Exhibit 10.6


 


EXECUTION COPY


 




 





PUT/CALL AGREEMENT


 


DATED AS OF OCTOBER 11, 2005


 


By and Among


 


MINTO BUILDERS (FLORIDA), INC.,


 


INLAND AMERICAN REAL ESTATE TRUST, INC.,


 


MINTO HOLDINGS 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

  	
   

  	
  PUT/CALL RIGHTS

  	
   

  	
  5

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01. Purchase Rights

  	
   

  	
  5

  
	
   

  	
   

  	
   

  
	
  SECTION 2.02.
  Determination of Fair Market Value

  	
   

  	
  6

  
	
   

  	
   

  	
   

  
	
  SECTION 2.03. Rights of
  Minto Delaware

  	
   

  	
  6

  
	
   

  	
   

  	
   

  
	
  SECTION 2.04.
  Payment Default

  	
   

  	
  7

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  	
  MISCELLANEOUS

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.01.

  	
   

  	
  Binding Effect

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.02.

  	
   

  	
  Recapitalizations, Exchanges Affecting
  the Common Stock

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.04.

  	
   

  	
  Notices

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.05.

  	
   

  	
  Applicable Law

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.06.

  	
   

  	
  Section Headings

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.07.

  	
   

  	
  Counterparts

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.08.

  	
   

  	
  Termination

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.09.

  	
   

  	
  Entire Agreement

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.10.

  	
   

  	
  Severability of Provisions

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.11.

  	
   

  	
  Specific Performance

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.12.

  	
   

  	
  Consent to Jurisdiction

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.13.

  	
   

  	
  Waiver of Right to Jury Trial

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.14.

  	
   

  	
  Arbitration

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.15.

  	
   

  	
  No Conflicting Agreement

  	
   

  	
  12

  
							



 





















 


PUT/CALL AGREEMENT


 


This PUT/CALL AGREEMENT
(this “Agreement”), dated as of October 11, 2005, is made and
entered into by and among Minto Builders (Florida), Inc., a Florida
corporation (the “Company”), Inland American Real Estate Trust, Inc.,
a Maryland corporation (“Inland”), Minto Holdings Inc., a Canadian
corporation incorporated under the laws of Ontario (“Minto Holdings”),
the holders of common stock, par value $1.00 per share (the “Common Stock”),
of 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”).


 


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, 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; and


 


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.


 


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:


 


“Adjusted MB FFO”
means the FFO of the Company for the most recently completed fiscal year
calculated as if the Series A Preferred Stock is debt with an interest
rate equal to Inland’s weighted average interest rate on fixed rate debt for its
most recently completed fiscal year (i.e., treating the dividend on the Series A
Preferred Stock as a deduction from FFO as if the dividend payment is an
interest payment and treating the amount of the deemed interest payment as if
it is paid at a rate equal to Inland’s weighted average interest rate on fixed
rate debt rather than paid at a rate equal to 3.5%).


 


“Amended Charter”
means the First Amended and Restated Articles of Incorporation of the Company
which were filed with the Secretary of State of the State of Florida on October 7,
2005 and the Second Amended and Restated Articles of Incorporation of the
Company which were filed with the Secretary of State of the State of Florida on
October 11, 2005.


 


“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,


 


1





















 


to direct or cause
the direction of the management and policies of such Person whether by contract
or otherwise.


 


“Applicable
Consideration” means (1) with respect to Series A Preferred Stock
(treating for purposes of this definition, Minto Delaware Equity as the Series A
Preferred Stock owned by Minto Delaware multiplied by the percentage of Minto
Delaware Equity owned by the recipient of the Applicable Consideration), the Series A
Liquidation Preference (apportioned pro rata based on relative number of shares
of Series A Preferred Stock owned) and (2) with respect to
Common Stock (treating for purposes of this definition, Minto Delaware Equity
as the Common Stock owned by Minto Delaware multiplied by the percentage of
Minto Delaware Equity owned by the recipient of the Applicable Consideration),
the applicable consideration under Article II other than the Series A
Liquidation Preference (apportioned pro rata based on relative number of shares
of Common Stock owned).


 


“Arbitrated Claim”
has the meaning specified in Section 3.14.


 


“Arbitration Answer”
has the meaning specified in Section 3.14(c).


 


“Arbitration Claimants”
has the meaning specified in Section 3.14(c).


 


“Arbitration Demand”
has the meaning specified in Section 3.14(c).


 


“Arbitration Reply”
has the meaning specified in Section 3.14(c).


 


“Arbitration
Respondents” has the meaning specified in Section 3.14(c).


 


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


 


“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, Series A Preferred Stock and Series C
Preferred Stock.


 


“Charter” means
the articles of incorporation of the Company as from time to time amended or
modified, including, without limitation, the Amended Charter, the Series A
Articles of Amendment, the Series B Articles of Amendment, the Series C
Articles of Amendment and the Voting Shares Articles of Amendment.


 


“Closing” means
the closing on the initial purchase of Voting Stock by Inland 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.


 


“Damages” means “any
and all costs, losses, Taxes, liabilities, obligations, lawsuits, deficiencies,
claims, demands, penalties, fines, and expenses, including, without limitation,
reasonable attorneys’ fees, accountants’ fees, environmental engineer or
consultant charges, fees and expenses arising from


 


2





















 


environmental
investigation, remediation or other response action, costs and expenditures
required or incurred to comply with consent decrees, administrative orders,
injunctions and other judicial equitable relief, and all amounts paid in
investigation, defense or settlement of any of the foregoing.


 


“E/D Purchase Right”
has the meaning specified in Section 2.01(c) of this Agreement.


 


“Event of Default”
means any violation by Inland, Inland Western or the Company of this Agreement,
the Shareholders Agreement, Section 8 of the Series A Articles of
Amendment, the Purchase Agreement and the Subscription Agreement and the
expiration of any stated cure period, if any, for such violation.


 


“Exercise Notice”
has the meaning specified in Section 2.01(e) of this Agreement.


 


“FFO” means net
income computed in accordance with GAAP, excluding gains (or losses) from
sales of property, plus depreciation and amortization and after adjustments for
unconsolidated partnerships and joint ventures in which the Company holds and
interest.


 


“GAAP” means
accounting principles which are (a) consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors and other recognized principle-setting bodies as in effect as of
the date of the relevant document, (b) applied on a basis consistent with
prior periods, and (c) such that a certified public accountant would,
insofar as the use of accounting principles is pertinent, be in a position to
base an opinion as to financial statements in which such principles have been
properly applied.


 


“Initial Purchase
Right” has the meaning specified in Section 2.01(a) of this
Agreement.


 


“Initial Stock”
means the Common Stock and Series A Preferred Stock held by Minto Delaware
as of the date hereof.


 


“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.


 


“Inland Stock”
means the shares of common stock, par value $0.001 per share, of Inland.


 


“Listed” means the
listing of capital securities on a national securities exchange or inclusion of
such securities for quotation on the NASDAQ Stock Market.


 


“Majority Holder”
means any Person that owns a majority in interest of the outstanding shares of
Common Stock of the Company.


 


“MB Purchase Right”
has the meaning specified in Section 2.01(d) of this Agreement.


 


“MD Common Stock Ratio”
means a fraction, (x) the numerator of which is the total number of shares
of Common Stock held by Minto Delaware or its assignee, and (y) the
denominator which is the total number of shares of Common Stock outstanding.


 


“Minto Delaware”
means Minto (Delaware), LLC, a Delaware limited liability company.


 


“Minto Delaware Equity”
means all membership interests and other equity interests (including rights to
acquire equity, such as warrants and options) of Minto Delaware.


 


3





















 


“NAREIT” means the
National Association of Real Estate Investment Trusts.


 


“NAREIT Multiple”
means a fraction, (x) the numerator of which is the aggregate market
capitalization of the MSCI US REIT Index, and (y) the denominator of which
is the aggregate FFO of the MSCI US REIT Index.


 


“Partial Liquidation”
has the meaning specified in Section 2.04 of this Agreement.


 


“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 to the Agreement.


 


“Purchase Right”
means an Initial Purchase Right, a Subsequent Purchase Right or an E/D Purchase
Right.


 


“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, substantially in the form of Exhibit A
hereto.


 


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


 


“Series A
Liquidation Preference” means the liquidation preference equal to $1,276
per share of Series A Preferred Stock plus accrued and unpaid dividends.


 


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


 


“Series B
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 B Preferred Stock, substantially in the form of Exhibit B
attached to the Purchase Agreement.


 


“Series B
Preferred Stock” means the Series B Redeemable Preferred Stock, $0.01
par value per share.


 


“Series C
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 C Preferred Stock, substantially in the form of Exhibit C
attached to the Purchase Agreement.


 


“Series C
Preferred Stock” means the Series C Junior Redeemable Preferred Stock,
$0.01 par value per share.


 


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


 


“Subscription
Agreement” has the meaning specified in the Purchase Agreement.


 


“Subsequent Purchase
Right” has the meaning specified in Section 2.01(b) of this
Agreement.


 


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


 


4





















 


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


 


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


 


“Voting Stock 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
Voting Stock, substantially in the form of Exhibit C attached to the
Purchase Agreement.


 


ARTICLE II



PUT/CALL RIGHTS


 


SECTION 2.01.                 Purchase
Rights.


 


(a)                                  On
or after the sixth anniversary of the Closing until the seventh anniversary of
the Closing, Minto Holdings shall have an option to require Inland to purchase
(the “Initial Purchase Right”), in whole, but not in part, one hundred
percent (100%) of the Minto Delaware Equity for a price equal to (A) if
the shares of Inland Stock are not Listed, on the earlier of (x) the date
Inland purchases the Minto Delaware Equity or (y) 150 days after the date
written notice of the Initial Purchase Right is given, the sum of (1) the Series A
Liquidation Preference, payable in cash and (2) $29,348,000 or (B) if
the shares of Inland Stock are Listed, on the earlier of (x) the date Inland
purchases the Minto Delaware Equity or (y) 150 days after the date written
notice of the Initial Purchase Right is given, the sum of (1) the Series A
Liquidation Preference, payable in cash and (2) 2,934,800 shares of Inland
Stock.  If Minto Holdings exercises the
Initial Purchase Right at a time in which Minto Delaware does not own all of
the Initial Stock or Minto Holdings does not own all of the Minto Delaware
Equity, on exercise of the Initial Purchase Right, each owner of Initial Stock
or Minto Delaware Equity, as applicable, exercising such right shall receive
its Applicable Consideration rather than the consideration described above in
this Section 2.01(a).  Each
transferee of any portion of the Initial Stock or the Minto Delaware Equity
shall be entitled to exercise the Initial Purchase Right and be entitled to
receive its Applicable Consideration.


 


(b)                                 On
or after the seventh anniversary of the Closing, Minto Holdings shall have an
option to require Inland to purchase (the “Subsequent Purchase Right”),
in whole, but not in part, one hundred percent (100%) of the Minto
Delaware Equity for a price equal to (A) if the shares of Inland Stock are
not Listed, on the earlier of (x) the date Inland purchases the Minto Delaware
Equity or (y) 150 days after written notice of a Subsequent Purchase Right
is given, the sum of (1) the Series A Liquidation Preference, payable
in cash and (2) the fair market value of the Common Stock held by Minto
Delaware on the date written notice of the Subsequent Purchase Right is given,
determined pursuant to Section 2.02 hereof,
payable in cash, or (B) if the shares of Inland Stock are Listed, on the
earlier of (x) the date Inland purchases the Minto Delaware Equity or
(y) 150 days after written notice of the Subsequent Purchase Right is
given, the sum of (1) the Series A Liquidation Preference, payable in
cash and (2) 2,934,800 shares of Inland Stock.  If Minto Holdings exercises the Subsequent
Purchase Right at a time in which Minto Delaware  does not own all of the Initial Stock or
Minto Holdings does not own all of the Minto Delaware Equity, on exercise of
the Subsequent Purchase Right, each owner of Initial Stock or Minto Delaware
Equity, as applicable, exercising such right shall receive its Applicable
Consideration rather than the consideration described above in this Section 2.01(b).  Each transferee of any portion of the Initial
Stock or the Minto Delaware Equity shall be entitled to exercise the Subsequent
Purchase Right and be entitled to receive its Applicable Consideration.


 


(c)                                  On
or after an Event of Default, Minto Holdings shall have an option to require
Inland to Purchase (the “E/D Purchase Right”) in whole, but not in
part, one hundred percent (100%) of the Minto Delaware Equity for a price
equal to (A) if the shares of Inland Stock are not Listed, on the earlier
of


 


5





















 


(x) the
date Inland purchases the Minto Delaware Equity or (y) 15 days after the
date written notice of the E/D Purchase Right is given, the sum of (1) the
Series A Liquidation Preference, payable in cash and (2) $29,348,000
or (B) if the shares of Inland Stock are Listed, on the earlier of
(x) the date Inland purchases the Minto Delaware Equity or (y) 15
days after the date written notice of the E/D Purchase Right is given, the sum
of (1) the Series A Liquidation Preference, payable in cash and (2) 2,934,800
shares of Inland Stock.  If Minto
Holdings exercises the E/D Purchase Right at a time in which Minto Delaware
does not own all of the Initial Stock or Minto Holdings does not own all of the
Minto Delaware Equity, each owner of Initial Stock or Minto Delaware Equity, as
applicable, shall receive its Applicable Consideration rather than the
consideration described above in this Section 2.01(c).  Each transferee of any portion of the Initial
Stock or the Minto Delaware Equity shall be entitled to exercise the E/D
Purchase Right and be entitled to receive its Applicable Consideration.


 


(d)                                 On
or after the tenth anniversary of the Closing, so long as the Company qualifies
as a “domestically controlled REIT,” the Company shall have an option to
purchase (the “MB Purchase Right”), in whole, but not in part, one
hundred percent (100%) of the Minto Delaware Equity for a price equal to (A) if
the shares of Inland Stock are not Listed on the date written notice of the MB
Purchase Right is given, the sum of (1) the Series A Liquidation
Preference, payable in cash and (2) the fair market value of the Common
Stock held by Minto Delaware on the date written notice of the MB Purchase
Right is given, determined pursuant to Section 2.02 hereof, payable in
cash, or (B) if the shares of Inland Stock are Listed on the date written
notice of the MB Purchase Right is given, the sum of (1) the Series A
Liquidation Preference, payable in cash and (2) 2,934,800 shares of Inland
Stock.  The MB Purchase Right is
expressly assignable by the Company to the Majority Holder.  If Minto Delaware does not own all of the
Initial Stock or Minto Holdings does not own all of the Minto Delaware Equity,
on exercise of the MB Purchase Right, each owner of Initial Stock or Minto
Delaware Equity, as applicable, shall receive its Applicable Consideration
rather than the consideration described above in this Section 2.01(d).  Each transferee of any portion of the Initial
Stock or the Minto Delaware Equity shall be subject to the MB Purchase Right
and be entitled to receive its Applicable Consideration upon exercise of the MB
Purchase Right by the Company (or the Majority Holder if the MB Purchase Right
is assigned to the Majority Holder).


 


(e)                                  Any
notice required to be given in connection with an exercise of a Purchase Right
under Section 2.01(a), (b), (c) or (d) or Section 2.03 (an “Exercise
Notice”) may be given prior to the applicable anniversary date.  For example, Minto Holdings may give an
Exercise Notice to the Company exercising its Initial Purchase Right under Section 2.01(a) 150
days prior to the sixth anniversary of the Closing.


 


SECTION 2.02.                 Determination
of Fair Market Value. In connection with any notice delivered pursuant to Section 2.01(b) or
(d) or Section 2.03, the fair market value of Common Stock held by
Minto Delaware shall be equal to the product of (x) the Adjusted MB FFO;
(y) the NAREIT Multiple; and (z) the MD Common Stock Ratio.


 


SECTION 2.03.                 Rights of
Minto Delaware.


 


(a)                                  Notwithstanding
Sections 2.01(a), (b), (c), or (d) hereof, Minto Delaware and each
transferee of any portion of the Initial Stock shall have the option at any
time to (i) exchange its shares of Common Stock into 2,934,800 shares of
Inland Stock (reduced pro rata to the extent Minto Delaware or such transferee
does not own the number of shares of Common Stock that make up the Common Stock
portion of the Initial Shares) or (ii) distribute its shares of Common
Stock to the holders of Minto Delaware Equity. 
Minto Delaware also shall have the right to sell Initial Stock pursuant
to the terms of the Supplemental Shareholders Agreement.


 


6





















 


(b)                                 If
at any time either (A) (i) the Initial Stock is not owned 100% by the
same person and (ii) one of these persons provides notice of the exercise
of an applicable Purchase Right or (B) a holder of Series A Preferred
Stock exercises the holder’s redemption right pursuant to Section 7 of the
Series A Articles of Amendment (other than a redemption in part intended
to maintain the Company’s qualification as a real estate investment trust under
the Internal Revenue Code of 1986, as amended), then all persons owning Initial
Stock and Minto Delaware Equity shall be treated as providing notice of the
exercise of an applicable Purchase Right (or, at the election of a holder of Series A
Preferred Stock, the holder’s redemption right pursuant to Section 7 of
the Series A Articles of Amendment (other than a redemption in part
intended to maintain the Company’s qualification as a real estate investment
trust under the Internal Revenue Code of 1986, as amended)).  If at any time (i) the Initial Stock is
not owned 100% by the same person and (ii) the Company (or the Majority
Holder if the MB Purchase Right is assigned to the Majority Holder) exercises
the MB Purchase Right, then all persons (other than Minto Delaware) owning
any portion of the Initial Stock shall be required to sell their Initial Stock
to the Company (or the Majority Holder, if applicable) and Minto Holdings
(and any transferee of Minto Delaware Equity) shall be required to sell
its Minto Delaware Equity (if applicable) at a price to each holder equal
to the holder’s Applicable Consideration. 
The Company shall be permitted explicitly (without obtaining any
consents and as an exception to any covenant to the contrary) to sell
properties and loan money to the Majority Holder as long as the sale and loan
proceeds will be sufficient to, and used to, purchase 100% of the Minto
Delaware Equity (and, if applicable, the Initial Stock owned by a transferee
from Minto Delaware) pursuant to a Purchase Right or the MB Purchase
Right.


 


SECTION 2.04.                 Payment
Default.  If an Exercise Notice is delivered
to Inland and the applicable purchase price is not paid by the 150th day
thereafter (or by the 15th day thereafter if an applicable E/D
Purchase Right is being exercised pursuant to Section 2.01(a)), then 15
days after written notice of non-payment is delivered to Inland or the Company,
as applicable, the parties shall amend the Charter such that the dividend rate
on the Series A Preferred Stock shall increase to an annual rate equal to
the greater of (i) 8.0% or (ii) the prime rate as published by
Citibank, N.A. plus 2.0%, with 25 basis points increases each quarter
thereafter as long as the applicable purchase price remains unpaid.  Additionally, the Series A Holders shall
have the right to cause the Company to liquidate a number of its properties
necessary to satisfy Inland’s or the Company’s payment obligation, as
applicable, relating to the applicable purchase price.  Written notice of exercise of either a
Purchase Right or the MB Purchase Right may be sent at any time on or after the
150th day prior to the first day of exercise a Purchase Right or the
MB Purchase Right, as applicable, provided, that if an Event of Default occurs,
written notice of exercise of a Purchase Right may be given immediately.  In order to exercise the right to cause the
Company to liquidate any of its properties (the “Partial Liquidation”),
the Series A Holders shall deliver written notice to the Board setting
forth the request for liquidation.  The
Partial Liquidation needs to be effectuated within three months of receipt of such notice.


 


ARTICLE III



MISCELLANEOUS.


 


SECTION 3.01.                 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 3.02.                 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


 


7





















 


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


 


SECTION 3.04.                 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 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:


 


	
  (a)

  	
  If to the Company, addressed to:

  
	
   

  	
   

  
	
   

  	
  Minto Holdings (at the address below) and 

  
	
   

  	
  the Purchaser (at the address below)

  
	
   

  	
   

  
	
  (b)

  	
  If to Minto Delaware, addressed to:

  
	
   

  	
   

  
	
   

  	
  c/o Minto Communities, LLC

  
	
   

  	
  4400 West Sample Road

  
	
   

  	
  Coconut Creek, FL 
  33073-3450

  
	
   

  	
  Attention: 
  President

  
	
   

  	
   

  
	
  (c)

  	
  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

  
	
   

  	
   

  
	
  (d)

  	
  If to the Purchaser, addressed to:

  
	
   

  	
   

  
	
   

  	
  Inland American Real Estate Trust, Inc.

  
	
   

  	
  2901 Butterfield Road

  
	
   

  	
  Oak Brook, Illinois 
  60523

  
	
   

  	
  Attention: Brenda G. Gujral

  



 


8





















 


	
   

  	
  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

  
	
   

  	
  Suite 2800

  
	
   

  	
  Chicago, Illinois 60601

  
	
   

  	
  Attention: Michael J. Choate, Esq.

  
	
   

  	
  Facsimile: 
  (312) 275-7554

  



 


SECTION 3.05.                 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 3.06.                 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 3.07.                 Counterparts.  This Agreement and any amendment 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 3.08.                 Termination.  This Agreement (other than
Sections 3.11, 3.12, 3.13 and 3.14) shall terminate upon the written
consent of each of the parties hereto.


 


SECTION 3.09.                 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 3.10.                 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 3.11.                 Specific
Performance.  The parties hereto
agree that irreparable harm would occur in the event that any of the agreements
and provisions of this Agreement were not performed fully by the parties hereto
in accordance with their specific terms or conditions or were otherwise
breached, and that money damages are an inadequate remedy for breach of the
Agreement because of the difficulty of ascertaining and quantifying the amount
of damage that will be suffered by the parties hereto in the event that this
Agreement is not performed in accordance with its terms or conditions or is
otherwise breached.  It is accordingly
hereby agreed that the parties hereto shall be entitled to an injunction or
injunctions to restrain, enjoin and prevent breaches of this Agreement by the
other parties and to enforce


 


9





















 


specifically
such terms and provisions of this Agreement in any court of the United States
or any state having jurisdiction, such remedy being in addition to and not in
lieu of, any other rights and remedies to which the other parties are entitled
to at law or in equity.


 


SECTION 3.12.                 Consent to
Jurisdiction.  SUBJECT TO THE
PROVISIONS OF SECTION 3.14, 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 3.13.                 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.


 


SECTION 3.14.                 Arbitration.  All disputes under this Agreement among the
parties to this Agreement which are not resolved within six (30) 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 3.14.  As a minimum
set of rules in the arbitration, the parties agree as follows:


 


(a)                                  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.


 


(b)                                 The
arbitration will be held before a single arbitrator selected by (i) Inland
and (ii) Minto Delaware and/or Minto Holdings, as applicable.  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.


 


(c)                                  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.


 


10





















 


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.


 


(d)                                 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.


 


(e)                                  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.


 


(f)                                    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 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.


 


(g)                                 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.


 


(h)                                 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.


 


(i)                                     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 3.14,
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.


 


(j)                                     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 


 


11





















 


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 3.15.                 No Conflicting
Agreement.  Neither the Company nor
any other party hereto 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.


 


12





















 


IN WITNESS WHEREOF, the
parties have executed this Put/Call Agreement as of the date first above
written.


 


	
   

  	
  MINTO BUILDERS (FLORIDA), INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ J. Eric McKinney

  
	
   

  	
   

  	
    Name: J. Eric McKinney

  
	
   

  	
   

  	
    Title: Executive Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Peter Goring

  
	
   

  	
   

  	
    Name: Peter Goring

  
	
   

  	
   

  	
    Title: Executive Vice President

  
	
   

  	
   

  
	
   

  	
  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

  
	
   

  	
   

  
	
   

  	
  MINTO HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ J. Eric McKinney

  
	
   

  	
   

  	
    Name: J. Eric McKinney

  
	
   

  	
   

  	
    Title: Executive Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Peter Goring

  
	
   

  	
   

  	
    Name: Peter Goring

  
	
   

  	
   

  	
    Title: Senior Vice President

  
	
   

  	
   

  
	
   

  	
  INLAND AMERICAN REAL ESTATE TRUST, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Brenda Gail Gujral

  
	
   

  	
   

  	
    Name: Brenda Gail Gujral

  
	
   

  	
   

  	
    Title: President

  



 


13





















 


SCHEDULE A


 


Holders of Common Stock


 


Minto (Delaware), LLC


 


Holders of Series A Preferred Stock


 


Minto (Delaware), LLC


 


14