Fortuna Mining Corp. — Capital/Financing Update 2023

Jan 14, 2023

COUNTERPART TO DEALER AGREEMENT

TO: THE TORONTO-DOMINION BANK (the “ Bank ”) AND TO: TD SECURITIES INC., DESJARDINS SECURITIES INC., iA PRIVATE WEALTH INC., LAURENTIAN BANK SECURITIES INC., MANULIFE SECURITIES INCORPORATED, AND RICHARDSON WEALTH LIMITED (collectively, the “ Original Dealers ”)

Reference is made to the dealer agreement dated August 9, 2022 (the “ Dealer Agreement ”) between the Bank and the Original Dealers, a copy of which is attached as Appendix A. Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Dealer Agreement.

In accordance with the Dealer Agreement, in executing this counterpart to the Dealer Agreement, the undersigned hereby covenants and agrees to be bound by the Dealer Agreement, as the same may be amended from time to time in accordance with the provisions thereof, in connection with the offering and sale of the Notes under the Bank’s Senior Medium Term Note Program as a Dealer in the same manner and to the same extent as if the undersigned had been one of the Original Dealers under the Dealer Agreement.

For the purposes of paragraph 12.1 of the Dealer Agreement, copies of notices should also be delivered to:

Wellington-Altus Private Wealth Inc. 201 Portage Ave, Suite 2500 Winnipeg, MB R3B 3K6

Email: notes@wellington-altus.ca Attention: Dominic D'Aoust

This 13th day of January, 2023

WELLINGTON-ALTUS PRIVATE WEALTH INC.

By: (signed) Dominic D’Aoust Name: Dominic D’Aoust Title: Head, Independent Agent Business

THE TORONTO-DOMINION BANK

By: (signed) Jason Morrow Name: Jason Morrow Title: Managing Director

APPENDIX A DEALER AGREEMENT

DEALER AGREEMENT

August 9, 2022

The Toronto-Dominion Bank 20[th] Floor, TD Bank Tower Toronto-Dominion Centre Toronto, Ontario M5K lA2

Dear Sirs:

We understand that The Toronto-Dominion Bank (the “ Bank ”) proposes to create, authorize, issue and sell up to Cdn.$5,000,000,000 aggregate principal amount determined as of the issuance dates (or the equivalent thereof if denominated in a foreign currency or currency unit other than Canadian dollars) of senior medium term notes (collectively, the “ Notes ” or, individually, a “ Note ”) as described in the Base Shelf Prospectus (defined below) establishing the Bank’s MTN Program (defined below). The Notes will be issued by way of the MTN Program pursuant to the Shelf Procedures (defined below). The payment obligations under the Notes will constitute direct, unsecured and unsubordinated obligations of the Bank and, except for certain statutory priorities, will rank pari passu with all other present and future unsecured and unsubordinated indebtedness of the Bank.

Upon and subject to the terms and conditions set out herein, the Bank hereby appoints TD Securities Inc. (“ TDSI ”), Desjardins Securities Inc. (“ Desjardins ”), iA Private Wealth Inc. (“ IA ”), Laurentian Bank Securities Inc. (“ Laurentian ”), Manulife Securities Incorporated (“ Manulife ”), Richardson Wealth Limited (“ Richardson ”), and/or such other investment dealer or dealers as the Bank may from time to time appoint as hereinafter provided (collectively, the “ Dealers ” or, individually, a “ Dealer ”), acting severally, as its agents to solicit, from time to time, offers to purchase Notes, with such solicitations to be made directly or through other duly registered investment dealers approved in writing by the Bank (together with the Dealers, referred to herein as the “ Selling Firms ”) in the Qualifying Jurisdictions (defined below). The Bank may appoint additional or alternate investment dealers with respect to the MTN Program as a whole or a particular Distribution (defined below), as applicable, as its agents to solicit, from time to time, offers to purchase Notes hereunder or as its underwriter to purchase Notes as principal hereunder, in either case by delivering to the existing Dealers a counterpart in the form attached as Schedule A signed by each of such additional or alternate investment dealer, whereupon that investment dealer will become one of the Dealers hereunder with respect to the MTN Program as a whole or the particular Distribution, as applicable. Any Distribution of Notes may be sold through one or more Dealers, as applicable. The Dealers participating in any particular Distribution will be determined and agreed upon between the Bank and the participating Dealers, and such Dealers will be identified in the Prospectus Supplement and/or Pricing Supplement in respect of such Distribution.

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The Bank agrees that, during the term of this Agreement, it will not appoint any other agent to solicit offers to purchase Notes under its MTN Program other than as provided above. The Bank may, from time to time, terminate its relationship with any Dealer in accordance with the provisions of this Agreement. For greater certainty, the Bank is entitled, subject to Canadian Securities Laws (defined below), (i) to accept unsolicited offers received from an investment dealer other than a Dealer to purchase debt securities, other than the Notes; (ii) to appoint an investment dealer other than a Dealer to solicit offers to purchase other debt securities; and (iii) to sell other debt securities to an investment dealer other than a Dealer as underwriter for resale to the public, in each case other than pursuant to the provisions of this Agreement. No commission will be payable to the Dealers for sales made by the Bank to an investment dealer other than a Dealer.

The Notes may be offered at par, or at a discount or premium. The Notes may be purchased or offered at various times by any one or more of the Dealers, as underwriter or agent, at prices and commissions to be agreed upon, for sale to the public in the Qualifying Jurisdictions at prices to be negotiated with purchasers. Sale prices may vary during the distribution period and as between purchasers. Any purchase and sale of Notes hereunder will be deemed to have been made on the basis of the representations and warranties of the Bank herein contained and shall be subject to the terms and conditions herein set forth.

The Bank may also offer Notes, from time to time, pursuant to any applicable dealer registration requirements or exemptions therefrom, directly to the public at prices and upon terms and conditions agreed to between the Bank and the purchasers of the Notes. No commission shall be payable to the Dealers for sales made directly by the Bank.

Unless something in the subject matter is inconsistent therewith, references herein to paragraphs and Schedules are to paragraphs of and Schedules to this Agreement.

In this Agreement, unless the context requires otherwise, the following terms shall have the respective meanings indicated below:

“ affiliate ” has the meaning attributed thereto in the Securities Act (Ontario);

“ Agreement ” means the agreement resulting from the acceptance by the Bank of the offer made by the Dealers by this letter, as amended from time to time;

“ Bank ” has the meaning attributed thereto in the first paragraph of this Agreement;

“ Bank Act ” means the Bank Act (Canada), as amended, and the regulations thereunder;

“ Bank’s Auditors ” means Ernst & Young LLP, or such other auditor as may be appointed by the Bank from time to time;

“ Bank’s Counsel ” means McCarthy Tétrault LLP, or such other legal counsel retained by the Bank;

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“ Bank’s Financial Information ” has the meaning attributed thereto in paragraph 6.2.1(b);

“ Base Shelf Prospectus ” means the (final) short form base shelf prospectus of the Bank dated August 9, 2022 relating to the offering from time to time of up to Cdn.$5,000,000,000 in aggregate principal amount determined as of the issuance dates of the Bank’s senior medium term notes (or the equivalent thereof if any of such securities are denominated in a foreign currency or currency unit other than Canadian dollars) (in the English and French languages) in each of the Qualifying Jurisdictions, including the documents or information incorporated or deemed to be incorporated by reference therein;

“ Business Day ” means a day which is not a Saturday, a Sunday or a statutory or civic holiday in the City of Toronto, Ontario;

“ Canadian Securities Laws ” means all applicable securities laws in each of the Qualifying Jurisdictions and the respective rules and regulations made thereunder together with applicable published national and local instruments, policy statements, notices, blanket orders and rulings thereunder of the Securities Commissions;

“ CDS ” means CDS Clearing and Depository Services Inc. or its nominee;

“ Claim ” has the meaning attributed thereto in paragraph 9.2;

“ Closing ” means the completion of the issuance and sale of Notes pursuant to a Distribution;

“ Closing Date ” means, in respect of any Distribution of Notes, the date of Closing;

“ Closing Time ” means 11:00 a.m. (Toronto time) on each Closing Date or such other time on a Closing Date as the Bank and the Dealers may agree;

“ Communication ” has the meaning attributed thereto in paragraph 12.1;

“ Dealers ” has the meaning attributed thereto in the second paragraph of this Agreement;

“ Dealers’ Counsel ” means Fasken Martineau DuMoulin LLP or such other legal counsel retained by the Dealers and acceptable to the Bank, acting reasonably;

“ Desjardins ” has the meaning attributed thereto in the second paragraph of this Agreement;

“ Distribution ” means the “distribution” of the Notes or “distribution to the public” of the Notes (as those terms are defined under Canadian Securities Laws);

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“ Global Note Certificate ” means one or more global certificates registered in the name of CDS representing a series of Notes issued and sold pursuant to the Offering Materials;

“ Indemnified Party ” has the meaning attributed thereto in paragraph 9.2;

“ IA ” has the meaning attributed thereto in the second paragraph of this Agreement;

“ Laurentian ” has the meaning attributed thereto in the second paragraph of this Agreement;

“ limited-use version ” has the meaning attributed thereto in NI 41-101;

“ Manulife ” has the meaning attributed thereto in the second paragraph of this Agreement;

“marketing materials” means any marketing materials (as that term is used in NI 41-101) in either or both the English and French languages, that describe the specific terms (including pricing information and other information derived from a Pricing Supplement) of a particular issuance of Notes under the MTN Program, which is incorporated by reference into the Base Shelf Prospectus for the purpose of distributing Notes under the MTN Program;

“ material change ”, “ material fact ” and “ misrepresentation ” have the respective meanings attributed thereto in the Securities Act (Ontario), except as otherwise expressly provided herein;

“ MTN Program ” means the senior medium term notes program established by the Bank pursuant to which the Notes may be issued and sold in the Qualifying Jurisdictions as described in the Base Shelf Prospectus;

“ NI 33-105 ” means National Instrument 33-105 – Underwriting Conflicts of the Canadian Securities Administrators (as amended from time to time) and includes without limitation any national instrument and companion policy of the Canadian Securities Administrators which replaces such instrument;

“ NI 41-101 ” means National Instrument 41-101 – General Prospectus Requirements of the Canadian Securities Administrators (as amended from time to time) and includes without limitation any national instrument and companion policy of the Canadian Securities Administrators which replaces such instrument;

“ NI 44-101 ” means National Instrument 44-101 – Short Form Prospectus Distributions of the Canadian Securities Administrators (as amended from time to time) and includes without limitation any national instrument and companion policy of the Canadian Securities Administrators which replaces such instrument;

“ NI 44-102 ” means National Instrument 44-102 – Shelf Distributions of the Canadian Securities Administrators (as amended from time to time) and includes

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without limitation any national instrument and companion policy of the Canadian Securities Administrators which replaces such instrument;

“ Notes ” has the meaning attributed thereto in the first paragraph of this Agreement;

“ Offering Materials ” means, in respect of a Distribution, collectively, the Base Shelf Prospectus together with the applicable Prospectus Supplement and/or Pricing Supplement and any Supplementary Material;

“ Out of the Market Period ” has the meaning attributed thereto in paragraph 4.1;

“ Pricing Supplement ” means a pricing supplement to the Base Shelf Prospectus, in either or both the English and French languages, which describes the specific terms (including pricing information) of a particular issuance of Notes under the MTN Program, which is incorporated by reference into the Base Shelf Prospectus for the purpose of distributing Notes under the MTN Program, as contemplated by NI 44-102, including the documents or information incorporated or deemed to be incorporated by reference therein;

“ Prospectus Supplement ” means a prospectus supplement to the Base Shelf Prospectus (other than a Pricing Supplement), in either or both the English and French languages, which generally describes a particular type of Notes that may be issued under the MTN Program, which is incorporated by reference into the Base Shelf Prospectus for the purpose of distributing Notes under the MTN Program, as contemplated by NI 44-102;

“ provide ” and “ provided ”, for the purposes of paragraph 5 (other than Section 5.4(B)), have the meanings attributed thereto in NI 41-101 and Section 9A.1(2) of NI 44-102;

“ Qualifying Jurisdictions ” means each of the provinces and territories of Canada;

“ Richardson ” has the meaning attributed thereto in the second paragraph of this Agreement;

“ Securities Commissions ” means the securities commission or other securities regulatory authority in each of the Qualifying Jurisdictions;

“ SEDAR ” means the System for Electronic Document Analysis and Retrieval;

“ Selling Commission ” has been meaning attributed thereto in paragraph 6.3.2(a);

“ Selling Firms ” has the meaning attributed thereto in the second paragraph of this Agreement;

“ Shelf Procedures ” means the rules and procedures established pursuant to NI 41-101, NI 44-101 and NI 44-102, as applicable;

“ standard term sheet ” has the meaning attributed in NI 41-101;

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“ subsidiary ” has the meaning attributed thereto in the Securities Act (Ontario);

“ Supplementary Material ” means any amendment to the Offering Materials (including, without limitation, an amendment by way of a material change report as contemplated by the Shelf Procedures);

“ TDSI ” has the meaning attributed thereto in the second paragraph of this Agreement;

“ template version ” has the meaning attributed thereto in NI 41-101; and

The following is the Schedule attached to and forming part of this Agreement:

Schedule A Counterpart to Dealer Agreement

TERMS AND CONDITIONS

1. Terms of Notes

The Notes shall, in all material respects, have the terms and conditions described in the Offering Materials. Each Note will be in the form agreed to from time to time by the Bank and the Dealers. Subject to the foregoing, all terms and conditions of Notes issued by the Bank from time to time will be determined by the Bank in its sole discretion (after consultation with the Dealers).

2. Qualification of Notes and Filing of Prospectus Documents

2.1 The offering of Notes hereunder will be made pursuant to the MTN Program established upon the filing by the Bank of the Base Shelf Prospectus with securities regulators in each of the Qualifying Jurisdictions pursuant to the Shelf Procedures. The specific terms of particular Notes to be offered, which will be established at the time of the offering and sale of such Notes, will be described in a Prospectus Supplement and/or Pricing Supplement. The Bank shall use its best efforts to fulfill, as soon as possible, and shall continue to fulfill during the term of this Agreement, to the satisfaction of the Dealers, acting reasonably, all legal requirements to be fulfilled by the Bank (including, without limitation, from time to time, any filings, proceedings and requirements set forth in the Shelf Procedures) to enable the Notes to be continuously offered for sale and sold to the public in each of the Qualifying Jurisdictions under the Shelf Procedures and in compliance with Canadian Securities Laws and the Bank Act, by or through the Dealers and other investment dealers and brokers who comply with Canadian Securities Laws. To the extent that the filing of any Supplementary Material results in the Dealers assuming additional liability, the Bank shall consult with the Dealers as to such filing it proposes to effect.

2.2 The Bank shall co-operate in all respects with the Dealers to allow and assist the Dealers to participate fully in the preparation of Prospectus Supplements, Pricing Supplements and any Supplementary Material, and shall allow the Dealers and their representatives to conduct the due diligence investigations and examinations which the Dealers may reasonably require to conduct in order to fulfill their obligations under Canadian Securities Laws and in order to avail themselves of a defence to any claim for misrepresentation in the Offering Materials. It shall be a

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condition precedent to the filing by the Bank of any Offering Materials that the Dealers be satisfied, acting reasonably, as to the form and content of such Offering Materials. The Dealers shall not unreasonably withhold or delay the filing by the Bank of any Offering Materials pursuant to the terms of this Agreement or otherwise required by Canadian Securities Laws or the Bank Act for the purpose of an offering of Notes, provided that the Bank shall have complied with the terms and conditions of this Agreement.

3. Distribution of Notes

The Dealers shall use their reasonable best efforts to solicit offers to purchase Notes from, and sell the Notes to, members of the public in the Qualifying Jurisdictions, directly and through other Selling Firms, only as permitted by and in compliance with Canadian Securities Laws and the Bank Act, on the terms and subject to the conditions set forth in this Agreement and in the Offering Materials, each as may be amended and supplemented from time to time. The Dealers may solicit offers to purchase or sell the Notes outside of Canada only with the prior written consent of the Bank, in accordance with applicable laws. The Dealers will not solicit offers to purchase or sell the Notes so as to require registration of the Notes or the filing of a prospectus, registration statement or other notice or document with respect to a distribution of the Notes under the laws of any jurisdiction other than the Qualifying Jurisdictions, including, without limitation, the United States, and will require each other Selling Firm to agree with the Dealers not to so solicit or sell. For purposes of this paragraph 3, the Dealers shall be entitled to assume that the Notes are qualified for distribution in all of the Qualifying Jurisdictions. The Dealers shall use their respective reasonable best efforts to complete, and to cause the Selling Firms to complete, each Distribution as promptly as possible and the Dealers shall promptly notify the Bank in writing of the completion of a Distribution. The Dealers shall, as soon as practicable following completion of a Distribution and, as soon as practicable following a request for the same being made by the Bank to the Dealers, provide the Bank with a comprehensive breakdown of the Notes distributed by the Dealers in each of the Qualifying Jurisdictions where a breakdown is required for the purpose of calculating fees payable by the Bank to the Securities Commissions.

4. Special Periods and Material Changes During Distribution

4.1 At any time during a Distribution and for any reason, the Bank may designate a time period (an “ Out of the Market Period ”) during which the Bank will not distribute any Notes, any such designation to be made by providing at least one Business Day’s advance written notice to the Dealers which notice shall state the approximate expected duration thereof and the Dealers shall not offer or distribute any Notes during the Out of the Market Period.

• 4.2 During a Distribution, the Bank shall promptly notify the Dealers in writing of:

• (a) any material change (whether actual, anticipated, contemplated or threatened and whether financial or otherwise), in the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Bank and its subsidiaries, considered as a whole;

• (b) any material fact (other than a fact solely relating to the Dealers) which has arisen and would have been required to have been stated in the Offering Materials had the fact arisen on or prior to the date of any of the Offering Materials;

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• (c) any change in any material fact contained in the Offering Materials, which change is of such a nature as to render any statement in the Offering Materials misleading or untrue or result in a misrepresentation therein or which would result in the Offering Materials not complying (to the extent that such compliance is required) with Canadian Securities Laws;

• (d) any change in applicable laws, materially and adversely affecting, or which may materially and adversely affect, the business or the property of the Bank and its subsidiaries, considered as a whole, or the Notes or the Distribution under the Offering Materials and which would require the Bank to file a material change report under Canadian Securities Laws; or

• (e) any material adverse change or adverse change in a material fact which had not been disclosed to the Dealers prior to the time that this Agreement is executed and delivered.

4.3 The Bank shall promptly, and in any event within any applicable time limitation, comply with all applicable filing and other requirements under Canadian Securities Laws arising as a result of the items specified in paragraph 4.2.

4.4 If, during a Distribution, there is any change in any Canadian Securities Laws which requires the filing of any Supplementary Material, the Bank shall promptly prepare and file such Supplementary Material with the appropriate Securities Commission in each of the Qualifying Jurisdictions where such filing is required.

5. Representations, Warranties and Covenants

5.1 The Bank represents and warrants to, and covenants with, each of the Dealers that:

• (a) the Bank has been duly incorporated and organized and is validly subsisting as a bank listed on Schedule I to the Bank Act and has all requisite power and authority to carry out its obligations hereunder, to borrow money and to create, authorize, issue and sell the Notes;

• (b) on or before each Closing Time in respect of a series of Notes, all actions required to be taken by or on behalf of the Bank, including the passing of all requisite resolutions of its directors, shall have occurred so as to validly create, authorize, issue and sell such Notes having the attributes contemplated by the applicable Offering Materials;

• (c) each Prospectus Supplement, Pricing Supplement and any Supplementary Material shall be in form and substance satisfactory to the Dealers and, where applicable, the Dealers’ Counsel, and shall qualify the Notes for distribution in each of the Qualifying Jurisdictions;

• (d) this Agreement has been duly authorized, executed and delivered by the Bank and constitutes a valid and binding obligation of the Bank, enforceable in accordance with its terms, except as enforcement thereof may be limited by general principles

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of equity and by bankruptcy, insolvency, reorganization, moratorium or other laws affecting the rights of creditors generally and except to the extent that rights to indemnity under this Agreement may be limited by applicable laws;

• (e) to the best of its knowledge, except as disclosed in the Offering Materials in respect of each series of Notes, the Bank is not a “related issuer” or “connected issuer” (as such terms are defined in NI 33-105) of Desjardins, iA, Laurentian, Manulife or of Richardson; and

• (f) on or before each Closing Time in respect of a series of Notes, such Notes will be duly authorized and created and will have the attributes described in the applicable Offering Materials.

5.2 Each of the Dealers represents and warrants on a several basis to and covenants with the Bank that:

• (a) it has the requisite registrations or licenses under Canadian Securities Laws to distribute the Notes being distributed by it in each Qualifying Jurisdiction where it is distributing the Notes;

• (b) this Agreement has been duly authorized, executed and delivered by such Dealer and constitutes a valid and binding obligation of such Dealer, enforceable in accordance with its terms, except as enforcement thereof may be limited by general principles of equity and by bankruptcy, insolvency, reorganization, moratorium or other laws affecting the rights of creditors generally and except to the extent that rights to indemnity under this Agreement may be limited by applicable laws;

• (c) except as disclosed in the Offering Materials, to the best of its knowledge, having made due enquiry, the Bank is not a “related issuer” or “connected issuer” (as such terms are defined in NI 33-105) of such Dealer and, except as disclosed in the Offering Materials, there are no conflicts of interest with respect to it in relation to the offering of Notes that could reasonably be considered to be material to prospective purchasers of Notes;

• (d) provided the Bank delivers the applicable Offering Materials to such Dealer as contemplated in paragraph 6.3, it will deliver such Offering Materials to the purchasers as soon as possible after receipt thereof and, to the extent practicable, by the close of business on the Business Day such documents are delivered by the Bank to such Dealer and otherwise in compliance with Canadian Securities Laws;

• (e) it may offer the Notes for sale to the public, directly and through the Selling Firms only as permitted by Canadian Securities Laws, upon the terms and conditions set forth in the applicable Offering Materials and in this Agreement;

• (f) it holds and will ensure that its affiliates and each Selling Firm, as applicable, will hold all necessary registrations, permits and licenses to offer for sale, to solicit offers to purchase or to sell the Notes or to carry out any act that is necessary to be carried out in connection with the sale of the Notes in each of the Qualifying

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Jurisdictions, in compliance with Canadian Securities Laws or any other applicable laws, regulations or policies;

• (g) it will not, and will ensure that its affiliates and any Selling Firm, as applicable, do not, when offering for sale, soliciting offers to purchase, selling or carrying out any act in connection with the sale of, the Notes, breach any Canadian Securities Laws or any other applicable laws, regulations or policies, including, without limitation under the Bank Act; and

• (h) while acting in the capacity as agent of the Bank during a Distribution, it will not make any representations or warranties with respect to the Bank or the applicable Notes other than as set forth, or incorporated by reference in, the Offering Materials, the marketing materials or this Agreement, except as approved in writing by the Bank.

• 5.3 During a Distribution:

• (a) the Bank shall prepare, in consultation with TDSI, any marketing materials (including any template version thereof) to be provided to potential investors of Notes, and approve in writing any such marketing materials (including any template version thereof), as may reasonably be requested by the Dealers, such marketing materials to comply with Canadian Securities Laws and to be acceptable in form and substance to the Dealers and, where applicable, the Dealers’ Counsel, in each case acting reasonably;

• (b) TDSI shall, on behalf of the Dealers, approve in writing any such marketing materials (including any template version thereof), as contemplated by Canadian Securities Laws, prior to any marketing materials being provided to potential investors of Notes and/or filed with the Securities Commissions; and

• (c) the Bank shall, to the extent required by Canadian Securities Laws, file any such marketing materials (or any template version thereof) with the Securities Commissions as soon as reasonably practicable after such marketing materials are so approved in writing by the Bank and TDSI, on behalf of the Dealers, and in any event on or before the day the marketing materials are first provided to any potential investor of Notes. The French language version of any such marketing materials shall be filed on SEDAR prior to or concurrently with the filing of the Prospectus Supplement and/or Pricing Supplement to which the marketing materials relate as contemplated herein and a copy thereof shall be delivered to the Dealers as soon as practicable thereafter.

5.4 The Bank and each Dealer, on a several basis, covenant and agree, during a Distribution, not to provide any potential investor of Notes with any materials or information in relation to a Distribution or the Bank other than: (A) marketing materials that have been approved and filed in accordance with paragraph 5.3; (B) any standard term sheets (provided they are in

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compliance with Canadian Securities Laws); and (C) the Offering Materials in accordance with this Agreement.

5.5 Notwithstanding paragraphs 5.3 and 5.4, following the approval and filing of a template version of marketing materials in accordance with paragraph 5.3, the Dealers may provide a limited-use version of such marketing materials to potential investors of Notes in accordance with Canadian Securities Laws.

6. Documents to be Delivered

6.1 Deliveries during the Term of this Agreement

• 6.1.1 During the term of this Agreement, the Bank shall cause to be delivered to the Dealers or the Dealers’ Counsel, as soon as they are available:

• (a) copies of any Supplementary Material in the English and French languages as filed with the Securities Commissions signed as required by the Canadian Securities Laws and acceptable in form and substance to the Dealers’ Counsel, acting reasonably, except as otherwise publicly available on SEDAR, which shall be deemed to be delivered to the Dealers;

• (b) all documents, in the English and French languages, incorporated or containing information incorporated by reference into the Offering Materials and not previously delivered to the Dealers, except as otherwise publicly available on SEDAR, which shall be deemed to be delivered to the Dealers;

• (c) copies of such continuous disclosure documents or information as may have been or may be incorporated by reference, at the appropriate time or times, under the heading “Documents Incorporated by Reference” in the Offering Materials, except as otherwise publicly available on SEDAR, which shall be deemed to be delivered to the Dealers; and

• (d) copies of all receipts, decisions, exemption orders or similar documents received from time to time from the Securities Commissions in respect of the filing of the Base Shelf Prospectus or any Supplementary Material.

6.1.2 Without limiting the generality of the foregoing and in order to assist the Dealers in their monitoring, on an ongoing basis, of the affairs of the Bank, the Bank shall as soon as practicable during each Distribution provide the Dealers’ Counsel with copies of all documents prepared in accordance with the continuous disclosure requirements of Canadian Securities Laws and filed during the term of this Agreement with any Securities Commission or other securities regulatory authority in Canada (except such documents as otherwise publicly available on SEDAR, which shall be deemed to be delivered to the Dealers).

6.2 Deliveries on or Before the Filing by the Bank of the Base Shelf Prospectus

6.2.1 The Dealers shall have received on or before the filing by the Bank of the Base Shelf Prospectus, or at such later time as the Dealers may agree, the following:

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• (a) a copy of the Base Shelf Prospectus approved and signed on behalf of the Bank as required by Canadian Securities Laws in form and substance satisfactory to the Dealers, acting reasonably, including copies of all documents or information incorporated by reference therein (provided that delivery of documents or information incorporated by reference will be considered satisfied if such documents and information are at such time accessible on SEDAR);

• (b) an opinion of the Bank’s Auditors, dated the date of the Base Shelf Prospectus, addressed to the Dealers, the Dealers’ Counsel, the Bank, the Bank’s Counsel and the directors of the Bank, in form and substance reasonably satisfactory to the Dealers’ Counsel, to the effect that the French language versions of the consolidated financial statements and notes thereto of the Bank and the related Bank’s Auditors’ report and the financial information derived therefrom (including, the section entitled “Earnings Coverage” contained in the Prospectus and any management discussion and analysis incorporated by reference in the Prospectus) (collectively, the “Bank’s Financial Information”) which are included or incorporated by reference in the Base Shelf Prospectus include the same information and in all material respects carry the same meaning as the English language versions thereof;

• (c) an opinion of one or more translators, dated the date of the Base Shelf Prospectus, addressed to the Dealers, the Dealers’ Counsel, the Bank and the directors of the Bank, in form and substance reasonably satisfactory to the Dealers’ Counsel, to the effect that, except for the Bank’s Financial Information included or incorporated by reference in the Base Shelf Prospectus, as to which such translator expresses no opinion, the French language version of the Base Shelf Prospectus is, in all material respects, a complete and accurate translation of the English language version thereof;

• (d) a certificate signed by appropriate officers of the Bank, addressed to the Dealers and the Dealers’ Counsel, with respect to the by-laws of the Bank, the resolutions of the board of directors of the Bank relating to this Agreement and to the creation, authorization, issuance, execution and delivery of the Notes, the incumbency of signing officers and with respect to such other matters as the Dealers may reasonably request;

• (e) a favourable legal opinion of the Bank’s Counsel, in form and substance satisfactory to the Dealers’ Counsel, acting reasonably, as to the matters set forth below, subject to appropriate qualifications and limited to the laws of the Province of Ontario and the laws of Canada applicable therein in respect of the matters in paragraphs 6.2.1(e)(i) through (vii), provided that such counsel shall be entitled to rely, when they deem such reliance proper, upon the opinions of local counsel as to matters governed by the laws of jurisdictions other than the laws of Canada and the Provinces of Ontario, Quebec, Alberta and British Columbia and as to matters of fact, on certificates of the Bank’s Auditors, public officials and officers of the Bank:

• (i) as to the existence of the Bank as a bank listed on Schedule I to the Bank Act and as to the adequacy of the corporate power of the Bank to carry out

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its obligations hereunder, to borrow money and to create, issue and sell the Notes;

• (ii) that the execution and delivery of this Agreement and the Global Note Certificate and the fulfilment of the terms hereof and thereof by the Bank do not, and will not, conflict with or result in a breach of, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of any of the terms, conditions or provisions of the Bank Act or the by-laws of the Bank;

• (iii) that this Agreement has been duly authorized, executed and delivered by the Bank and constitutes a legal, valid and binding obligation of the Bank, enforceable against the Bank in accordance with its terms, except as enforcement thereof may be limited by general principles of equity and by bankruptcy, insolvency, reorganization, moratorium or other laws affecting the rights of creditors generally, provided that the Bank’s Counsel and the Dealers’ Counsel may express no opinion as to the enforceability of the provisions of paragraphs 8 and 9 of this Agreement;

• (iv) that each Global Note Certificate, when duly completed, executed and issued on behalf of the Bank and delivered against payment therefor will constitute a legal, valid and binding obligation of the Bank, enforceable against the Bank in accordance with its terms, except as enforcement thereof may be limited by general principles of equity and by bankruptcy, insolvency, reorganization, moratorium or other laws affecting the rights of creditors generally;

• (v) that all requisite corporate action has been taken by the Bank to authorize the execution and delivery of the Offering Materials and the filing thereof under Canadian Securities Laws in each of the Qualifying Jurisdictions;

• (vi) that the statements as to matters of the laws of Canada (and, where applicable, the laws of the provinces and territories thereof) set out in the Offering Materials under the caption “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, as applicable, are a fair and accurate summary of such laws in all material respects, subject to the limitations and qualifications stated or referred to therein;

• (vii) that the disclosure in the Offering Materials, insofar as it purports to be a summary of the attributes of the Notes, is accurate in all material respects;

• (viii) that, subject to the filing of Prospectus Supplements and/or Pricing Supplements in accordance with the Shelf Procedures and other appropriate qualifications, all documents have been filed and all requisite proceedings have been taken and all approvals, permits, consents and authorizations of appropriate regulatory authorities under Canadian Securities Laws have been obtained to qualify the distribution of Notes issued from time to time under the Base Shelf Prospectus through persons or companies duly and

• 14 -

properly registered in the appropriate category under the applicable laws of each Qualifying Jurisdiction who have complied with the relevant provisions of such legislation and the terms of such registration;

• (ix) subject to appropriate qualifications, compliance with all of the laws of the Province of Quebec relating to the use of the French language in connection with the Offering Materials and any other documents to be delivered to purchasers in the Province of Quebec; and

• (x) as to all other legal matters reasonably requested by the Dealers’ Counsel relating to the Distribution; and

• (f) a favourable legal opinion from the Dealers’ Counsel with respect to the matters in paragraph 6.2.1(e), subject to appropriate qualifications and limited to the laws of the Province of Ontario and the laws of Canada applicable therein, provided that the Dealers’ Counsel shall be entitled to rely as to matters of fact on certificates of the Bank’s Auditors, public officials and officers of the Bank and provided further that the Dealers’ Counsel shall be entitled to rely on the opinion of the Bank’s Counsel with respect to the matters in paragraph 6.2.1(e) other than items (vi), (vii), (viii) and (ix) thereof.

6.3 Deliveries Relating to each Closing

• 6.3.1 The Dealers and, where applicable, the Dealers’ Counsel shall have received, at the respective times indicated, the following documents:

• (a) as soon as possible and, in any event, within three Business Days from the date of filing of each Prospectus Supplement, Pricing Supplement or any Supplementary Material in respect of which Dealers have agreed to offer Notes, that number of copies of the Offering Materials for such Notes as the Dealers may reasonably require without charge, in such numbers and in such cities in the Qualifying Jurisdictions as the Dealers may reasonably request;

• (b) promptly upon the delivery of materials pursuant to paragraph 6.3.1(a), a comfort letter of the Bank’s Auditors, dated as of a date that is no earlier than the date of the filing of the Bank’s most recently filed quarterly or annual financial statements (as applicable), addressed to the Dealers and the directors of the Bank, in form and substance reasonably satisfactory to the Dealers and the Dealers’ Counsel, with respect to certain financial and accounting information of the Bank in the Offering Materials, which letter shall be in addition to the Bank’s Auditors comfort letter addressed to the Securities Commissions, if any; provided, however, that if a comfort letter of the Bank’s Auditors in respect of the Bank’s most recently filed quarterly or annual financial statements (as applicable) has been previously delivered to the Dealers, that comfort letter will satisfy the requirements of this paragraph 6.3.1(b).

• (c) promptly upon the delivery of materials pursuant to paragraph 6.3.1(a), an opinion of the Bank’s Auditors, dated the date of the Offering Materials, addressed to the

• 15 -

Dealers, the Dealers’ Counsel, the Bank, the Bank’s Counsel and the directors of the Bank, in form and substance reasonably satisfactory to the Dealers’ Counsel, to the effect that the French language versions of the Bank’s Financial Information which are included or incorporated by reference in the Offering Materials include the same information and in all material respects carry the same meaning as the English language versions thereof; provided, however, that if an opinion of the Bank’s Auditors in respect of the Bank’s Financial Information included or incorporated by reference in the Offering Materials has been previously delivered to the Dealers, that opinion will satisfy the requirements of this paragraph 6.3.1(c);

• (d) promptly upon the delivery of materials pursuant to paragraph 6.3.1(a), opinions of one or more translators, dated the date of the Offering Materials, addressed to the Dealers, the Dealers’ Counsel, the Bank and the directors of the Bank, in form and substance reasonably satisfactory to the Dealers’ Counsel, to the effect that, except for the Bank’s Financial Information included or incorporated by reference in the Offering Materials, as to which such translator expresses no opinion, the French language versions of the Offering Materials are, in all material respects, complete and accurate translations of the English language versions thereof;

• (e) on or prior to the 12[th] day of each month, and at such other times as the Dealers may request, certificate or certificates signed on behalf of the Bank by such officer or officers of the Bank as may be acceptable to the Dealers, acting reasonably, in each case addressed to the Dealers, certifying for and on behalf of the Bank after having made due enquiry, that:

• (i) no order, ruling or determination having the effect of suspending the sale or ceasing the trading of the Notes or any other securities of the Bank has been issued by any regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending or, to the knowledge of such signer, after due inquiry, contemplated or threatened;

• (ii) the Bank has duly complied in all material respects with the terms and conditions of this Agreement on its part to be complied with up to the date of the applicable certificate or certificates;

• (iii) the representations and warranties of the Bank contained in this Agreement, including those set out in paragraph 7, are true and correct as of the date of the applicable certificate or certificates with the same force and effect as if made at and as of the date of the applicable certificate or certificates after giving effect to the transactions contemplated hereby;

• (iv) the consummation of the offering of Notes will not as of date of the applicable certificate or certificates result in a material breach of any of the material terms, conditions or provisions of, and will not immediately or after notice or the passage of time or both, constitute a default under the Bank Act or the by-laws of the Bank or any material indenture, agreement or other instrument to which the Bank is a party or by which it is bound;

• 16 -

• (v) all necessary consents, approvals and authorizations, including under Canadian Securities Laws, which are required for the consummation by the Bank of each Distribution made prior to the date of the applicable certificate or certificates, have been obtained; and

• (vi) all information and statements (except information and statements furnished by or relating solely to the Dealers) contained in the Offering Materials completed prior to the date of the applicable certificate or certificates are, at and as of the Closing Time relevant to such Offering Materials, true and correct in all material respects, contain no misrepresentation and constitute full, true and plain disclosure of all material facts relating to the Notes and no material fact has been omitted therefrom which is required to be stated or which is necessary to make any statements or information contained therein not misleading in light of the circumstances in which they were made;

• (f) at each Closing Time, in the event there has been any change to the certificate most recently delivered pursuant to paragraph 6.2.1(d) or this paragraph 6.3.1(f), a certificate dated the Closing Date, signed by appropriate officers of the Bank, addressed to the Dealers and, where applicable, the Dealers’ Counsel, with respect to the by-laws of the Bank, the resolutions of the board of directors of the Bank relating to this Agreement and to the creation, authorization, issuance, execution and delivery of the Notes, the incumbency of signing officers and with respect to such other matters as the Dealers may reasonably request;

• (g) at each Closing Time, for Notes having attributes or tax consequences to holders thereof that are materially different from Notes previously distributed by the Bank under the MTN Program, at the reasonable request of the Dealers, a favourable legal opinion of the Bank’s Counsel, in form and substance satisfactory to the Dealers, acting reasonably, as to the matters set forth in paragraph 6.2.1(e), provided that the Bank’s Counsel will be entitled to rely upon the opinions of local counsel as to matters governed by the laws of jurisdictions other than the laws of Canada and the Provinces of Ontario, Quebec, Alberta and British Columbia and as to matters of fact, on certificates of the Bank’s Auditors, public officials and officers of the Bank;

• (h) at each Closing Time, for Notes having attributes or tax consequences to holders thereof that are materially different from Notes previously distributed by the Bank under the MTN Program, at the reasonable request of the Dealers, an opinion from the Dealers’ Counsel, as to the matters set forth in paragraph 6.2.1(f), provided that the Dealers’ Counsel will be entitled to rely on the opinions of local counsel as to matters governed by the laws of jurisdictions other than the laws of Canada and the Provinces of Ontario, Quebec, Alberta and British Columbia and provided further that the Dealers’ Counsel may rely upon the opinion of Bank’s Counsel with respect to matters specifically relating to the Bank other than items 6.2.1(e)(vi), (vii), (viii) and (ix) and, as to matters of fact, on certificates of the Bank’s Auditors, public officials and officers of the Bank; and

• 17 -

• (i) at each Closing Time, the Global Note Certificate, against payment by the Dealers to the Bank of the purchase price therefor (being 100% of the purchase price thereof) by electronic funds transfer. The Global Note Certificate shall thereafter be delivered by, or on behalf of, the Dealers to CDS, along with a direction to CDS with respect to the crediting of Notes to the accounts of the participants of CDS.

• 6.3.2 Selling Commission

• (a) At each Closing Time, the Bank shall pay to the Dealers for further payment to representatives of the Selling Firms, including representatives employed by the Dealers, whose clients purchase Notes, a selling commission (the “ Selling Commission ”) in the amount specified in the applicable Pricing Supplement by electronic funds transfer, against delivery of a receipt therefor by TDSI, on behalf of the Dealers. The Selling Commission in respect of any particular Note will be payable in the same currency as the principal of the Note.

• (b) In return for services in connection with a Distribution, the Bank shall pay at the Closing Time to any Dealer(s) specified in the applicable Pricing Supplement a one time fee in the amount specified in the Pricing Supplement by certified cheque, bank draft, wire transfer or in such other manner as may be agreed upon by the Bank and such Dealer(s). Any such fee in respect of any particular Distribution will be payable in the same currency as the principal of the Notes that are the subject of the Distribution.

7. Representation as to Offering Materials

7.1 The Bank represents, warrants and covenants to the Dealers that the Bank is eligible to use the Shelf Procedures as of the date of filing the Base Shelf Prospectus with the Securities Commissions and will be so eligible at the time of filing any Prospectus Supplement or Pricing Supplement and at all times during any period of Distribution of the Notes as required by applicable Canadian Securities Laws.

7.2 Delivery of any Offering Materials shall constitute the representation and warranty by the Bank to the Dealers at the time of delivery thereof and at all times during any period of Distribution of the Notes: (i) all information and statements (except information and statements furnished by or relating solely to the Dealers) contained in the Offering Materials prepared by the Bank (A) are true and correct in all material respects; (B) contain no misrepresentation; and (C) constitute full, true and plain disclosure of all material facts relating to the Notes; and (ii) no material fact or information has been omitted therefrom (except facts or information furnished by or relating solely to the Dealers) which is required to be stated therein or which is necessary to make any statement or information contained therein not misleading in light of the circumstances in which it was made. Such delivery shall also constitute the Bank’s consent to the use by the Dealers and the Selling Firms of the Offering Materials for the Distribution in compliance with the provisions of this Agreement and Canadian Securities Laws.

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8. Termination

8.1 Unless terminated earlier pursuant to the provisions of this Agreement, the term of the Dealers’ appointment as agents under this Agreement will expire on the earliest of:

• (a) the date that the Base Shelf Prospectus expires under applicable Canadian Securities Laws;

• (b) the date upon which the aggregate principal amount of Notes qualified under the Base Shelf Prospectus has been sold; or

• (c) in respect of one or more of the Dealers as specified in the notice referred to within this paragraph, the date upon which:

• (i) the Bank determines in its sole discretion and provides notice to one or more such Dealers that it does not wish to continue the arrangement specified herein in respect of such Dealer or Dealers; or

• (ii) any such Dealer determines in its sole discretion and provides notice to the Bank that it does not wish to continue the arrangement specified herein.

8.2 If, prior to the Closing Time in respect of any Distribution, any enquiry, action, suit, investigation or other proceeding (whether formal or informal) is instituted or any order is made by any federal, provincial or other governmental authority (other than an enquiry, action, suit, investigation or proceeding or order based solely upon the activities or alleged activities of the Selling Firms) which, in the reasonable opinion of the Dealers or any of them, operates to prevent or materially restrict the Distribution in any of the Qualifying Jurisdictions, each of the Dealers shall be entitled, at its option and in accordance with paragraph 8.6, to terminate, without liability on the Dealers’ part, its obligations under this Agreement in respect of the Distribution by written notice to that effect given to the Bank at any time prior to the Closing Time.

8.3 If, prior to the Closing Time in respect of any Distribution, there should occur, develop or come into effect any occurrence of national or international consequence or any action, governmental law or regulation, enquiry or other occurrence of any nature whatsoever which, in the reasonable opinion of any of the Dealers, seriously adversely affects or would seriously adversely affect the Canadian financial markets or the business of the Bank and its subsidiaries considered as a whole and such event, in the opinion of that Dealer, would reasonably be expected to have a significant adverse effect on the market price or value of the Notes that are the subject of such Distribution, then each of the Dealers shall be entitled, at its option in accordance with paragraph 8.6, to terminate its obligations under this Agreement in respect of such Distribution which have not then been fulfilled by written notice to that effect given to the Bank not later than such Closing Time, but such rights shall not be exercisable in respect of such Distribution after such Closing Time.

8.4 If, prior to the Closing Time in respect of any Distribution, there should occur any of the events described in paragraph 4.2 (but regardless of whether the Bank has notified the Dealers thereof) and which results in, or in the opinion of any of the Dealers, would reasonably be expected to result in, the purchasers of a material principal amount of Notes that are the subject of

• 19 -

such Distribution exercising their right under applicable legislation to withdraw from their purchase thereof or might reasonably be expected to have a significant adverse effect on the market price or value of the Notes, each of the Dealers shall be entitled at its option, in accordance with paragraph 8.6, to terminate its obligations under this Agreement in respect of the Distribution which have not then been fulfilled by written notice to that effect given not later than 5:00 p.m. (Toronto time) on the fifth Business Day following the later of:

• (a) the date on which all applicable filings or other requirements of Canadian Securities Laws with respect to such material change or change in a material fact have been complied with in all applicable Qualifying Jurisdictions and any appropriate receipts obtained therefor and notice thereof from the Bank or the Bank’s Counsel has been received by the Dealers; and

• (b) the date upon which commercial copies of any Supplementary Material in respect of such Distribution have been delivered in accordance with paragraph 6.3.1(a),

provided that such rights shall not be exercisable after such Closing Time.

8.5 All material terms and material conditions of this Agreement shall be construed as conditions, and any breach or failure by the Bank to comply with any of such conditions shall entitle the Dealers, or any of them, to terminate their obligations under this Agreement in respect of any Distribution by notice to that effect given to the Bank at or prior to the Closing Time, unless otherwise expressly provided herein. The determination as to whether a term or condition of this Agreement is a material term or a material condition shall be decided by the Dealers and the Bank who shall act reasonably in making any such determination. The Dealers may waive, in whole or in part, or extend the time for compliance with, any terms or conditions without prejudice to their rights in respect of any other of such terms and conditions or any other or subsequent breach or non-compliance.

8.6 The rights of termination contained in this paragraph 8 may be exercised by any of the Dealers and are in addition to any other rights or remedies the Dealers or any of them may have in respect of any default, act or failure to act or non-compliance by the Bank in respect of any of the matters contemplated by this Agreement or otherwise. In the event of any such termination, there shall be no further liability on the part of such Dealer to the Bank or on the part of the Bank to such Dealer under this Agreement except in respect of any liability which may have arisen or may thereafter arise under paragraphs 9 and 10. A notice of termination given by a Dealer under this paragraph 8 shall not be binding upon any other Dealer.

8.7 Should any purchaser of Notes exercise the right of withdrawal provided to such purchaser under the caption “Purchasers’ Statutory Rights” in the Offering Materials and such right of withdrawal is exercised after the applicable Closing Time in respect of a Distribution, then notwithstanding any other provision of this Agreement, the Dealers and the Bank shall forthwith take all such actions as may be necessary to put each of the parties to this Agreement and each of the other purchasers in the position they would have been in had such purchaser not purchased Notes at such Closing Time. Should any purchaser of Notes exercise such right of withdrawal, or should any purchaser effectively exercise a right of rescission or enforce a right of action for damages provided for under the above-noted caption in the Offering Materials, the Bank shall,

• 20 -

upon request, indemnify and save harmless each and every one of the Selling Firms and Dealers, and any director, officer, employee and agent thereof, from and against all losses, claims, costs, damages, expenses (including all reasonable legal and other expenses) or liabilities which are caused or incurred by or arise directly or indirectly by reason or in consequence thereof, provided that this obligation shall not apply if such rescission or right of action for damages arises solely out of, or is based solely upon, an untrue statement furnished to the Bank by the Dealers or relating solely to the Dealers specifically for use in the Offering Materials or any Supplementary Material. The obligation to indemnify shall not apply in respect of a purchaser exercising the right of withdrawal provided to such purchaser under the caption “Purchasers’ Statutory Rights” in the Offering Materials if such right of withdrawal arises out of, or is based upon, a failure of any Selling Firm or Dealer to send or deliver a copy of the Offering Materials or Supplementary Material to such purchaser in a timely manner after receiving same from the Bank or the purchaser exercises such right of withdrawal prior to the Closing Time.

9. Indemnity

9.1 The Bank agrees to indemnify and save harmless each of the Dealers and each of their respective directors, officers, employees and agents from and against all liabilities, claims, losses (other than loss of profits), reasonable costs, damages and reasonable expenses in any way caused by, or arising directly or indirectly from, or in consequence of:

• (a) any information or statement (except any information or statement furnished by or relating solely to the Dealers) contained in the Offering Materials or in any certificate of the Bank delivered hereunder or pursuant hereto which, at the time and in light of the circumstances in which it was made, contains or is alleged to contain a misrepresentation;

• (b) any omission or alleged omission to state in the Offering Materials or in any certificate of the Bank or any officer of the Bank delivered hereunder or pursuant hereto any fact (except facts furnished by or relating solely to the Dealers), whether material or not, required to be stated therein or necessary to make any statement therein not misleading in light of the circumstances in which it was made;

• (c) any order made or enquiry, investigation or proceeding commenced or threatened by any Securities Commission or other competent authority in Canada or in any of the Qualifying Jurisdictions based upon any untrue statement, omission or alleged untrue statement or omission or any misrepresentation or alleged misrepresentation (except a statement or omission or alleged statement or omission relating solely to, or a statement furnished by, the Dealers) in the Offering Materials or based upon any failure of the Bank to comply with Canadian Securities Laws, preventing or restricting the trading in or the sale of the Notes or any Distribution in any of the Qualifying Jurisdictions; or

• (d) the non-compliance or alleged non-compliance by the Bank with any Canadian Securities Laws, including the Bank’s non-compliance with any statutory requirement to make any document available for inspection, in connection with any Distribution.

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9.2 If any matter or thing contemplated by this paragraph 9 (any such matter or thing being hereinafter referred to as a “ Claim ”) is asserted against any person in respect of which indemnification is or might reasonably be considered to be provided, such person (the “ Indemnified Party ”) shall notify the Bank, as soon as possible, of the nature of such Claim and the Bank shall be entitled (but not required) to assume the defence of any suit brought to enforce such Claim; provided, however, that the defence shall be conducted through legal counsel acceptable to the Indemnified Party acting reasonably and that no admission of liability or settlement of any such Claim may be made by the Bank or the Indemnified Party without the prior written consent of the other of them. The failure of an Indemnified Party to so notify the Bank shall not affect the liability of the Bank under this paragraph 9 to the extent that such failure or delay does not significantly prejudice the defence of the proceedings or increase the liability which the Bank would otherwise have hereunder.

9.3 In any Claim, the Indemnified Party shall have the right to retain other counsel to act on his or her or its behalf provided that the fees and disbursements of such counsel shall be paid by the Indemnified Party unless: (i) the Bank and the Indemnified Party shall have mutually agreed to the retention of the other counsel; or (ii) the named parties to any such Claim (including any added third or impleaded party) include both the Indemnified Party, on the one hand, and the Bank, on the other hand, and the representation of both parties by the same counsel would be inappropriate due to the actual or potential differing interests between them.

9.4 With respect to any Indemnified Party who is not a party to this Agreement, the Dealers shall obtain and hold the rights and benefits of this paragraph 9 in trust for and on behalf of such Indemnified Party.

9.5 In the event that the indemnity provided for in this paragraph 9 is declared by a court of competent jurisdiction to be illegal or unenforceable as being contrary to public policy or for any other reason, the Dealers and the Bank shall contribute to the aggregate of all losses, claims, costs, damages, expenses or liabilities of the nature provided for above such that each Dealer shall be responsible for that portion represented by the percentage that the portion of the aggregate fees payable by the Bank to such Dealer in connection with the Distribution bears to the gross proceeds realized by the Bank from the Distribution, whether or not the Dealers have been sued together or separately, and the Bank shall be responsible for the balance, provided that, in no event, shall a Dealer be responsible for any amount in excess of the portion of such fees actually received by such Dealer. The right to contribution provided herein shall be in addition to, and not in derogation of, any other right to contribution which the Dealers may have by statute or otherwise by law. Notwithstanding the foregoing, no party who has engaged in any fraud, wilful misconduct or negligence shall be entitled to claim contribution from any person who has not engaged in such fraud, wilful misconduct or negligence.

10. Expenses of the Offering

Except in the case where one or more of the Dealers default in their obligations under this Agreement, whether or not the transactions herein contemplated shall be completed, all expenses of or incidental to the creation, issuance and delivery of the Notes and all fees and expenses payable in connection with any Distribution thereof and all expenses of or incidental to all other matters in connection with the transactions herein set out, including the Dealers’

• 22 -

reasonable out-of-pocket expenses (including, without limitation, expenses relating to any green sheet and marketing materials), the reasonable fees and expenses of the Dealers’ Counsel, the fees and expenses of the Bank’s Counsel, all fees and expenses of local counsel to the Bank, all fees and expenses of the Bank’s Auditors and all costs incurred in connection with the preparation and printing of the Offering Materials, marketing materials and any Global Note Certificate shall be borne by and be for the account of the Bank.

11. Survival of Representations, etc.

11.1 The representations, warranties, obligations and agreements of the Bank contained herein and in any certificate delivered pursuant to this Agreement or in connection with the purchase and sale of the Notes shall survive the purchase of the Notes by the purchasers thereof and shall continue in full force and effect unaffected by any subsequent disposition of the Notes by the purchasers thereof or the termination of the Dealers’ obligations and shall not be limited or prejudiced by any investigation made by or on behalf of the Dealers in connection with the preparation of the Offering Materials or any Distribution. The provisions of this paragraph 11.1 shall not apply if the Dealers terminate their obligations under this Agreement in circumstances where the Bank is not in default under the terms of this Agreement. In such circumstances, there shall be no further liability of the Bank to the Dealers under the terms of this Agreement except in respect of any liability which may have arisen or may thereafter arise under paragraphs 9 and 10.

11.2 The representations, warranties, obligations and agreements of the Dealers contained herein shall survive each Closing Date and shall continue in full force and effect unaffected by any subsequent disposition of the Notes by the purchasers thereof or the termination of the Dealers’ obligations under this Agreement.

12. Notices

12.1 Unless herein otherwise expressly provided, any notice, request, direction, consent, waiver, extension, agreement or other communication (a “ Communication ”) that is or may be given or made hereunder shall be in writing addressed as follows:

If to the Bank, addressed and sent to:

The Toronto-Dominion Bank 4[th] Floor, TD Bank Tower Toronto-Dominion Centre Toronto, Ontario M5K 1A2

Attention: Jane Langford, General Counsel Facsimile No.: (856) 470-6196

• 23 -

with a copy to:

The Toronto-Dominion Bank, Global Equity Derivatives 7[th] Floor, 222 Bay St. Toronto-Dominion Centre Toronto, Ontario M5K 1A2 Attention: David Panko, Managing Director Email: RSN@tdsecurities.com

and if to the Dealers or any one of them, addressed and sent to:

TD Securities Inc. Toronto-Dominion Centre 222 Bay Street, 7th Floor Toronto, Ontario M5K 1A2 Attention: Jason Morrow, Managing Director Email: RSN@tdsecurities.com

Desjardins Securities Inc. 1170 Peel Street Suite 300 Montreal, Quebec H3B 0A9

Attention: Sébastien Hébert, Senior Analyst Facsimile No. (514) 876-1700

iA Private Wealth Inc. 26 Wellington St. East, Suite 700 Toronto, Ontario M5E 1S2

Attention: Richard Kassabian, Managing Director, Equity Capital Markets Facsimile No. (416) 864-7359

• 24 -

Laurentian Bank Securities Inc. 1360, boul René-Levesque O. Bureau 620 Montreal, Quebec H3G 0E8

Attention: Dominic D’Aoust, Managing Director, Structured Products, Head Portfolio Manager Facsimile No. (514) 294-9708

Manulife Securities Incorporated 79 Wellington Street West Suite 2402 Toronto, Ontario M5K 1K2

Attention: Stephen Arvanitidis, Managing Director, Capital Markets Group

Richardson Wealth Limited 145 King Street West Suite 500 Toronto, Ontario M5H 1J8

Attention: Kerri-Ann Clare-Sylvestre, Managing Director, Equity Capital Markets

or to such other address as any of the parties may designate by notice given to the others.

12.2 Each Communication shall be personally delivered to the addressee or sent by email or facsimile transmission to the addressee and a Communication which is personally delivered or sent by email or facsimile transmission shall, if delivered or sent during normal business hours on a Business Day, be deemed to be given and received on that day and, in any other case, be deemed to be given and received on the first Business Day following the day on which it is delivered or sent.

12.3 TDSI is hereby authorized by each other Dealer to act on its behalf and the Bank shall be entitled to and shall act on any Communication given or agreement entered into by or on behalf of the Dealers by TDSI, which hereby represents and warrants that it has irrevocable authority to bind the Dealers, except in respect of any consent to a settlement pursuant to paragraph 9 which consent shall be given by the Indemnified Party, a notice of termination pursuant to paragraph 8 which notice may be given by the applicable Dealer or Dealers or any amendment to this Agreement which must be signed by each of the Dealers. TDSI shall consult

• 25 -

fully with each other Dealer concerning any matter in respect of which it acts as representative of the Dealers.

13. No Fiduciary Duties

The Bank acknowledges and agrees that in connection with sales of Notes hereunder and any other services any of the Dealers may be deemed to be providing hereunder, notwithstanding any pre-existing relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or subsequently made by any Dealers: (i) no fiduciary relationship exists between the Bank and the Dealers; (ii) the relationship between the Bank and the Dealers is entirely and solely commercial and based on arm’s-length negotiations; (iii) any duties and obligations that any of the Dealers may have to the Bank shall be limited to those duties and obligations specifically stated herein; and (iv) the Dealers and their respective affiliates may have interests that differ from those of the Bank.

14. Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein.

15. Time

Time shall be of the essence of this Agreement.

16. Headings

Headings are inserted for convenience of reference only and shall not affect the interpretation of this Agreement.

17. Severability

If any provision of this Agreement is determined to be void or unenforceable in whole or in part, such void or unenforceable provision shall not affect or impair the validity of any other provision of this Agreement and shall be severable from this Agreement.

18. Counterparts

This Agreement may be executed by manual or facsimile signature in any number of counterparts, each of which when so executed, shall be deemed to be an original and all such counterparts shall together constitute one and the same instrument.

19. Entire Agreement

This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and cancels any prior agreements or understandings between the parties, written or oral, with respect to the subject matter hereof.

• 26 -

If the foregoing is in accordance with your understanding and is agreed to by you, please signify your acceptance by executing this letter where indicated below and returning the executed copies to us whereupon this letter as so accepted shall constitute an agreement among us.

(Signature page to follow)

TD SECURITIES INC.

By: /s/ Johnathon Brent

Name: Johnathon Brent Title: Director

DESJARDINS SECURITIES INC.

By: /s/ Ryan Godfrey

Name: Ryan Godfrey Title: Managing Director

iA PRIVATE WEALTH INC.

By: /s/ Richard Kassabian Name: Richard Kassabian Title: Managing Director

LAURENTIAN BANK SECURITIES INC.

By: /s/ Dominic D’Aoust Name: Dominic D’Aoust Title: Managing Director

MANULIFE SECURITIES INCORPORATED

By: /s/ Stephen Arvanitidis Name: Stephen Arvanitidis Title: Managing Director

Internal

• 28 -

RICHARDSON WEALTH LIMITED

By: /s/ Scott Stennett Name: Scott Stennett Title: Senior Vice President & Chief Operating Officer

The foregoing offer is accepted and agreed to as of the date first above written.

THE TORONTO-DOMINION BANK

By: /s/ Jason Morrow Name: Jason Morrow Title: Managing Director

217114.01226/100481886.3

SCHEDULE A COUNTERPART TO DEALER AGREEMENT

TO:

THE TORONTO-DOMINION BANK (the “Bank”)

AND TO: TD SECURITIES INC., DESJARDINS SECURITIES INC., iA PRIVATE WEALTH INC., LAURENTIAN BANK SECURITIES INC., MANULIFE SECURIITES INCORPORATED, AND RICHARDSON WEALTH LIMITED (collectively, the “ Original Dealers ”)

Reference is made to the dealer agreement dated August 9, 2022 (the “ Dealer Agreement ”) between the Bank and the Original Dealers, a copy of which is attached as Appendix A. Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Dealer Agreement.

In accordance with the Dealer Agreement, in executing this counterpart to the Dealer Agreement, the undersigned hereby covenants and agrees to be bound by the Dealer Agreement, as the same may be amended from time to time in accordance with the provisions thereof, in connection with the offering and sale of [the Notes]/[the __ Notes, Series____] under the Bank’s MTN Program as a Dealer in the same manner and to the same extent as if the undersigned had been one of the Original Dealers under the Dealer Agreement.

For the purposes of paragraph 12.1 of the Dealer Agreement, copies of notices should also be delivered to:

__ Email:__ Attention: ____

DATED

NAME OF DEALER

By: Name: Title:

THE TORONTO-DOMINION BANK

By: Name: Title:

Internal