DOCUMENTS EVIDENCING MEZZANINE DEBT SUBJECT TO THE LIMITATIONS AND TERMS OF
SECTION 5.1(G) (IN ADDITION TO ANY PAYMENTS MADE OR PERMITTED TO BE MADE
PURSUANT TO CLAUSE (D) ABOVE) IN AN AMOUNT NOT TO EXCEED $10,000,000; PROVIDED,
THAT (I) NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING OR WOULD
RESULT AFTER GIVING EFFECT TO ANY RESTRICTED PAYMENT PURSUANT TO THIS CLAUSE (E)
AND (II) BORROWERS SHALL HAVE BORROWING AVAILABILITY, BOTH BEFORE AND AFTER
GIVING EFFECT TO ANY SUCH RESTRICTED PAYMENT, IN EXCESS OF $20,000,000; AND
PROVIDED, FURTHER, THAT, THE SUM OF THE AMOUNT OF CASH INTEREST PAYMENTS
PURSUANT TO THE TERMS OF THE MEZZANINE DEBT DOCUMENTS PURSUANT TO THIS CLAUSE
(H) PLUS THE SUM OF ANY RESTRICTED PAYMENTS MADE PURSUANT TO CLAUSE (E) ABOVE
SHALL NOT EXCEED $15,000,000 (I.E. THE SUM OF PAYMENTS PURSUANT TO CLAUSE (E)
ABOVE AND THIS CLAUSE (H) SHALL IN NO EVENT EXCEED $15,000,000 COLLECTIVELY, AND
THAT THE SUM OF PAYMENTS MADE PURSUANT TO THIS CLAUSE (H) SHALL REDUCE DOLLAR
FOR DOLLAR THE PAYMENTS PERMITTED PURSUANT TO CLAUSE (E) ABOVE).
5.6.
RESTRICTION ON FUNDAMENTAL CHANGES.
EXCEPT AS OTHERWISE PERMITTED
BY SECTION 4.4, THE CREDIT PARTIES SHALL NOT AND SHALL NOT CAUSE OR PERMIT THEIR
SUBSIDIARIES TO DIRECTLY OR INDIRECTLY:
(A) AMEND, MODIFY OR WAIVE ANY TERM OR
PROVISION OF ITS ORGANIZATIONAL DOCUMENTS, INCLUDING ITS ARTICLES OF
INCORPORATION, CERTIFICATES OF DESIGNATIONS PERTAINING TO PREFERRED STOCK,
BY-LAWS, PARTNERSHIP AGREEMENT OR OPERATING AGREEMENT IN ANY MANNER ADVERSE TO
THE AGENT OR LENDERS UNLESS REQUIRED BY LAW; PROVIDED, THAT THE FOREGOING SHALL
NOT RESTRICT THE ABILITY OF HOLDINGS AND ITS SUBSIDIARIES TO AMEND THEIR
RESPECTIVE CERTIFICATES OF INCORPORATION TO AUTHORIZE THE ISSUANCE OF COMMON
STOCK OR QUALIFIED PREFERRED STOCK OTHERWISE PERMITTED TO BE ISSUED PURSUANT TO
THE TERMS OF THIS AGREEMENT; (B) ENTER INTO ANY TRANSACTION OF MERGER OR
CONSOLIDATION EXCEPT, UPON NOT LESS THAN FIVE (5) BUSINESS DAYS PRIOR WRITTEN
NOTICE TO AGENT, (I) ANY WHOLLY-OWNED SUBSIDIARY OF A BORROWER MAY BE MERGED
WITH OR INTO SUCH BORROWER (PROVIDED THAT SUCH BORROWER IS THE SURVIVING ENTITY)
OR ANY OTHER WHOLLY-OWNED SUBSIDIARY OF SUCH BORROWER (PROVIDED THAT, IN THE
CASE OF ANY SUCH MERGER OF ANY DOMESTIC SUBSIDIARY WITH OR INTO A FOREIGN
SUBSIDIARY, THE DOMESTIC SUBSIDIARY IS THE SURVIVING ENTITY); (II) ANY DOMESTIC
SUBSIDIARY MAY MERGE INTO ANOTHER DOMESTIC SUBSIDIARY OR INTO THE U.S. BORROWER
(PROVIDED THAT THE U.S. BORROWER IS THE SURVIVING ENTITY); AND (III) ANY U.K.
SUBSIDIARY MAY MERGE INTO OR CONSOLIDATE WITH OR TRANSFER ALL OR PART OF ITS
ASSETS AND LIABILITIES TO ANOTHER U.K. SUBSIDIARY THAT IS A CREDIT PARTY OR
EITHER EUROPEAN BORROWER (PROVIDED THAT SUCH EUROPEAN BORROWER IS THE SURVIVING
47
ENTITY); PROVIDED, HOWEVER, THAT IN NO EVENT SHALL THE EUROPEAN BORROWERS MERGE
INTO ANY OTHER ENTITY, INCLUDING THE OTHER EUROPEAN BORROWER; (C) LIQUIDATE,
WIND-UP OR DISSOLVE ITSELF (OR SUFFER ANY LIQUIDATION OR DISSOLUTION) OTHER THAN
(A) ANY INACTIVE NON-CREDIT PARTY THAT HOLDS NO ASSETS OR (B)
XL VENTURES,
INC., XL VENTURES (DELAWARE), INC., BIG FLOWER DIGITAL SERVICES (DELAWARE),