("Australasian
Proceeds"), shall not exceed the amount of such Net Proceeds so received and
shall be made by Borrower and to the extent that a subsidiary of Borrower has
received such Net Proceeds, such subsidiary shall have transferred such proceeds
to Borrower prior to the payment by Borrower, (6) any Australasian Proceeds that
have not been used for such a purchase, redemption, retirement, defeasance or
other acquisition within ninety (90) days after the receipt thereof by Borrower
or any of its subsidiaries shall be applied to the Obligations in accordance
with Section 9.7(b)(vi)(D) hereof, and
5
(7) nothing contained this clause (vi) shall be deemed to affect the limitations
on any sale by a Foreign Subsidiary set forth in Section 9.7(b)(vi) of the Loan
Agreement,
(vii)
Agent shall have received true, correct and complete copies of any
indenture or other agreement providing for any of the terms of such Indebtedness
promptly upon the execution thereof,
(viii)
Borrower shall furnish to Agent all written notices or demands in
connection with such Indebtedness either received by Borrower or on its behalf,
promptly after the receipt thereof, or sent by Borrower or on its behalf,
concurrently with the sending thereof, as the case may be;"
4.
REPRESENTATIONS AND WARRANTIES.
BORROWER REPRESENTS AND WARRANTS WITH AND
TO AGENT AND LENDERS AS FOLLOWS, WHICH REPRESENTATIONS AND WARRANTIES SHALL
SURVIVE THE EXECUTION AND DELIVERY HEREOF, THE TRUTH AND ACCURACY OF, OR
COMPLIANCE WITH EACH, TOGETHER WITH THE REPRESENTATIONS, WARRANTIES AND
COVENANTS IN THE OTHER FINANCING AGREEMENTS, BEING A CONTINUING CONDITION OF THE
MAKING OF ANY LOANS BY AGENT (OR AGENT ON BEHALF OF LENDERS) TO BORROWER:
(A)
AS OF THE DATE HEREOF, NO DEFAULT OR EVENT OF DEFAULT EXISTS OR HAS
OCCURRED AND IS CONTINUING.
(B)
THIS AMENDMENT NO. 5 AND EACH OTHER AGREEMENT OR INSTRUMENT TO BE EXECUTED
AND DELIVERED BY BORROWER IN CONNECTION HEREWITH HAVE BEEN DULY AUTHORIZED,
EXECUTED AND DELIVERED BY ALL NECESSARY ACTION ON THE PART OF BORROWER AND THE
AGREEMENTS AND OBLIGATIONS OF BORROWER HEREIN CONSTITUTE LEGAL, VALID AND
BINDING OBLIGATIONS OF BORROWER ENFORCEABLE AGAINST BORROWER IN ACCORDANCE WITH
THEIR RESPECTIVE TERMS, SUBJECT AS TO ENFORCEMENT TO BANKRUPTCY, FRAUDULENT
CONVEYANCE, INSOLVENCY, REORGANIZATION, MORATORIUM AND LAWS OF GENERAL
APPLICABILITY TO OR AFFECTING ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY OR TO
GENERAL PRINCIPLES OF EQUITY.
5.
CONDITIONS PRECEDENT.
THIS AMENDMENT NO. 5 SHALL BECOME EFFECTIVE ON THE
DATE (THE "CONSENT EFFECTIVE DATE") ON WHICH AGENT RECEIVES COUNTERPARTS HEREOF
EXECUTED ON BEHALF OF BORROWER AND THE REQUIRED LENDERS.
6.
PROVISIONS OF GENERAL APPLICATION.
(A)
EFFECT OF THIS AMENDMENT NO. 5.
EXCEPT AS MODIFIED PURSUANT HERETO, NO
OTHER CHANGES OR MODIFICATIONS TO THE FINANCING AGREEMENTS ARE INTENDED OR
IMPLIED AND IN ALL OTHER RESPECTS THE FINANCING AGREEMENTS ARE HEREBY
SPECIFICALLY RATIFIED, RESTATED AND CONFIRMED BY ALL PARTIES HERETO AS OF THE
CONSENT EFFECTIVE DATE.
TO THE EXTENT OF CONFLICT BETWEEN THE TERMS OF THIS
AMENDMENT NO. 5 AND THE OTHER FINANCING AGREEMENTS, THE TERMS OF THIS AMENDMENT
NO. 5 SHALL CONTROL.
THE LOAN AGREEMENT AND