pay by the Canadian Issuing Bank under any Canadian Letter of Credit;
provided that the Company and the Canadian Borrower shall not be required to
indemnify any Canadian Lender or the Canadian Administrative Agent for any
claims, damages, losses, liabilities, costs or expenses to the extent, but only
to the extent, caused by (x) the willful misconduct or gross negligence of the
Canadian Issuing Bank in determining whether a request presented under any
Canadian Letter of Credit complied with the terms of such Canadian Letter of
Credit or (y) in the case of the Canadian Issuing Bank, its failure to pay under
any Canadian Letter of Credit after the presentation to it of a request strictly
complying with the terms and conditions of such Canadian Letter of Credit.
Nothing in this subsection 2.8 is intended to limit the other obligations of the
Company, Canadian Borrower, any Canadian Lender or the Canadian Administrative
Agent under this Agreement.
2.9.
CANADIAN SWINGLINE LOANS.
(A) THE SWINGLINE LENDER AGREES TO MAKE A
PORTION OF THE CREDIT OTHERWISE AVAILABLE TO THE CANADIAN BORROWER UNDER THE
CANADIAN COMMITMENTS FROM TIME TO TIME DURING THE COMMITMENT PERIOD BY MAKING
SWING LINE LOANS ("CANADIAN SWINGLINE LOANS") TO THE CANADIAN BORROWER IN AN
AGGREGATE PRINCIPAL AMOUNT AT ANY ONE TIME OUTSTANDING UP TO BUT NOT EXCEEDING
THE AMOUNT OF THE CANADIAN SWINGLINE COMMITMENT (NOTWITHSTANDING THAT THE
CANADIAN SWINGLINE LOANS OUTSTANDING AT ANY TIME, WHEN AGGREGATED WITH THE
CANADIAN SWINGLINE LENDER'S OTHER OUTSTANDING REVOLVING LOANS, MAY EXCEED THE
CANADIAN SWINGLINE COMMITMENT THEN IN EFFECT), PROVIDED THAT IN NO EVENT SHALL
THE AGGREGATE OUTSTANDING PRINCIPAL AMOUNT OF ALL C$ LOANS AND CANADIAN
SWINGLINE LOANS, TOGETHER WITH THE AGGREGATE AMOUNT OF ALL LETTER OF CREDIT
LIABILITIES UNDER THE CANADIAN COMMITMENTS OUTSTANDING, EXCEED THE AGGREGATE
AMOUNT OF THE CANADIAN COMMITMENTS AS IN EFFECT FROM TIME TO TIME.
DURING THE
COMMITMENT PERIOD, THE CANADIAN BORROWER MAY USE THE CANADIAN SWINGLINE
COMMITMENT BY BORROWING, REPAYING AND REBORROWING, ALL IN ACCORDANCE WITH THE
TERMS AND CONDITIONS HEREOF.
CANADIAN SWINGLINE LOANS SHALL BE EITHER
EUROCURRENCY LOANS, CANADIAN PRIME RATE LOANS OR AGREED RATE LOANS AND THE
INTEREST PERIOD WITH RESPECT TO SUCH EUROCURRENCY LOANS, CANADIAN PRIME RATE
LOANS OR AGREED RATE LOANS SHALL BE AS AGREED UPON BY THE CANADIAN SWINGLINE
LENDER.
FOR PURPOSES OF CALCULATING THE COMMITMENT FEE PAYABLE IN RESPECT OF
THE CANADIAN COMMITMENTS UNDER SECTION 2.03 OF THE CREDIT AGREEMENT, THE
CANADIAN SWINGLINE LOANS SHALL NOT BE TREATED AS USAGE OF THE CANADIAN
COMMITMENTS.
CANADIAN SWINGLINE LOANS SHALL BE DENOMINATED ONLY IN CANADIAN
DOLLARS.
(B)
WHENEVER THE CANADIAN BORROWER DESIRES THAT THE SWINGLINE LENDER MAKE
SWINGLINE LOANS IT SHALL GIVE THE SWINGLINE LENDER IRREVOCABLE TELEPHONIC NOTICE
CONFIRMED PROMPTLY IN WRITING (WHICH TELEPHONIC NOTICE MUST BE RECEIVED BY THE
SWINGLINE LENDER NOT LATER THAN 11:00 A.M., TORONTO TIME, ON THE PROPOSED
BORROWING DATE), SPECIFYING (I) THE AMOUNT TO BE BORROWED AND (II) THE REQUESTED
BORROWING DATE (WHICH SHALL BE A BUSINESS DAY DURING THE COMMITMENT PERIOD).
EACH BORROWING UNDER THE SWINGLINE COMMITMENT SHALL BE IN