE BANK OF NOVA SCOTIA
SENIOR NOTES, SERIES A
The Senior Notes, Series A (the “Securities”)
may from time to time be offered on a continuing basis for sale by The Bank of Nova Scotia (the “Bank”) through
Scotia Capital (USA) Inc. pursuant to the Second Amended and Restated Distribution Agreement to which these Administrative Procedures
are an exhibit who (“SCUSA”) may purchase the Securities, as principal from the Bank for resale to investors
and other purchasers in accordance with the Second Amended and Restated Distribution Agreement. In addition, if agreed to by the
Bank and SCUSA, SCUSA may utilize its reasonable efforts on an agency basis to solicit offers to purchase the Securities. Only
those provisions in these Administrative Procedures that are applicable to the particular role that SCUSA will perform shall apply.
Whenever these Administrative Procedures indicate that information may be set forth in a Note, such information may also be set
forth in a Pricing Supplement to the Prospectus (as defined below).
Computershare Trust Company, N.A. (or
such other agent appointed in accordance with the Indenture) will act as registrar (the “Registrar”) and domestic
paying agent for the Securities through its office in New York, New York. As used herein, the term “Prospectus” refers
to the most recent Prospectus, as such document may be amended or supplemented, which has been prepared by the Bank for use by
SCUSA in connection with the offering of the Securities.
Capitalized terms used herein that are
not otherwise defined shall have the meanings ascribed thereto in the Securities or the Prospectus.
DTC REGISTERED GLOBAL NOTES
Securities may be issued in book-entry
form (each beneficial interest in a global Note, a “Book-Entry Note” and collectively, the “Book-Entry
Notes”) and represented by one or more fully registered global Notes (each, a “Global Note” and collectively,
the “Global Notes”) held by or on behalf of The Depository Trust Company, as depositary (“DTC”,
which term includes any successor thereof), and recorded in the book-entry system maintained by DTC. Book-Entry Notes represented
by a Global Note are exchangeable for definitive Notes in registered form, of like tenor and of an equal aggregate principal amount,
by the owners of such Book-Entry Notes only upon certain limited circumstances described in the Prospectus.
In connection with the qualification
of Book-Entry Notes for eligibility in the book-entry system maintained by DTC, the Bank or its agents will perform the custodial,
document control and administrative functions described below, in accordance with their respective obligations under the applicable
Letters of Representations from the Bank to DTC relating to the Program, and a Certificate of Deposit Agreement between the Bank
and DTC (the “Certificate Agreement”), and the Bank’s obligations as a participant in DTC, including DTC’s
Same-Day Funds Settlement System (“SDFS”).
| Settlement Procedures for Book-Entry Notes: |
Settlement Procedures with regard to Book-Entry Securities purchased by SCUSA as principal or sold by each SCUSA, as agent of the Bank, will be as follows (which will have been agreed to by the Bank and SCUSA in accordance with the Second Amended and Restated Distribution Agreement): |
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(A) |
SCUSA will advise the Bank by telephone, confirmed by facsimile or e-mail (with a copy to the Registrar), of the following settlement information: |
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1. |
Taxpayer identification number of the purchaser. |
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2. |
Principal amount of such Book-Entry Notes. |
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3. |
Each term specified in the applicable Pricing Supplement. |
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4. |
Price to public, if any, of such Book-Entry Notes (if such Book-Entry Notes are not being offered “at the market”). |
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5. |
Trade Date. |
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6. |
Settlement Date (Original Issue Date). |
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7. |
Maturity Date. |
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8. |
Redemption provisions, if any, including: Initial Redemption Date, Initial Redemption Percentage and Annual Redemption Percentage Reduction. |
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Repayment provisions, if any, including Holder’s Optional Repayment Date(s). |
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9. |
Net proceeds to the Bank. |
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10. |
Whether such Book-Entry Notes are being sold SCUSA as principal or to an investor or other purchaser through SCUSA acting as agent for the Bank. |
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11. |
SCUSA’s commission or discount, as applicable. |
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12. |
Whether such Book-Entry Notes are being issued with Original Issue Discount and the terms thereof. |
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13. |
Default Rate. |
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14. |
Identification numbers of participant accounts maintained by DTC on behalf of SCUSA. |
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15. |
Whether additional documentation will be required for Securities being sold to SCUSA as principal. |
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16. |
Such other information specified with respect to such Book-Entry Notes (whether by Addendum or otherwise). |
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(B) |
The Registrar will assign a CUSIP number of the appropriate series to the Global Note representing such Book-Entry Notes and, as soon thereafter as practicable, the Registrar will notify SCUSA by telephone of such CUSIP number. |
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(C) |
SCUSA will communicate to DTC through DTC’s Participant Terminal System, a pending deposit message specifying the following settlement information: |
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1. |
The information set forth in Settlement Procedure A. |
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2. |
The identification numbers of the participant accounts maintained by DTC on behalf of the Registrar and SCUSA. |
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3. |
Identification of the Book-Entry Note as a Fixed Rate Book-Entry Note or Floating Rate Book-Entry Note. |
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4. |
The initial Interest Payment Date for the Global Note representing such Book-Entry Notes, the number of days by which such date succeeds the related Record Date and, if then calculable, the amount of interest payable on such Interest Payment Date (which amount shall have been confirmed by the Bank). |
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5. |
The CUSIP number of the Global Note representing such Book-Entry Notes. |
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6. |
Whether such Global Note represents any other Securities issued or to be issued in book-entry form. |
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SCUSA will complete and deliver to the Trustee the Global Note representing such Book-Entry Notes in a form that has been approved by the Bank and SCUSA and the Bank will deliver its authentication instructions to the Trustee. |
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(D) |
The Trustee will authenticate pursuant to the Bank’s instructions the Global Note representing such Book-Entry Notes in a form that has been approved by the Bank and SCUSA. |
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(E) |
DTC will credit the Book-Entry Notes represented by such Global Note to the participant account of the Registrar maintained by DTC. |
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(F) |
The Registrar will enter an SDFS deliver order through DTC’s Participant Terminal System instructing DTC (i) to debit such Book-Entry Notes to the Registrar’s participant account and credit such Book-Entry Notes to the participant account of SCUSA maintained by DTC and (ii) to debit the settlement account of SCUSA and credit the settlement account of the Registrar maintained by DTC, in an amount equal to the price of such Book-Entry Notes less SCUSA’s commission or discount. Any entry of such deliver order shall be deemed to constitute a representation and warranty by the Registrar to DTC that (i) the Global Note representing such Book-Entry Notes has been issued and authenticated and (ii) the Registrar is holding such Global Note pursuant to the Certificate Agreement. |
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(G) |
In the case of Book-Entry Notes sold through SCUSA acting as agent, SCUSA will enter an SDFS deliver order through DTC’s Participant Terminal System instructing DTC (i) to debit such Book-Entry Notes to SCUSA’s participant account and credit such Book-Entry Notes to the participant accounts of the Participants maintained by DTC and (ii) to debit the settlement accounts of such Participants and credit the settlement account of SCUSA maintained by DTC, in an amount equal to the offering price of such Book-Entry Notes. |
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(H) |
Transfers of funds in accordance with SDFS delivery orders described in Settlement Procedures F and G will be settled in accordance with SDFS operating procedures in effect on the Settlement Date. |
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(I) |
In the case of Book-Entry Notes sold through SCUSA acting as agent, SCUSA will confirm the purchase of such Book-Entry Notes to the purchaser either by transmitting to the Participant with respect to such Book-Entry Notes a confirmation order through DTC’s Participant Terminal System or by mailing a written confirmation to such purchaser. |
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| Settlement Procedures Timetable: |
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For offers to purchase Book-Entry Notes accepted by the Bank, Settlement Procedures “A” through “I” set forth above shall be completed as soon as possible but no later than the respective times (New York City time) set forth below: |
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Settlement Timetable Procedure |
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A |
11:00 a.m. on the Trade Date |
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B |
12:00 noon on the Trade Date |
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C |
5:00 p.m. on the Trade Date |
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D |
9:00 a.m. on the Settlement Date |
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E |
10:00 a.m. on the Settlement Date |
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F-G |
2:00 p.m. on the Settlement Date |
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H |
4:00 p.m. on the Settlement Date |
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I |
5:00 p.m. on the Settlement Date |
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If a sale is to be settled on the same Business Day as the Trade Date, Settlement Procedures C, D, F and G shall be completed no later than 2:30 p.m. on such Business Day. |
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If a sale is to be settled more than one Business Day after the trade date, Settlement Procedures A, B and C may, if necessary, be completed at any time prior to the specified times on the first Business Day after such trade date. In connection with a sale which is to be settled more than one Business Day after the trade date, if the initial interest rate for a Floating Rate Note is not known at the time that Settlement Procedure A is completed, Settlement Procedures B and C shall be completed as soon as such rate has been determined, but no later than 11:00 a.m. and 2:00 p.m., New York City time, respectively, on the second Business Day before the Settlement Date. |
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Settlement Procedure H is subject to extension in accordance with any extension of Fedwire closing deadlines and in the other events specified in the SDFS operating procedures in effect on the Settlement Date. |
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If settlement of a Book-Entry Note is rescheduled or canceled, the Bank shall deliver to DTC, through DTC’s Participant Terminal System, a cancellation message to such effect by no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the scheduled Settlement Date. |
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| Failure to Settle: |
|
If the Registrar fails to enter an SDFS deliver order with respect to a Book-Entry Note pursuant to Settlement Procedure F, then the Registrar may deliver to DTC, through DTC’s Participant Terminal System, as soon as practicable a withdrawal message instructing DTC to debit such Book-Entry Note to the participant account of the Registrar maintained at DTC. DTC will process the withdrawal message; provided, however, that such participant account contains a principal amount of the Global Note representing such Book-Entry Note that is at least equal to the principal amount to be debited. If withdrawal messages are processed with respect to all Book-Entry Notes represented by a Global Note, the Registrar will xxxx such Global Note “canceled” and make appropriate entries in its records. The CUSIP number assigned to such Global Note shall, in accordance with CUSIP Service Bureau procedures, be canceled and not immediately reassigned. If withdrawal messages are processed with respect to some of the Book-Entry Notes represented by a Global Note, the Registrar will exchange such Global Note for two Global Notes, one of which shall represent the Book-Entry Notes for which such withdrawal messages are processed and shall be canceled immediately after issuance, and the other of which shall represent the other Book-Entry Notes previously represented by the surrendered Global Note and shall bear the CUSIP number of the surrendered Global Note. |
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In the case of any Book-Entry Note sold through SCUSA, acting as agent, if the purchase price for any Book-Entry Note is not timely paid to the Participants with respect to such Book-Entry Note by the beneficial purchaser thereof (or a person, including an indirect participant in DTC, acting on behalf of such purchaser), such Participants and, in turn, SCUSA may enter SDFS deliver orders through DTC’s Participant Terminal System reversing the orders entered pursuant to Settlement Procedures F and G, respectively. Thereafter, the Registrar will deliver the withdrawal message and take the related actions described in the preceding paragraph. |
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Notwithstanding the foregoing, upon any failure to settle with respect to a Book-Entry Note, DTC may take any actions in accordance with its SDFS operating procedures then in effect. In the event of a failure to settle with respect to a Book-Entry Note that was to have been represented by a Global Note also representing other Book-Entry Notes, the Registrar will provide, in accordance with Settlement Procedure D, for the issuance of a Global Note representing such remaining Book-Entry Notes and will make appropriate entries in its records. |
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|
| Preparation and Delivery of Pricing Supplements: |
|
If any offer to purchase a Note is accepted by the Bank, the Bank will promptly prepare a Pricing Supplement reflecting the terms of such Note. The Bank shall deliver copies of such Pricing Supplement to SCUSA which made or presented the offer to purchase the applicable Note, as instructed by SCUSA, and to the paying agent as soon as practicable following the trade, but in no event later than 11:00 a.m. (New York City time) on the Business Day following the applicable trade date. |
Annex
III
SIGNIFICANT SUBSIDIARIES
|
Name of Significant
Subsidiary |
|
Jurisdiction
of Incorporation of Significant Subsidiary |
|
Percentage
of Direct or Indirect Ownership of each Significant Subsidiary by the Bank |
| BNS Investments, Inc. |
|
Toronto, Ontario |
|
100% |
| |
|
|
|
|
| Scotia Capital Inc. |
|
Toronto, Ontario |
|
100% |
