Exhibit 99.2
THE BANK OF NOVA SCOTIA
US$11,789,336,191.28
SENIOR NOTES, SERIES A
SECOND AMENDED AND RESTATED CALCULATION
AGENCY AGREEMENT
BETWEEN
THE BANK OF NOVA SCOTIA
AND
SCOTIA CAPITAL INC.
December 1, 2014
This Second Amended and Restated
Calculation Agency Agreement is entered into by and between The Bank of Nova Scotia (the “Bank”) and
Scotia Capital Inc. The Bank proposes to issue and sell certain of its securities designated as Senior Notes, Series A (the
“Notes”). The Notes are to be issued under the Indenture, dated as of January 11, 2010 (as such may be
from time to time further amended, restated, supplemented or otherwise modified), between the Bank and Computershare Trust
Company, N.A., as U.S. Trustee (the “U.S. Trustee”) and Computershare Trust Company of Canada, as Canadian
Trustee (together with the U.S. Trustee, the “Trustees”). The Notes are to be distributed pursuant to the
terms of the Amended and Restated Distribution Agreement, dated December 28, 2012, as amended by the First Amendment to
Amended Restated Distribution Agreement, dated December 1, 2014 (as such may be from time to time further amended, restated,
supplemented or otherwise modified, the “Distribution Agreement”), between the Bank and Scotia Capital
(USA) Inc., relating to the Notes. Terms used but not defined herein shall have the meanings assigned to them in the form of
Note attached as Exhibit A hereto or in the Prospectus, dated December 1, 2014 and as supplemented by the Prospectus
Supplement, dated December 1, 2014 (collectively, the “Prospectus”).
The Bank and Scotia Capital Inc. executed
a calculation agency agreement dated February 29, 2012, as amended and restated by the Amended and Restated Calculation
Agency Agreement dated December 28, 2012 (the “Existing Calculation Agency Agreement”), and have agreed to amend
and restate the Existing Calculation Agency Agreement in its entirety as set forth herein.
For the purpose of appointing an agent
to perform the functions of the calculation agent as described in the Prospectus with respect to any Note, the determination of
the principal or interest of which is linked to other securities or to commodities or an index or indices to be set forth in one
or more product and product pricing supplements to the Prospectus (collectively, the “Floating Rate Indices”),
the Bank and Scotia Capital Inc. agree as follows:
| 1. | Upon the terms and subject to the conditions contained herein, the Bank hereby appoints Scotia Capital Inc. (in such capacity,
the “Calculation Agent”) for the purpose of performing the functions of the Calculation Agent with respect to
the Floating Rate Indices in the manner and at the times provided in the Notes, the Prospectus and the applicable pricing supplement,
except with respect to Notes issued on or after the date hereof where a different calculation agent is designated in the applicable
product and product pricing supplements. |
| 2. | The Calculation Agent shall use due care to determine the Floating Rate Indices and all other matters which are required to
be determined or provided by the Calculation Agent pursuant to the terms of the applicable Note and as described in the Prospectus
and applicable product and |
product pricing supplements, and (i) shall communicate
the same and the relevant interest payment date to the Bank, the Trustees and any paying agent identified to it in writing on the
day of such determination or performance and (ii) if applicable, upon the request of a Holder of such a Note, provide the interest
rate (based on the applicable Floating Rate Indices) then in effect and, if determined, the interest rate (based on the applicable
Floating Rate Indices) that will become effective on the next Interest Reset Date.
| 3. | The Calculation Agent accepts its obligations set forth herein, upon the terms and subject to the conditions hereof, including
the following, to all of which the Bank agrees: |
| (a) | The Calculation Agent shall be entitled to such compensation as may be agreed in writing with the Bank for all services rendered
by the Calculation Agent, and the Bank promises to pay such compensation and to reimburse the Calculation Agent for the reasonable
out-of-pocket expenses (including counsel fees and expenses) incurred by it in connection with the services rendered by it hereunder
upon receipt of such invoices as the Bank shall reasonably require. The Bank also agrees to indemnify the Calculation Agent for,
and to hold it harmless against, any and all loss, liability, damage, claims or expenses (including the costs and expenses of defending
against any claim of liability) incurred by the Calculation Agent that arises out of or in connection with its acting as Calculation
Agent hereunder, except such as may result from the gross negligence, willful misconduct or bad faith of the Calculation Agent
or any of its agents or employees. The Calculation Agent shall incur no liability and shall be indemnified and held harmless by
the Bank for, or in respect of, any actions taken, omitted to be taken or suffered to be taken in good faith by the Calculation
Agent in reliance upon (i) the written opinion of counsel satisfactory to it or (ii) written instructions from the Bank. The Calculation
Agent shall not be liable for any error resulting from the use of or reliance on a source of information used in good faith and
with due care to calculate the interest rate or the interest amount for each Note or in determining any other matter required to
be determined by the Calculation Agent pursuant to the terms of the Note. The provisions of this paragraph shall survive the termination
of this Agreement. |
| (b) | In acting under this Agreement and in connection with the Notes, the Calculation Agent is acting solely as agent of the Bank
and does not assume any obligations to, or relationship of agency or trust for or with, any of the owners or holders of the Notes. |
| (c) | The Calculation Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted to be
taken or anything suffered by it in reliance upon the terms of the Notes, any notice, direction, certificate, affidavit, statement
or other paper, document or communication reasonably believed by it to be genuine and to have been approved or signed by the proper
party or parties. |
| (d) | The Calculation Agent shall be obligated to perform such duties and only such duties as are herein specifically set forth and
any duties necessarily incidental thereto, and no implied duties or obligations shall be read into this Agreement against the Calculation
Agent. |
| (e) | Unless herein otherwise specifically provided, any order, certificate, notice, request, direction or other communication from
the Bank made or given by it under any provision of this Agreement shall be sufficient if signed by a proper officer or an authorized
person of the Bank. |
| (f) | The Calculation Agent may, upon obtaining the prior written consent of the Bank, perform any duties hereunder either directly
or by or through agents or attorneys, and the Calculation Agent shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder. |
| (g) | In no event shall the Calculation Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever
(including, but not limited to, lost profits), even if the Calculation Agent has been advised of the likelihood of such loss or
damage and regardless of the form of action. |
| (h) | The Calculation Agent shall not be responsible or liable for any failure or delay in the performance of its obligations under
this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including without
limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; epidemics; riots; interruptions,
loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of
civil or military authority or governmental actions; it being understood that the Calculation Agent shall use its best efforts
to resume performance as soon as practicable under the circumstances. |
| (i) | No provision of this Agreement shall require the Calculation Agent to expend, advance or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers hereunder
unless it is indemnified to its reasonable satisfaction and the Calculation Agent shall have no liability to any person for any
loss occasioned by any delay in taking or failure to take any such action while it is awaiting an indemnity reasonably satisfactory
to it. |
| 4. (a) | The Calculation Agent may at any time resign as Calculation Agent by giving written notice to the Bank of such intention on
its part, specifying the date on which its desired resignation shall become effective; provided, however, that such date shall
not be earlier than 60 days after the receipt of such notice by the Bank, unless the Bank agrees in writing to accept less notice.
The Calculation Agent may be removed (with or without cause) at any time by the filing with it of any instrument in writing signed
on behalf of the Bank by a proper officer or an authorized person thereof and specifying such removal and the date when it is intended
to become effective. Such resignation or removal shall take effect upon the date of the appointment by the Bank, as hereinafter
provided, of a successor Calculation Agent. If within 60 days after notice of resignation or removal has been given, a successor
Calculation Agent has not been appointed, the Calculation Agent may, at the expense of the Bank, petition a court of competent
jurisdiction to appoint a successor Calculation Agent. A successor Calculation Agent shall be appointed by the Bank by an instrument
in writing signed on behalf of the Bank by a proper officer or an authorized person thereof and the successor Calculation Agent.
Upon the appointment of a successor Calculation Agent and acceptance by it of such appointment, the Calculation Agent so superseded
shall cease to be such Calculation Agent hereunder. Upon its resignation or removal, the Calculation Agent shall be entitled to
the payment by the Bank of its compensation, if any is owed to it, for services rendered hereunder and to the reimbursement of
all reasonable out-of-pocket expenses incurred in connection with the services rendered by it hereunder. |
| (b) | Any successor Calculation Agent appointed hereunder shall execute and deliver to its predecessor and to the Bank an instrument
accepting such appointment hereunder, and |
thereupon such successor Calculation Agent, without
any further act, deed or conveyance, shall become vested with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named as such Calculation Agent hereunder, and such predecessor,
upon payment of its charges and disbursements then unpaid, shall thereupon become obliged to transfer and deliver, and such successor
Calculation Agent shall be entitled to receive, copies of any relevant records maintained by such predecessor Calculation Agent.
| (c) | Any corporation into which the Calculation Agent may be merged or converted or with which the Calculation Agent may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to which the Calculation Agent shall be a party, or any
corporation succeeding to all or substantially all of the assets and business of the Calculation Agent, shall, to the extent permitted
by applicable law and provided that it shall have an established place of business in The City of New York, be the successor Calculation
Agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto.
Notice of any such merger, conversion, consolidation or sale shall forthwith be given to the Bank within 30 days of such merger,
conversion, consolidation or sale. |
| 5. | Any notice required to be given hereunder shall be delivered in person, sent by letter or communicated by telephone (subject,
in the case of communication by telephone, to confirmation dispatched within twenty-four hours by letter), to the following addresses
(or to any other address of which any party shall have notified the others in writing as herein provided): in the case of the Bank,
The Bank of Nova Scotia, 00 Xxxx Xxxxxx Xxxx, Xxxxxx Plaza, 64th Floor, Toronto, Ontario M5H 1H1, Facsimile: 000-000-0000 Attention:
Xxx Xxxxx, and in the case of the Calculation Agent, Scotia Capital Inc., 68th Floor, Scotia Plaza, 00 Xxxx Xxxxxx Xxxx,
Xxxxxxx, XX X0X 0X0, Facsimile: 000-000-0000. Any notice hereunder given by telephone or letter shall be deemed to be received
when in the ordinary course of transmission or post, as the case may be, it would be received. |
| 6. | This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. EACH PARTY HERETO
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. |
| 7. | This Agreement may be executed by each of the parties hereto in any number of counterparts, each of which counterparts, when
so executed and delivered, shall be deemed to be an original and all such counterparts shall together constitute one and the same
agreement. |
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IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed as of the date first above written.
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| By: |
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Name: |
Xxxxxxx Xxxxxx |
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Title: |
Managing Director, Secured and Capital Funding |
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| SCOTIA CAPITAL INC., as Calculation Agent |
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| By: |
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Name: |
Xxxx Xxxxx X'Xxxxxxx |
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Title: |
EVP & Chief Administrative Officer, |
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Global Banking and Markets |
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| By: |
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Name: |
Xxx Xxxxxxx |
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Title: |
MD, FAC & CFO, Scotia Capital Inc. |
