Ladies and Gentlemen:
The Issuer identified on Schedule 1 (the "Issuer") proposes to issue and sell the Notes
identified on Schedule 1 (the "Securities"). The Securities will be issued pursuant to that certain Indenture to be dated as of the Closing Date identified on Schedule 1 (the "Indenture"), between the Issuer and the Trustee identified on Schedule 1, as trustee (the "Trustee"). The "Applicable Agreements" refer to this Agreement (as defined below) and the Transaction Documents to which it is a party. Capitalized terms used but not defined herein shall have the meanings
given to such terms in the Offering Circular (as defined below) or, if not defined therein, in the Indenture.
Subject to the terms and conditions set forth in this agreement (this "Agreement"), the
Issuer hereby appoints Scotia Capital (USA) Inc. as its placement agent (in such capacity, "Scotiabank" or the "Placement Agent")
in connection with the offering of the principal amount of each Class specified on Schedule 2 hereto (the "Subject Securities") and authorizes Scotiabank to arrange for the sale of the
Subject Securities.
The Issuer intends to use the proceeds of the offering of the Securities to, among other things, invest in a portfolio of assets (the "Collateral Obligations") consisting primarily of U.S. dollar-denominated senior secured middle market loans. BlackRock Capital Investment Advisors, LLC will act as investment manager pursuant
to an investment management agreement to be dated as of the Closing Date between the Investment Manager and the Issuer (the "Transaction").
The Securities will be secured by the Collateral Obligations.
The Issuer hereby confirms its agreement with Scotiabank concerning the Subject Securities as follows:
1. Offering Documents.
The Securities will be sold by the Issuer without being registered under the Securities Act of 1933, as amended (the "Securities Act"), in reliance upon an exemption therefrom. The Issuer has prepared (x) a preliminary offering circular dated April 1, 2026 (the "First Preliminary
Offering Circular"), (y) a second preliminary offering circular dated April 29, 2026 (the "Second Preliminary Offering Circular" and, together with the First Preliminary
Offering Circular, collectively, the "Preliminary Offering Circular") and (y) a final offering circular dated May 26, 2026 (the "Offering
Circular"). The Preliminary Offering Circular, the Offering Circular and all amendments or supplements thereto, or revisions to any of the foregoing, and any accompanying exhibits, are referred to herein as the "Offering Documents." The Offering Documents collectively describe, among other things, the Issuer, the Collateral Obligations and the Securities. Copies of the Offering Documents have been
delivered by the Issuer to Scotiabank pursuant to the terms of this Agreement, for delivery to prospective purchasers of Securities. The Issuer hereby confirms that it has authorized the use of the Offering Documents in connection with the
placement of Securities by Scotiabank in the manner contemplated by this Agreement. References herein to an Offering Document shall be deemed to refer to and include any document incorporated by reference therein.
2. Purchase and Resale of the Subject Securities.
(a) The Placement
Agent has agreed that the offering of the Subject Securities will be made prior to the Closing Date, and the Placement Agent agrees to solicit offers to purchase the Subject Securities on a "commercially reasonable efforts" basis. The Placement
Agent or its affiliates may, but are not obligated to, purchase Subject Securities (including upon their initial issuance) pursuant to this Agreement. The Issuer confirms that it has authorized the Placement Agent to offer the Subject
Securities prior to the Closing Date in a manner consistent with this Agreement and to use the Offering Documents in connection therewith. The Securities shall be issued and sold by the Issuer free from all liens, charges and encumbrances,
equities and other third party rights of any nature whatsoever, together with all rights of any nature whatsoever attaching or accruing to them now or after the date of this Agreement.
(b) Scotiabank
represents, warrants and agrees that:
(i) if Scotiabank
purchases any Subject Securities for its own account on the Closing Date, as of the Closing Date, it is a qualified institutional buyer within the meaning of Rule 144A under the Securities Act (a "QIB")
and a "qualified purchaser" as defined in Section 2(a)(51) of the Investment Company Act (a "Qualified Purchaser");
(ii) it has not
solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Subject Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D or in any
manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act;
(iii) the Issuer has
authorized it to, and it shall, offer the Subject Securities in compliance with the foreign law selling restrictions set forth in the forepart of the Offering Circular; and
(iv) it has not
solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Subject Securities as part of their initial offering except to persons whom it reasonably believes to be:
(A) solely in the case
of the Tax Unrestricted Secured Notes, (1) non-"U.S. persons" (within the meaning of Regulation S) and (2) purchasing the Subject Securities in offshore transactions in reliance on Regulation S and (3) Qualified Purchasers (or entities
beneficially owned exclusively by one or more Qualified Purchasers), and in connection with each such sale, it has complied or will comply with the restrictions set forth in Annex A hereto; or
(B) Qualified
Purchasers or entities owned exclusively by Qualified Purchasers who are also Qualified Institutional Buyers within the meaning of Rule 144A, and in connection with each such sale, it has taken or will take reasonable steps to ensure that the
purchaser of the Subject Securities is aware that such sale is being made in reliance on Rule 144A;
such investors meeting the requirements in (A) or (B), "Eligible Investors".
(c) Scotiabank
acknowledges and agrees that the Issuer and, for purposes of the "no registration" opinion to be delivered to Scotiabank pursuant to Section 5 hereof, counsel for the Issuer, may rely upon the accuracy of the representations and warranties of
Scotiabank, and compliance by Scotiabank with its agreements, contained in paragraph (b) above (including Annex A hereto) and Scotiabank hereby consents to such reliance.
(d) Scotiabank agrees
to deliver the Offering Circular to each initial investor in the Subject Securities.
(e) Scotiabank
acknowledges and agrees that any purchases, placements and resales of the Subject Securities by it are restricted as described under "Transfer Restrictions" in the
Offering Circular and the Indenture.
(f) The Issuer
acknowledges and agrees that Scotiabank may offer and sell Securities to or through any affiliate of Scotiabank, and that any such affiliate may offer and sell Securities purchased by it to or through Scotiabank.
(g) Payment for and
delivery of the Subject Securities shall be made on the Closing Date at the offices of Chapman and Cutler LLP, 1270 Avenue of the Americas, New York, NY 10020, or such other location mutually agreed upon.
(h) Delivery of the
Subject Securities shall be made against payment of the purchase price therefor by the respective purchasers to the order of the Issuer in same day funds by such means as shall be acceptable to the Issuer and Scotiabank. Such payment shall be
made upon authorization from Scotiabank (such authorization to be given if the conditions to Scotiabank's obligations set forth herein are either satisfied or waived) against delivery of the Subject Securities. Payment for the Subject
Securities shall be made by wire transfer in immediately available funds to the account(s) specified by a representative of the Issuer to Scotiabank against delivery to the Trustee, as custodian for The Depository Trust Company ("DTC") or its nominee, for the account of the respective purchasers, of one or more global notes representing the Subject Securities, with any transfer taxes payable in connection with the
sale of the Subject Securities duly paid by the Issuer.
(i) In consideration
of Scotiabank's obligations hereunder, Scotiabank will be entitled to receive from the Issuer a fee (the "Structuring and Arrangement Fee") calculated in accordance with the letter
agreement dated April 23, 2026, between Scotiabank and the Investment Manager (the "Engagement Letter").
3. Representations and Warranties of the Issuer. The Issuer represents and warrants to Scotiabank that:
(a) Offering Circular. The Preliminary Offering Circular, as of its date, did not, and the Offering Circular, as of its date, did not, and as of the Closing Date, does 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; and each of the Preliminary
Offering Circular and the Offering Circular did contain and does contain all information with regard to it and the Securities that is material in the context of the issuance, offering and sale of the Securities; provided that it makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to Scotiabank that has been furnished to the
Issuer by or on behalf of Scotiabank expressly for use in the Preliminary Offering Circular or Offering Circular (or any amendment or supplement thereto); provided, further, that the Issuer hereby acknowledges and agrees that the only information relating to Scotiabank that has been furnished to the Issuer by or on behalf of Scotiabank expressly for
use in the Preliminary Offering Circular or Offering Circular (or any amendment or supplement thereto) consists of the information contained under the heading "Risk Factors—Risks
Relating to Conflicts of Interest—Certain Conflicts of Interest Regarding Scotiabank and its Affiliates" of the Preliminary Offering Circular and the Offering Circular (the "Scotiabank
Information").
(b) Additional Written Communication. It (including its agents and representatives, other than the Placement Agent in its capacity as such) have not prepared, made, used,
authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any written communication that constitutes an offer to sell or solicitation of an offer to buy the Securities other than the Offering Documents.
(c) Arm's-Length Transaction. It acknowledges and agrees that: (i) the arrangement for the offering of the Subject Securities pursuant to this Agreement, including the
determination of the offering price of the Securities and any related discounts and commissions, is an arm's length transaction between each of the Issuer, on the one hand, and Scotiabank, on the other hand, and it is capable of evaluating and
understanding and understands and accepts the terms, risks and conditions of the Transaction; (ii) in connection with the Transaction and the process leading to the Transaction Scotiabank is and has been acting solely as a principal (except to
the extent provided in this Agreement) and is not the financial advisor, agent (except to the extent provided in this Agreement) or fiduciary of any of it or its respective affiliates, stockholders, creditors or employees or any other party;
(iii) Scotiabank has not assumed, nor shall it assume, an advisory, agency (except to the extent provided in this Agreement) or fiduciary responsibility in favor of it with respect to the Transaction or the process leading thereto (irrespective
of whether Scotiabank has advised or is currently advising it on other matters) or any other obligation to it except the obligations expressly set forth in this Agreement; (iv) Scotiabank and its affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of it, and Scotiabank has no obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) Scotiabank has not provided any legal,
accounting, regulatory, investment or tax advice with respect to the offering contemplated hereby, and it has consulted its own advisors to the extent it deemed appropriate and it is responsible for making its own independent investigation and
appraisal of the transactions contemplated hereby, and Scotiabank shall have no responsibility or liability to it with respect to any legal, accounting, regulatory, investment or tax matters.
Any review by Scotiabank of the Issuer, and of the transactions contemplated hereby or other matters relating to such
transactions, will be performed solely for the benefit of Scotiabank, as the case may be, and shall not be on behalf of the Issuer or any other person.
This Agreement supersedes all prior agreements and understandings (whether written or oral) between it and Scotiabank, with
respect to the subject matter of this Section 3(c). It hereby waives and releases, to the fullest extent permitted by law, any claims that the Issuer may have against Scotiabank with respect to any breach or alleged breach of agency or fiduciary
duty.
(d) No Material Adverse Change. Since the later of (x) the respective dates as of which information is given in the Offering Documents and (y) its date of formation, (i) there
has not been any material adverse change or development in or material adverse effect on the condition (financial or otherwise), or the business, operation, management, earnings, property, business affairs or business prospects of the Issuer,
taken as a whole, (ii) there has not been any change in its equity capital or debt, (iii) there has been no dividend or distribution of any kind declared, paid or made by it and (iv) it has not entered into any transaction or agreement (whether
or not in the ordinary course of business) material to it or incurred any material liability or obligation direct or contingent (other than the Securities issued by it), except in each case as otherwise disclosed in the Offering Documents.
(e) Organization and Good Standing. It (i) has been duly organized and is validly existing and in good standing under the laws of its jurisdiction of organization or
incorporation (as applicable), (ii) is duly qualified to do business and is in good standing as a foreign corporation or other business entity in each jurisdiction in which its ownership or lease of property or the conduct of its business
requires such qualification, (iii) has the power and authority to issue and sell the Securities, to enter into the Applicable Agreements, and to undertake and perform the obligations expressed to be assumed by it herein and therein, and has all
power and authority necessary to own or hold its properties and to conduct the business in which it is engaged, and has taken all necessary action to approve and to authorize the same, except where the failure to be so qualified, in good
standing or have such power or authority would not, individually or in the aggregate, have a material adverse effect on the business, properties, management, financial position or condition, results of operations or prospects of the Issuer
taken as a whole or on the performance by the Issuer of its obligations under the Applicable Agreements or otherwise be material in the context of the issuance, offering and sale of the Securities (collectively, a "Material Adverse Effect"). The Issuer has no subsidiaries on the date hereof.
(f) Capitalization. Its authorized and issued share or other equity capital is as described in the Offering Circular, and all of its respective issued share or other equity
capital has been validly issued and is fully paid.
(g) Due Authorization. It has full right, power and authority to execute and deliver the Securities and the Applicable Agreements, including to grant any liens and security
interests to be granted by it pursuant to the Indenture and to perform its obligations hereunder and thereunder; and all action required to be taken for the due and proper authorization, execution and delivery of each of the Applicable
Agreements and the consummation of the transactions contemplated thereby has been duly and validly taken.
(h) The Indenture. Each of the Applicable Agreements (other than this Agreement) has been duly authorized by it, and on the Closing Date will be duly executed and delivered by it
and, when duly executed and delivered in accordance with its terms by each of the other parties thereto, will constitute its valid and legally binding agreement, enforceable against it in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally or by equitable principles relating to enforceability (collectively, the "Enforceability
Exceptions").
(i) The Securities. On the Closing Date, the Securities will have been duly authorized by it and duly executed, authenticated and issued, and when the Securities are delivered to
and paid for by the respective initial purchasers thereof, each Security will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of it, enforceable against it in accordance with the terms of
such Security, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(j) This Agreement. This Agreement has been duly authorized, executed and delivered by it and, when duly executed and delivered by each of the other parties hereto, will
constitute its valid and legally binding agreement, enforceable against it in accordance with its terms, subject to the Enforceability Exceptions.
(k) Descriptions of the Transaction Documents; Accurate Summaries. Each Transaction Document and this Agreement conforms in all material respects to the descriptions thereof
contained in the Offering Documents. The statements set forth in the Offering Circular under the captions "The Issuer—Business of the Issuer", "Certain U.S. Federal Income Tax Considerations", "Certain
ERISA and Related Considerations", "Anti-Money Laundering and Anti-Terrorism Requirements and
Disclosures" and "Plan
of Distribution," insofar as they purport to summarize the provisions of the laws and documents referred to therein, are accurate summaries in all material respects.
(l) Assets. In the case of the Issuer, on the Closing Date (i) it has the power to grant a security interest in the Assets and has taken all necessary actions to authorize the
granting of that security interest; (ii) it is the sole owner of the Assets, free and clear of any security interest, lien, encumbrance or other restrictions other than the security interest granted pursuant to the Indenture or as otherwise
contemplated by the Indenture; (iii) the Trustee has a valid and perfected first priority security interest in the Assets (assuming that any central clearing corporation or any third-party financial intermediary or other entity not within the
control of the Issuer gives the notices and takes the action required of it under relevant law for perfection of that interest), subject to no prior security interest, lien or encumbrance except as permitted by the Indenture; and (iv) the
performance of its obligations under the Indenture will not result in the creation of any security interest, lien or other encumbrance on any Assets except as contemplated by the Indenture.
(m) No Violation or Default. It is not (i) in violation of its charter or by-laws or similar organizational documents; (ii) in default, and no event has occurred that, with
notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any property or asset of it is subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory
authority, except, in the case of clauses (ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, have a Material Adverse Effect.
(n) No Conflicts. The execution, delivery and performance by it of the Applicable Agreements (including, but not limited to, the filing of any applicable financing statements
pursuant to the Indenture); the issuance and sale of the Securities; compliance by it with the terms of the Indenture and the consummation of the transactions contemplated by the Applicable Agreements; and in the case of the Issuer, the grant
and perfection of liens and security interests in the Assets pursuant to the Indenture do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, result in the
termination, modification or acceleration of, or result in the creation or imposition of any lien, charge or encumbrance upon any property, right or asset of it pursuant to, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it is bound or to which any property, right or asset of it is subject (other than any lien, charge or encumbrance created or imposed pursuant to the Indenture), (ii) conflict with or
result in a breach or violation of the provisions of the charter or by-laws or similar organizational documents of it or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator
or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation, default, lien, charge or encumbrance that would not, individually or in the aggregate, have a Material
Adverse Effect.
(o) No Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is
required for the execution, delivery and performance by it of the Applicable Agreements (including, but not limited to, the filing of any applicable financing statements pursuant to the Indenture); the issuance and sale of the Securities;
compliance by it with the terms of the Indenture; the consummation of the transactions contemplated by the Applicable Agreements; or, in the case of the Issuer, the grant and perfection of liens and security interests in the Assets pursuant to
the Indenture and the application of the proceeds from the sale of the Securities as described under "Use of Proceeds" in the Offering Circular, except for such consents,
approvals, authorizations, orders and registrations or qualifications as may be required under Delaware law, or applicable state securities or "Blue Sky" laws in connection with the placement of the Subject Securities by Scotiabank, each of
which, to the extent required, has been obtained and is in full force and effect.
(p) Licenses and Permits. It possesses, and immediately after giving effect to the offer, sale and
delivery of the Securities by the Issuer in the manner contemplated by this Agreement and the consummation of the other transactions contemplated by the Transaction Documents shall possess, all material licenses, certificates, authorizations
and permits issued by, and has made, and immediately after giving effect to the offer, sale and delivery of such Securities by the Issuer in the manner contemplated by this Agreement and the consummation of the other transactions contemplated
by the Transaction Documents shall have made, all declarations and filings with, the appropriate federal, state, local or non-U.S. regulatory agencies or bodies which are necessary for the ownership of its respective properties or the conduct
of its respective businesses as described in the Offering Documents, except, in each case, where the failure to possess or make the same would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and
it has not received notification of any revocation or modification of any such license, certificate, authorization or permit and has no reason to believe that any such license, certificate, authorization or permit shall not be renewed, except
where such revocation, modification or non-renewal would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(q) Legal Proceedings. There are no legal, governmental or regulatory investigations, actions, demands, claims, suits, arbitrations, inquiries or proceedings ("Actions") pending to which it is or may be a party or to which any property of it is or may be the subject; and no such Actions are threatened or contemplated by any governmental or
regulatory authority or threatened by others.
(r) Investment Company Act. None of the Issuer or the pool of Assets are, or after giving effect to the offering and sale of the Securities and the application of the proceeds
thereof as described in the Offering Circular, will be (i) an "investment company" or an entity "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Investment Company Act") or (ii) required to be registered under the Investment Company Act, nor shall the issuance, offering and sale of the
Securities as contemplated by this Agreement, the Indenture and the Offering Circular result in a violation of the Investment Company Act.
(s) Taxes. It is a newly formed entity and has not yet been required to file any Tax Return (as defined below) in any applicable jurisdiction. The charges, accruals and reserves
on its books in respect of Taxes are adequate. For purposes of this Agreement, the term "Taxes" shall mean all U.S. federal, state, local or non-U.S. income, payroll, employee
withholding, unemployment insurance, social security, sales use, service use, leasing use, excise, franchise, gross receipts, value added, alternative or add-on minimum, estimated, occupation, real and personal property, stamp, transfer,
workers' compensation, severance, windfall profits, environmental (including taxes under Section 59A of the United States Internal Revenue Code of 1986, as amended), or other tax of the same or of a similar nature, including any interest,
penalty or addition thereto, whether disputed or not, and the term "Tax Return" shall mean any return, declaration, report, form, claim for refund or information return or statement
relating to Taxes or income subject to taxation, or any amendment thereto, and including any schedule or attachment thereto.
(t) Compliance with ERISA. The issuance, offering and sale of the Securities in the manner contemplated by this Agreement and (subject to the accuracy of any representations
made, or deemed to be made, by holders of the Securities under the Indenture and the Offering Circular) by the Offering Circular shall not constitute any non-exempt prohibited transaction (as such term is defined in Section 406 of the U.S.
Employee Retirement Income Security Act of 1974, as amended ("ERISA") and Section 4975 of the United States Internal Revenue Code of 1986, as amended (the "Code")). It does not maintain an "employee benefit plan" (as defined in Section 3(3) of ERISA) that is subject to ERISA.
(u) No Unlawful Payments. Neither it, nor any of its subsidiaries, directors, officers or employees nor, to its knowledge, any agent or other person associated with or acting on
behalf of it or any of its subsidiaries, has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise
or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government official or employee, including of any government-owned or controlled entity or of a public international organization, or any person
acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of
1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United
Kingdom, or any other applicable anti-bribery or anti-corruption law; or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff,
influence payment, kickback or other unlawful or improper payment or benefit. It and its subsidiaries have instituted, maintained and enforced, and will continue to maintain and enforce, policies and procedures designed to promote and ensure
compliance with all applicable anti-bribery and anti-corruption laws.
(v) Compliance with Anti-Money Laundering Laws. The operations of it and its subsidiaries are and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements, including without limitation, those of Title 18 U.S. Code section 1956 and 1957, the Bank Secrecy Act of 1970, otherwise known as the Currency and Foreign Transactions Reporting Act of 1970, as amended,
the applicable money laundering statutes of all jurisdictions where it or any of its subsidiaries conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or
enforced by any governmental agency having jurisdiction over such Person, and any international anti-money laundering guidelines, principles or procedures issued by an intergovernmental group or organization, such as the Financial Action Task
Force on Money Laundering, of which the United States is a member and with which designation the United States representative to the group or organization continues to concur, and any Executive Order, directive, or regulation pursuant to the
authority or to the enforcement of any of the foregoing, or any orders or licenses issued thereunder (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 it or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to its knowledge, threatened. It will (A) conduct
requisite due diligence in connection with the transactions contemplated by the Offering Circular for purposes of complying with all applicable Anti-Money Laundering Laws, (B) ensure it does not use or permit to be used any of the proceeds from
the sale of the Securities in violation of any Anti-Money Laundering Laws, and (C) ensure it does not fund or permit to be funded any payment obligation under the Applicable Agreements in violation of any Anti-Money Laundering Laws.
(w) No Conflicts with Sanctions Laws. Neither it nor any of its subsidiaries, its directors, officers or employees, nor, to its knowledge, any agent, affiliate or other person
associated with or acting on behalf of it or any of its subsidiaries is an individual or entity ("Person") that is, or is owned or controlled by Persons that are, the subject or the
target of any sanctions, trade embargoes, or other comprehensive prohibitions against transaction activity administered or enforced by the U.S. government, (including, without limitation, the Office of Foreign Assets Control of the U.S.
Department of the Treasury ("OFAC") or the U.S. Department of State and including, without limitation, the designation as a "specially designated national" or "blocked person"), the
United Nations Security Council ("UNSC"), Canada, the European Union, His Majesty's Treasury ("HMT"), or other relevant
Sanctions Authority (collectively, "Sanctions"), or under investigation for any Sanctions violations, nor is it or any of its subsidiaries located, organized or resident in a country
or territory that is the subject or target of Sanctions, including, without limitation, Afghanistan, Cuba, Iran, North Korea, Syria, the Crimean region in Ukraine, the "Zaporizhzhia" region in Ukraine, the "Kherson" region in Ukraine, the
"Donetsk People's Republic" region in Ukraine, and the "Luhansk People's Republic" region in Ukraine (each, a "Sanctioned Country"); and it will not directly or indirectly use the
proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person (i) to fund or facilitate any activities of or business with any Person
that, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation by any
Person (including any Person participating in the transaction, whether as initial purchaser, underwriter, advisor, investor or otherwise) of Sanctions. Neither it nor any of its subsidiaries has knowingly engaged in or is now knowingly engaged
in any dealings or transactions with any Person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.
(x) Solvency. On and immediately after the Closing Date (after giving effect to the issuance and sale of the Securities and the other transactions related thereto as described in
the Offering Circular), it will be Solvent. As used in this paragraph, the term "Solvent" means, with respect to a particular date and entity, that on such date (i) the fair value
(and present fair saleable value) of the assets of such entity is not less than the total amount required to pay the probable liability of such entity on its total existing debts and liabilities (including contingent liabilities) as they become
absolute and matured; (ii) such entity is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming
consummation of the issuance and sale of the Securities as contemplated by this Agreement and the Offering Circular, such entity does not have, intend to incur or believe that it will incur debts or liabilities beyond its ability to pay as such
debts and liabilities mature; (iv) such entity is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital; and (v) such entity
is not a defendant in any civil action that would result in a judgment that such entity is or would become unable to satisfy.
(y) No Broker's Fees. It is not a party to any contract, agreement or understanding with any person (other than this Agreement) that would give rise to a valid claim against any
of them or Scotiabank for a brokerage commission, finder's fee or like payment in connection with the offering and sale of the Securities.
(z) Rule 144A Eligibility. On the Closing Date, the Securities will meet the requirements of Rule 144A(d)(3) under the Securities Act. On the Closing Date, the Securities will
not be of the same class as securities listed on a national securities exchange registered under Section 6 of the Exchange Act or quoted in an automated inter-dealer quotation system; and each of the Preliminary Offering Circular and the
Offering Circular, as of its respective date, contains or will contain all the information that, if requested by a prospective purchaser of the Securities, would be required to be provided to such prospective purchaser pursuant to Rule
144A(d)(4) under the Securities Act.
(aa) No Integration. Neither it nor any of its affiliates (as defined in Rule 501(b) of Regulation D) has, directly or through any agent, sold, offered for sale, solicited offers
to buy or otherwise negotiated in respect of, any security (as defined in the Securities Act), that is or will be integrated with the sale of the Securities in a manner that would require registration of the Securities under the Securities Act.
(bb) No General Solicitation or Directed Selling Efforts. None of it or any of its affiliates or any other person acting on its or their behalf (other than Scotiabank, as to which
no representation is made) has (i) solicited offers for, or offered or sold, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D or in any manner involving a
public offering within the meaning of Section 4(a)(2) of the Securities Act or (ii) engaged in any directed selling efforts within the meaning of Regulation S under the Securities Act ("Regulation
S"), and all such persons have complied with the offering restrictions requirement of Regulation S. It has not entered into any contractual agreement with respect to the distribution of the Securities except for the arrangements
with Scotiabank. It acknowledges that the Securities may not be offered or sold, directly or indirectly, and no offering circular or any advertisements in connection with the Securities may be distributed or published, in or from any country
or jurisdiction except under circumstances that shall result in compliance with any applicable rules and regulations of such country or jurisdiction.
(cc) Securities Law Exemptions. Assuming the accuracy of the representations and warranties of Scotiabank contained in Section 2(b) hereof (including Annex A hereto) and its
compliance with its agreements set forth therein, it is not necessary, in connection with the issuance and sale of the Securities by the Issuer and the offer and delivery of the Securities by Scotiabank in the manner contemplated by this
Agreement and the Offering Circular, to register the Securities under the Securities Act, or to qualify the Indenture under the Trust Indenture Act of 1939, as amended, or the rules and regulations of the Commission applicable to an indenture
that is qualified thereunder.
(dd) No Stabilization. It has not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Securities.
(ee) Margin Rules. None of the transactions contemplated by the Applicable Agreements (including, without limitation, the use of the proceeds from the sale of the Securities),
will violate or result in a violation of Section 7 of the Exchange Act, or any regulation promulgated thereunder, including, without limitation, Regulations T, U and X of the Board of Governors of the Federal Reserve System.
(ff) Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) included or
incorporated by reference in the Offering Circular has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(gg) Statistical and Market Data. Nothing has come to its attention that has caused it to believe that any statistical or market-related data included or incorporated by reference
in the Offering Circular is not based on or derived from sources that are reliable and accurate in all material respects.
(hh) Commodity Pool. It is not, nor immediately after giving effect to the consummation of the Transaction and the other transactions contemplated by the Applicable Agreements
shall be, required to be registered under the United States Commodity Exchange Act, as amended, as a "commodity pool."
(ii) Offering Documents. It has authorized Scotiabank to use the Offering Documents in connection with the offer of the Securities and placement of the Subject Securities.
(jj) No Event of Default. No event has occurred or is continuing which would, had the Securities already been issued (whether or not with the giving of notice and/or the passage
of time and/or the fulfillment of any other requirement), constitute an Event of Default (under and as defined in the Indenture).
(kk) Regulation M. It has not taken, directly or indirectly, any action prohibited by Regulation M under the Exchange Act.
(ll) Regulation S Eligibility. The Issuer and its affiliates and any other person acting on its or their behalf (other than Scotiabank as to which no representation is made) have
complied with the offering restrictions requirements of Regulation S.
(mm) Selling Restrictions. Based on representations by Scotiabank in Section 2(b) hereof and the consideration of such factors as the Issuer and its counsel deem necessary or
appropriate and based on the transfer restriction provisions set forth in the Indenture, it has a reasonable belief that the initial sales and subsequent transfers of the Securities shall be limited to Persons who are Eligible Investors.
(nn) Foreign Selling Restrictions. It represents and warrants to, and covenants and agrees with, Scotiabank as to the matters set forth in Annex B hereto.
(oo) Rule 17g-5. The Issuer has given a written representation and undertaking to the Rating Agency that it will take the actions specified in paragraphs (a)(3)(iii)(A) through
(E) of Rule 17g-5 of the Exchange Act (Rule 17g-5) with respect to the Securities, and it has complied with each such representation and undertaking.
(pp) No free writing prospectus. It has not made any offer to sell or solicitation of an offer to buy the Securities that would constitute a "free writing prospectus" (if the
offering of the Securities were made pursuant to a registered offering under the Securities Act), as defined in Rule 405 under the Securities Act, without the prior consent of Scotiabank.
(qq) Section 3(c)(7). In the case of the Issuer, it has undertaken best efforts to arrange for compliance after the Closing Date with the "Section 3(c)(7) Procedures" set forth in
the Indenture.
(rr) Submission to Jurisdiction. The Issuer has the power to submit, and pursuant to Section 14(c) of this Agreement and Section 14.11 of the Indenture has legally, validly,
effectively and irrevocably submitted, to the exclusive jurisdiction of any U.S. federal or New York state court located in The City of New York; and has the power to designate, appoint and empower, and pursuant to Section 14(c) of this
Agreement and Section 14.11 of the Indenture, has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement or the Indenture, as
applicable, in any U.S. federal or New York state court located in The City of New York.
4. Further Agreements of the Issuer. The Issuer covenants and agrees with Scotiabank that:
(a) Authorizations. It will use its best efforts to obtain on or prior to the Closing Date all government authorizations required in connection with the issuance and sale of the
Securities to be issued on such date and the performance of its respective obligations under the Applicable Agreements, and to cause such authorizations to be continued in effect so long as any of the Securities remain outstanding; provided that in no event shall it be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process or to subject itself to
taxation or other burdensome requirements in a jurisdiction in which it is not already so subject.
(b) Delivery of Copies. It will deliver, without charge, as soon as practicable and thereafter from time to time prior to the completion of the distribution of the Securities, to
Scotiabank as many copies of the Preliminary Offering Circular and the Offering Circular and any other Offering Document (including all amendments and supplements thereto) as Scotiabank may reasonably request.
(c) Notice of breach of representation. At any time prior to payment being made to the Issuer on the Closing Date, it will forthwith notify Scotiabank of anything which has or
would have rendered or will or would render untrue or incorrect in any material respect any of the representations and warranties in Section 3 hereof as if they had been made or given at such time with reference to the facts and circumstances
then existing, and of the occurrence of any event which (had the Securities already been issued) would, or with the lapse of time and/or the giving of a notice would and/or the fulfillment of any other condition would constitute an Event of
Default.
(d) Notice to Scotiabank. It will advise Scotiabank promptly, and confirm such advice in writing, if any of the following occurs: (i) the issuance by any governmental or
regulatory authority of any order preventing or suspending the use of any of the Offering Documents or the initiation or threatening of any proceeding for that purpose; (ii) the occurrence of any event as a result of which any of the Offering
Documents as then amended or supplemented would include 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 existing when such Offering
Document is delivered to a purchaser, not misleading; or (iii) the receipt by it 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 it will use its reasonable best efforts to prevent the issuance of any such order preventing or suspending the use of any of the Offering Documents or suspending any such qualification of the Securities and, if
any such order is issued, it will obtain as soon as possible the withdrawal thereof.
(e) Offering Documents, Amendments or Supplements. Before finalizing any Offering Document or making or distributing any amendment or supplement to any of the Offering Documents,
the Issuer will furnish to Scotiabank and counsel for Scotiabank a copy of the proposed Offering Document or such amendment or supplement or document to be incorporated by reference therein for review, and will not distribute any such proposed
Offering Document, amendment or supplement to which Scotiabank objects, unless its counsel advises it, in a written opinion, with a copy to Scotiabank, that (i) without such proposed amendment or supplement the Offering Document, as then
amended or supplemented, contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or (ii) such
proposed amendment or supplement is required pursuant to an order of a regulatory authority having jurisdiction over the Issuer.
(f) Preparation of Amendments or Supplements. Subject to the foregoing, it will prepare promptly, upon the reasonable request of Scotiabank, any amendments of or supplements to
the Offering Documents that in the opinion of Scotiabank may be reasonably necessary to enable Scotiabank to continue to resell the Securities, subject to the approval of Scotiabank's counsel.
(g) Ongoing Compliance. If at any time prior to the earlier of the completion of the distribution of the Securities (as determined by Scotiabank) and the 90th day following the
Closing Date (the "Offering Period"), (i) any event shall occur or condition shall exist as a result of which any of the Offering Documents 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 under which they were made, not misleading or (ii) it is necessary to amend
or supplement the Offering Documents to comply with law, it will immediately notify Scotiabank thereof and forthwith prepare and, subject to Section 4(b), furnish, at the expense of the Issuer, to Scotiabank such amendments or supplements to
the Offering Documents as may be necessary so that the statements in any of the Offering Documents as so amended or supplemented (including such documents to be incorporated by reference therein) will not, in the light of the circumstances
under which they were made, be misleading or so that any of the Offering Documents will comply with law.
(h) Qualification of Securities; Blue Sky Compliance. It will promptly and from time to time take such action as Scotiabank may reasonably request to qualify the Securities for
offer and sale under the securities or "Blue Sky" laws of such jurisdictions as Scotiabank shall reasonably request and will continue such qualifications in effect so long as required for the offering and resale of the Securities; provided that it shall not be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be
required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
(i) Clear Market. For a period commencing on the date hereof and ending on the 180th day after the date of the Offering Circular, it agrees not to, directly or indirectly, (i)
offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition by any person at any time in the future of) any securities of the Issuer
substantially similar to the Securities or securities convertible into or exchangeable for such securities of the Issuer, or sell or grant options, rights or warrants with respect to such securities of the Issuer or securities convertible into
or exchangeable for such securities of the Issuer, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such securities of the Issuer,
whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of securities of the Issuer or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any
amendments, with respect to the registration of securities of the Issuer substantially similar to the Securities or securities convertible, exercisable or exchangeable into securities of the Issuer, or (iv) publicly announce an offering of any
securities of the Issuer substantially similar to the Securities or securities convertible or exchangeable into such securities, in each case without the prior written consent of Scotiabank.
(j) Use of Proceeds. It will apply the net proceeds from the sale of the Securities as described in the Offering Circular under the heading "Use of Proceeds."
(k) Supplying Information. While the Securities remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, it will, during
any period in which it is not subject to and in compliance with Section 13 or 15(d) of the Exchange Act, furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon the request of such
holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. It shall at all times during the Offering Period extend, and use its best efforts to cause the Investment
Manager to extend, to each prospective investor the opportunity to ask questions of, and receive answers from, the Issuer and Investment Manager concerning their respective businesses, managements and financial affairs, and the Securities and
the terms and conditions of the offering thereof, and, in the case of the Issuer, to obtain any information such prospective investors may consider reasonably necessary in making an informed investment decision or in order to verify the
accuracy of the information set forth in the Offering Documents, to the extent the Issuer or the Investment Manager possesses the same or can acquire it without unreasonable effort or expense; provided
that the Issuer shall permit, and shall use its best efforts to cause the Investment Manager to permit, representatives of Scotiabank to be present at, or participate in, any meeting or telephone conference between the Issuer or the Investment
Manager and any prospective investor identified by Scotiabank, and shall give Scotiabank reasonable notice thereof, and the Issuer shall not furnish, and shall use its best efforts to cause the Investment Manager not to furnish, any such
written information to any such prospective investor without first giving Scotiabank a reasonable opportunity to review and comment on such information.
(l) DTC. It will use its best efforts to assist Scotiabank in arranging for the Securities to be eligible for clearance and settlement through DTC. It agrees that it will comply
with all agreements set forth in the representation letter of the Issuer to DTC relating to the approval of the Securities by DTC for "book entry" transfer.
(m) Offering Activity. It shall not solicit any offer to buy from or offer to sell to any Person any Securities, except through Scotiabank or with the consent of Scotiabank.
(n) No Resales by the Issuer. It will not, it and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities that
have been acquired by any of them, except for Securities purchased by it or any of its affiliates and resold either pursuant to a valid exemption from registration under the Securities Act or in a transaction registered under the Securities
Act.
(o) No Integration. Neither it nor any of its affiliates (as defined in Rule 501(b) of Regulation D) will, directly or through any agent, sell, offer for sale, solicit offers to
buy or otherwise negotiate in respect of, any security (as defined in the Securities Act), that is or will be integrated with the sale of the Securities in a manner that would require registration of the Securities under the Securities Act. It
agrees that it will take reasonable precautions designed to insure that any offer or sale, direct or indirect, in the United States or to any U.S. person (as defined in Rule 902 under the Securities Act), of any Securities or any substantially
similar security issued by it, within six months subsequent to the date on which the distribution of the Securities has been completed (as notified to it by Scotiabank), is made under restrictions and other circumstances reasonably designed not
to affect the status of the offer and sale of the Securities in the United States and to U.S. persons contemplated by this Agreement as transactions exempt from the registration provisions of the Securities Act, including any sales pursuant to
Rule 144A under, or Regulations D or S of, the Securities Act.
(p) No General Solicitation or Directed Selling Efforts. Neither it nor any of its affiliates or any other person acting on its or their behalf (other than Scotiabank, as to
which no covenant is given) will (i) solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D or in any manner involving a public
offering within the meaning of Section 4(a)(2) of the Securities Act or (ii) engage in any directed selling efforts within the meaning of Regulation S, and all such persons will comply with the offering restrictions requirement of Regulation S.
(q) No Stabilization. It will not take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Securities.
(r) [Reserved].
(s) Perfection of Security Interests. It (i) shall complete on or prior to the Closing Date all filings and other similar actions required in connection with the perfection of
security interests in the Assets as and to the extent contemplated by the Indenture and (ii) shall take all actions necessary to maintain such security interests and to perfect security interests in any Assets acquired after the Closing Date,
in each case as and to the extent contemplated by the Indenture.
(t) Distribution of offering materials. Prior to notice to and review by Scotiabank, it will not publish or distribute any offering material in connection with the offering of
the Securities, unless Scotiabank shall have consented to the publication or use thereof.
(u) Legends. Each certificate representing a Security shall bear the legend contemplated by the Offering Circular for the time period and upon the other terms stated in the
Offering Circular.
(v) Regulation M. It will not take any action prohibited by Regulation M under the Exchange Act, in connection with the distribution of the Securities contemplated hereby.
(w) Investment Company Act. So long as the Securities are outstanding, it will not become or own or control an investment company required to be registered under the Investment
Company Act.
(x) Section 3(c)(7) Compliance. In the case of the Issuer, it will comply with the "Section 3(c)(7) Procedures" set forth in the Indenture.
(y) Satisfaction of Conditions Precedent. It agrees that it will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the
Closing Date, and will satisfy all conditions precedent to the obligations of Scotiabank hereunder.
(z) Compliance with Applicable Agreements. Without limiting any of the foregoing agreements, it will comply with all of its obligations under the Applicable Agreements.
(aa) 17g-5 Compliance. The Issuer will comply with the representations made by it to the Rating Agency with respect to the Securities in accordance with paragraph (a)(3)(iii) of
Rule 17g-5.
(bb) Anti-Money Laundering and Anti-Corruption Laws. It shall (A) comply with all applicable Anti-Money Laundering Laws and Anti-Corruption Laws, and maintain or be subject to
policies and procedures reasonably designed to ensure compliance with, all applicable Anti-Money Laundering Laws and Anti-Corruption Laws, (B) conduct requisite due diligence in connection with the transactions contemplated by the Offering
Circular for purposes of complying with all applicable Anti-Money Laundering Laws, (C) ensure it does not use or permit to be used any of the proceeds from the sale of the Securities in violation of any Anti-Corruption Laws or Anti-Money
Laundering Laws, and (D) ensure it does not fund or permit to be funded any payment obligation under the Applicable Agreements in violation of any Anti-Corruption Laws or Anti-Money Laundering Laws.
For purposes of this subclause, the following terms shall have the below set forth meaning:
"Anti-Corruption Laws" means (a) the U.S. Foreign Corrupt Practices
Act of 1977, as amended; (b) the U.K. Bribery Act 2010, as amended; and (c) any other anti-bribery or anti-corruption laws, regulations or ordinances in any jurisdiction in which the Issuer or the Investment Manager is located or doing business.
"Anti-Money Laundering Laws" means applicable laws, regulations or
ordinances in any jurisdiction in which the Issuer or the Investment Manager is located or doing business that relates to money laundering or terrorism financing, any predicate crime to money laundering, or any financial record keeping and
reporting requirement related thereto.
(cc) Sanctions. It shall comply with all Sanctions with which it is required to comply. It shall not, directly or indirectly, use the proceeds from the sale of the Securities, or
lend, contribute or otherwise make available such proceeds (A) to any subsidiary, joint venture partner or other Person, to fund any activities of or business with any Person that, at the time of such funding, is a Restricted Party or
reasonably expected to become so designated, or currently involved in any publicly recorded claim, action, suit, proceedings or investigation with regard to Sanctions and (B) in any manner that would result in a violation of Sanctions.
For purposes of this subclause, the following terms shall have the below set forth meaning:
"Restricted Party" means any Person that is (i) listed on, or owned
or controlled by a Person listed on, a Sanctions List, (ii) a government of a Sanctioned Country, (iii) an agency or instrumentality of, or an entity directly or indirectly owned or controlled by, a government of a Sanctioned Country, (iv) resident
or located in, operating from, or incorporated under the laws of, a Sanctioned Country or (v) otherwise a target of Sanctions.
"Sanctions Authority" means, with respect to any Person, (a) any
governmental or quasigovernmental authority (including the Financial Industry Regulatory Authority, the NASD, Inc., the stock exchanges and the SEC or any successor to any of the foregoing), whether executive, legislative, judicial, administrative
or other, or any combination thereof, including, any federal, state, territorial, county, municipal or other government or governmental or quasi-governmental agency, whether domestic or foreign, with jurisdiction over such Person or any property
thereof, that may impose sanctions on such Person, or any property thereof, similar to those in clauses (b) through (f) below, (b) the U.S. Department of the Treasury's Office of Foreign Assets Control, (c) the U.S. Department of State, (d) the
United Nations Security Council, (e) the European Union, (f) His Majesty's Treasury of the United Kingdom and (g) Canada, including Global Affairs Canada and Public Safety Canada.
"Sanctions List" means any of the lists of specifically designated
nationals, non-SDN menu-based sanctions targets (or equivalent), sectoral sanctions identification entities (or equivalent), or designated or sanctioned individuals or entities (or equivalent) issued by any Sanctions Authority, each as amended,
supplemented or substituted from time to time.
5. Conditions of Scotiabank's Obligations. The obligations of Scotiabank hereunder subject to the performance by the Issuer of its covenants and other obligations hereunder and to the following additional conditions:
(a) Representations and Warranties. The representations and warranties of the Issuer contained herein shall be true and correct on the date hereof and on and as of the Closing
Date; and the statements of the Issuer and its officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date.
(b) No Material Adverse Change. No event or condition of a type described in Section 3(d) hereof shall have occurred or shall exist, which event or condition is not described in
the Offering Circular (excluding any amendment or supplement thereto) the effect of which in the judgment of Scotiabank makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in
the manner contemplated by this Agreement and the Offering Circular.
(c) Officer's Certificate. Scotiabank shall have received on and as of the Closing Date a certificate of a director or manager, as applicable, or another officer satisfactory to
Scotiabank, of the Issuer (i) confirming that such officer has carefully reviewed the Preliminary Offering Circular, the Offering Circular and the Applicable Agreements, and to the knowledge of such officer, the representations set forth in
Sections 3(a) and 3(b) hereof are true and correct, (ii) confirming that since the date of the Offering Circular, no event has occurred which should have been set forth in a supplement or amendment to the Offering Circular, (iii) confirming
that the other representations and warranties of the Issuer in this Agreement and the Applicable Agreements are true and correct and that the Issuer has complied with all agreements and satisfied all conditions on its part to be performed or
satisfied under the Applicable Agreements at or prior to the Closing Date and (iv) to the effect set forth in paragraph (b) above.
(d) [Reserved].
(e) Opinions and 10b-5 Statement of U.S. Counsel for the Issuer. The Issuer shall have furnished to Scotiabank (i) written legal opinions and (ii) a written letter with respect
to the Offering Circular in relation to Rule 10b-5 under the Securities Act, in each case of Chapman and Cutler LLP, U.S. counsel to the Issuer, dated the Closing Date and addressed to Scotiabank, in form and substance satisfactory to
Scotiabank.
(f) Opinions and 10b-5 Statement of Counsel for Scotiabank. Scotiabank shall have received (i) written legal opinions and (ii) a written letter with respect to the Offering
Circular in relation to Rule 10b-5 under the Securities Act, in each case of Chapman and Cutler LLP, counsel to the Scotiabank, dated the Closing Date and addressed to Scotiabank, in form and substance satisfactory to Scotiabank.
(g) Opinions and 10b-5 Statement of Counsel for the Investment Manager. The Investment Manager shall have furnished to Scotiabank (i) a written legal opinion and (ii) a written
letter with respect to the Offering Circular in relation to Rule 10b-5 under the Securities Act, in each case of Milbank LLP, counsel for the Investment Manager, dated the Closing Date and addressed to Scotiabank, in form and substance
satisfactory to Scotiabank.
(h) Opinions of Counsel for the Trustee and Collateral Administrator. The Trustee and Collateral Administrator shall have furnished to Scotiabank the written legal opinion of
Troutman Pepper Locke LLP, counsel for the Trustee and the Collateral Administrator, dated the Closing Date and addressed to Scotiabank, in form and substance satisfactory to Scotiabank.
(i) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or
foreign governmental or regulatory authority that could, as of the Closing Date, in the judgment of Scotiabank, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been
issued that could, as of the Closing Date, in the judgment of Scotiabank, prevent the issuance or sale of the Securities.
(j) Good Standing. Scotiabank shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Issuer in its jurisdiction of organization and
their good standing in such other jurisdictions as Scotiabank may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) DTC. The Securities in global form shall be eligible for clearance and settlement through DTC.
(l) Transaction Documents and Securities. This Agreement and the other Transaction Documents shall have been duly executed and delivered by the parties thereto, and the
Securities shall have been duly executed and delivered by a duly authorized officer of the Issuer and duly authenticated by the Trustee.
(m) Conditions in Applicable Agreements Satisfied. The conditions precedent to the issuance of the Securities under the Indenture and the conditions precedent to the performance
by the Issuer of its obligations under the Applicable Agreements shall have been satisfied or waived.
(n) Authorizations. The Issuer shall have obtained all governmental authorizations required in connection with the issuance, offering and sale of the Securities and the
performance of its obligations under the Applicable Agreements; all corporate proceedings and other legal matters incident to the authorization, form and validity of the Securities, the Applicable Agreements, the Preliminary Offering Circular
and the Offering Circular, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all material respects to Scotiabank, and the Issuer shall have furnished to
Scotiabank all documents and information that Scotiabank may reasonably request to enable it to pass upon such matters.
(o) Ratings. Each Class of Securities will have been assigned rating(s) no lower than the respective rating(s) set forth for such Class in the Offering Circular.
(p) Lien Searches. Scotiabank shall have received the results of recent lien searches in Delaware with respect to the Issuer and any other jurisdictions in which valid filings
with respect to the Issuer may be in effect, and such searches shall reveal no liens on any of the assets of the Issuer except for liens with respect to the existing indebtedness of the Issuer under the pre-closing warehouse arrangements
described in the Offering Circular, which will be repaid in full and terminated on the Closing Date as described in the Offering Circular.
(q) Risk Retention Regulation. No U.S. regulatory agency shall have, since February 9, 2018, proposed or effectuated any rule amendments to, or issued new interpretations of, the
credit risk retention requirements of Section 15G of the Exchange Act, as amended, applicable and effective to the issuance of the Securities.
(r) Additional Documents. On or prior to the Closing Date, the Issuer shall have furnished to Scotiabank such further certificates, documents or other documents as Scotiabank may
request.
The Issuer shall furnish to Scotiabank such conformed copies of such opinions, certificates, letters and documents in such quantities as Scotiabank
shall request. All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in
form and substance satisfactory to counsel for Scotiabank.
If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions, letters, documents and certificates referred to in or contemplated by this Agreement shall not be in all respects reasonably satisfactory in form and substance to Scotiabank and its counsel, this Agreement and all
obligations of Scotiabank hereunder may be canceled by Scotiabank on, or at any time prior to, the Closing Date. Notice of such cancellation shall be given to the Issuer (with a copy to the Investment Manager) in writing or by telephone, provided
such telephonic notice shall promptly be confirmed in writing (which may be by email).
6. Indemnification and Contribution.
(a) Indemnification of Scotiabank. The Issuer agrees to indemnify and hold harmless Scotiabank, its affiliates, directors and officers and each person, if any, who controls
Scotiabank within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages, liabilities or expenses, as incurred (including, without limitation, legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred, and including in settlement of any litigation) (collectively, "Losses"),
relating to, arising out of or in connection with the transactions contemplated by, or the engagement of Scotiabank pursuant to, the Applicable Agreements, including without limitation, any and all Losses relating to, arising out of or in
connection with (i) any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Offering Circular or the Offering Circular (or any amendment or supplement thereto) or any omission or alleged omission to
state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) any inaccuracy in the representations and warranties of the Issuer contained
herein (in each case, after giving effect to any materiality qualifications set forth therein), (iii) any failure of the Issuer to perform its obligations hereunder or under law, or (iv) any act or failure to act by the Issuer in connection
with, or relating in any manner to, the offering contemplated hereby, and to reimburse Scotiabank and each such affiliate, director, officer or controlling person for any and all expenses (including the fees and disbursements of counsel) as
such expenses are reasonably incurred and documented by Scotiabank or such affiliate, director, officer or controlling person in connection with investigating, defending, settling, compromising or paying any such Losses, in each case, set out
in subsections (i) to (iv) above, except insofar as such Losses arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any Scotiabank Information.
(b) Indemnification of the Issuer. Scotiabank agrees to indemnify and hold harmless the Issuer, each of its directors and officers and each person, if any, who controls the
Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a)(i) above, but only with respect to any Losses relating to, arising out of or in
connection with (i) any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Offering Circular or the Offering Circular (or any amendment or supplement thereto) or (ii) any omission or alleged omission to
state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in the case of each of (i) and (ii) to the extent, but only to the extent, that such
untrue statement or alleged untrue statement, or omission or alleged omission, was made in the Preliminary Offering Circular or the Offering Circular (or any amendment or supplement thereto) in reliance upon and in conformity with Scotiabank
Information, and to reimburse the Issuer and each such director, officer or controlling person for any and all expenses (including the fees and disbursements of counsel) as such expenses are reasonably incurred and documented by the Issuer or
such director, officer or controlling person in connection with investigating, defending, settling, compromising or paying any such Losses.
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any
person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such person (the "Indemnified Person") shall promptly notify the person against
whom such indemnification may be sought (the "Indemnifying Person") in writing; provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have under paragraph (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such
failure; and provided, further, that the failure to notify the Indemnifying Person shall not relieve it from any liability
that it may have to an Indemnified Person otherwise than under paragraph (a) or (b) above. If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the
Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person and any others
entitled to indemnification pursuant to this Section 6 that the Indemnifying Person may designate in such proceeding and shall pay the fees and expenses of such proceeding and shall pay the fees and expenses of such counsel related to such
proceeding, as incurred. In any such proceeding, any Indemnified Person 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 Person unless (i) the Indemnifying
Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded
parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed
that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be paid or reimbursed as they are incurred. Any such separate firm for Scotiabank, its affiliates, directors and officers and any control persons of Scotiabank shall be designated in writing
by Scotiabank and any such separate firm for the Issuer, its directors and officers and any control persons of the Issuer shall be designated in writing by the Issuer. The Indemnifying Person 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 Person agrees to indemnify each Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the Indemnifying Person 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 the Indemnifying Person
of such request and (ii) the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement. No Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless
such settlement (x) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (y) does
not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraph (a) or (b) above is unavailable to an Indemnified Person or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person 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 Issuer on the one hand and Scotiabank on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Issuer on the one hand and
Scotiabank on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Issuer on the
one hand and Scotiabank on the other shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received by the Issuer from the sale of the Securities, on the one hand, and the total discounts,
commissions or fees received by Scotiabank in connection therewith, as provided in this Agreement, on the other hand. The relative fault of the Issuer on the one hand and Scotiabank on the other 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, if any, relates to information supplied by the Issuer or by Scotiabank and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
(e) Limitation on Liability. The Issuer and Scotiabank agree that it would not be just and equitable if contribution pursuant to this Section 6 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 paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this Section 6, in no event shall Scotiabank be required to contribute any amount in excess of the
amount by which the total discounts, commissions and fees received by Scotiabank with respect to the offering of the Securities exceeds the amount of any damages that Scotiabank 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.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any
Indemnified Person at law or in equity.
7. Effectiveness of Agreement. This Agreement shall become effective as of the date first written above.
8. Termination. This Agreement may be terminated in the absolute discretion of Scotiabank, by notice to the Issuer, if after the execution and delivery of this Agreement and on or prior to the Closing Date (i) the Issuer
shall have failed, refused or been unable to perform all obligations and satisfy all conditions on its part to be performed or satisfied hereunder at or prior thereto; (ii) trading generally shall have been suspended or materially limited on or
by, as the case may be, any exchange or over-the-counter market, including the New York Stock Exchange, the American Stock Exchange, the NASDAQ Stock Market, the Chicago Board Options Exchange, the Chicago Mercantile Exchange or the Chicago
Board of Trade; (iii) a general moratorium on commercial banking activities shall have been declared by federal or New York State authorities; (iv) any federal or state statute, regulation, rule or order of any court or other governmental
authority shall have been enacted or published or promulgated which, in the opinion of Scotiabank, materially and adversely affects, or will materially and adversely affect, the business, prospects, financial condition or results of operations
of the Issuer; (v) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis, either within or outside the United States, that, in the judgment of Scotiabank, is material
and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement and the Offering Circular; or (vi) the Engagement Letter shall
have been terminated.
Any termination pursuant to this Section 8 shall be without liability on the part of (i) the Issuer to Scotiabank, except that the Issuer shall be
obligated to reimburse the expenses of Scotiabank pursuant to Section 9 hereof, (ii) Scotiabank to the Issuer, or (iii) any party hereto to any other party except that the provisions of Section 6 hereof shall at all times be effective and shall
survive any termination of this Agreement.
9. Payment of Fees, Costs and Expenses.
(a) Whether or not the
transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Issuer agrees to pay or cause to be paid all fees, costs and expenses incident to the performance of their respective obligations hereunder,
including without limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery of the Securities and any taxes payable in that connection; (ii) the costs incident to the preparation and printing of the
Offering Documents (including any amendments or supplements thereto) and the distribution thereof; (iii) the costs of reproducing and distributing each of the Applicable Agreements; (iv) the fees and expenses of the Issuer's counsel and
independent accountants; (v) the fees and expenses incurred in connection with the registration or qualification and determination of eligibility for investment of the Securities under the laws of any jurisdictions as Scotiabank may designate
and the preparation, printing and distribution of any "Blue Sky" memoranda (including the related fees and expenses of counsel for Scotiabank); (vi) any fees charged by rating agencies for rating any Securities; (vii) the fees and expenses of
the Trustee, the Collateral Administrator, the Investment Manager (as described under the Investment Management Agreement) and any paying agent (including related fees and expenses of any counsel to such parties); (viii) all expenses and
application fees incurred in connection with the approval of the Securities for book-entry transfer by DTC; (ix) the fees and expenses incurred with respect to creating, documenting and perfecting the security interests in the Assets as
contemplated by the Indenture (including the related fees and expenses of counsel to Scotiabank for all periods prior to and after the Closing Date); (x) all expenses and application fees related to the listing of any Securities on any
exchange; and (xi) all fees payable to Scotiabank under the Engagement Letter, and Section 2 hereof, and Scotiabank's costs (including legal fees and expenses) incurred in connection with the issuance, offering and sale of the Securities and
the preparation and execution of this Agreement. Notwithstanding the foregoing, if the Closing Date does not occur (including as a result of a termination of this Agreement pursuant to Section
8), the parties hereto acknowledge and agree that the fees and expenses specified in this Section 9 shall be paid pursuant to and in the manner provided in the
Engagement Letter.
(b) In order to
provide for the payment on the Closing Date, or promptly thereafter, of the fees, costs and expenses payable pursuant to Section 9(a) hereof, the Issuer authorizes Scotiabank to withhold from the purchase price payable pursuant to Sections 2(a)
and 2(h) hereof an amount sufficient to pay such fees, costs and expenses as estimated on the Closing Date by Scotiabank (in consultation with the Investment Manager), and on the Closing Date, or as promptly thereafter as practicable, to pay
all such fees, costs and expenses from such withheld funds, and remit to the Trustee for deposit in the applicable Accounts any excess of the amount so withheld over the amount necessary to pay such fees, costs and expenses; provided that Scotiabank may, at its option, cause the Trustee to remit such fees, costs and expenses as agreed between Scotiabank and the Trustee. Scotiabank shall provide the Issuer
with an itemization of the use of such withheld amounts in reasonable detail, and with receipts or statements for the related expenditures to the extent available, upon request from the Issuer. Notwithstanding the foregoing, the Issuer shall
only be responsible for any of the foregoing fees, costs, or expenses to the extent they are reasonable and documented.
(c) If (i) for any
reason the Issuer fails to tender the Subject Securities for delivery to the respective purchasers thereof or (ii) Scotiabank declines to place the Subject Securities for any reason permitted under this Agreement, the Issuer agrees to reimburse
Scotiabank for all out-of-pocket costs and expenses (including the fees and expenses of its counsel) reasonably incurred by Scotiabank in connection with this Agreement and the offering contemplated hereby.
10. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and any controlling persons
referred to herein, and the affiliates of Scotiabank referred to in Section 6 hereof. Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein. No purchaser of Subject Securities from Scotiabank shall be deemed to be a successor merely by reason of such purchase.
11. Survival. The respective indemnities, rights of contribution, representations, warranties and agreements of the Issuer and Scotiabank contained in this Agreement or made by or on behalf of the Issuer or Scotiabank
pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall remain in full force and effect, regardless of any termination of this Agreement or any investigation
made by or on behalf of the Issuer or Scotiabank.
12. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise expressly provided, the term "affiliate" has the meaning set forth in Rule
405 under the Securities Act; (b) the term "business day" means any day other than a day on which banks are permitted or required to be closed in New York City; (c) the term "subsidiary" has the meaning set forth in Rule 405 under the Securities Act; (d) the term "Commission" means the Securities
Exchange Commission; (e) the term "Exchange Act" collectively means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder; and (f)
the term "written communication" has the meaning set forth in Rule 405 under the Securities Act.
13. Compliance with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), Scotiabank is required to obtain, verify and record
information that identifies its clients, including the Issuer, which information may include the name and address of its clients, as well as other information that will allow Scotiabank to properly identify its clients.
14. Miscellaneous.
(a) Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed, sent by electronic mail, or transmitted and
confirmed by any standard form of telecommunication.
Notices to Scotiabank shall be given to it at:
[***]
Notices to the Issuer shall be given to it at:
[***]