THE PURCHASE
PRICE RESTORED TO THE EXTENT OF SUCH RECOVERY, BUT WITHOUT INTEREST.
(C)
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE
PROVISIONS OF THE PRECEDING SECTIONS 11.06(A) AND (B) SHALL BE SUBJECT TO THE
EXPRESS PROVISIONS OF THIS AGREEMENT WHICH REQUIRE, OR PERMIT, DIFFERING
PAYMENTS TO BE MADE TO NON-DEFAULTING LENDERS AS OPPOSED TO DEFAULTING LENDERS.
11.07
CALCULATIONS; COMPUTATIONS.
(A)
THE FINANCIAL STATEMENTS TO BE
FURNISHED TO THE LENDERS PURSUANT HERETO SHALL BE MADE AND PREPARED IN
ACCORDANCE WITH GAAP CONSISTENTLY APPLIED THROUGHOUT THE PERIODS INVOLVED
(EXCEPT AS SET FORTH IN THE NOTES THERETO OR AS OTHERWISE DISCLOSED IN WRITING
BY THE BORROWER TO THE LENDERS), PROVIDED THAT (X) EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED HEREIN, ALL COMPUTATIONS DETERMINING COMPLIANCE WITH
SECTIONS 7.11 AND 7.12, INCLUDING DEFINITIONS USED THEREIN, SHALL UTILIZE
ACCOUNTING PRINCIPLES AND POLICIES IN EFFECT AT THE TIME OF THE PREPARATION OF,
AND IN CONFORMITY WITH THOSE USED TO PREPARE, THE DECEMBER 31, 2003 HISTORICAL
FINANCIAL STATEMENTS OF THE BORROWER DELIVERED TO THE LENDERS PURSUANT TO
SECTION 5.10(B), (Y) THAT IF AT ANY TIME SUCH COMPUTATIONS UTILIZE ACCOUNTING
PRINCIPLES DIFFERENT FROM THOSE UTILIZED IN THE FINANCIAL STATEMENTS FURNISHED
TO THE LENDERS, SUCH FINANCIAL STATEMENTS SHALL BE ACCOMPANIED BY RECONCILIATION
WORK-SHEETS AND (Z) FOR PURPOSES OF CALCULATING FINANCIAL TERMS, ALL COVENANTS
AND RELATED DEFINITIONS, ALL SUCH CALCULATIONS BASED ON THE OPERATIONS OF THE
BORROWER AND ITS SUBSIDIARIES ON A CONSOLIDATED BASIS SHALL BE MADE WITHOUT
GIVING EFFECT TO THE OPERATIONS OF ANY UNRESTRICTED SUBSIDIARIES.
(B)
ALL COMPUTATIONS OF INTEREST AND FEES HEREUNDER SHALL BE MADE ON
THE ACTUAL NUMBER OF DAYS ELAPSED OVER A YEAR OF 360 DAYS (365-366 DAYS IN THE
CASE OF INTEREST ON BASE RATE LOANS).
122
11.08
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 BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF
MANHATTAN OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH CREDIT PARTY HEREBY IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS.
EACH
CREDIT PARTY 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 EACH CREDIT
PARTY LOCATED OUTSIDE NEW YORK CITY AND BY HAND DELIVERY TO EACH CREDIT PARTY
LOCATED WITHIN NEW YORK CITY, AT ITS ADDRESS FOR NOTICES PURSUANT TO SECTION
11.03, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.
NOTHING
HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT, ANY LENDER TO SERVE
PROCESS