2.5. Section 12.5(b) of the Credit Agreement is hereby amended by amending and restating the provisos in the last paragraph therein in their entirety as follows:
“provided that such indemnity shall not, as to any Indemnitee, apply to (x) any such losses, claims, actions, judgments, suits, disbursements, penalties, damages, liabilities or related expenses arising from the gross negligence, bad faith or willful misconduct, as determined by a court of competent jurisdiction by final and nonappealable judgment, of such Indemnitee (or such Indemnitee’s Affiliates or any of their respective officers, directors, employees, agents or attorneys-in-fact); (y) any settlements related to the Credit Agreement or transactions contemplated hereby without the consent of the Borrower (such consent not to be unreasonably withheld or delayed); or (z) disputes among two or more Indemnitees; provided, however, that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, actions, judgments, suits, disbursements, penalties, damages, liabilities or related expenses (x) result from a claim brought by each Borrower or any Subsidiary thereof against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if such Borrower or such Subsidiary has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction, (y) is recourse for amounts owing from Investor Capital Commitments that are uncollectible or uncollected due to the bankruptcy, insolvency or financial inability of the Investor to pay shall be excluded from the indemnifications provided for in this Section 12.5 or (z) with respect to Taxes other than any Taxes that represent losses, claims, damages, liabilities and related expenses arising from any non-Tax claim.”
2.6. Schedule II to the Credit Agreement is hereby replaced with an updated Schedule II attached hereto.
SECTION 3. Conditions Precedent to Closing. Section 2 hereof shall become effective on the date (the “Effective Date”) when the Administrative Agent shall have received: 3.1. a counterpart (or counterparts) of this Amendment, executed and delivered by each of the parties hereto; and 3.2. payment of all fees and other amounts due and payable on or prior to the date hereof, and, to the extent invoiced at least two (2) Business Days prior to the date hereof, reimbursement or payment of all reasonable expenses required to be reimbursed or paid by the Borrower under the Credit Agreement, including, without limitation, the reasonable fees and disbursements invoiced through the date hereof of the Administrative Agent’s special counsel, Cadwalader, Wickersham & Taft LLP.
SECTION 4. Miscellaneous.
4.1. Joinder.
(a) Each additional Lender acknowledges and agrees that, from and after the Effective Date, such additional Lender commits to provide its Commitment, as set forth in Schedule II to the Credit Agreement on the terms and subject to the conditions set forth in the Credit Agreement and this Amendment and shall be subject to and bound by the terms hereof and thereof, and shall perform all the obligations of and shall have all the rights of an additional Lender hereunder and thereunder.
(b) Each additional Lender acknowledges that it has, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Amendment.
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