Exhibit 10.8


 


EXECUTION COPY


 


 




 





 


SUPPLEMENTAL SHAREHOLDERS AGREEMENT


 


DATED AS OF OCTOBER 11, 2005


 


By and Among


 


INLAND AMERICAN REAL ESTATE TRUST, INC.


 


 


AND


 


HOLDERS OF COMMON STOCK AND SERIES A PREFERRED
STOCK

AS LISTED ON SCHEDULE A HERETO


 




 





 





















 


TABLE OF CONTENTS


 


	
  ARTICLE I

  	
   

  	
  DEFINITIONS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  	
  TRANSFERS

  	
   

  	
  3

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 2.1.

  	
   

  	
  Transfer Restrictions

  	
   

  	
  3

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 2.2.

  	
   

  	
  Right of First Refusal

  	
   

  	
  4

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 2.3.

  	
   

  	
  Transfer Mechanics

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 2.4.

  	
   

  	
  Transfers to Third Parties after the Holders
  Decline Their Right of First Refusal

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 2.5.

  	
   

  	
  Miscellaneous

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  	
  ADDITIONAL HOLDERS

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 3.1.

  	
   

  	
  Transferee of Holders

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 3.2.

  	
   

  	
  Supplementary Agreement

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  	
  MISCELLANEOUS

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4.1.

  	
   

  	
  Binding Effect

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4.2.

  	
   

  	
  Recapitalizations, Exchanges Affecting the Common
  Stock

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4.3.

  	
   

  	
  Amendments

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4.4.

  	
   

  	
  Notices

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4.5.

  	
   

  	
  Applicable Law

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4.6.

  	
   

  	
  Section Headings

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4.7.

  	
   

  	
  Counterparts

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4.8.

  	
   

  	
  Termination

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4.9.

  	
   

  	
  Entire Agreement

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4.10.

  	
   

  	
  Severability of Provisions

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4.11.

  	
   

  	
  Consent to Jurisdiction

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4.12.

  	
   

  	
  Waiver of Right to Jury Trial

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4.13.

  	
   

  	
  Arbitration

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4.14.

  	
   

  	
  No Conflicting Agreement

  	
   

  	
  10

  



 


i





















 


SUPPLEMENTAL SHAREHOLDERS
AGREEMENT


 


This SUPPLEMENTAL
SHAREHOLDERS AGREEMENT (this “Agreement”), dated as of October 11,
2005, is made and entered into by and among Inland American Real Estate Trust, Inc.
(“Inland”), the holders of common stock, par value $1.00 per share (the “Common
Stock”), of Minto Builders (Florida), Inc., a Florida corporation (the
“Company”) listed on Schedule A hereto (the “Common
Stock Holders”) and the holders of 3.5% Series A redeemable
preferred stock, par value $0.01 per share, of the Company (the “Series A
Preferred Stock”) listed on Schedule A hereto (the “Series A
Holders”).  The parties hereto and
any other person who shall hereafter acquire shares of Capital Stock (as
defined below) or other voting securities of the Company pursuant to the
provisions of and subject to this Agreement or the Shareholders Agreement,
dated as of the date hereof, by and among the Company, Inland, the Common Stock
Holders and the Series A Holders, are sometimes referred to individually
as a “Holder” and collectively as “Holders.”


 


WHEREAS, the Company has
entered into a Securities Purchase and Subscription Agreement, dated as of the
date hereof (the “Purchase Agreement”), with Inland and the other parties named
therein pursuant to which the Company has agreed to issue and sell in several
tranches, and Inland has agreed to purchase, for $1,276 per share, 920,000
shares of convertible special voting stock, par value $0.01 per share, of the
Company (the “Voting Stock”) for an aggregate purchase price of
$1,173,920,000 (the “Transaction”);


 


WHEREAS, prior to the
Transaction, Minto (Delaware), LLC, a Delaware limited liability company, owns
23,000 shares of Common Stock and 207,000 shares of Series A Preferred
Stock;


 


WHEREAS, as a result of
the Transaction, when fully subscribed, Inland will hold up to 80% of the
voting securities and value of the Company; and


 


WHEREAS, the Holders
desire to provide herein for certain matters relating to the transfer of Capital
Stock of the Company.


 


NOW, THEREFORE, the
parties hereto hereby agree as follows:


 


ARTICLE I



DEFINITIONS


 


For all purposes of this
Agreement, the following terms shall have the meanings set forth in this Article I:


 


“Agreement” has
the meaning specified in the introductory paragraph to this Agreement.


 


“Affiliate” means,
with respect to any specified Person, any other Person that, directly or
indirectly, through one or more intermediaries, controls, or is controlled by,
or is under common control with the Person specified and with respect to
Inland, the term “Affiliate” shall include any member of the Inland Group.  For purposes of this definition, control of a
Person means the power, directly or indirectly, to direct or cause the
direction of the management and policies of such Person whether by contract or
otherwise.


 


“Arbitrated Claim”
has the meaning specified in Section 4.13.


 





















 


“Arbitration Answer”
has the meaning specified in Section 4.13(c).


 


“Arbitration Claimants”
has the meaning specified in Section 4.13(c).


 


“Arbitration Demand”
has the meaning specified in Section 4.13(c).


 


“Arbitration Reply”
has the meaning specified in Section 4.13(c).


 


“Arbitration
Respondents” has the meaning specified in Section 4.13(c).


 


“Board” means the
Board of Directors of the Company.


 


“Bona Fide Offer”
means any offer, in writing, to purchase shares of Capital Stock for cash,
setting forth a specific purchase price and a closing date of no more than
sixty (60) days therefrom which is fully financed and not subject to any
material conditions.


 


“Business Day”
means each day other than a Saturday, a Sunday or any other day on which
banking institutions in the State of Illinois or in the Province of Ontario are
authorized or obligated by law or executive order to be closed.


 


“Capital Stock”
means the Common Stock, Voting Stock, and the Series A Preferred Stock.


 


“Closing” means
the closing on October 11, 2005 pursuant to the Purchase Agreement.


 


“Common Stock” has
the meaning specified in the introductory paragraph to this Agreement.


 


“Common Stock Holders”
has the meaning specified in the introductory paragraph to this Agreement.


 


“Company” has the
meaning specified in the introductory paragraph to this Agreement.


 


“Default Offeree”
has the meaning specified in Section 2.2(e) of this Agreement.


 


“Holder” or “Holders”
has the meaning specified in the introductory paragraph to this Agreement.


 


“Inland” has the
meaning specified in the introductory paragraph to this Agreement.


 


“Inland Group”
means The Inland Group, Inc., a Delaware corporation, and any direct or
indirect wholly-owned subsidiary


 


“Offeree Notice”
has the meaning specified in Section 2.2(b) of this Agreement.


 


“Offerees” has the
meaning specified in Section 2.2(a) of this Agreement.


 


“Offeror” has the
meaning specified in Section 2.2(a) of this Agreement.


 


“Offering Holder”
has the meaning specified in Section 2.2(a) of this Agreement.


 


“Permitted Transferee”
means, with respect to any Holder, (i) the Company or (ii) any
Affiliate of such Holder.


 


2





















 


“Person” means an
individual, partnership, corporation, association, trust, joint venture,
unincorporated organization, limited liability company, joint stock company,
and any government, governmental department or agency or political subdivision
thereof or any other entity.


 


“Purchase Agreement”
has the meaning specified in the Recitals of this Agreement.


 


“Put/Call Agreement”
means the Put/Call Agreement, dated as of the date hereof, by and among the
Company, Inland, the Common Stock Holders and the Series A Holders.


 


“Series A Holders”
has the meaning specified in the introductory paragraph to this Agreement.


 


“Shareholders
Agreement” means the Shareholders Agreement, dated as of the date hereof,
by and among the Company, Inland, the Common Stock Holders and the Series A
Holders.


 


“Series A
Articles of Amendment” means the Articles of Amendment filed by the Company
and accepted for record by the State of Florida Department of State designating
the Series A Preferred Stock.


 


“Series A
Preferred Stock” has the meaning specified in the introductory paragraph to
this Agreement.


 


“Sponsored Entity”
means an entity sponsored by Inland Real Estate Investment Corporation, a
Delaware corporation, that is (i) a real estate investment trust which is
a reporting company under the Securities Exchange Act of 1934, as amended, that
will not impair the Company’s ability to satisfy the “five or fewer” rule under
Sections 856 and 542(a)(2) of the Internal Revenue Code of 1986, as amended,
or (ii) reasonably approved by the Series A Holders.


 


“Third Party”
means any Person other than the Company, any Holder and any of their respective
Affiliates.


 


“Transaction” has
the meaning specified in the Recitals of this Agreement.


 


“Transfer” means
any direct or indirect sale, assignment, mortgage, transfer, pledge, gift,
hypothecation or other disposition or transfer of, or any act creating a trust
(voting or otherwise) with respect to, capital stock or other voting
securities of the Company.


 


“Transfer Default
Stock” has the meaning specified in Section 2.2(e) of this
Agreement.


 


“Transfer Notice”
has the meaning specified in Section 2.2(a) of this Agreement.


 


“Transfer Offer”
has the meaning specified in Section 2.2(a) of this Agreement.


 


“Transfer Stock”
has the meaning specified in Section 2.2(a) of this Agreement.


 


“Voting Stock” has
the meaning specified in the Recitals of this Agreement.


 


ARTICLE II



TRANSFERS


 


SECTION 2.1.                       Transfer
Restrictions.  Until the seventh
anniversary of the Closing, Inland shall not Transfer any shares of its Voting
Stock, and if the Voting Stock has been converted into Common Stock, Inland
shall not Transfer any shares of such Common Stock, without the prior written
consent of a


 


3





















 


majority in interest of the Series A Preferred
Stock, which consent shall not be unreasonably withheld; provided, however,
that Inland may Transfer its Voting Stock (or Common Stock if converted) to a
Sponsored Entity without obtaining the consent of the Series A Holders; provided,
further, that Inland or a Sponsored Entity may pledge its Voting Stock
(or Common Stock if converted) without obtaining the consent of the Series A
Holders if the pledge is made to a lender in which the applicable indebtedness
is secured by property of the Company and the lender requires the pledge of the
Voting Stock (or Common Stock if converted) as additional collateral; provided,
further, that if the Company guarantees any indebtedness of Inland or
any of its subsidiaries, the amount of the guarantee will be treated as
outstanding debt of the Company for purposes of the covenants contained in
Paragraph 8 of the Series A Articles of Amendment.


 


SECTION 2.2.                       Right of
First Refusal.


 


If, at
any time during the term of this Agreement but subject to Section 2.1, any
Holder (the “Offering Holder”) receives a Bona Fide Offer to
purchase shares of Capital Stock (the “Transfer Stock”) then owned
by such Offering Holder which such Offering Holder wishes to accept (a “Transfer
Offer”) from any Third Party or any other Holder (the “Offeror”),
then the Offering Holder shall provide a written notice (the “Transfer
Notice”) of such Transfer Offer to each of the other Holders (the “Offerees”) stating
(A) such Holder’s intention to Transfer all or a portion of its Capital
Stock pursuant to the Bona Fide Offer, (B) the number of shares of Capital
Stock that such Holder proposes to Transfer, (C) the name and address of
the proposed transferee and (D) the offered purchase price per share of
the Capital Stock to be Transferred and the manner of payment thereof.  The Transfer Notice shall be accompanied by a
copy of the Bona Fide Offer, which shall be in writing and signed by the
proposed transferee.


 


The
Offerees shall have the right and option, within 60 days after the date
the Transfer Notice is received by such Offerees, to accept irrevocably such
offer (subject to the pro rata adjustments set forth in Sections 2.2(c) and
2.2(d)), in the aggregate, as to all but not less than all shares of Transfer
Stock.  Each Offeree that desires to
exercise such option shall provide the Offering Holder with written notice in
the manner provided in Section 4.4 (the “Offeree Notice”) (specifying
the number of shares of the Transfer Stock as to which such Offeree is
accepting the offer) within such 60-day period.  If an Offeree does not provide an Offeree
Notice to the Offering Holder within such 60-day period, such Offeree shall be
deemed to have declined to exercise its rights under this Section 2.2.


 


If a
Holder Offeree or Holder Offerees, pursuant to the Offeree Notice(s),
accept(s) such offer to buy all the shares of Transfer Stock, the Offering
Holder and Offeree(s) shall close the sale of Transfer Stock within
15 days after receipt of the final Offeree Notice by the Offering
Holder.  No Offeree shall have the right
to acquire such shares of Transfer Stock unless all such shares are being
acquired in the aggregate by the Offerees pursuant to the provisions of this Section 2.2.


 


If the
aggregate number of shares of Transfer Stock as to which notices of acceptance
are provided by the Offerees exceeds the number of shares of Transfer Stock,
then (1) if Inland is an Offeree, Inland shall be allocated the number of
shares of Transfer Stock which Inland agreed to purchase on its notice of
acceptance and (2) the number of shares of any remaining Transfer Stock
that Inland did not agree to purchase on its notice of acceptance (of if Inland
is not an Offeree, the number of shares of Transfer Stock) shall be allocated
among the Offerees other than Inland (or if Inland is not an Offeree, the
Offerees) as follows: (i) each Offeree which provided a notice of
acceptance shall first be allocated the lesser of (A) the number of shares
of Transfer Stock which such Offeree agreed to purchase and (B) the total
number of shares of Transfer Stock offered in the Transfer Notice multiplied by
the percentage of such Offeree ownership interest in the Company relative to
the ownership interest in the Company of all of the accepting Offerees
(treating for this purpose the Common Stock held by Minto Delaware or any


 


4





















 


Affiliate thereof and the Series A Preferred Stock as a single
class of stock and the Voting Stock and the Common Stock held by Inland or an
Affiliate thereof as a single class of stock), and (ii) the balance of the
shares of Transfer Stock (if any) offered shall be reallocated among the
Offerees accepting the offer contained in the Transfer Notice in a proportion
determined pursuant to the formula set forth in the preceding clause (i)(B) (provided,
that no Offeree shall be allocated a number of shares of Transfer Stock that
exceeds the number of shares of Transfer Stock which such Offeree initially
offered to purchase in such Holder’s Offeree Notice, and no subsequent
reallocations pursuant to this clause (ii) shall include any Holder who
has been allocated the full amount of shares of Transfer Stock included in such
Holder’s Offeree Notice pursuant to this Section 2.2(d)) in
continuous reallocations until all such remaining shares have been reallocated
fully among such Offerees; provided, that all allocations referred to
herein shall be determined in good faith by the Company in accordance with the
provisions of this Section 2.2 and any share amounts so determined shall
be rounded to avoid fractional shares.


 


If any
shares of Transfer Stock are not purchased by an Offeree who or which
previously delivered a written notice of acceptance relating thereto
(collectively, the “Transfer Default Stock”), such shares of Transfer
Default Stock may be purchased by the other Offerees purchasing Transfer Stock
within five (5) Business Days of the date such sale was to occur (the “Default
Offerees”), allocated as follows:  (i) among
such Default Offerees in proportion to the number of shares of Transfer Stock
otherwise being purchased by those Default Offerees who agree to purchase
Transfer Default Stock and (ii) the balance of the shares of Transfer
Default Stock (if any) offered shall be reallocated among those Default
Offerees who agree to purchase Transfer Default Stock in the same proportion as
set forth in the preceding clause (i) (provided, that no
Default Offeree shall be obligated to purchase more than the number of shares
of Transfer Default Stock which such Default Offeree agreed to purchase
pursuant to clause (i) above) in continuous reallocations until
all such remaining shares have been reallocated fully among such Default
Offerees; provided that, if the Default Offerees do not purchase all the
Transfer Default Stock, (x) the Offerees are automatically excused from
the provisions of this Section 2.2 and no Offeree may purchase any of the
shares of Transfer Stock with respect to which it previously delivered a
written notice of acceptance thereto and (y) the Offering Holder can sell
all the shares of Transfer Stock to a Third Party or other Holder pursuant to Section 2.4
below.  All allocations referred to
herein shall be determined in good faith by the Company in accordance with the
provisions of this Section 2.2 and any share amounts so determined shall
be rounded to avoid fractional shares.


 


Except
as permitted by Section 2.5, no Stockholder may assign its rights under Section 2.2.


 


SECTION 2.3.                       Transfer
Mechanics. The closing of the purchase of the Transfer Stock by the
Offerees who have exercised the option pursuant to Section 2.2 shall take
place pursuant to the time limits set forth in Section 2.2(c).  At such closing, the Offerees shall deliver
to the Offering Holder the appropriate per share cash consideration by wire
transfer of immediately available funds (unless otherwise specified in the
Transfer Notice provided to the Offerees), against delivery of certificates
representing the Transfer Stock so purchased duly endorsed.


 


SECTION 2.4.                       Transfers
to Third Parties after the Holders Decline Their Right of First Refusal.  Subject to the provisions of Article II
and Section 3.1 hereof, if at the end of the 60-day period following the
giving of the Transfer Notice, the Offerees shall not have collectively
accepted the offer contained in the Transfer Notice as to all shares of
Transfer Stock covered thereby, the Offering Holder shall have 30 days in which
to sell the Transfer Stock to the Offeror, at the same price and on the same
terms and conditions contained in the Transfer Notice.  No sale may be made to any Offeror unless
such Offeror agrees in writing to be bound by the terms and conditions of this
Agreement pursuant to the provisions of Article III.  Promptly after any sale pursuant to this Section 2.4,
the Offering Holder shall notify the Company of the consummation thereof and
shall furnish such evidence of the completion (including time of
completion) of such sale and of the terms and conditions thereof as the
Company may reasonably


 


5





















 


request.  If, at
the end of such 30-day period, the Offering Holder has not completed the sale
of the Transfer Stock, such Stockholder shall no longer be permitted to sell
such shares pursuant to this Section 2.4 without again fully complying
with the provisions of this Article II and all the restrictions on
Transfer contained in this Agreement shall again be in effect with respect to
all such Holder’s shares of Capital Stock, including the Transfer Stock.


 


SECTION 2.5.                       Miscellaneous.  If a Holder Transfers any shares of Capital
Stock to a Permitted Transferee, then for purposes of Article II hereof,
any references to a Holder shall also include such Permitted Transferee.


 


ARTICLE III



ADDITIONAL HOLDERS


 


SECTION 3.1.                       Transferee
of Holders.  Each Holder shall have
the right to Transfer shares of Capital Stock (A) to a Permitted
Transferee or (B) in accordance with the provisions of Article II, to
any Third Party; in each case only if (i) such Transfer is not in
violation of any covenants contained in this Agreement, the Shareholders
Agreement or the Put/Call Agreement and (ii) prior to such Transfer, such
transferee agrees in writing to be bound (to the same extent as contemplated
with respect to the Holder (or the Permitted
Transferee(s) thereof) transferring such shares of Capital
Stock) by the terms and conditions of this Agreement pursuant to a
supplementary agreement reasonably satisfactory in form and substance to the
Board.  Upon entering into such
supplementary agreement, such transferee shall be deemed to be a Holder for all
purposes of this Agreement.


 


SECTION 3.2.                       Supplementary
Agreement. The supplementary agreement referred to in Section 3.1
above shall become effective upon its execution by the Company and the new
holder of Capital Stock, and it shall not require the signatures or the consent
of the other Holders (or their respective Permitted Transferees).


 


ARTICLE IV



MISCELLANEOUS


 


SECTION 4.1.                       Binding
Effect.  The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, legal representatives, successors and assigns.


 


SECTION 4.2.                       Recapitalizations,
Exchanges Affecting the Common Stock. 
The provisions of this Agreement shall apply, to the full extent set
forth herein, with respect to the Voting Stock, Common Stock and Series A
Preferred Stock, to any and all shares of Capital Stock or any successor or
assign of the Company (whether by merger, consolidation, sale of assets or
otherwise) which may be issued in respect of, in exchange for, or in
substitution of the Voting Stock, Common Stock or Series A Preferred
Stock, as the case may be, by reason of a stock dividend, stock split, stock
issuance, reverse stock split, combination, recapitalization, reclassification,
merger, consolidation or otherwise.  Upon
the occurrence of any of such events, amounts hereunder shall be appropriately
adjusted.


 


SECTION 4.3.                       Amendments.  This Agreement may be amended only by a
written instrument signed by each of the parties hereto.


 


SECTION 4.4.                       Notices.  All notices or other communications required
or permitted hereunder shall be in writing and shall be deemed given or
delivered: (i) when delivered personally or by


 


6





















 


commercial messenger; (ii) one business day
following deposit with a recognized overnight courier service, provided such
deposit occurs prior to the deadline imposed by such service for overnight
delivery; (iii) when transmitted, if sent by facsimile copy, provided
confirmation of receipt is received by sender and such notice is sent by an
additional method provided hereunder, in each case above provided such
communication is addressed to the intended recipient thereof as set forth
below:


 


	
  If to the Company, addressed to:

  
	
   

  
	
  Minto Holdings (at the address below) and

  Inland (at the address below) 

  
	
   

  
	
  If to Minto Delaware, addressed to:

  
	
   

  
	
  c/o Minto Communities, LLC

  
	
  4400 West Sample Road

  
	
  Coconut Creek, FL 
  33073-3450

  
	
  Attention: 
  President

  
	
   

  
	
  If to Minto Holdings, addressed to:

  
	
   

  
	
  Minto Holdings, Inc.

  
	
  Suite 300

  
	
  427 Laurier Avenue West

  
	
  Ottawa, Ontario, Canada

  
	
  KIR 7Y2

  
	
  Attention: 
  President

  
	
   

  
	
  with a copy to:

  
	
   

  
	
  Clifford Chance US LLP

  
	
  31 West 52nd Street

  
	
  New York, NY 
  10019

  
	
  Attention: Larry P. Medvinsky

  
	
  Facsimile: 
  (212) 878 8375

  
	
   

  
	
  If to Inland, addressed to:

  
	
   

  
	
  Inland American Real Estate Trust, Inc.

  
	
  2901 Butterfield Road

  
	
  Oak Brook, Illinois 
  60523

  
	
  Attention: Brenda G. Gujral

  
	
   

  
	
  with a copy to:

  
	
   

  
	
  The Inland Group, Inc.

  
	
  2901 Butterfield Road

  
	
  Oak Brook, Illinois 
  60523

  
	
  Attention: Robert H. Baum

  
	
   

  
	
  Shefsky & Froelich Ltd.

  
	
  111 East Wacker Drive

  



 


7





















 


	
  Suite 2800

  
	
  Chicago, Illinois 60601

  
	
  Attention: Michael J. Choate, Esq.

  
	
  Facsimile: 
  (312) 275-7554

  



 


SECTION 4.5.                       Applicable
Law.  THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF ILLINOIS (WITHOUT
GIVING EFFECT TO ANY CONFLICTS OR CHOICE OF LAWS PROVISIONS THAT WOULD CAUSE
THE APPLICATION OF THE DOMESTIC SUBSTANTIVE LAWS OF ANY OTHER JURISDICTION).


 


SECTION 4.6.                       Section Headings.  The descriptive headings of sections and
paragraphs of this Agreement are inserted for convenience only, and do not
constitute a part of this Agreement and shall not affect in any way the meaning
or interpretation of this Agreement.


 


SECTION 4.7.                       Counterparts.  This Agreement and any amendments hereto may
be executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.


 


SECTION 4.8.                       Termination.  This Agreement (other than
Sections 4.11, 4.12 and 4.13) shall terminate upon the written consent of
each of the parties hereto.


 


SECTION 4.9.                       Entire
Agreement.  This Agreement and the other
writings and agreements referred to herein or delivered pursuant hereto or
contemporaneously herewith which form a part hereof contain the entire
understanding of the parties hereto with respect to its subject matter.  This Agreement supersedes and renders null
and void all prior agreements and understandings between the parties with
respect to the subject matter hereof.


 


SECTION 4.10.                 Severability
of Provisions.  Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.


 


SECTION 4.11.                 Consent to
Jurisdiction.  SUBJECT TO THE
PROVISIONS OF SECTION 4.13, EACH OF THE PARTIES HERETO HEREBY CONSENTS TO
THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS AND THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, AS WELL AS
TO THE JURISDICTION OF ALL COURTS TO WHICH AN APPEAL MAY BE TAKEN FROM
SUCH COURTS, FOR THE PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING
OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE RELATED AGREEMENTS
OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, INCLUDING, WITHOUT
LIMITATION, ANY PROCEEDING RELATING TO ANCILLARY MEASURES IN AID OF
ARBITRATION, PROVISIONAL REMEDIES AND INTERIM RELIEF, OR ANY PROCEEDING TO
ENFORCE ANY ARBITRAL DECISION OR AWARD.


 


SECTION 4.12.                 Waiver of
Right to Jury Trial.  EACH OF THE
PARTIES HERETO HEREBY VOLUNTARILY AND IRREVOCABLY WAIVES TRIAL BY JURY IN ANY
ACTION OR OTHER PROCEEDING BROUGHT IN CONNECTION WITH THIS AGREEMENT, ANY OF
THE OTHER TRANSACTION DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY.


 


8





















 


SECTION 4.13.                 Arbitration.  All disputes arising out of, in connection
with, or in any way related to this Agreement among the parties to this
Agreement which are not resolved within six (6) months of an
Indemnified Party’s sending of a notice of claim with respect thereto (each an “Arbitrated
Claim”), shall be resolved by binding arbitration, and each party hereto
hereby waives any right it may otherwise have to such a resolution of any
Arbitrated Claim by any means other than arbitration pursuant to this Section 4.13.  As a minimum set of rules in the
arbitration, the parties agree as follows:


 


The
place of the arbitration shall be Chicago, Illinois.  The arbitration must be held in the English
language in accordance with the Streamlined Arbitration Rules and
Procedures of JAMS in effect on the date hereof, except as modified by this
Agreement.


 


The
arbitration will be held before a single arbitrator selected by the (i) Inland
and (ii) Minto Delaware.  If the
respective parties in interest cannot agree on an arbitrator within thirty
(30) days of the delivery of an Arbitration Demand (as defined below),
JAMS will appoint such arbitrator.  The
arbitrator will be knowledgeable regarding commercial transactions similar in
nature to the transactions contemplated by this Agreement.


 


Any
party or parties initiating arbitration (the “Arbitration Claimants”) will
give to the other party or parties (the “Arbitration Respondents”) notice
of their intention to arbitrate (the “Arbitration Demand”).  The Arbitration Demand will contain a notice
regarding the nature of the claim.  The
Arbitration Respondents will file an answering statement (the “Arbitration
Answer”) within thirty (30) days after the Arbitration
Demand.  The Arbitration Answer will
contain a statement setting forth in reasonable detail the Arbitration
Respondents’ responses and defenses to the Arbitrated Claim.  If the Arbitration Respondents assert a
counterclaim, (i) the Arbitration Respondents shall send it with the
Arbitration Answer and such counterclaim must include a statement setting forth
in reasonable detail the nature of the counterclaim, the amount involved, if
any, and the remedy sought, and (ii) the Arbitration Claimants will file a
reply statement (the “Arbitration Reply”) as soon as is reasonably
practicable, but in no event later than thirty (30) days, after the
counterclaim. The Arbitration Reply will contain a statement setting forth in
reasonable detail the Arbitration Claimants’ responses and defenses to the
counterclaim.  If no Arbitration Answer
or Arbitration Reply is given within the stated time, the claim or the
counterclaim will be assumed to be granted. 
Failure to file an Arbitration Answer or Arbitration Reply will not
operate to delay the arbitration.


 


Unless
the parties to the arbitration agree otherwise, the arbitrator may order
depositions only for good cause and each party to the Arbitrated Claim may make
such document requests and other discovery (other than depositions) as
permitted in accordance with the Streamlined Arbitration Rules and
Procedures of JAMS in effect on the date hereof.


 


The
arbitration hearings will be conducted over a period not to exceed thirty
(30) days commencing as of the date of the first hearing.  The arbitrator shall make a final decision on
the Arbitrated Claim within thirty (30) days of the final hearing.  The arbitrator may make such orders with
regard to scheduling, allocation of hearing time, or otherwise as he or she
deems appropriate to achieve compliance with these time limitations.  The parties have included the foregoing
provisions limiting the scope and extent of the arbitration with the intention
of providing for prompt, economic and fair resolution of any dispute submitted
to arbitration.


 


the
Arbitration Claimants, on the one hand, and the Arbitration Respondents, on the
other, will, as an initial matter, equally bear the costs and fees of the
arbitration, if applicable, but the arbitrator shall award such costs in
inverse proportion as the Arbitration Claimants, on the one hand, and the
Arbitration Respondents, on the other, may prevail on the matters resolved by
the arbitrator (based on the variance of their respective proposed Arbitration
Demand, Arbitration Answer and/or Arbitration Reply, as


 


9





















 


applicable, from the determination of the arbitrator), which
proportionate allocations shall be determined by the arbitrator at the time the
determination of the arbitrator is rendered on the merits of the matters
submitted.


 


The
arbitrator shall enter a written award specifying the basis for his or her
decision, including findings of fact and conclusions of law, the basis for the
Damages award and a breakdown of the Damages awarded, and the basis for any
other remedy.  Any party dissatisfied
with the award may invoke the JAMS Optional Arbitration Appeal Procedure (based
on the rules therefor in effect at the time of this Agreement).  Such JAMS Optional Arbitration Appeal shall
be limited to whether there are any erroneous conclusions of law, or any
findings of fact not supported by substantial evidence.  The appellate arbitral panel may vacate,
modify, correct, or affirm the award in whole or in any part.  The award (as modified, corrected, or
affirmed by the appellate arbitral panel, or if no such JAMS appeal is taken,
as originally rendered by the arbitrator) will be considered as a final
and binding resolution of the disagreement.


 


Any
arbitration proceeding will be conducted on a confidential basis, and any
Confidential Information disclosed during any such proceeding will be kept
confidential by the parties to such proceeding and by the arbitrator.


 


The
arbitrator’s discretion to fashion remedies hereunder will be no broader or
narrower than the legal and equitable remedies available to a court before
which such Arbitrated Claim may have been brought but for this Section 4.13,
unless the parties expressly state elsewhere in this Agreement that parties
will be subject to broader or narrower legal and equitable remedies than would
be available under the law governing this Agreement.


 


The
arbitral award will be the exclusive remedy of the parties for all claims,
counterclaims, issues or accountings presented or pleaded to the
arbitrator.  The award will include
interest from the date of the Arbitrated Claim until the award is fully paid,
computed at the then-prevailing U.S. prime rate, plus five percent (5%).  Any additional costs, fees or expenses
incurred in enforcing the arbitral award (or successfully resisting
it) will be borne by the party against which enforcement is sought if such
award is successfully enforced (or borne by the party seeking to enforce such
award if the resisting party successfully resists its enforcement).  Any party may enforce an arbitral award in
any court of competent jurisdiction.


 


SECTION 4.14.                 No Conflicting
Agreement.  Neither the Company nor
any Holder will, on or after the date of this Agreement, enter into any
agreement with respect to the shares of Capital Stock beneficially owned or
held of record by it which conflicts with the provisions hereof.


 


10





















 


IN WITNESS WHEREOF, the
parties have executed this Supplemental Shareholders Agreement as of the date
first above written.


 


 


	
   

  	
  MINTO (DELAWARE), LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ J. Eric McKinney

  
	
   

  	
   

  	
    Name:

  	
  J. Eric McKinney

  
	
   

  	
   

  	
    Title:

  	
  Executive Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Peter Goring

  
	
   

  	
   

  	
    Name:

  	
  Peter Goring

  
	
   

  	
   

  	
    Title:

  	
  Executive Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  INLAND AMERICAN REAL ESTATE TRUST, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Brenda Gail Gujral

  
	
   

  	
   

  	
    Name:

  	
  Brenda Gail Gujral

  
	
   

  	
   

  	
    Title:

  	
  President

  



 





















 


SCHEDULE A


 


Holders of Common Stock


 


Minto (Delaware), LLC


 


Holders of Series A
Preferred Stock


 


Minto (Delaware), LLC