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.

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.

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.

Board Nominees. (1) So After the 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 Second Cityit owns, together with its Controlled Entitiesdirectly or indirectly, owns (a) thirty percent (30%) or more at least 50% of the outstanding REIT Shares (assuming all outstanding Partnership Common Units not held 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 General Partner or any Existing Stockholders as of its wholly-owned Subsidiaries the date hereof, provided that owns Partnership Common Units are tendered for Redemption and exchanged for REIT Sharesat such time as Xxx Xxxxx is no longer an employee of the Company, regardless of whether such Partnership Common Units are then eligible for Redemption), Second City the Existing Stockholders jointly shall have the right from time to time nominate one representative to designate individuals for nomination for election the Board of Directors so long as the Existing Stockholders collectively own at least 50% of the Securities collectively owned by the stockholders 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 Board of directors Directors is reduced to one, the size of the General PartnerBoard of Directors shall correspondingly be reduced. In addition, except as provided in the immediately preceding sentence, at such that time as any Stockholder no longer has the number right to nominate a representative to the Board of directors serving (or who would serve upon election)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 who are or had been designated for nomination or the representatives nominated to serve by Second City, in accordance with this Section 8.2 shall equal (i) if fill 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 vacancy and exchanged for REIT Shares, regardless of whether such Partnership Common Units are then eligible for Redemption), Second City 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 from time of the Existing Stockholders to time to designate individuals for nomination for election by the stockholders nominate two representatives to the board Board of Directors is reduced to one, the remaining directors shall nominate as such representatives persons who are not officers, employees, directors or other affiliates 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 Company or any Stockholder. For purposes 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 8.2, the respective percentage ownership numbers and numbers of Securities shall be calculated without giving effect to designate for nomination any individual stock splits or stock dividends, or to serve on the board any subdivisions, combinations or reclassifications of directors of the General Partner. The General Partneroutstanding Securities, acting through its Board of Directors, will recommend and use all commercially reasonable good faith efforts or to cause the election of each Second City Nominee designated any adjustments made or required to be made pursuant to any anti-dilution provisions contained 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 thereonSecurities.