Common use of Board Nominees Clause in Contracts

Board Nominees. (1) So long as Second City, together with its Controlled Entities, owns (a) thirty percent (30%) or more of the outstanding REIT Shares (assuming all outstanding Partnership Common Units not held by the General Partner or any of its wholly-owned Subsidiaries that owns Partnership Common Units are tendered for Redemption and exchanged for REIT Shares, regardless of whether such Partnership Common Units are then eligible for Redemption), Second City shall have the right from time to time to designate individuals for nomination for election by the stockholders to the board of directors of the General Partner, such that the number of directors serving (or who would serve upon election), and who are or had been designated for nomination or nominated to serve by Second City, shall equal (i) if the number of directors comprising the entire board of directors of the General Partner is six or more, two; or (ii) if the number of directors comprising the entire board of directors of the General Partner is five or fewer, one; or (b) less than thirty percent (30%) but at least ten percent (10%) of the outstanding REIT Shares (assuming all outstanding Partnership Common Units not held by the General Partner or any of its wholly-owned Subsidiaries that owns Partnership Common Units are tendered for Redemption and exchanged for REIT Shares, regardless of whether such Partnership Common Units are then eligible for Redemption), Second City shall have the right from time to time to designate individuals for nomination for election by the stockholders to the board of directors of the General Partner, such that the number of directors serving (or who would serve upon election), and who are or had been designated for nomination or nominated to serve by Second City, shall equal one. If Second City, together with its Controlled Entities, owns less than ten percent (10%) of the outstanding REIT Shares (assuming all outstanding Partnership Common Units not held by the General Partner or any of its wholly-owned Subsidiaries that owns Partnership Common Units are tendered for Redemption and exchanged for REIT Shares, regardless of whether such Partnership Common Units are then eligible for Redemption), Second City shall have no right under this Section 8.8 to designate for nomination any individual to serve on the board of directors of the General Partner. The General Partner, acting through its Board of Directors, will recommend and use all commercially reasonable good faith efforts to cause the election of each Second City Nominee designated in accordance with the foregoing. The General Partner agrees to use all reasonable efforts to solicit proxies for such Second City Nominees from all holders of REIT Shares and/or other voting stock entitled to vote thereon. (2) To facilitate the designation rights set forth above and the nominations contemplated thereby, the General Partner will notify Second City in writing a reasonable period of time in advance of any action to be taken by the General Partner or the Board of Directors for the purpose of nominating, electing or designating directors, which, in the case of a proxy statement, information statement or registration statement in which nominees for director would be named, shall be delivered by the General Partner to Second City no later than 30 days prior to the anticipated mailing or filing date, as applicable. Such notice shall set forth in reasonable detail the nature of the action to be taken by the General Partner or the Board of Directors, and the anticipated date thereof. Upon receipt of such notice, Second City will designate any Second City Nominees by written notice (in accordance with Article 14) as soon as reasonably practicable thereafter; provided, however, that if Second City shall have failed to designate Second City Nominees in a timely manner, Second City shall be deemed to have designated any incumbent Second City Nominees in a timely manner unless there are no remaining incumbent Second City Nominees or the incumbent Second City Nominee declines to serve, in which case the General Partner or the Board of Directors may nominate another Person. (3) Second City will provide the General Partner with such information about each Second City Nominee as is reasonably requested by the General Partner in order to comply with applicable disclosure rules, including without limitation, any information that a stockholder of the General Partner must provide to the General Partner in order to nominate a director under the Bylaws. Second City may not nominate any Second City Nominee who, to Second City’s knowledge after due inquiry, (i) has engaged in any of the acts described in Rule 506(d) under the Securities Act, or (ii) has engaged in any “bad boy” actions that require disclosure pursuant to Item 401(f) of Regulation S-K promulgated under the Exchange Act. (4) To the extent required by law or the rules of the principal securities exchange on which the REIT Shares are listed or admitted to trading, the General Partner will take such actions as necessary to ensure that a sufficient number of those members of the Board of Directors that are not Second City Nominees or members of the General Partner’s senior management shall at all times satisfy the standard of independence necessary for a director to qualify as an “Independent Director,” as such term (or any replacement term) is used under the rules and listing standards of such principal securities exchange, as such rules and listing standards may be amended from time to time (the “Independence Standard”) in order to maintain such listing.

Board Nominees. (1Notwithstanding anything to the contrary in this Agreement, after the Initial Public Offering, the number of Post Nominees that may be designated by Post pursuant to Section 3.01(a)(i) So long as Second City, together with its Controlled Entities, owns (a) thirty percent (30%) or more shall be determined based on the percentage of the outstanding REIT Shares (assuming all outstanding Partnership Common Units not held votes that may be cast by the General Partner Post Stockholders under the Certificate of Incorporation on their own behalf without instructions or directions from Persons other than the Company or any of its wholly-owned Subsidiaries that owns Partnership Common Units are tendered for Redemption and exchanged for REIT Sharesor the Post Stockholders, regardless of whether such Partnership Common Units are then eligible for Redemption), Second City shall have the right from time to time to designate individuals for nomination for election by the stockholders to the board of directors of the General Partner, such so that the number of directors serving (or who would serve upon election), and who are or had been designated for nomination or nominated to serve by Second City, shall equal Post Nominees constitute: (i) a majority of the directors on the Board (and if the number of directors comprising on the entire board Board is even, one director more than 50% of the number of directors on the Board), if the votes that may be cast by the Post Stockholders on their own behalf are greater than 50% of the General Partner is six or more, two; or total voting power of all of the outstanding Shares of the Company; (ii) one less than a majority of the directors on the Board (and if the number of directors comprising on the entire board Board is even, 50% of directors of the General Partner is five or fewer, one; or (b) less than thirty percent (30%) but at least ten percent (10%) of the outstanding REIT Shares (assuming all outstanding Partnership Common Units not held by the General Partner or any of its wholly-owned Subsidiaries that owns Partnership Common Units are tendered for Redemption and exchanged for REIT Shares, regardless of whether such Partnership Common Units are then eligible for Redemption), Second City shall have the right from time to time to designate individuals for nomination for election by the stockholders to the board of directors of the General Partner, such that the number of directors serving (or who would serve upon electionon the Board), and who if the votes that may be cast by the Post Stockholders on their own behalf are greater than 25% but 50% or had been designated for nomination or nominated to serve by Second City, shall equal one. If Second City, together with its Controlled Entities, owns less than ten percent (10%) of the total voting power of all of the outstanding REIT Shares of the Company; (assuming all outstanding Partnership Common Units not held iii) one-third of the directors on the Board (rounded down to the nearest whole number), if the votes that may be cast by the General Partner Post Stockholders on their own behalf are greater than 10% but 25% or any of its wholly-owned Subsidiaries that owns Partnership Common Units are tendered for Redemption and exchanged for REIT Shares, regardless of whether such Partnership Common Units are then eligible for Redemption), Second City shall have no right under this Section 8.8 to designate for nomination any individual to serve on the board of directors less of the General Partnertotal voting power of all of the outstanding Shares of the Company; and (iv) no directors if the votes that may be cast by the Post Stockholders on their own behalf are 10% or less of the total voting power of all of the outstanding Shares of the Company. The General Partner, acting through its Board of Directors, will recommend and use all commercially reasonable good faith efforts to Post shall cause the election appropriate number of each Second City Nominee designated in accordance with the foregoing. The General Partner agrees Post Nominees to use all reasonable efforts to solicit proxies for such Second City Nominees from all holders of REIT Shares and/or other voting stock entitled to vote thereon. (2) To facilitate the designation rights set forth above and the nominations contemplated thereby, the General Partner will notify Second City in writing a reasonable period of time in advance of any action to be taken by the General Partner or the Board of Directors for the purpose of nominating, electing or designating directors, which, in the case of a proxy statement, information statement or registration statement in which nominees for director would be named, shall be delivered by the General Partner to Second City no later than 30 days prior to the anticipated mailing or filing date, resign as applicable. Such notice shall set forth in reasonable detail the nature of the action to be taken by the General Partner or the Board of Directors, and the anticipated date thereof. Upon receipt of such notice, Second City will designate any Second City Nominees by written notice (in accordance with Article 14) as soon as reasonably practicable thereafter; provided, however, that if Second City shall have failed to designate Second City Nominees in a timely manner, Second City shall be deemed to have designated any incumbent Second City Nominees in a timely manner unless there are no remaining incumbent Second City Nominees or the incumbent Second City Nominee declines to serve, in which case the General Partner or the Board of Directors may nominate another Person. (3) Second City will provide the General Partner with such information about each Second City Nominee as is reasonably requested by the General Partner in order required to comply with applicable disclosure rules, including without limitation, any information that a stockholder this Section 3.02 upon the earlier to occur of the General Partner must provide to the General Partner in order to nominate a director under the Bylaws. Second City may not nominate any Second City Nominee who, to Second City’s knowledge after due inquiry, (i) has engaged in any the date on which the current term of the acts described in Rule 506(d) under the Securities Actresigning Post Nominee ends, or and (ii) has engaged 12 months from the occurrence of an event resulting in any “bad boy” actions the votes that require disclosure pursuant to Item 401(fmay be cast by the Post Stockholders crossing a threshold described in Section 3.02(a)(i) of Regulation S-K promulgated under the Exchange Act. through (4) iv). To the extent required deemed reasonably necessary by law or the rules of the principal securities exchange on which the REIT Shares are listed or admitted to trading, the General Partner will take such actions as necessary to ensure that a sufficient number of those members of the Board to comply with Applicable Governance Rules (including with respect to composition of committees), Post shall designate Independent Directors as Post Nominees; provided that directors who are affiliated with a Post Party shall not Second City Nominees or members of the General Partner’s senior management shall at all times satisfy the standard of independence necessary for a director be automatically deemed not to qualify as an “be Independent Director,” as such term (or any replacement term) is used under the rules and listing standards of such principal securities exchange, as such rules and listing standards may be amended from time to time (the “Independence Standard”) in order to maintain such listingDirectors.

Board Nominees. (1) So long as Second City, together with its Controlled Entities, owns (a) thirty percent (30%) or more Subject to the terms and conditions of this Agreement, from and after the Effective Date until the Termination Date, at every meeting of the outstanding REIT Shares (assuming all outstanding Partnership Common Units not held Board, or a committee thereof, at which directors of the Company are appointed by the General Partner Board or any are nominated to stand for election by stockholders of its wholly-owned Subsidiaries that owns Partnership Common Units are tendered for Redemption and exchanged for REIT Sharesthe Company, regardless of whether such Partnership Common Units are then eligible for Redemption), Second City MDP shall have the right from to nominate for election to the Board (the “MDP Designated Directors”): (i) two nominees until the first time when the Voting Percentage of MDP and its Affiliates is less than 15%, one of whom shall be a Group II director and the other of whom shall be a Group III director under the Certificate of Incorporation as designated by MDP; and (ii) one nominee until the first time when the Voting Percentage of MDP and its Affiliates is less than 5%, who shall be either a Group II director or a Group III director under the Certificate of Incorporation; provided that no reduction in the Voting Percentage of MDP and its Affiliates shall shorten the term of any director serving on the Board. The initial MDP Designated Directors as of the Effective Date are Xxxx X. Xxxxxxxxxxx (who has been named as a Group III director) and Xxxxxxx X. Xxxxx (who has been named as a Group II director). (b) Subject to time Section 2.02(c), the Company shall take all actions (to designate individuals for nomination the extent such actions are permitted by applicable law) to (i) include each MDP Designated Director in the slate of director nominees for election by the Company’s stockholders to the board of directors of the General Partner, such that the number of directors serving (or who would serve upon election), and who are or had been designated for nomination or nominated to serve by Second City, shall equal (i) if the number of directors comprising the entire board of directors of the General Partner is six or more, two; or (ii) if include each MDP Designated Director in the number of directors comprising proxy statement prepared by the entire board of directors Company in connection with soliciting proxies for every meeting of the General Partner is five or fewer, one; or (b) less than thirty percent (30%) but at least ten percent (10%) stockholders of the outstanding REIT Shares (assuming all outstanding Partnership Common Units not held by the General Partner or any of its wholly-owned Subsidiaries that owns Partnership Common Units are tendered for Redemption and exchanged for REIT Shares, regardless of whether such Partnership Common Units are then eligible for Redemption), Second City shall have the right from time Company called with respect to time to designate individuals for nomination for election by the stockholders to the board of directors of the General Partner, such that the number of directors serving (or who would serve upon election), and who are or had been designated for nomination or nominated to serve by Second City, shall equal one. If Second City, together with its Controlled Entities, owns less than ten percent (10%) of the outstanding REIT Shares (assuming all outstanding Partnership Common Units not held by the General Partner or any of its wholly-owned Subsidiaries that owns Partnership Common Units are tendered for Redemption and exchanged for REIT Shares, regardless of whether such Partnership Common Units are then eligible for Redemption), Second City shall have no right under this Section 8.8 to designate for nomination any individual to serve on the board of directors of the General Partner. The General Partner, acting through its Board of Directors, will recommend and use all commercially reasonable good faith efforts to cause the election of each Second City Nominee designated in accordance members of the Board, and at every adjournment or postponement thereof, and on every action or approval by written consent of the Board with respect to the foregoing. The General Partner agrees to use all reasonable efforts to solicit proxies for such Second City Nominees from all holders election of REIT Shares and/or other voting stock entitled to vote thereonmembers of the Board. (2c) To facilitate the designation rights set forth above and the nominations contemplated thereby, the General Partner will notify Second City in writing a reasonable period of time in advance of any action The Company’s obligations pursuant to be taken by the General Partner or the Board of Directors for the purpose of nominating, electing or designating directors, which, in the case of a proxy statement, information statement or registration statement in which nominees for director would be named, Section 2.02(b) shall be delivered by the General Partner subject to Second City no later than 30 days prior to the anticipated mailing or filing dateeach MDP Designated Director providing, as applicable. Such notice shall set forth in reasonable detail the nature of the action to be taken by the General Partner or the Board of Directors, fully and the anticipated date thereof. Upon receipt of such notice, Second City will designate any Second City Nominees by written notice (in accordance with Article 14) as soon as reasonably practicable thereafter; provided, however, that if Second City shall have failed to designate Second City Nominees in a timely manner, Second City shall be deemed to have designated any incumbent Second City Nominees in a timely manner unless there are no remaining incumbent Second City Nominees or the incumbent Second City Nominee declines to serve, in which case the General Partner or the Board of Directors may nominate another Person. (3) Second City will provide the General Partner with such information about each Second City Nominee as is reasonably requested by the General Partner in order to comply with applicable disclosure rules, including without limitation, any information that a stockholder of the General Partner must provide to the General Partner in order to nominate a director under the Bylaws. Second City may not nominate any Second City Nominee who, to Second City’s knowledge after due inquirycompletely, (i) has engaged any information that is required to be disclosed in any filing or report under the listing standards of the acts described in Rule 506(d) under the Securities ActExchange and applicable law, or (ii) has engaged any information that is required in any “bad boy” actions that require disclosure pursuant to Item 401(f) connection with determining the independence status of Regulation S-K promulgated the MDP Designated Directors under the listing standards of the Securities Exchange Actand applicable law, and (iii) if required by applicable law, such individual’s written consent to being named in a proxy statement as a nominee and to serving as director if elected. (4d) To If an MDP Designated Director is not appointed, nominated or elected to the extent required by law Board because of such person’s death, disability, disqualification, withdrawal as a nominee or for other reason, (i) MDP shall be entitled to designate another nominee and shall do so as promptly as practicable following the rules failure of such MDP Designated Director to be appointed, nominated or elected to the Board and (ii) the director position for which the original MDP Designated Director was nominated shall not be filled pending such designation. (e) If a vacancy occurs because of the principal securities exchange on which the REIT Shares are listed death, disability, disqualification, resignation or admitted removal of a MDP Designated Director or for any other reason, MDP shall be entitled to trading, the General Partner will take designate such actions as necessary to ensure that a sufficient number of those members person’s successor (regardless of the Voting Percentage held by MDP at the time of such replacement designation), and the Board of Directors shall promptly fill the vacancy with such successor, it being understood that are not Second City Nominees or members any such successor designee shall serve the remainder of the General Partner’s senior management term of the MDP Designated Director whom such designee replaces. MDP shall at all times satisfy the standard of independence necessary for designate a director successor pursuant to qualify this Section 2.02(e) as an “Independent Director,” promptly as practicable following any such term (or any replacement term) is used under the rules and listing standards of such principal securities exchange, as such rules and listing standards may be amended from time to time (the “Independence Standard”) in order to maintain such listingvacancy.

Board Nominees. (1) It shall be a qualification of such number of the members of the board of directors of the Special Limited Partner (the “REIT Directors”), calculated as contemplated in this Section 8.9.A, that they be nominated by CBI. So long as Second CityCBI, together with its Controlled Entities, owns (a) thirty fifty percent (3050%) or more of the outstanding REIT Shares (assuming all outstanding Partnership Common Units not held by the General Partner or the Special Limited Partner or any of its wholly-owned Subsidiaries that owns Partnership Common Units their Controlled Entities are tendered for Redemption and exchanged for REIT Shares, regardless of whether such Partnership Common Units are then eligible for Redemption), Second City shall have the right from time to time to designate individuals for nomination for election by the stockholders to the board of directors of the General Partner, such that the number of directors serving (or who would serve upon election), and who are or had been designated for nomination or nominated to serve by Second City, which CBI is entitled to nominate shall equal (i) if there is an even number of REIT directors, 50% of the number of directors comprising the entire board of directors of the General Partner is six or more, twoREIT Directors minus one; or (ii) if there is an odd number of REIT Directors, 50% of the number of directors comprising REIT Directors minus 0.5, provided that in either case, at least one director must meet the entire board of directors of the General Partner is five or fewer, oneIndependence Standard (as defined below); or (b) less than thirty fifty percent (3050%) but at least ten percent (10%) of the outstanding REIT Shares (assuming all outstanding Partnership Common Units not held by the General Partner or the Special Limited Partner or any of its wholly-owned Subsidiaries that owns Partnership Common Units their Controlled Entities are tendered for Redemption and exchanged for REIT Shares, regardless of whether such Partnership Common Units are then eligible for Redemption), Second City shall have the right from time to time to designate individuals for nomination for election by the stockholders to the board such number of directors to which CBI is entitled to nominate shall equal 20% of the General Partner, such that the number of directors serving REIT Directors (rounded down, if necessary, to the nearest whole number); provided, however, in either the case of (a) or who would serve upon election(b), and who are or had been designated for nomination or nominated to serve by Second City, such number of directors shall equal not be less than one. If Second CityCBI, together with its Controlled Entities, owns less than ten percent (10%) of the outstanding REIT Shares (assuming all outstanding Partnership Common Units not held by the General Partner or the Special Limited Partner or any of its wholly-owned Subsidiaries that owns Partnership Common Units their Controlled Entities are tendered for Redemption and exchanged for REIT Shares, regardless of whether such Partnership Common Units are then eligible for Redemption), Second City it shall have no right under this Section 8.8 to designate for nomination not be a qualification of any individual to serve on the board of directors of the General PartnerREIT Director that he or she be nominated by CBI. The General Special Limited Partner, acting through its Board of Directors, will recommend and use all commercially reasonable good faith efforts to cause the election of each Second City CBI Nominee designated nominated in accordance with the foregoing. The General Special Limited Partner agrees to use all reasonable efforts to solicit proxies for such Second City CBI Nominees from all holders of REIT Shares and/or other voting stock entitled to vote thereon. (2) To facilitate the designation nomination rights set forth above and the nominations contemplated therebyabove, the General Special Limited Partner will notify Second City CBI in writing a reasonable period of time in advance of any action to be taken by the General Special Limited Partner or the Board of Directors for the purpose of nominating, electing or designating directors, which, in the case of a proxy statement, information statement or registration statement in which nominees for director would be named, shall be delivered by the General Special Limited Partner to Second City CBI no later than 30 days prior to the anticipated mailing or filing date, as applicable. Such notice shall set forth in reasonable detail the nature of the action to be taken by the General Special Limited Partner or the Board of Directors, and the anticipated date thereof. Upon receipt of such notice, Second City CBI will designate any Second City CBI Nominees by written notice consent (in accordance with Article 14) of CBI as soon as reasonably practicable thereafter; provided, however, that if Second City CBI shall have failed to designate Second City CBI Nominees in a timely manner, Second City CBI shall be deemed to have designated any incumbent Second City CBI Nominees in a timely manner unless there are no remaining incumbent Second City CBI Nominees or the incumbent Second City CBI Nominee declines to serve, in which case the General Special Limited Partner or the Board of Directors may nominate another Person. (3) Second City CBI will provide the General Special Limited Partner with such information about each Second City CBI Nominee as is reasonably requested by the General Special Limited Partner in order to comply with applicable disclosure rules, including without limitation, any information that a stockholder of the General Special Limited Partner must provide to the General Special Limited Partner in order to nominate a director under the Bylaws. Second City may not nominate any Second City Nominee who, to Second City’s knowledge after due inquiry, (i) has engaged in any of the acts described in Rule 506(d) under the Securities Act, or (ii) has engaged in any “bad boy” actions that require disclosure pursuant to Item 401(f) of Regulation S-K promulgated under the Exchange Act. (4) To the extent required by law or the rules of the principal securities exchange on which the REIT Shares are listed or admitted to trading, the General Special Limited Partner will take such actions as necessary to ensure that a sufficient number of those members of the Board of Directors that are not Second City CBI Nominees or members of the General Special Limited Partner’s senior management shall at all times satisfy the standard of independence necessary for a director to qualify as an “Independent Director,” as such term (or any replacement term) is used under the rules and listing standards of such principal securities exchange, as such rules and listing standards may be amended from time to time (the “Independence Standard”) in order to maintain such listing.

Board Nominees. (1) So long as Second City, together with its Controlled Entities, owns (a) thirty percent (30%) or more Subject to the terms and conditions of this Agreement, from and after the Effective Date until the Termination Date, at every meeting of the outstanding REIT Shares (assuming all outstanding Partnership Common Units not held Board, or a committee thereof, at which directors of the Company are appointed by the General Partner Board or any are nominated to stand for election by stockholders of its wholly-owned Subsidiaries that owns Partnership Common Units are tendered for Redemption and exchanged for REIT Sharesthe Company, regardless of whether such Partnership Common Units are then eligible for Redemption), Second City MDP shall have the right from to nominate for election to the Board (the “MDP Designated Directors”): (i) two nominees until the first time when the Voting Percentage of MDP and its Affiliates is less than 15%, one of whom shall be a Group II director and the other of whom shall be a Group III director under the Certificate of Incorporation as designated by MDP; and (ii) one nominee until the first time when the Voting Percentage of MDP and its Affiliates is less than 5%, who shall be either a Group II director or a Group III director under the Certificate of Incorporation; provided that no reduction in the Voting Percentage of MDP and its Affiliates shall shorten the term of any director serving on the Board. The initial MDP Designated Directors as of the Effective Date are Vxxx X. Xxxxxxxxxxx (who has been named as a Group III director) and Mxxxxxx X. Xxxxx (who has been named as a Group II director). (b) Subject to time Section 2.02(c), the Company shall take all actions (to designate individuals for nomination the extent such actions are permitted by applicable law) to (i) include each MDP Designated Director in the slate of director nominees for election by the Company’s stockholders to the board of directors of the General Partner, such that the number of directors serving (or who would serve upon election), and who are or had been designated for nomination or nominated to serve by Second City, shall equal (i) if the number of directors comprising the entire board of directors of the General Partner is six or more, two; or (ii) if include each MDP Designated Director in the number of directors comprising proxy statement prepared by the entire board of directors Company in connection with soliciting proxies for every meeting of the General Partner is five or fewer, one; or (b) less than thirty percent (30%) but at least ten percent (10%) stockholders of the outstanding REIT Shares (assuming all outstanding Partnership Common Units not held by the General Partner or any of its wholly-owned Subsidiaries that owns Partnership Common Units are tendered for Redemption and exchanged for REIT Shares, regardless of whether such Partnership Common Units are then eligible for Redemption), Second City shall have the right from time Company called with respect to time to designate individuals for nomination for election by the stockholders to the board of directors of the General Partner, such that the number of directors serving (or who would serve upon election), and who are or had been designated for nomination or nominated to serve by Second City, shall equal one. If Second City, together with its Controlled Entities, owns less than ten percent (10%) of the outstanding REIT Shares (assuming all outstanding Partnership Common Units not held by the General Partner or any of its wholly-owned Subsidiaries that owns Partnership Common Units are tendered for Redemption and exchanged for REIT Shares, regardless of whether such Partnership Common Units are then eligible for Redemption), Second City shall have no right under this Section 8.8 to designate for nomination any individual to serve on the board of directors of the General Partner. The General Partner, acting through its Board of Directors, will recommend and use all commercially reasonable good faith efforts to cause the election of each Second City Nominee designated in accordance members of the Board, and at every adjournment or postponement thereof, and on every action or approval by written consent of the Board with respect to the foregoing. The General Partner agrees to use all reasonable efforts to solicit proxies for such Second City Nominees from all holders election of REIT Shares and/or other voting stock entitled to vote thereonmembers of the Board. (2c) To facilitate the designation rights set forth above and the nominations contemplated thereby, the General Partner will notify Second City in writing a reasonable period of time in advance of any action The Company’s obligations pursuant to be taken by the General Partner or the Board of Directors for the purpose of nominating, electing or designating directors, which, in the case of a proxy statement, information statement or registration statement in which nominees for director would be named, Section 2.02(b) shall be delivered by the General Partner subject to Second City no later than 30 days prior to the anticipated mailing or filing dateeach MDP Designated Director providing, as applicable. Such notice shall set forth in reasonable detail the nature of the action to be taken by the General Partner or the Board of Directors, fully and the anticipated date thereof. Upon receipt of such notice, Second City will designate any Second City Nominees by written notice (in accordance with Article 14) as soon as reasonably practicable thereafter; provided, however, that if Second City shall have failed to designate Second City Nominees in a timely manner, Second City shall be deemed to have designated any incumbent Second City Nominees in a timely manner unless there are no remaining incumbent Second City Nominees or the incumbent Second City Nominee declines to serve, in which case the General Partner or the Board of Directors may nominate another Person. (3) Second City will provide the General Partner with such information about each Second City Nominee as is reasonably requested by the General Partner in order to comply with applicable disclosure rules, including without limitation, any information that a stockholder of the General Partner must provide to the General Partner in order to nominate a director under the Bylaws. Second City may not nominate any Second City Nominee who, to Second City’s knowledge after due inquirycompletely, (i) has engaged any information that is required to be disclosed in any filing or report under the listing standards of the acts described in Rule 506(d) under the Securities ActExchange and applicable law, or (ii) has engaged any information that is required in any “bad boy” actions that require disclosure pursuant to Item 401(f) connection with determining the independence status of Regulation S-K promulgated the MDP Designated Directors under the listing standards of the Securities Exchange Actand applicable law, and (iii) if required by applicable law, such individual’s written consent to being named in a proxy statement as a nominee and to serving as director if elected. (4d) To If an MDP Designated Director is not appointed, nominated or elected to the extent required by law Board because of such person’s death, disability, disqualification, withdrawal as a nominee or for other reason, (i) MDP shall be entitled to designate another nominee and shall do so as promptly as practicable following the rules failure of such MDP Designated Director to be appointed, nominated or elected to the Board and (ii) the director position for which the original MDP Designated Director was nominated shall not be filled pending such designation. (e) If a vacancy occurs because of the principal securities exchange on which the REIT Shares are listed death, disability, disqualification, resignation or admitted removal of a MDP Designated Director or for any other reason, MDP shall be entitled to trading, the General Partner will take designate such actions as necessary to ensure that a sufficient number of those members person’s successor (regardless of the Voting Percentage held by MDP at the time of such replacement designation), and the Board of Directors shall promptly fill the vacancy with such successor, it being understood that are not Second City Nominees or members any such successor designee shall serve the remainder of the General Partner’s senior management term of the MDP Designated Director whom such designee replaces. MDP shall at all times satisfy the standard of independence necessary for designate a director successor pursuant to qualify this Section 2.02(e) as an “Independent Director,” promptly as practicable following any such term (or any replacement term) is used under the rules and listing standards of such principal securities exchange, as such rules and listing standards may be amended from time to time (the “Independence Standard”) in order to maintain such listingvacancy.

Board Nominees. (1) So long as Second City, together with its Controlled Entities, owns (a) thirty percent (30%) or more of After the outstanding REIT Shares (assuming all outstanding Partnership Common Units not held by the General Partner or any of its wholly-owned Subsidiaries that owns Partnership Common Units are tendered for Redemption and exchanged for REIT Shares, regardless of whether such Partnership Common Units are then eligible for Redemption), Second City shall have the right from time to time to designate individuals for nomination for election by the stockholders to the board of directors of the General Partner, such that the number of directors serving (or who would serve upon election), and who are or had been designated for nomination or nominated to serve by Second City, shall equal (i) if the number of directors comprising the entire board of directors of the General Partner is six or more, two; or (ii) if the number of directors comprising the entire board of directors of the General Partner is five or fewer, one; or (b) less than thirty percent (30%) but at least ten percent (10%) of the outstanding REIT Shares (assuming all outstanding Partnership Common Units not held by the General Partner or any of its wholly-owned Subsidiaries that owns Partnership Common Units are tendered for Redemption and exchanged for REIT Shares, regardless of whether such Partnership Common Units are then eligible for Redemption), Second City shall have the right from time to time to designate individuals for nomination for election by the stockholders to the board of directors of the General Partner, such that the number of directors serving (or who would serve upon election), and who are or had been designated for nomination or nominated to serve by Second City, shall equal one. If Second City, together with its Controlled Entities, owns less than ten percent (10%) of the outstanding REIT Shares (assuming all outstanding Partnership Common Units not held by the General Partner or any of its wholly-owned Subsidiaries that owns Partnership Common Units are tendered for Redemption and exchanged for REIT Shares, regardless of whether such Partnership Common Units are then eligible for Redemption), Second City shall have no right under this Section 8.8 to designate for nomination any individual to serve on the board of directors of the General Partner. The General Partner, acting through its Board of Directors, will recommend and use all commercially reasonable good faith efforts to cause the election of each Second City Nominee designated in accordance with the foregoing. The General Partner agrees to use all reasonable efforts to solicit proxies for such Second City Nominees from all holders of REIT Shares and/or other voting stock entitled to vote thereon. (2) To facilitate the designation rights set forth above and the nominations contemplated thereby, the General Partner will notify Second City in writing a reasonable period of time in advance of any action to be taken by the General Partner or the Board of Directors for the purpose of nominating, electing or designating directors, which, in the case of a proxy statement, information statement or registration statement in which nominees for director would be named, shall be delivered by the General Partner to Second City no later than 30 days prior to the anticipated mailing or filing date, as applicable. Such notice shall set forth in reasonable detail the nature of the action to be taken by the General Partner or the Board of Directors, and the anticipated date thereof. Upon receipt of such notice, Second City will designate any Second City Nominees by written notice (in accordance with Article 14) as soon as reasonably practicable thereafter; provided, however, that if Second City shall have failed to designate Second City Nominees in a timely manner, Second City shall be deemed to have designated any incumbent Second City Nominees in a timely manner unless there are no remaining incumbent Second City Nominees or the incumbent Second City Nominee declines to serve, in which case the General Partner or the Board of Directors may nominate another Person. (3) Second City will provide the General Partner with such information about each Second City Nominee as is reasonably requested by the General Partner in order to comply with applicable disclosure rules, including without limitation, any information that a stockholder of the General Partner must provide to the General Partner in order to nominate a director under the Bylaws. Second City may not nominate any Second City Nominee who, to Second City’s knowledge after due inquiry, (i) has engaged in any of the acts described in Rule 506(d) under the Securities Act, or (ii) has engaged in any “bad boy” actions that require disclosure pursuant to Item 401(f) of Regulation S-K promulgated under the Exchange Act. (4) To the extent required by law or the rules of the principal securities exchange on which the REIT Shares are listed or admitted to trading, the General Partner will take such actions as necessary to ensure that a sufficient number of those members initial constitution of the Board of Directors as set forth in Section 8.1 above, OCM Principal Opportunities Fund, L.P. will have the right to nominate two representatives to the Board of Directors so long as it owns, directly or indirectly, at least 50% of the number of Securities owned by it as of the date hereof, and one representative to the Board of Directors so long as it owns, directly or indirectly, less than 50% but more than 25% of the number of Securities owned by it as of the date hereof; each of OCM/GFI Power Opportunities Fund, L.P. and GFI Two LLC will have the right to nominate one representative to the Board of Directors so long as the applicable entity owns, directly or indirectly, at least 50% of the number of Securities owned by it as of the date hereof; the GSC Entities jointly will have the right to nominate one representative to the Board of Directors so long as such entities collectively own at least 50% of the number of Securities collectively owned by such entities as of the date hereof; the Existing Stockholders jointly will have the right to nominate two representatives to the Board of Directors so long as the Existing Stockholders collectively own at least 50% of the number of Securities collectively owned by the Existing Stockholders as of the date hereof, provided that at such time as Xxx Xxxxx is no longer an employee of the Company, the Existing Stockholders jointly shall have the right to nominate one representative to the Board of Directors so long as the Existing Stockholders collectively own at least 50% of the Securities collectively owned by the Existing Stockholders as of the date hereof; and, without action by any Stockholder, the Chief Executive Officer of the Company automatically shall be nominated as a representative. At such time as the right of the Existing Stockholders to nominate two representatives to the Board of Directors is reduced to one, the size of the Board of Directors shall correspondingly be reduced. In addition, except as provided in the immediately preceding sentence, at such time as any Stockholder no longer has the right to nominate a representative to the Board of Directors as a result of a decrease in such Stockholder's percentage ownership as provided above, the representative appointed by such Stockholder shall resign, and the representatives nominated in accordance with this Section 8.2 shall fill the vacancy and thereafter shall have the right, by majority vote, to nominate such representative; provided, that with respect to each of the first two vacancies created as a result of such decrease in ownership occurring after the right of the Existing Stockholders to nominate two representatives to the Board of Directors is reduced to one, the remaining directors shall nominate as such representatives persons who are not Second City Nominees officers, employees, directors or members other affiliates of the General Partner’s senior management shall at all times satisfy the standard of independence necessary for a director to qualify as an “Independent Director,” as such term (Company or any replacement term) is used under Stockholder. For purposes of this Section 8.2, the rules respective percentage ownership numbers and listing standards numbers of Securities shall be calculated without giving effect to any stock splits or stock dividends, or to any subdivisions, combinations or reclassifications of outstanding Securities, or to any adjustments made or required to be made pursuant to any anti-dilution provisions contained in such principal securities exchange, as such rules and listing standards may be amended from time to time (the “Independence Standard”) in order to maintain such listingSecurities.

Board Nominees. (1) So long as Second City, together with its Controlled Entities, owns (a) thirty percent (30%) or more Subject to the terms and conditions of this Agreement, from and after the Effective Date until the Termination Date, at every meeting of the outstanding REIT Shares (assuming all outstanding Partnership Common Units not held Board, or a committee thereof, at which directors of the Company are appointed by the General Partner Board or any are nominated to stand for election by stockholders of its wholly-owned Subsidiaries that owns Partnership Common Units are tendered the Company, the Major Shareholder shall have the right, but not the obligation, to nominate directors for Redemption and exchanged for REIT Shares, regardless of whether such Partnership Common Units are then eligible for Redemption), Second City election to the Board as follow: (i) COG shall have the right from to nominate one nominee until the first time when the Voting Percentage of COG and its Affiliates is less than 12.5%, who shall be a Class III director (the “COG Designated Director”); and (ii) Yorktown shall have the right to nominate one nominee until the first time when the Voting Percentage of Yorktown and its Affiliates is less than 12.5%, who shall be a Class I director (the “Yorktown Designated Director”). The initial COG Designated Director and Yorktown Designated Director, respectively, as of the Effective Date are Axxxxx X’Xxxxx and W. Hxxxxx Xxxxxx, Xx. (b) Subject to designate individuals for nomination Section 2.01(c), the Company shall take all actions (to the extent such actions are permitted by applicable law) to (i) include each COG Designated Director and Yorktown Designated Director in the slate of director nominees for election by the Company’s stockholders and (ii) include each COG Designated Director and Yorktown Designated Director in the proxy statement prepared by the Company in connection with soliciting proxies for every meeting of the stockholders of the Company called with respect to the board election of directors members of the General PartnerBoard, such that and at every adjournment or postponement thereof, and on every action or approval by written consent of the number Board with respect to the election of directors serving members of the Board. (or who would serve upon electionc) The Company’s obligations pursuant to Sections 2.01(b), (d) and who are (e) shall be subject to each person designated as a nominee or had been designated successor for nomination or nominated to serve by Second Citythe COG Designated Director and Yorktown Designated Director, shall equal as applicable, providing, fully and completely, (i) if any information that is required to be disclosed in any filing or report under the number of directors comprising the entire board of directors listing standards of the General Partner Securities Exchange and applicable law or regulatory guidance or requests, (ii) any information that is six required in connection with determining the independence status of the COG Designated Director and Yorktown Designated Director under the listing standards of the Securities Exchange and applicable law, and (iii) if required by applicable law, such individual’s written consent to being named in a proxy statement as a nominee and to serving as director if elected. (d) If a COG Designated Director or moreYorktown Designated Director is not appointed, two; nominated or elected to the Board because of such person’s death, disability, disqualification, withdrawal as a nominee or for other reason, (i) the Major Shareholder who originally designated such director as a nominee shall be entitled to designate another nominee and shall do so as promptly as practicable following the failure of such designated director to be appointed, nominated or elected to the Board and (ii) the director position for which the original designated director was nominated shall not be filled pending such designation. (e) If a vacancy occurs because of the death, disability, disqualification, resignation or removal of a COG Designated Director or Yorktown Designated Director or for any other reason, the Major Shareholder who originally designated such director shall be entitled to designate such person’s successor, and the Company hereby agrees, to the fullest extent permitted by applicable law (including with respect to fiduciary duties under Delaware law), to promptly fill the vacancy with such successor, it being understood that any such successor designee shall serve the remainder of the term of the designated director whom such designee replaces. A Major Shareholder shall designate a successor pursuant to this Section 2.01(e) as promptly as practicable following any such vacancy. (f) In the event that COG or Yorktown shall cease to have the right to designate a Director hereunder, then the current COG Designated Director or Yorktown Designated Director, respectively, shall (i) at the request of a majority of the Directors then in office resign immediately if such resignation would not reasonably be expected to violate such director’s fiduciary duties under applicable law, and, upon such request by a majority of the Directors then in office, COG or Yorktown, as applicable, shall take such action as reasonably necessary to facilitate such resignation or (ii) if no such request is made, continue to serve until his or her term expires at the number next annual meeting of directors comprising the entire board of directors stockholders of the General Partner is five or fewer, one; or (b) less than thirty percent (30%) but at least ten percent (10%) of the outstanding REIT Shares (assuming all outstanding Partnership Common Units not held by the General Partner or any of its wholly-owned Subsidiaries that owns Partnership Common Units are tendered for Redemption and exchanged for REIT Shares, regardless of whether such Partnership Common Units are then eligible for Redemption), Second City shall have the right from time to time to designate individuals for nomination for election by the stockholders to the board of directors of the General Partner, such that the number of directors serving (or who would serve upon election), and who are or had been designated for nomination or nominated to serve by Second City, shall equal one. If Second City, together with its Controlled Entities, owns less than ten percent (10%) of the outstanding REIT Shares (assuming all outstanding Partnership Common Units not held by the General Partner or any of its wholly-owned Subsidiaries that owns Partnership Common Units are tendered for Redemption and exchanged for REIT Shares, regardless of whether such Partnership Common Units are then eligible for Redemption), Second City shall have no right under this Section 8.8 to designate for nomination any individual to serve on the board of directors of the General Partner. The General Partner, acting through its Board of Directors, will recommend and use all commercially reasonable good faith efforts to cause the election of each Second City Nominee designated in accordance with the foregoing. The General Partner agrees to use all reasonable efforts to solicit proxies for such Second City Nominees from all holders of REIT Shares and/or other voting stock entitled to vote thereonCompany. (2) To facilitate the designation rights set forth above and the nominations contemplated thereby, the General Partner will notify Second City in writing a reasonable period of time in advance of any action to be taken by the General Partner or the Board of Directors for the purpose of nominating, electing or designating directors, which, in the case of a proxy statement, information statement or registration statement in which nominees for director would be named, shall be delivered by the General Partner to Second City no later than 30 days prior to the anticipated mailing or filing date, as applicable. Such notice shall set forth in reasonable detail the nature of the action to be taken by the General Partner or the Board of Directors, and the anticipated date thereof. Upon receipt of such notice, Second City will designate any Second City Nominees by written notice (in accordance with Article 14) as soon as reasonably practicable thereafter; provided, however, that if Second City shall have failed to designate Second City Nominees in a timely manner, Second City shall be deemed to have designated any incumbent Second City Nominees in a timely manner unless there are no remaining incumbent Second City Nominees or the incumbent Second City Nominee declines to serve, in which case the General Partner or the Board of Directors may nominate another Person. (3) Second City will provide the General Partner with such information about each Second City Nominee as is reasonably requested by the General Partner in order to comply with applicable disclosure rules, including without limitation, any information that a stockholder of the General Partner must provide to the General Partner in order to nominate a director under the Bylaws. Second City may not nominate any Second City Nominee who, to Second City’s knowledge after due inquiry, (i) has engaged in any of the acts described in Rule 506(d) under the Securities Act, or (ii) has engaged in any “bad boy” actions that require disclosure pursuant to Item 401(f) of Regulation S-K promulgated under the Exchange Act. (4) To the extent required by law or the rules of the principal securities exchange on which the REIT Shares are listed or admitted to trading, the General Partner will take such actions as necessary to ensure that a sufficient number of those members of the Board of Directors that are not Second City Nominees or members of the General Partner’s senior management shall at all times satisfy the standard of independence necessary for a director to qualify as an “Independent Director,” as such term (or any replacement term) is used under the rules and listing standards of such principal securities exchange, as such rules and listing standards may be amended from time to time (the “Independence Standard”) in order to maintain such listing.

Board Nominees. (1) It shall be a qualification of such number of the members of the board of directors of the Special Limited Partner (the “REIT Directors”), calculated as contemplated in this Section 8.9.A, that they be nominated by CBI. So long as Second CityCBI, together with its Controlled Entities, owns (a) thirty fifty percent (3050%) or more of the outstanding REIT Shares (assuming all outstanding Partnership Common Units not held by the General Partner or the Special Limited Partner or any of its wholly-owned Subsidiaries that owns Partnership Common Units their Controlled Entities are tendered for Redemption and exchanged for REIT Shares, regardless of whether such Partnership Common Units are then eligible for Redemption), Second City shall have the right from time to time to designate individuals for nomination for election by the stockholders to the board of directors of the General Partner, such that the number of directors serving (or who would serve upon election), and who are or had been designated for nomination or nominated to serve by Second City, which CBI is entitled to nominate shall equal (i) if there is an even number of REIT directors, 50% of the number of directors comprising the entire board of directors of the General Partner is six or more, twoREIT Directors minus one; or (ii) if there is an odd number of REIT Directors, 50% of the number of directors comprising the entire board of directors of the General Partner is five or fewer, oneREIT Directors minus 0.5; or (b) less than thirty fifty percent (3050%) but at least ten percent (10%) of the outstanding REIT Shares (assuming all outstanding Partnership Common Units not held by the General Partner or the Special Limited Partner or any of its wholly-owned Subsidiaries that owns Partnership Common Units their Controlled Entities are tendered for Redemption and exchanged for REIT Shares, regardless of whether such Partnership Common Units are then eligible for Redemption), Second City shall have the right from time to time to designate individuals for nomination for election by the stockholders to the board such number of directors to which CBI is entitled to nominate shall equal 20% of the General Partner, such that the number of directors serving REIT Directors (rounded down, if necessary, to the nearest whole number); provided, however, in either the case of (a) or who would serve upon election(b), and who are or had been designated for nomination or nominated to serve by Second City, such number of directors shall equal not be less than one. If Second CityCBI, together with its Controlled Entities, owns less than ten percent (10%) of the outstanding REIT Shares (assuming all outstanding Partnership Common Units not held by the General Partner or the Special Limited Partner or any of its wholly-owned Subsidiaries that owns Partnership Common Units their Controlled Entities are tendered for Redemption and exchanged for REIT Shares, regardless of whether such Partnership Common Units are then eligible for Redemption), Second City it shall have no right under this Section 8.8 to designate for nomination not be a qualification of any individual to serve on the board of directors of the General PartnerREIT Director that he or she be nominated by CBI. The General Special Limited Partner, acting through its Board of Directors, will recommend and use all commercially reasonable good faith efforts to cause the election of each Second City CBI Nominee designated nominated in accordance with the foregoing. The General Special Limited Partner agrees to use all reasonable efforts to solicit proxies for such Second City CBI Nominees from all holders of REIT Shares and/or other voting stock entitled to vote thereon. (2) To facilitate the designation nomination rights set forth above and the nominations contemplated therebyabove, the General Special Limited Partner will notify Second City CBI in writing a reasonable period of time in advance of any action to be taken by the General Special Limited Partner or the Board of Directors for the purpose of nominating, electing or designating directors, which, in the case of a proxy statement, information statement or registration statement in which nominees for director would be named, shall be delivered by the General Special Limited Partner to Second City CBI no later than 30 days prior to the anticipated mailing or filing date, as applicable. Such notice shall set forth in reasonable detail the nature of the action to be taken by the General Special Limited Partner or the Board of Directors, and the anticipated date thereof. Upon receipt of such notice, Second City CBI will designate any Second City CBI Nominees by written notice consent (in accordance with Article 14) of CBI as soon as reasonably practicable thereafter; provided, however, that if Second City CBI shall have failed to designate Second City CBI Nominees in a timely manner, Second City CBI shall be deemed to have designated any incumbent Second City CBI Nominees in a timely manner unless there are no remaining incumbent Second City CBI Nominees or the incumbent Second City CBI Nominee declines to serve, in which case the General Special Limited Partner or the Board of Directors may nominate another Person. (3) Second City CBI will provide the General Special Limited Partner with such information about each Second City CBI Nominee as is reasonably requested by the General Special Limited Partner in order to comply with applicable disclosure rules, including without limitation, any information that a stockholder of the General Special Limited Partner must provide to the General Special Limited Partner in order to nominate a director under the Bylaws. Second City may not nominate any Second City Nominee who, to Second City’s knowledge after due inquiry, (i) has engaged in any of the acts described in Rule 506(d) under the Securities Act, or (ii) has engaged in any “bad boy” actions that require disclosure pursuant to Item 401(f) of Regulation S-K promulgated under the Exchange Act. (4) To the extent required by law or the rules of the principal securities exchange on which the REIT Shares are listed or admitted to trading, the General Special Limited Partner will take such actions as necessary to ensure that a sufficient number of those members of the Board of Directors that are not Second City CBI Nominees or members of the General Special Limited Partner’s senior management shall at all times satisfy the standard of independence necessary for a director to qualify as an “Independent Director,” as such term (or any replacement term) is used under the rules and listing standards of such principal securities exchange, as such rules and listing standards may be amended from time to time (the “Independence Standard”) in order to maintain such listing.