Exhibit 10.7


 


EXECUTION COPY


 




 





SHAREHOLDERS AGREEMENT


 


DATED AS OF OCTOBER 11, 2005


 


By and Among


 


MINTO BUILDERS (FLORIDA), INC.,


 


MINTO HOLDINGS INC.,


 


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

  	
   

  	
  CORPORATE GOVERNANCE

  	
   

  	
  3

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 2.1.

  	
   

  	
  Election of Directors; Number of
  Directors

  	
   

  	
  3

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 2.2.

  	
   

  	
  Committees

  	
   

  	
  4

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 2.3.

  	
   

  	
  Removal of Directors

  	
   

  	
  4

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 2.4.

  	
   

  	
  Vacancies

  	
   

  	
  4

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 2.5.

  	
   

  	
  Restrictions on Other Agreements

  	
   

  	
  4

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  	
  OBLIGATIONS BY THE COMPANY

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 3.1.

  	
   

  	
  1031 Exchange

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 3.2.

  	
   

  	
  REIT Qualification

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  	
  MISCELLANEOUS OBLIGATIONS

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4.1.

  	
   

  	
  Ability to Exercise Rights Under the
  Purchase Agreement or Subscription Agreement

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4.2.

  	
   

  	
  Property Opportunities

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4.3.

  	
   

  	
  Net Worth of Minto Holdings

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4.4.

  	
   

  	
  Legends

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  	
  MISCELLANEOUS

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 5.1.

  	
   

  	
  Binding Effect

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 5.2.

  	
   

  	
  Recapitalizations, Exchanges Affecting
  the Common Stock

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 5.3.

  	
   

  	
  Amendments

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 5.4.

  	
   

  	
  Notices

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 5.5.

  	
   

  	
  Applicable Law

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 5.6.

  	
   

  	
  Section Headings

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 5.7.

  	
   

  	
  Counterparts

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 5.8.

  	
   

  	
  Termination

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 5.9.

  	
   

  	
  Entire Agreement

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 5.10.

  	
   

  	
  Severability of Provisions

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 5.11.

  	
   

  	
  Specific Performance

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 5.12.

  	
   

  	
  Consent to Jurisdiction

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 5.13.

  	
   

  	
  Waiver of Right to Jury Trial

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 5.14.

  	
   

  	
  Arbitration

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 5.15.

  	
   

  	
  No Conflicting Agreement

  	
   

  	
  10

  



 


i





















 


SHAREHOLDERS AGREEMENT


 


This SHAREHOLDERS
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”), Minto Holdings Inc., a Canadian corporation
incorporated under the laws of Ontario (“Minto Holdings”), Inland
American Real Estate Trust, Inc. (“Inland”), the holders of common
stock, par value $1.00 per share, of the Company (the “Common Stock”),
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 (other than the
Company) 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 Supplemental
Shareholders Agreement, dated as of the date hereof, by and among 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, with Inland and the other parties named therein (the “Purchase
Agreement”) 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 (“Minto
Delaware”), owns 23,000 shares of the 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;


 


WHEREAS, the Holders
desire to provide herein for certain matters relating to the corporate
governance of the Company and to provide for certain actions to be undertaken
by 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:


 


“1031 Exchange”
means the use of the proceeds from the Company’s sales on July 25, 2005
and August 9, 2005 of its residential rental properties located in South
Florida to purchase replacement properties of approximately $293,000,000 in a
manner that qualifies for like-kind-exchange deferral under Section 1031
of the Code.


 


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


 


“Acquisition
Agreements” has the meaning specified in the Purchase 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 5.14.


 


“Arbitration Answer”
has the meaning specified in Section 5.14(c).


 


“Arbitration Claimants”
has the meaning specified in Section 5.14(c).


 


“Arbitration Demand”
has the meaning specified in Section 5.14(c).


 


“Arbitration Reply”
has the meaning specified in Section 5.14(c).


 


“Arbitration
Respondents” has the meaning specified in Section 5.14(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 and Series A Preferred Stock.


 


“Charter” means
the Second Amended and Restated Articles of Incorporation of the Company, as
filed with the State of Florida Department of State on October 11, 2005.


 


“Code” means the
Internal Revenue Code of 1986, as amended.


 


“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.


 


“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.


 


“Inland Designees”
has the meaning specified in Section 2.1(b).


 


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


 


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.


 


“Property” means
any of the residential rental property then owned by the Company.


 


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


 


“REIT” means a
real estate investment trust within the meaning of Section 856 of the
Code.


 


“Series A
Designee” has the meaning specified in Section 2.1(b) of this
Agreement.


 


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


 


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


 


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


 


“Sponsored Entity”
means an entity sponsored by Inland Real Estate Investment Corporation, a
Delaware corporation, that is (i) a REIT 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 Code or (ii) reasonably approved by the Series A
Holders.


 


“Subscription
Agreement” means the Series C Preferred Stock Subscription Agreement
that the Company has entered into dated as of the date hereof.


 


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


 


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


 


ARTICLE II



CORPORATE GOVERNANCE


 


SECTION 2.1.                       Election
of Directors; Number of Directors. 
At any annual or special shareholders meeting called for such purpose,
and whenever the shareholders of the Company act by written consent with
respect to the election or removal of directors, each Holder agrees to vote or
otherwise give such Holders’ consent in respect of all shares of Capital Stock
of the Company (whether now or hereafter acquired) owned by such Holder or
as to which such shareholder is entitled to vote, and the Company shall take
all necessary and desirable actions within its control, in order to cause:


 


(a)                                  the
authorized number of the directors on the Board to be established and remain at
five (5) directors (unless the Board decides to increase such number,
provided it is approved by the requisite percentage of the directors);


 


(b)                                 subject
to clause (c) below, the election to the Board of (i) two (2) individuals
designated by the Series A Holders (the “Series A Designees”)
and (ii) three (3) individuals designated by Inland (the “Inland
Designees”); and


 


3





















 


(c)                                  the
Inland Designees not to be removed from the Board at any time prior to June 30,
2006.


 


Directors shall not be
entitled to any compensation from the Company relating to their service to the
Company as director.


 


SECTION 2.2.                       Committees.  To the extent the Board determines to create
a committee of the Board, such as an audit committee, a compensation committee
or an investment committee, then a majority in interest of the Series A
Preferred Stock, voting as a single class, shall be entitled to appoint at
least one Series A Designee to serve on each such committees.


 


SECTION 2.3.                       Removal
of Directors.  Except as otherwise
provided in Sections 2.4 hereof, each Holder shall not take, and shall
cause its Affiliates not to take, any action to remove, with or without cause,
any director of the Company; provided, however, that upon the request of any
party hereto to remove a director previously designated for nomination by such
party, the Holders shall vote, and shall cause its Affiliates to vote, all of
the shares of Capital Stock and other voting securities owned by such Holder or
such Affiliates, as the case may be (whether now owned or hereafter acquired),
or which either is entitled to vote, in favor of (i) the removal of such
director and (ii) the election of any replacement director as may be
designated by such party, subject to the provisions of Section 2.1
hereof.  If a majority of the Series A
Preferred Stock is owned, directly or indirectly, by a Person other than Minto
Holdings or an Affiliate of Minto Holdings, then the rights of the Series A
Holders pursuant to Article II hereof shall terminate.


 


SECTION 2.4.                       Vacancies.  In the event a vacancy is created on the
Board by reason of the death, removal (in accordance with Section 2.3
above) or resignation of any of the directors, the party that designated
such director shall, within fifteen (15) days after the date such vacancy
first occurs, designate a nominee to replace such director, and the remaining
directors shall meet within thirty (30) days after the date such vacancy
first occurs for the purpose of electing such nominee to fill such
vacancy.  In the event the remaining
directors fail to fill such vacancy or fill such vacancy otherwise than in
accordance with the previous sentence, each of the Holders hereby agrees to,
and to cause its Affiliates to, cause the Company to hold a special meeting of
shareholders and to vote the shares of Capital Stock and other voting
securities owned by such Holder or such Affiliates, as the case may be (whether
now owned or hereafter acquired), or which either is entitled to vote, at such
meeting, in person or by proxy, in favor of removing, if necessary, any
director elected to fill such vacancy otherwise than in accordance with
previous sentence, and filling such vacancy in accordance with the provisions
of Section 2.1 above.  In lieu of
holding a special meeting, the Holders may act to remove and replace directors
by written consent; provided, that prior to taking such action by
written consent, all Holders are given not less than three (3) days prior
notice.


 


SECTION 2.5.                       Restrictions
on Other Agreements.  No Holder
shall, and each Holder shall cause its Affiliates not to, grant any proxy or
enter into or agree to be bound by any voting trust or voting agreement with
respect to the Capital Stock owned by such Holder nor shall any Holder, and
each Holder shall cause its Affiliates not to, enter into any shareholder
agreements or arrangements of any kind with any Person with respect to the
Capital Stock owned by such Holder on terms inconsistent with the provisions of
this Agreement (whether or not such agreements and arrangements are with other
Holders or holders of Capital Stock that are not parties to this Agreement).


 


4





















 


ARTICLE III



OBLIGATIONS BY THE COMPANY


 


SECTION 3.1.                       1031
Exchange.


 


(a)                                  The
Company shall not, until the tenth anniversary hereof, dispose of or enter into
any other transaction that would result in taxable income being recognized by
the Company with respect to the properties acquired by the Company in the 1031
Exchange without the prior written approval of a majority in interest of the Series A
Preferred Stock, voting as a single class. 
This approval will be deemed obtained if the right to cause a “Partial
Liquidation” pursuant to Section 2.04 of the Put/Call Agreement is
exercised provided that the proceeds from such “Partial Liquidation” will be
sufficient to, and used to, purchase 100% of the equity interests of Minto
Delaware or a transferee thereof in accordance with Section 2.01(a), (b) or
(c), Section 2.03 or Section 2.11 of the Put/Call Agreement.


 


(b)                                 The
Series A Holder shall have the right to review and approve all documentation
in connection with the closing on any property in the Company pursuant to the
Acquisition Agreements.


 


SECTION 3.2.                       REIT
Qualification.  The Company agrees
to, and each of the Holders agrees to use its reasonable best efforts to cause
the Company to:


 


(a)                                  elect
and qualify to be taxed as a REIT, within the meaning of Section 856 of
the Code, commencing with its taxable year ending December 31, 2005; and


 


(b)                                 qualify
as a “domestically controlled REIT,” within the meaning of Section 897(h)(4)(B) of
the Code, by no later than March 31, 2011 and at all times thereafter,
continue to qualify as a “domestically controlled REIT;” and if a change in
ownership in Inland causes the Company not to be able to meet this requirement,
each of the Company and Inland will use its best efforts to effectuate a change
in ownership in Inland such that immediately upon the five (5) year
anniversary of such change in ownership, the Company will qualify as a “domestically
controlled REIT” and at all times thereafter continue to qualify as a “domestically
controlled REIT.”


 


ARTICLE IV



MISCELLANEOUS OBLIGATIONS.


 


SECTION 4.1.                       Ability
to Exercise Rights Under the Purchase Agreement or Subscription Agreement.  If Inland does not fund its obligations under
Section 2.4 of the Purchase Agreement, the Company must first exercise its
rights and exhaust its remedies under the Subscription Agreement before
exercising any remedies against Inland; provided, however, that notwithstanding
the foregoing, Inland shall be obligated to fund an aggregate of $1,173,920,000
in the Company by no later than December 31, 2006.  The Company shall redeem all outstanding
shares of Series C Preferred Stock by no later than December 31,
2006.


 


SECTION 4.2.                       Property
Opportunities.  Inland shall not be
entitled to acquire, directly or indirectly, (i) any 100% fee interest or
leasehold interest in real property or (ii) any interest in real property
through a co-tenancy arrangement, in either case other than through the Company
until Inland has satisfied its obligations under Section 2.4 of the
Purchase Agreement and unless in compliance with Section 3.2.8 of the
Charter, unless the Board determines in its reasonable discretion not to
acquire any such acquisition opportunity described in clause (i) or (ii) above;
provided that nothing herein shall prohibit Inland from acquiring any interest
through a Real Estate Operating Company as that term is


 


5





















 


defined
in the Business Management Agreement dated as of August 31, 2005 by and
between Inland and Inland American Business Manager & Advisor, Inc.


 


SECTION 4.3.                       Net
Worth of Minto Holdings.  In support
of Minto Holdings’ obligations under Article X of the Purchase Agreement,
Minto Holdings agrees to maintain a net worth (exclusive of any value of Minto
Holdings attributable, directly or indirectly, to Capital Stock or other equity
interests of the Company) of not less than $150 million and agrees to provide
to Inland, within 90 days of the end of each fiscal year, a letter from its
auditors certifying that Minto Holdings has shareholders’ equity as reported in
the consolidated balance sheet of Minto Holdings of no less than $150 million
(exclusive of any value of Minto Holdings attributable, directly or indirectly,
to Capital Stock or other equity interests of the Company).


 


SECTION 4.4.                       Legends.  The parties hereto agree that each
certificate representing any Voting Stock or Series A Preferred Stock
shall bear the following legend until such time as the same is no longer applicable:


 


“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE TERMS OF, AND ARE ENTITLED TO THE BENEFITS SET FORTH IN, A
SHAREHOLDERS AGREEMENT, A SECURITIES PURCHASE AND SUBSCRIPTION AGREEMENT AND A
PUT/CALL AGREEMENT, EACH DATED AS OF OCTOBER 11, 2005, A COPY OF WHICH IS
ON FILE AT THE OFFICE OF THE COMPANY. 
THE COMPANY WILL FURNISH A COPY OF EACH SUCH AGREEMENT TO THE RECORD
HOLDER HEREOF WITHOUT CHARGE UPON WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL
PLACE OF BUSINESS OR REGISTERED OFFICE.”


 


ARTICLE V



MISCELLANEOUS


 


SECTION 5.1.                       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 5.2.                       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 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 5.3.                       Amendments.  This Agreement may be amended only by a
written instrument signed by each of the parties hereto.


 


SECTION 5.4.                       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 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 


 


6





















 


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

  
	
  Suite 2800

  
	
  Chicago, Illinois 60601

  



 


7





















 


	
  Attention: Michael J. Choate, Esq.

  
	
  Facsimile: 
  (312) 275-7554

  



 


SECTION 5.5.                       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 5.6.                       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 5.7.                       Counterparts.  This Agreement or any amendment hereto thereof 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 5.8.                       Termination.  This Agreement (other than
Sections 5.11, 5.12, 5.13 and 5.14) shall terminate upon the written
consent of each of the parties hereto.


 


SECTION 5.9.                       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 5.10.                 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 5.11.                 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 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 5.12.                 Consent to
Jurisdiction.   SUBJECT TO THE
PROVISIONS OF SECTION 5.14, 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


 


8





















 


MEASURES
IN AID OF ARBITRATION, PROVISIONAL REMEDIES AND INTERIM RELIEF, OR ANY
PROCEEDING TO ENFORCE ANY ARBITRAL DECISION OR AWARD.


 


SECTION 5.13.                 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 5.14.                 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 5.14.  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 the (i) Inland
and (ii) Minto Delaware.  If the
respective parties in interest cannot agree on an arbitrator within fourteen
(14) 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.  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


 


9





















 


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 5.14,
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 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 5.15.                 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 Shareholders 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

  



 





















 


SCHEDULE A


 


HOLDERS OF COMMON STOCK


 


Minto (Delaware), LLC


 


HOLDERS OF SERIES A PREFERRED STOCK


 


Minto (Delaware), LLC