This excerpt taken from the EYE 8-K filed Apr 3, 2007.
7.02 Certificates; Other Information.
Deliver to the Administrative Agent for delivery to each Lender, in form and detail reasonably satisfactory to the Administrative Agent:
(a) concurrently with the delivery of the financial statements referred to in Section 7.01(a), a certificate of its independent certified public accountants certifying such financial statements and stating that in making the examination necessary therefor no knowledge was obtained of any Default relating to the accounting practices of the Borrower or any of its Subsidiaries or any Default resulting from the failure of the Borrower to comply with the requirements of Section 8.11 (to the extent such covenants are applicable) or, if any such Default shall exist, stating the nature and status of such event setting forth details of such Default and the action that the Borrower has taken and proposes to take with respect thereto (which certificate may be limited to the extent required by accounting rules or guidelines);
(b) concurrently with the delivery of the financial statements referred to in Sections 7.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the Borrower (A) certifying that no Default has occurred and is continuing or, if such a Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (B) beginning with the fiscal quarter ending September 30, 2007, setting forth computations in reasonable detail of the covenants contained in Section 8.11 (to the extent such covenants are applicable) (and, in the case of delivery of the financial statements referred to in Section 7.01(a) only, Section 8.12) and, concurrently with any delivery of financial statements under Section 7.01(a) above (beginning with the financial statements delivered under Section 7.01(a) with respect to the Fiscal Year ending December 31, 2007), setting forth the Borrowers calculation of Excess Cash Flow (it being understood and agreed that solely with respect to the Fiscal Year ending December 31, 2007, Excess Cash Flow shall only be measured from the Closing Date to December 31, 2007), the Borrowers calculation of the Additional Basket Amount as of the end of the Fiscal Year and in the event of any change in generally accepted accounting principles used in the preparation of such financial statements, the Borrower shall also provide, if necessary for the determination of compliance with Section 8.11 (to the extent such covenants are applicable), a statement of reconciliation conforming such financial statements to GAAP;
(c) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934 or with any national securities exchange, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly after the furnishing thereof, copies of any statement or report furnished to any holder (or any agent, trustee or other representative therefor) of Indebtedness of any Loan Party pursuant to the terms of any indenture, material loan or material credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to any other clause of Section 7.01, this Section 7.02 or Section 7.03;
(e) if the Borrower or any of its Subsidiaries establishes a Pension Plan or a Multiemployer Plan, (A) promptly, but in any event within 10 days after any Loan Party or any ERISA Affiliate knows or has reason to know of the occurrence of any ERISA Event that could reasonably be expected to impose any material liability on any Loan Party, a statement of a Responsible Officer of the Borrower describing such ERISA Event and the action, if any, that such Loan Party or such ERISA Affiliate has taken and proposes to take with respect thereto and (B) promptly, but in any event within 10 days after the date any records, documents or other information must be furnished to the PBGC with respect to any Pension Plan pursuant to Section 4010 of ERISA, a copy of such records, documents and information;
(f) if the Borrower or any of its Subsidiaries establishes a Pension Plan or a Multiemployer Plan, promptly, but in any event within 10 days after receipt thereof by any Loan Party or, to the best knowledge of any Loan Party, any ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of each notice concerning (A) the imposition of withdrawal liability under Section 4201 of ERISA on any Loan Party or any ERISA Affiliate by any such Multiemployer Plan, (B) the reorganization or termination, within the meaning of Title IV of ERISA, of any such Multiemployer Plan or (C) the amount of liability incurred, or that may be incurred, by such Loan Party or any ERISA Affiliate in connection with any event described in clause (A) or (B);
(g) promptly after the assertion or occurrence thereof, notice of any Environmental Action against or of any noncompliance by the Borrower or any of its Subsidiaries with any Environmental Law that, in any case, could reasonably be expected to have a Material Adverse Effect;
(h) promptly and in any event within 10 days after receipt thereof by the Borrower or any of its Subsidiaries, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation by such agency regarding financial or other operational results of the Borrower or any of its Subsidiaries;
(i) concurrently with the delivery of the financial statements referred to in Sections 7.01(a) and (b) (but only with respect to the second fiscal quarter of such Fiscal Year), a certificate of a Responsible Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or Trademarks (as each such term is defined in the IP Security Agreement) made since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (ii) all issuances of registrations or letters on existing applications for Copyrights, Patents and Trademarks (as each such term is defined in the IP Security Agreement) received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (iii) all Trademark Licenses, Copyright Licenses and Patent Licenses (as each such term is defined in the IP Security Agreement) entered into since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date);
(j) promptly provide copies of any Organization Documents of any Loan Party that have been amended or modified in any way material to the interests of the Lenders; and
(k) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may (through the Administrative Agent) from time to time reasonably request.
Documents required to be delivered pursuant to Section 7.01(a) or (b) or Section 7.02(c) or (d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrowers website on the Internet at the website address listed on Schedule 11.02 or (ii) on which such documents are posted on the Borrowers behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower shall notify (which may be by facsimile or electronic mail) the
Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Except for Compliance Certificates, the Administrative Agent has no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
The Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, Borrower Materials) by posting the Borrower Materials on Intralinks or another similar electronic system (the Platform) and (b) certain of the Lenders may be public-side Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a Public Lender). The Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked PUBLIC which, at a minimum, shall mean that the word PUBLIC shall appear prominently on the first page thereof, (x) by marking Borrower Materials PUBLIC, the Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat the Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States federal and state securities laws, (y) all Borrower Materials marked PUBLIC are permitted to be made available through a portion of the Platform designated as Public Investor, and (z) the Administrative Agent shall be entitled to treat the Borrower Materials that are not marked PUBLIC as being suitable only for posting on a portion of the Platform not marked as Public Investor.