This excerpt taken from the WEN 8-K filed Jan 16, 2009.
Indemnified Party”), against all losses, claims, damages, penalties, judgments, costs, liabilities and expenses (including, without limitation, all reasonable and documented expenses of litigation or preparation therefor whether or not the Agent, the Arrangers, any Lender or any affiliate is a party thereto, and all the reasonable and documented attorneys’ and paralegals’ fees, disbursements and other charges of one counsel for all affected Indemnified Parties, unless any affected Indemnified Party shall have reasonably determined that there may be legal defenses available to it that are different from or additional to those of the other Indemnified Parties and that a single counsel for all Indemnified Parties cannot (due to conflicts or otherwise) undertake the pursuit of such legal defenses, in which event such Indemnified Party shall be entitled to separate counsel and Borrower agrees to reimburse such Indemnified Party for the
reasonable and documented attorneys’ and paralegals’ fees, disbursements and other charges of such separate counsel) which any of them may pay or incur arising out of or relating to this Agreement, the other Loan Documents, the transactions contemplated hereby or the direct or indirect application or proposed application of the proceeds of any Loan hereunder except to the extent that any of the foregoing is found by a court of competent jurisdiction to have arisen from an Indemnified Party’s gross negligence, bad faith or willful misconduct. The obligations of the Borrower under this Section 10.6 shall survive the termination of this Agreement.
10.7. Accounting. Except as provided to the contrary herein, all accounting terms used in the calculation of Capital Expenditures and any financial covenant or test shall be interpreted and all accounting determinations hereunder in the calculation of Capital Expenditures and any financial covenant or test shall be made in accordance with Agreement Accounting Principles, provided that for the purposes of Sections 7.22 and 7.23, “consolidated” with respect to any Person shall mean, unless expressly stated to be otherwise, such Person consolidated with the other Group Members and shall not include any Unrestricted Subsidiary, provided further that the parties acknowledge such definition of “consolidated” is not in accordance with Agreement Accounting Principles to the extent Unrestricted Subsidiaries are not consolidated with such Person. If any changes in GAAP are hereafter required or permitted and are adopted by the Borrower or any of its Subsidiaries with the agreement of its independent certified public accountants and such changes result in a change in the method of calculation of Capital Expenditures, any of the financial covenants, tests, restrictions or standards herein or in the related definitions or terms used therein (“