Common use of Board Observer Rights Clause in Contracts

Board Observer Rights. The Loan Parties shall allow one representative designated by, from time to time, in writing by the Required Lenders to attend and participate solely as a non-voting observer in all meetings of the board of directors (or other similar body) and any committee of the board of directors (or other similar body) of the Loan Parties (each such meeting, a “Board Meeting”; and such representative, a “Board Observer”); provided, that the obligation of the Loan Parties to permit a Board Observer as set forth in this Section 6.18 shall terminate automatically if the Lenders as of the Amendment No. 3 Closing Date no longer constitute Required Lenders. Each Loan Party shall, or shall cause its Subsidiary to, as the case may be, (i) give the Board Observer notice of all Board Meetings at the same time and in the same manner as such notice is furnished to the members of the board of directors (or other similar body) or committee of the board of directors (or other similar body) of such Loan Party or such subsidiary, (ii) subject to the terms of this Section 6.18, provide to the Board Observer all written notices, documents and information (including proposed written consents) furnished to the members of the board of directors (or other similar body) or committee of the board of directors (or other similar body) of such Loan Party or such subsidiary at the same time and in the same manner furnished to such members, (iii) permit the Board Observer to participate by telephone in each Board Meeting, (iv) provide the Board Observer copies of the minutes of all Board Meetings at the time such minutes are furnished to the members of the board of directors (or other similar body) or committee of the board of directors (or other similar body) of such Loan Party or such subsidiary, (v) cause regularly-scheduled Board Meetings of the Borrower to be held at least once per calendar quarter and (vi) provide the Board Observer with copies of all written consents duly passed by the board of directors (or other similar body) or committee of the board of directors (or other similar body) of such Loan Party or such subsidiary. Xxxxxxxx shall reimburse the Board Observer for all reasonable and documented out-of-pocket expenses incurred in connection with the Board Observer’s attendance at the Board Meetings. Each Loan Party shall, and shall cause its Subsidiaries to, indemnify the Board Observer solely in its capacity as the Board Observer (provided that, notwithstanding the foregoing, such indemnity shall not be available to the extent that any losses, damages, claims, liabilities and expenses resulted from (x) the gross negligence, bad faith or willful misconduct of the Board Observer or of any affiliate, director, officer, employee, counsel, agent or attorney-in-fact of such Board Observer, as determined by the final non-appealable judgment of a court of competent jurisdiction, (y) any dispute solely among the Board Observer, the Lenders or of any affiliate, director, officer, employee, counsel, agent or attorney-in-fact thereof arising as a result of the Board Observer Rights set forth in this Section 6.18 other than any claim arising out of any act or omission of the Borrower or any of its Affiliates or (z) the material breach by the Board Observer or of any affiliate, director, officer, employee, counsel, agent or attorney-in-fact of such Board Observer of its obligations under this Section 6.18, as determined by the final non-appealable judgment of a court of competent jurisdiction. The Board Observer, the minutes, the written consents and all non-public information delivered to the Board Observer pursuant to this Section 6.18 and the proceedings of the board of directors (or other similar body) and any committee of the board of directors (or other similar body) of the Loan Parties, shall be subject to the confidentiality provisions of Section 10.16, except that the Board Observer may disclose information and materials to the Lenders and their respective directors, officers, managers, employees, legal counsel and financial advisors on a “need to know” basis solely in connection with the transactions contemplated hereby (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential). Notwithstanding the forgoing, the Borrower shall be entitled to exclude the Board Observer from any portion of any meeting or from receiving any portion of the materials distributed to the members of the board of directors (or similar governing body) to the extent if and to the extent the Borrower reasonably believes in good faith in the exercise of its reasonable business judgment that the Board Observer’s presence at or participation in such meeting (or any portion thereof) or receipt of such materials may (i) affect the attorney/client or similar privilege of any Loan Party and their legal advisors, (ii) adversely affect the Borrower or any of its Subsidiaries under applicable Law, (iii) conflict with confidentiality obligations of Borrower or any of its Subsidiaries to third parties, including Governmental Authorities (so long as such restriction exists or has been negotiated in good faith by the Borrower and not for the purpose of excluding or limiting the Board Observer) or (iv) give rise to a conflict of interest, including as to any discussion and/or materials relating to (I) an actual or potential transaction with a Lender or any Affiliate thereof or other matter in which any Lender or any Affiliate thereof may be involved (including as to discussions or materials regarding this Agreement and the other Loan) or (II) the strategy, negotiating positions or similar matters relating to the relationship of Borrower or any of its subsidiaries or Affiliates, on the one hand, with the Lenders or any of their Affiliates.

Board Observer Rights. The Loan Parties shall allow one representative designated by(a) Subject to the limitations set forth in this Section 7.2, from time to time, in writing by effective immediately following the Required Lenders to attend Closing and participate solely for so long as a Participating Purchaser owns at least 35% of the Preferred Shares in the aggregate issued to such Participating Purchaser and its Affiliates at the Closing (or the Common Stock issued upon conversion thereof), such Participating Purchaser (along with its Affiliates) shall have the right to appoint one non-voting observer to the Board, any committee of the Board and to the board of directors (or equivalent governing body) of any Wholly Owned Subsidiary and to any committees thereof (the “Purchaser Board Observer”). For the avoidance of doubt, no Purchaser Board Observer (x) will have any rights to vote or (y) be counted for quorum purposes, in each case, with respect to any meeting of a board of directors or equivalent managing body (including any committees thereof). Additionally, the Company will use commercially reasonable efforts to request that such Participating Purchaser be permitted to appoint a Purchaser Board Observer to the board of directors or equivalent managing body (including any committees thereof) of any Subsidiary of the Company that is not a Wholly Owned Subsidiary. (b) The Purchaser Board Observer shall be entitled to observe all meetings of the board of directors (or other similar equivalent governing body) and any committee board committees of the Company (or the relevant Subsidiary of the Company) in person and shall receive reasonable prior written notice of all meetings of the board of directors (or other similar equivalent governing body) and committees thereof in the same manner as notice is provided to members of such board of directors (or equivalent managing body) or committees thereof. The Purchaser Board Observer shall be provided with all of the information that is provided to the Board or the board of directors (or equivalent managing body) of the Loan Parties (each such meetingCompany’s Subsidiaries, a “Board Meeting”; and such representative, a “Board Observer”); provided, that the obligation or to any committees of the Loan Parties to permit a Board Observer as set forth in this Section 6.18 shall terminate automatically if or the Lenders as board of directors (or equivalent managing body) of any of the Amendment No. 3 Closing Date no longer constitute Required Lenders. Each Loan Party shallCompany’s Subsidiaries, or shall cause its Subsidiary toany member of any of the foregoing in their capacity as a director or committee member, as the case may be, (i) give the Board Observer notice of all Board Meetings at the same time and in the same manner as such notice information is furnished provided to the members of the such board of directors (or other similar equivalent managing body) or committee or any member thereof in their capacity as such and the Purchaser Board Observer shall be provided with any written information prepared by the management of the Company or the applicable Subsidiary and distributed to the members of independent committees thereof and any written information provided by or on behalf of such independent committees to the Board or the board of directors (or other similar body) of such Loan Party or such subsidiary, (ii) subject to the terms of this Section 6.18, provide to the Board Observer all written notices, documents and information (including proposed written consents) furnished to the members of the board applicable Subsidiary or any member of directors (or other similar body) or committee either of the board of directors foregoing in their capacity as such (or other similar body) of such Loan Party or such subsidiary in each case, at the same time and in the same manner furnished to as such members, (iii) permit the Board Observer to participate by telephone in each Board Meeting, (iv) provide the Board Observer copies of the minutes of all Board Meetings at the time such minutes are furnished written information is distributed to the members of such independent committees or any such member), provided that such Purchaser shall cause the Purchaser Board Observer to keep all such information confidential (such confidentiality obligations to be on customary terms and conditions and no more restrictive than the confidentiality obligations imposed on directors). The Company and its Subsidiaries shall not establish or employ committees with the purpose or effect of circumventing the rights of the Purchaser Board Observer established in this Section 7. Notwithstanding the foregoing, the Purchaser Board Observer may be prohibited from attending a meeting of a board of directors (or other similar equivalent governing body) or committee any committees thereof of the board Company or its Subsidiaries or receiving information to preserve any attorney-client privilege or other privilege or to prevent any breach of directors contract with any third party regarding non-disclosure, provided that the Company (or other similar bodyrelevant Subsidiary) of is advised by nationally recognized outside legal counsel that taking such Loan Party action is necessary to preserve any such privilege or avoid breaching such subsidiarySpecified Non-Disclosure agreement. (c) The Company will use commercially reasonable efforts to not enter into and, (v) cause regularly-scheduled Board Meetings of to the Borrower to be held at least once per calendar quarter and (vi) provide the Board Observer with copies of all written consents duly passed by the board of directors (or other similar body) or committee of the board of directors (or other similar body) of such Loan Party or such subsidiary. Xxxxxxxx shall reimburse the Board Observer for all reasonable and documented out-of-pocket expenses incurred in connection with the Board Observer’s attendance at the Board Meetings. Each Loan Party shallextent within its control, and shall cause its Subsidiaries tonot to enter into, indemnify any non-disclosure or confidentiality agreement or similar undertaking in respect of any Covered Transaction (as such term is defined in the Certificate of Designation) that prohibits disclosure to any Purchaser Board Observer solely that the Participating Purchasers are entitled to appoint under this Section 7 on substantially the same terms, and subject to substantially the same obligations of confidentiality, as disclosure is permitted to the directors of the Company (or any relevant Subsidiary) under such agreement or undertaking. (d) Notwithstanding anything to the contrary in its capacity as this Agreement, and for the Board Observer avoidance of doubt, it is understood and agreed between the parties, that (provided that, notwithstanding i) the foregoing, such indemnity PECM Purchasers shall not be available entitled to more than one Purchaser Board Observer at any time following the extent that any lossesdate hereof, damages, claims, liabilities and expenses resulted from (xii) the gross negligence, bad faith or willful misconduct of the Board Observer or of any affiliate, director, officer, employee, counsel, agent or attorney-in-fact of such Board Observer, as determined by the final non-appealable judgment of a court of competent jurisdiction, (y) any dispute solely among the Board Observer, the Lenders or of any affiliate, director, officer, employee, counsel, agent or attorney-in-fact thereof arising as a result of the Board Observer Rights set forth in this Section 6.18 other than any claim arising out of any act or omission of the Borrower or any of its Affiliates or (z) the material breach by the Board Observer or of any affiliate, director, officer, employee, counsel, agent or attorney-in-fact of such Board Observer of its obligations under this Section 6.18, as determined by the final non-appealable judgment of a court of competent jurisdiction. The Board Observer, the minutes, the written consents and all non-public information delivered to the Board Observer pursuant to this Section 6.18 and the proceedings of the board of directors (or other similar body) and any committee of the board of directors (or other similar body) of the Loan Parties, Xxxxxx Bay Purchaser shall be subject to the confidentiality provisions of Section 10.16, except that the Board Observer may disclose information and materials to the Lenders and their respective directors, officers, managers, employees, legal counsel and financial advisors on a “need to know” basis solely in connection with the transactions contemplated hereby (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential). Notwithstanding the forgoing, the Borrower shall not be entitled to exclude the more than one Purchaser Board Observer from at any portion of any meeting or from receiving any portion of time following the materials distributed to the members of the board of directors (or similar governing body) to the extent if and to the extent the Borrower reasonably believes in good faith in the exercise of its reasonable business judgment that the Board Observer’s presence at or participation in such meeting (or any portion thereof) or receipt of such materials may (i) affect the attorney/client or similar privilege of any Loan Party and their legal advisors, (ii) adversely affect the Borrower or any of its Subsidiaries under applicable Law, (iii) conflict with confidentiality obligations of Borrower or any of its Subsidiaries to third parties, including Governmental Authorities (so long as such restriction exists or has been negotiated in good faith by the Borrower and not for the purpose of excluding or limiting the Board Observer) or (iv) give rise to a conflict of interest, including as to any discussion and/or materials relating to (I) an actual or potential transaction with a Lender or any Affiliate thereof or other matter in which any Lender or any Affiliate thereof may be involved (including as to discussions or materials regarding this Agreement and the other Loan) or (II) the strategy, negotiating positions or similar matters relating to the relationship of Borrower or any of its subsidiaries or Affiliates, on the one hand, with the Lenders or any of their Affiliatesdate hereof.

Board Observer Rights. The Loan Parties shall allow one representative designated by(a) Subject to the limitations set forth in this Section 7.2, from time to time, in writing by effective immediately following the Required Lenders to attend Closing and participate solely for so long as a Participating Purchaser owns at least 35% of the Preferred Shares in the aggregate issued to such Participating Purchaser and its Affiliates at the Closing (or the Common Stock issued upon conversion thereof), such Participating Purchaser (along with its Affiliates) shall have the right to appoint one non-voting observer to the Board, any committee of the Board and to the board of directors (or equivalent governing body) of any Wholly Owned Subsidiary and to any committees thereof (the “Purchaser Board Observer”). For the avoidance of doubt, no Purchaser Board Observer (x) will have any rights to vote or (y) be counted for quorum purposes, in each case, with respect to any meeting of a board of directors or equivalent managing body (including any committees thereof). Additionally, the Company will use commercially reasonable efforts to request that such Participating Purchaser be permitted to appoint a Purchaser Board Observer to the board of directors or equivalent managing body (including any committees thereof) of any Subsidiary of the Company that is not a Wholly Owned Subsidiary. (b) The Purchaser Board Observer shall be entitled to observe all meetings of the board of directors (or other similar equivalent governing body) and any committee board committees of the Company (or the relevant Subsidiary of the Company) in person and shall receive reasonable prior written notice of all meetings of the board of directors (or other similar equivalent governing body) and committees thereof in the same manner as notice is provided to members of such board of directors (or equivalent managing body) or committees thereof. The Purchaser Board Observer shall be provided with all of the information that is provided to the Board or the board of directors (or equivalent managing body) of the Loan Parties (each such meetingCompany’s Subsidiaries, a “Board Meeting”; and such representative, a “Board Observer”); provided, that the obligation or to any committees of the Loan Parties to permit a Board Observer as set forth in this Section 6.18 shall terminate automatically if or the Lenders as board of directors (or equivalent managing body) of any of the Amendment No. 3 Closing Date no longer constitute Required Lenders. Each Loan Party shallCompany’s Subsidiaries, or shall cause its Subsidiary toany member of any of the foregoing in their capacity as a director or committee member, as the case may be, (i) give the Board Observer notice of all Board Meetings at the same time and in the same manner as such notice information is furnished provided to the members of the such board of directors (or other similar equivalent managing body) or committee or any member thereof in their capacity as such and the Purchaser Board Observer shall be provided with any written information prepared by the management of the Company or the applicable Subsidiary and distributed to the members of independent committees thereof and any written information provided by or on behalf of such independent committees to the Board or the board of directors (or other similar body) of such Loan Party or such subsidiary, (ii) subject to the terms of this Section 6.18, provide to the Board Observer all written notices, documents and information (including proposed written consents) furnished to the members of the board applicable Subsidiary or any member of directors (or other similar body) or committee either of the board of directors foregoing in their capacity as such (or other similar body) of such Loan Party or such subsidiary in each case, at the same time and in the same manner furnished to as such members, (iii) permit the Board Observer to participate by telephone in each Board Meeting, (iv) provide the Board Observer copies of the minutes of all Board Meetings at the time such minutes are furnished written information is distributed to the members of such independent committees or any such member), provided that such Purchaser shall cause the Purchaser Board Observer to keep all such information confidential (such confidentiality obligations to be on customary terms and conditions and no more restrictive than the confidentiality obligations imposed on directors). The Company and its Subsidiaries shall not establish or employ committees with the purpose or effect of circumventing the rights of the Purchaser Board Observer established in this Section 7. Notwithstanding the foregoing, the Purchaser Board Observer may be prohibited from attending a meeting of a board of directors (or other similar equivalent governing body) or committee any committees thereof of the board Company or its Subsidiaries or receiving information to preserve any attorney-client privilege or other privilege or to prevent any breach of directors contract with any third party regarding non-disclosure, provided that the Company (or other similar bodyrelevant Subsidiary) of is advised by nationally recognized outside legal counsel that taking such Loan Party action is necessary to preserve any such privilege or avoid breaching such subsidiarySpecified Non-Disclosure agreement. (c) The Company will use commercially reasonable efforts to not enter into and, (v) cause regularly-scheduled Board Meetings of to the Borrower to be held at least once per calendar quarter and (vi) provide the Board Observer with copies of all written consents duly passed by the board of directors (or other similar body) or committee of the board of directors (or other similar body) of such Loan Party or such subsidiary. Xxxxxxxx shall reimburse the Board Observer for all reasonable and documented out-of-pocket expenses incurred in connection with the Board Observer’s attendance at the Board Meetings. Each Loan Party shallextent within its control, and shall cause its Subsidiaries tonot to enter into, indemnify any non-disclosure or confidentiality agreement or similar undertaking in respect of any Covered Transaction (as such term is defined in the Certificate of Designation) that prohibits disclosure to any Purchaser Board Observer solely that the Participating Purchasers are entitled to appoint under this Section 7 on substantially the same terms, and subject to substantially the same obligations of confidentiality, as disclosure is permitted to the directors of the Company (or any relevant Subsidiary) under such agreement or undertaking. (d) Notwithstanding anything to the contrary in its capacity as this Agreement, and for the Board Observer avoidance of doubt, it is understood and agreed between the parties, that (provided that, notwithstanding i) the foregoing, such indemnity PECM Purchasers shall not be available entitled to more than one Purchaser Board Observer at any time following the extent that any lossesdate hereof, damages, claims, liabilities and expenses resulted from (xii) the gross negligence, bad faith or willful misconduct of the Board Observer or of any affiliate, director, officer, employee, counsel, agent or attorney-in-fact of such Board Observer, as determined by the final non-appealable judgment of a court of competent jurisdiction, (y) any dispute solely among the Board Observer, the Lenders or of any affiliate, director, officer, employee, counsel, agent or attorney-in-fact thereof arising as a result of the Board Observer Rights set forth in this Section 6.18 other than any claim arising out of any act or omission of the Borrower or any of its Affiliates or (z) the material breach by the Board Observer or of any affiliate, director, officer, employee, counsel, agent or attorney-in-fact of such Board Observer of its obligations under this Section 6.18, as determined by the final non-appealable judgment of a court of competent jurisdiction. The Board Observer, the minutes, the written consents and all non-public information delivered to the Board Observer pursuant to this Section 6.18 and the proceedings of the board of directors (or other similar body) and any committee of the board of directors (or other similar body) of the Loan Parties, Hxxxxx Bay Purchaser shall be subject to the confidentiality provisions of Section 10.16, except that the Board Observer may disclose information and materials to the Lenders and their respective directors, officers, managers, employees, legal counsel and financial advisors on a “need to know” basis solely in connection with the transactions contemplated hereby (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential). Notwithstanding the forgoing, the Borrower shall not be entitled to exclude the more than one Purchaser Board Observer from at any portion of any meeting or from receiving any portion of time following the materials distributed to the members of the board of directors (or similar governing body) to the extent if and to the extent the Borrower reasonably believes in good faith in the exercise of its reasonable business judgment that the Board Observer’s presence at or participation in such meeting (or any portion thereof) or receipt of such materials may (i) affect the attorney/client or similar privilege of any Loan Party and their legal advisors, (ii) adversely affect the Borrower or any of its Subsidiaries under applicable Law, (iii) conflict with confidentiality obligations of Borrower or any of its Subsidiaries to third parties, including Governmental Authorities (so long as such restriction exists or has been negotiated in good faith by the Borrower and not for the purpose of excluding or limiting the Board Observer) or (iv) give rise to a conflict of interest, including as to any discussion and/or materials relating to (I) an actual or potential transaction with a Lender or any Affiliate thereof or other matter in which any Lender or any Affiliate thereof may be involved (including as to discussions or materials regarding this Agreement and the other Loan) or (II) the strategy, negotiating positions or similar matters relating to the relationship of Borrower or any of its subsidiaries or Affiliates, on the one hand, with the Lenders or any of their Affiliatesdate hereof.

Board Observer Rights. The Loan Parties (a) Subject to the limitations set forth in this Section 7.1, effective immediately following the Closing and for so long as the Caspian Purchasers own at least 35% of the Preferred Shares in the aggregate issued to the Caspian Purchasers at the Closing (or the Common Stock issued upon conversion thereof), the Caspian Purchasers (along with their Affiliates) shall allow have the right to appoint one representative designated by, from time to time, in writing by the Required Lenders to attend and participate solely as a non-voting observer to the Board, any committee of the Board and to the board of directors (or equivalent governing body) of any Wholly Owned Subsidiary and to any committees thereof (the “Purchaser Board Observer”). For the avoidance of doubt, no Purchaser Board Observer (x) will have any rights to vote or (y) be counted for quorum purposes, in each case, with respect to any meeting of a board of directors or equivalent managing body (including any committees thereof). Additionally, the Company will use commercially reasonable efforts to request that the Caspian Purchasers be permitted to appoint a Purchaser Board Observer to the board of directors or equivalent managing body (including any committees thereof) of any Subsidiary of the Company that is not a Wholly Owned Subsidiary. (b) The Purchaser Board Observer shall be entitled to observe all meetings of the board of directors (or other similar equivalent governing body) and any committee board committees of the Company (or the relevant Subsidiary of the Company) in person and shall receive reasonable prior written notice of all meetings of the board of directors (or other similar equivalent governing body) and committees thereof in the same manner as notice is provided to members of such board of directors (or equivalent managing body) or committees thereof. The Purchaser Board Observer shall be provided with all of the information that is provided to the Board or the board of directors (or equivalent managing body) of the Loan Parties (each such meetingCompany’s Subsidiaries, a “Board Meeting”; and such representative, a “Board Observer”); provided, that the obligation or to any committees of the Loan Parties to permit a Board Observer as set forth in this Section 6.18 shall terminate automatically if or the Lenders as board of directors (or equivalent managing body) of any of the Amendment No. 3 Closing Date no longer constitute Required Lenders. Each Loan Party shallCompany’s Subsidiaries, or shall cause its Subsidiary toany member of any of the foregoing in their capacity as a director or committee member, as the case may be, (i) give the Board Observer notice of all Board Meetings at the same time and in the same manner as such notice information is furnished provided to the members of the such board of directors (or other similar equivalent managing body) or committee or any member thereof in their capacity as such and the Purchaser Board Observer shall be provided with any written information prepared by the management of the Company or the applicable Subsidiary and distributed to the members of independent committees thereof and any written information provided by or on behalf of such independent committees to the Board or the board of directors (or other similar body) of such Loan Party or such subsidiary, (ii) subject to the terms of this Section 6.18, provide to the Board Observer all written notices, documents and information (including proposed written consents) furnished to the members of the board applicable Subsidiary or any member of directors (or other similar body) or committee either of the board of directors foregoing in their capacity as such (or other similar body) of such Loan Party or such subsidiary in each case, at the same time and in the same manner furnished to as such members, (iii) permit the Board Observer to participate by telephone in each Board Meeting, (iv) provide the Board Observer copies of the minutes of all Board Meetings at the time such minutes are furnished written information is distributed to the members of such independent committees or any such member), provided that such Purchaser shall cause the Purchaser Board Observer to keep all such information confidential (such confidentiality obligations to be on customary terms and conditions and no more restrictive than the confidentiality obligations imposed on directors). The Company and its Subsidiaries shall not establish or employ committees with the purpose or effect of circumventing the rights of the Purchaser Board Observer established in this Section 7.1. Notwithstanding the foregoing, the Purchaser Board Observer may be prohibited from attending a meeting of a board of directors (or other similar equivalent governing body) or committee any committees thereof of the board Company or its Subsidiaries or receiving information to preserve any attorney-client privilege or other privilege or to prevent any breach of directors contract with any third party regarding non-disclosure, provided that the Company (or other similar bodyrelevant Subsidiary) of such Loan Party or such subsidiary, (v) cause regularly-scheduled Board Meetings of the Borrower to be held at least once per calendar quarter and (vi) provide the Board Observer with copies of all written consents duly passed is advised by the board of directors (or other similar body) or committee of the board of directors (or other similar body) of such Loan Party or such subsidiary. Xxxxxxxx shall reimburse the Board Observer for all reasonable and documented out-of-pocket expenses incurred in connection with the Board Observer’s attendance at the Board Meetings. Each Loan Party shall, and shall cause its Subsidiaries to, indemnify the Board Observer solely in its capacity as the Board Observer (provided that, notwithstanding the foregoing, such indemnity shall not be available to the extent that any losses, damages, claims, liabilities and expenses resulted from (x) the gross negligence, bad faith or willful misconduct of the Board Observer or of any affiliate, director, officer, employee, counsel, agent or attorney-in-fact of such Board Observer, as determined by the final non-appealable judgment of a court of competent jurisdiction, (y) any dispute solely among the Board Observer, the Lenders or of any affiliate, director, officer, employee, counsel, agent or attorney-in-fact thereof arising as a result of the Board Observer Rights set forth in this Section 6.18 other than any claim arising out of any act or omission of the Borrower or any of its Affiliates or (z) the material breach by the Board Observer or of any affiliate, director, officer, employee, counsel, agent or attorney-in-fact of such Board Observer of its obligations under this Section 6.18, as determined by the final non-appealable judgment of a court of competent jurisdiction. The Board Observer, the minutes, the written consents and all non-public information delivered to the Board Observer pursuant to this Section 6.18 and the proceedings of the board of directors (or other similar body) and any committee of the board of directors (or other similar body) of the Loan Parties, shall be subject to the confidentiality provisions of Section 10.16, except that the Board Observer may disclose information and materials to the Lenders and their respective directors, officers, managers, employees, nationally recognized outside legal counsel and financial advisors on a “need that taking such action is necessary to know” basis solely in connection with the transactions contemplated hereby (it being understood that the Persons to whom preserve any such disclosure is made will be informed of the confidential nature of privilege or avoid breaching such Information and instructed to keep such Information confidential). Notwithstanding the forgoing, the Borrower shall be entitled to exclude the Board Observer from any portion of any meeting or from receiving any portion of the materials distributed to the members of the board of directors (or similar governing body) to the extent if and to the extent the Borrower reasonably believes in good faith in the exercise of its reasonable business judgment that the Board Observer’s presence at or participation in such meeting (or any portion thereof) or receipt of such materials may (i) affect the attorney/client or similar privilege of any Loan Party and their legal advisors, (ii) adversely affect the Borrower or any of its Subsidiaries under applicable Law, (iii) conflict with confidentiality obligations of Borrower or any of its Subsidiaries to third parties, including Governmental Authorities (so long as such restriction exists or has been negotiated in good faith by the Borrower and not for the purpose of excluding or limiting the Board Observer) or (iv) give rise to a conflict of interest, including as to any discussion and/or materials relating to (I) an actual or potential transaction with a Lender or any Affiliate thereof or other matter in which any Lender or any Affiliate thereof may be involved (including as to discussions or materials regarding this Agreement and the other Loan) or (II) the strategy, negotiating positions or similar matters relating to the relationship of Borrower or any of its subsidiaries or Affiliates, on the one hand, with the Lenders or any of their AffiliatesSpecified Non-Disclosure agreement.