terms) used in deter­mining compliance with Section 10.07 shall
utilize GAAP and policies in conformity with those used to prepare the audited
financial statements of the Borrower referred to in Section 8.05(a) for the
Borrower's fiscal year ended September 25, 2011 and (ii) to the extent expressly
provided herein, certain calculations shall be made on a Pro Forma Basis.
(b)
All computations of interest, Commitment Commission and other Fees
hereunder shall be made on the basis of a year of 360 days for the actual number
of days (includ­ing the first day but excluding the last day; except that in the
case of Letter of Credit Fees and Facing Fees, the last day shall be included)
occurring in the period for which such interest, Commitment Commission or Fees
are payable.
13.08
GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY
TRIAL.
(a)
THIS AGREEMENT AND THE OTHER CREDIT DOCU­MENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL , EXCEPT AS OTHERWISE
PROVIDED IN ANY MORTGAGE, BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
INTERNAL LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES AND, TO THE EXTENT APPLICABLE, THE BANKRUPTCY CODE.
ANY LEGAL ACTION
OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT SHALL
BE BROUGHT IN THE BANKRUPTCY COURT OR, IF THE BANKRUPTCY COURT DOES NOT HAVE (OR
ABSTAINS FROM) JURISDICTION, IN THE COURTS OF THE STATE OF NEW YORK OR OF THE
UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE WHICH ARE
LOCATED IN THE COUNTY OF NEW YORK, AND, BY EXECUTION AND DELIVERY
-104-
OF THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT THE BORROWER HEREBY IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCON­DI­TIONALLY, THE PERSONAL JURISDICTION OF THE AFORESAID COURTS.
THE
BORROWER HEREBY FURTHER IRREVO­CABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK
PERSONAL JURIS­DIC­TION OVER THE BORROWER, AND AGREES NOT TO PLEAD OR CLAIM, IN
ANY LEGAL ACTION PROCEED­ING WITH RESPECT TO THIS AGREE­MENT OR ANY OTHER CREDIT
DOCUMENT BROUGHT IN ANY OF THE AFORE­MENTIONED COURTS, THAT SUCH COURTS LACK
PERSONAL JURIS­DIC­TION OVER THE BORROWER.
THE BORROWER FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH ACTION OR PRO­CEED­ING BY THE MAILING OF COPIES THEREOF BY REGISTERED
OR CERTI­FIED MAIL, POSTAGE PREPAID, TO THE BORROWER AT ITS ADDRESS SET FORTH
OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFEC­TIVE 30 DAYS AFTER
SUCH MAILING.
THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJEC­TION TO SUCH
SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR
CLAIM IN ANY ACTION OR PROCEEDING COM­MENCED HEREUNDER OR UNDER ANY OTHER CREDIT
DOCUMENT THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE.
NOTHING
HEREIN SHALL AFFECT THE RIGHT OF THE ADMINIS­TRATIVE AGENT, ANY LENDER OR THE
HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL