Common use of MB REIT Transfers Clause in Contracts

MB REIT Transfers. Subject to the terms and conditions of subparagraphs (1), (2), and (3), below, the following series of transactions (each, an “MB REIT Transfer”) to be consummated between the date of this Agreement and December 31, 2006, that will lead to the full capitalization of Minto Builders (Florida), Inc., a Florida corporation and a REIT (“MB REIT”): (i) To the extent not completed prior to the date of this Agreement, issuance to individuals of 125 shares of non-voting Series B Preferred Stock in MB REIT to satisfy certain REIT regulations requiring MB REIT to have at least 100 shareholders; such Series B Preferred Stock will be issued at a price of $1,000 per share with a 12.5% preferred return and shall have no voting rights; (ii) Issuance to Inland Western Real Estate Trust, Inc., a Maryland corporation and a public REIT (“Inland Western”), of up to $60,000,000.00 in additional Class C Preferred Stock in MB REIT and the subsequent redemption thereof by MB REIT; such Class C Preferred Stock will earn a preferred return of 7% and shall have no voting rights; and (iii) Issuance to Inland American Real Estate Trust, Inc., a Maryland corporation and a public REIT (“Inland American”), of up to $1,128,000,000.00 in additional Special Voting Stock in MB REIT and the subsequent conversion thereof to Common Stock so that after such issuance and conversion Inland American will own 80% of the value of the stock of MB REIT and approximately 97.5% of the Common Stock of MB REIT, with Minto (Delaware), LLC, a Delaware limited liability company, owning the remaining approximately 2.5% of the Common Stock. Such Special Voting Stock shall be convertible to Common Stock and entitled to 0.99 votes per share and a liquidation preference of $0.01 per share. The Common Stock in MB REIT shall be entitled to one vote per share. provided, that, with respect to any of the transactions described in this Section 18(a): (1) With respect to any MB REIT Transfer resulting in Inland American becoming the owner of greater than forty-nine percent (49%) of the direct or indirect ownership interests in Borrower or MB REIT, Borrower shall deliver to Noteholder and Noteholder’s counsel: (A) written notice of such MB REIT Transfer at least fifteen (15) business days prior to the consummation thereof; which notice requirement may be satisfied by Borrower giving written notice to Noteholder, at least fifteen (15) business days prior to the commencement of such period, of the thirty (30) day period in which Borrower anticipates such MB REIT Transfer will occur (e.g., if Borrower anticipates that such transaction will occur during the period from July 1 to July 30, 2006, Borrower shall give written notice thereof to Noteholder on or before June 12, 2006), and, if such MB REIT Transfer does not occur during the thirty-day period identified in any such notice, then Borrower shall give a subsequent written notice to Noteholder at least fifteen (15) business days prior to the commencement of a later thirty-day period in which Borrower then anticipates such MB REIT Transfer will occur; in all events, Borrower shall give written notice to Noteholder of such MB REIT Transfer within ten (10) business days after the consummation thereof; and (B) at least ten (10) business days prior to such MB REIT Transfer, a non-consolidation opinion in form and substance, and issued by a law firm, satisfactory to Noteholder and its counsel in their sole discretion, it being acknowledged that such non-consolidation opinion may be delivered to Noteholder and its counsel at any time during the ninety (90) day period prior to such MB REIT Transfer and Borrower shall promptly after the consummation of such MB REIT Transfer cause to be delivered to Noteholder a re-dated original of such non-consolidation opinion, dated as of the date of such consummation. (2) Within ten (10) business days after the end of each calendar quarter (commencing with the calendar quarter ending June 30, 2006), Borrower shall give Noteholder written notice of any MB REIT Transfer(s) that has occurred during said calendar quarter, including the MB REIT Transfer described in subparagraph (1), above; and (3) Except as contemplated in subparagraph (1), above, no MB REIT Transfer shall be a “Permitted Transfer” under this Section 18 if it results in either (A) any Person who does not now, as of the date of this Agreement, own greater than forty-nine percent (49%) of the ownership interests in Borrower or MB REIT becoming the owner (by itself or together with its Affiliates) of greater than forty-nine percent (49%) of the ownership interests in Borrower or MB REIT, or (B) any Person who does not now, as of the date of this Agreement, Control Borrower or MB REIT, obtaining Control (by itself or together with its Affiliates) of Borrower or MB REIT (as such term “Control” is hereinafter defined). Any transaction described in this subparagraph (3) shall be subject to the applicable terms and conditions of the Loan Documents, including, without limitation, Article 8 of the Security Instrument, and, without limitation, unless earlier notice is required under any such terms and conditions, Borrower shall give Noteholder at least fifteen (15) business days advance written notice of any transaction described in this subparagraph (3). “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or other agreement or otherwise; “Controlling” has a correlative meaning.

MB REIT Transfers. Subject to the terms and conditions of subparagraphs (1), (2), and (3), below, the following series of transactions (each, an “MB REIT Transfer”) to be consummated between the date of this Agreement and December 31, 2006, that will lead to the full capitalization of Minto Builders (Florida), Inc., a Florida corporation and a REIT (“MB REIT”): (i) To the extent not completed prior to the date of this Agreement, issuance to individuals of 125 shares of non-voting Series B Preferred Stock in MB REIT to satisfy certain REIT regulations requiring MB REIT to have at least 100 shareholders; such Series B Preferred Stock will be issued at a price of $1,000 per share with a 12.5% preferred return and shall have no voting rights; (ii) Issuance to Inland Western Real Estate Trust, Inc., a Maryland corporation and a public REIT (“Inland Western”), of up to $60,000,000.00 in additional Class C Preferred Stock in MB REIT and the subsequent redemption thereof by MB REIT; such Class C Preferred Stock will earn a preferred return of 7% and shall have no voting rights; and (iii) Issuance to Inland American Real Estate Trust, Inc., a Maryland corporation and a public REIT (“Inland American”), of up to $1,128,000,000.00 in additional Special Voting Stock in MB REIT and the subsequent conversion thereof to Common Stock so that after such issuance and conversion Inland American will own 80% of the value of the stock of MB REIT and approximately 97.5% of the Common Stock of MB REIT, with Minto (Delaware), LLC, a Delaware limited liability company, owning the remaining approximately 2.5% of the Common Stock. Such Special Voting Stock shall be convertible to Common Stock and entitled to 0.99 votes per share and a liquidation preference of $0.01 per share. The Common Stock in MB REIT shall be entitled to one vote per share. provided, that, with respect to any of the transactions described in this Section 18(a): (1) With respect to any MB REIT Transfer resulting in Inland American becoming the owner of greater than forty-nine percent (49%) of the direct or indirect ownership interests in Borrower or MB REIT, Borrower shall deliver to Noteholder and Noteholder’s counsel: (A) written notice of such MB REIT Transfer at least fifteen (15) business days prior to the consummation thereof; which notice requirement may be satisfied by Borrower giving written notice to Noteholder, at least fifteen (15) business days prior to the commencement of such period, of the thirty (30) day period in which Borrower anticipates such MB REIT Transfer will occur (e.g., if Borrower anticipates that such transaction will occur during the period from July 1 to July 30, 2006, Borrower shall give written notice thereof to Noteholder on or before June 12, 200612,2006), and, if such MB REIT Transfer does not occur during the thirty-day period identified in any such notice, then Borrower shall give a subsequent written notice to Noteholder at least fifteen (15) business days prior to the commencement of a later thirty-day period in which Borrower then anticipates such MB REIT Transfer will occur; in all events, Borrower shall give written notice to Noteholder of such MB REIT Transfer within ten (10) business days after the consummation thereof; and (B) at least ten (10) business days prior to such MB REIT Transfer, a non-consolidation opinion in form and substance, and issued by a law firm, satisfactory to Noteholder and its counsel in their sole discretion, it being acknowledged that such non-consolidation opinion may be delivered to Noteholder and its counsel at any time during the ninety (90) day period prior to such MB REIT Transfer and Borrower shall promptly after the consummation of such MB REIT Transfer cause to be delivered to Noteholder a re-dated original of such non-consolidation opinion, dated as of the date of such consummation. (2) Within ten (10) business days after the end of each calendar quarter (commencing with the calendar quarter ending June 30, 2006), Borrower shall give Noteholder written notice of any MB REIT Transfer(s) that has occurred during said calendar quarter, including the MB REIT Transfer described in subparagraph (1), above; and (3) Except as contemplated in subparagraph (1), above, no MB REIT Transfer shall be a “Permitted Transfer” under this Section 18 if it results in either (A) any Person who does not now, as of the date of this Agreement, own greater than forty-nine percent (49%) of the ownership interests in Borrower or MB REIT becoming the owner (by itself or together with its Affiliates) of greater than forty-nine percent (49%) of the ownership interests in Borrower or MB REIT, or (B) any Person who does not now, as of the date of this Agreement, Control Borrower or MB REIT, obtaining Control (by itself or together with its Affiliates) of Borrower or MB REIT (as such term “Control” is hereinafter defined). Any transaction described in this subparagraph (3) shall be subject to the applicable terms and conditions of the Loan Documents, including, without limitation, Article 8 of the Security Instrument, and, without limitation, unless earlier notice is required under any such terms and conditions, Borrower shall give Noteholder at least fifteen (15) business days advance written notice of any transaction described in this subparagraph (3). “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or other agreement or otherwise; “Controlling” has a correlative meaning.

MB REIT Transfers. Subject to the terms and conditions of subparagraphs (1), (2), and (3), below, the following series of transactions (each, an “MB REIT Transfer”) to be consummated between the date of this Agreement and December 31, 2006, that will lead to the full capitalization of Minto Builders (Florida), Inc., a Florida corporation and a REIT (“MB REIT”): (i) To the extent not completed prior to the date of this Agreement, issuance to individuals of 125 shares of non-voting Series B Preferred Stock in MB REIT to satisfy certain REIT regulations requiring MB REIT to have at least 100 shareholders; such Series B Preferred Stock will be issued at a price of $1,000 per share with a 12.5% preferred return and shall have no voting rights; (ii) Issuance to Inland Western Real Estate Trust, Inc., a Maryland corporation and a public REIT (“Inland Western”), of up to $60,000,000.00 in additional Class C Preferred Stock in MB REIT and the subsequent redemption thereof by MB REIT; such Class C Preferred Stock will earn a preferred return of 7% and shall have no voting rights; and (iii) Issuance to Inland American Real Estate Trust, Inc., a Maryland corporation and a public REIT (“Inland American”), of up to $1,128,000,000.00 in additional Special Voting Stock in MB REIT and the subsequent conversion thereof to Common Stock so that after such issuance and conversion Inland American will own 80% of the value of the stock of MB REIT and approximately 97.5% of the Common Stock of MB REIT, with Minto (Delaware), LLC, a Delaware limited liability company, owning the remaining approximately 2.5% of the Common Stock. Such Special Voting Stock shall be convertible to Common Stock and entitled to 0.99 votes per share and a liquidation preference of $0.01 per share. The Common Stock in MB REIT shall be entitled to one vote per share. provided, that, with respect to any of the transactions described in this Section 18(a): (1) With respect to any MB REIT Transfer resulting in Inland American becoming the owner of greater than forty-nine percent (49%) of the direct or indirect ownership interests in Borrower or MB REIT, Borrower shall deliver to Noteholder and Noteholder’s counsel: (A) written notice of such MB REIT Transfer at least fifteen (15) business days prior to the consummation thereof; which notice requirement may be satisfied by Borrower giving written notice to Noteholder, at least fifteen (15) business days prior to the commencement of such period, of the thirty (30) day period in which Borrower anticipates such MB REIT Transfer will occur (e.g., if Borrower anticipates that such transaction will occur during the period from July 1 to July 30, 2006, Borrower shall give written notice thereof to Noteholder on or before June 12, 2006), and, if such MB REIT Transfer does not occur during the thirty-day period identified in any such notice, then Borrower shall give a subsequent written notice to Noteholder at least fifteen (15) business days prior to the commencement of a later thirty-day period in which Borrower then anticipates such MB REIT Transfer will occur; in all events, Borrower shall give written notice to Noteholder of such MB REIT Transfer within ten (10) business days after the consummation thereof; and (B) at least ten (10) business days prior to such MB REIT Transfer, a non-consolidation opinion in form and substance, and issued by a law firm, satisfactory to Noteholder and its counsel in their sole discretion, it being acknowledged that such non-consolidation nonconsolidation opinion may be delivered to Noteholder and its counsel at any time during the ninety (90) day period prior to such MB REIT Transfer and Borrower shall promptly after the consummation of such MB REIT Transfer cause to be delivered to Noteholder a re-dated original of such non-consolidation opinion, dated as of the date of such consummation. (2) Within ten (10) business days after the end of each calendar quarter (commencing with the calendar quarter ending June 30, 2006), Borrower shall give Noteholder written notice of any MB REIT Transfer(s) that has occurred during said calendar quarter, including the MB REIT Transfer described in subparagraph (1), above; and (3) Except as contemplated in subparagraph (1), above, no MB REIT Transfer shall be a “Permitted Transfer” under this Section 18 if it results in either (A) any Person who does not now, as of the date of this Agreement, own greater than forty-nine percent (49%) of the ownership interests in Borrower or MB REIT becoming the owner (by itself or together with its Affiliates) of greater than forty-nine fortynine percent (49%) of the ownership interests in Borrower or MB REIT, or (B) any Person who does not now, as of the date of this Agreement, Control Borrower or MB REIT, obtaining Control (by itself or together with its Affiliates) of Borrower or MB REIT (as such term “Control” is hereinafter defined). Any transaction described in this subparagraph (3) shall be subject to the applicable terms and conditions of the Loan Documents, including, without limitation, Article 8 of the Security Instrument, and, without limitation, unless earlier notice is required under any such terms and conditions, Borrower shall give Noteholder at least fifteen (15) business days advance written notice of any transaction described in this subparagraph (3). “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or other agreement or otherwise; “Controlling” has a correlative meaning.