Exhibit 10.47


 


EXECUTION COPY


 


GENERAL GROWTH PROPERTIES, INC.


REGISTRATION RIGHTS AGREEMENT


 


THIS REGISTRATION RIGHTS AGREEMENT, dated as of November     ,
2010 (this “Agreement”), by and between the purchasers listed on Schedule
I hereto (the “Purchasers”), Blackstone Real Estate Partners VI
L.P., a Delaware limited partnership (“BREP VI”) and the purchasers,
listed on Schedule II hereto (collectively with BREP VI, “Blackstone”),
and General Growth Properties, Inc., a Delaware corporation (the “Company”).


 


R E C I T A L S


 


WHEREAS, the Purchasers have, pursuant to the terms of that certain
Amended and Restated Stock Purchase Agreement, effective as of March 31,
2010, by and between the Company and the Purchasers (as the same may be amended
from time to time, the “Stock Purchase Agreement”) agreed, among other
things, to purchase 108,571,429 shares of common stock, par value $0.01, of the
Company (the “Common Stock”);


 


WHEREAS, (a) the Purchasers have, pursuant to the terms of that
certain Purchase Agreement, dated as of August 2, 2010, by and among the
Purchasers and BREP VI agreed, among other things, that Blackstone shall
purchase in the Purchasers’ place 8,287,895 shares of Common Stock under the
Stock Purchase Agreement, (b) REP Investments LLC (“REP”) has,
pursuant to the terms of that certain Purchase Agreement, dated as of August 2,
2010, by and between REP and BREP VI agreed, among other things, that
Blackstone shall purchase in REP’s place 19,083,970 shares of Common Stock
under the Cornerstone Investment Agreement (as defined below) and (c) The
Fairholme Fund, a series of Fairholme Funds, Inc. and Fairholme Focused
Income Fund, a series of Fairholme Funds, Inc. have, pursuant to the terms
of that certain Purchase Agreement, dated as of August 2, 2010, by and
among such entities and BREP VI agreed, among other things, that Blackstone
shall purchase in their place 20,719,738 shares of Common Stock under the
Fairholme Stock Purchase Agreement (as defined below); and


 


WHEREAS, in case any securities held by a Purchaser or Blackstone or
any of their respective transferees are at any time not freely transferable by
the holder in accordance with applicable laws, the Company, Blackstone and the
Purchasers desire to define certain registration rights with respect to the
Common Stock, certain warrants and certain other securities on the terms and
subject to the conditions herein set forth.


 


NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the parties hereby agree as follows:


 


SECTION 1.  DEFINITIONS


 


As used in this Agreement, the following terms have the respective
meanings set forth below:


 


Affiliate:  shall mean
as to any Person, any other Person which, directly or indirectly, is in control
of, is controlled by, or is under common control with, the first Person.  A


 

















 


Person
shall be deemed to control another Person if the controlling Person possesses,
directly or indirectly, the power to direct or cause the direction of the
management and policies of the other Person, whether through the ownership of
voting securities, by contract, or otherwise;


 


Agreement:  shall have
the meaning set forth in the Preamble hereto;


 


Blackstone:  shall have
the meaning set forth in the Preamble hereto;


 


Brookfield Holders:  shall mean the “Holders” defined in that
certain Registration Rights Agreement, dated as of the date hereof, by and
between the Company and Brookfield Retail Holdings LLC (formerly known as REP
Investments LLC), a Delaware limited liability company, Brookfield Retail
Holdings II LLC, a Delaware limited liability company, Brookfield Retail
Holdings III LLC, a Delaware limited liability company, Brookfield Retail
Holdings IV-A LLC, a Delaware limited liability company, Brookfield Retail
Holdings IV-D LLC, a Delaware limited liability company, Brookfield Retail
Holdings V LP, a Delaware limited partnership, and Brookfield US Retail
Holdings LLC, a Delaware limited liability company, as amended from time to
time;


 


Brookfield/Fairholme Holders:  shall mean, collectively, the Brookfield
Holders and Fairholme Holders, and a Brookfield/Fairholme Holder shall mean any
Brookfield Holder or Fairholme Holder;


 


Closing Date: shall have the meaning ascribed thereto in the
Stock Purchase Agreement;


 


Commission:  shall mean
the Securities and Exchange Commission or any other federal agency at the time
administering the Securities Act;


 


Common Stock:  shall have
the meaning set forth in the Recitals hereto;


 


Company:  shall have
the meaning set forth in the Preamble hereto;


 


Cornerstone Investment Agreement:  shall
mean that certain Amended and Cornerstone Investment Agreement, effective as of March 31, 2010, by and
between the Company and REP Investments LLC, a Delaware limited liability
company, as amended from time to time;


 


Demand Notice: shall have the meaning set forth in Section 2(a)(i) hereof;


 


Exchange Act:  shall mean
the Securities Exchange Act of 1934, as amended (or any successor act), and the
rules and regulations promulgated thereunder;


 


Fairholme Holders: 
shall mean the “Holders” defined in that certain Registration Rights
Agreement, dated as of the date hereof, by and between the Company and The
Fairholme Fund, a series of Fairholme Funds, Inc. a Maryland corporation,
and Fairholme Focused Income Fund, a series of Fairholme Funds, Inc., a
Maryland corporation, as amended from time to time;


 


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Fairholme Stock Purchase Agreement:  shall
mean that certain Amended and Restated Stock
Purchase Agreement, effective as of March 31, 2010, by and
between the Company and the Fairholme Holders, as amended from time to time;


 


FINRA:  shall mean
the Financial Industry Regulatory Authority;


 


Holder:  shall mean
any holder of Registrable Securities subject to this Agreement, solely in their
capacity as such, including Permitted Assignees;


 


Indemnified Party: 
shall have the meaning set forth in Section 2(f)(iii) hereof;


 


Indemnifying Party:  shall have the meaning set forth in Section 2(f)(iii) hereof;


 


Initial Investors: 
shall mean (i) the Purchasers, (ii) any member of the
Purchaser Group, (iii) Blackstone and (iv) any Permitted Assignees
under clauses (i) and (ii) of Section 3(e) hereof;


 


Initiating Holder(s):  shall mean any Holder or any group of
Holders, other than Blackstone, with respect to the Registrable Securities it
is designated to receive pursuant to the Investment Agreements;


 


Investment Agreements:  shall mean, collectively, the Cornerstone
Investment Agreement, the Fairholme Stock Purchase Agreement and the Stock
Purchase Agreement;


 


Investors:  shall mean (i) any
Initial Investors and (ii) any Permitted Assignees under clause (iii) of
Section 3(e) hereof;


 


Issuer Free Writing Prospectus:  shall mean an “Issuer Free Writing
Prospectus,” as defined in Rule 433 under the Securities Act, relating to
an offer of Registrable Securities;


 


Losses:  shall have
the meaning set forth in Section 2(f)(i) hereof;


 


Other Stockholders:  shall have the meaning set forth in Section 2(a)(iii) hereof;


 


Participating Holders:  shall mean Holders participating in the
Registration relating to the Registrable Securities;


 


Permitted Assignees:  shall have the meaning set forth in Section 3(e) hereto;


 


Person:  shall mean
an individual, partnership, joint-stock company, corporation, trust or
unincorporated organization, and a government or agency or political
subdivision thereof;


 


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Prospectus:  shall mean
the prospectus (including any preliminary, final or summary prospectus)
included in any Registration Statement, all amendments and supplements to such
prospectus and all other material incorporated by reference in such prospectus;


 


Purchaser Group: shall have the meaning ascribed thereto in
the Stock Purchase Agreement;


 


Purchasers:  shall have
the meaning set forth in the Preamble hereto;


 


Qualifying Employee Stock:  shall mean (i) rights and options issued
in the ordinary course of business under employee benefits plans of the Company
or any predecessor or otherwise to executives in compensation arrangements
approved by the Board of Directors of the Company or any predecessor and any
securities issued after the date hereof upon exercise of such rights and
options and options issued to employees of the Company or any predecessor as a
result of adjustments to options in connection with the reorganization of the
Company or any predecessor and (ii) restricted stock and restricted stock
units issued after the date hereof in the ordinary course of business under
employee benefit plans and securities issued after the date hereof in
settlement of any such restricted stock units;


 


Register, Registered and Registration:  shall mean a registration effected by
preparing and (a) filing a Registration Statement in compliance with the
Securities Act (and any post-effective amendments filed or required to be
filed) and the declaration or ordering of effectiveness of such Registration
Statement, or (b) filing a Prospectus and/or prospectus supplement in
respect of an appropriate effective Registration Statement;


 


Registrable Securities:  shall mean (A) any shares of Common
Stock acquired or held by an Initial Investor on or after the date hereof
(whether or not acquired pursuant to the Stock Purchase Agreement), including
without limitation shares of Common Stock acquired in connection with the
exercise of any Warrants and shares of Common Stock which at any time an
Initial Investor has a right or obligation to purchase under the Stock Purchase
Agreement, (B) (i) any securities of the Company or its Affiliates
issued as a dividend or other distribution with respect to, or in exchange for
or in conversion, exercise or replacement of, any Registrable Securities
described in (A) or (C) (the “Initial Securities”) or
securities that may become Registrable Securities by virtue of clause (B)(iii) or
(ii) any securities of the Company or its Affiliates offered wholly or
partly in consideration of the Initial Securities or securities that may become
Registrable Securities by virtue of clause (B)(iii) in any tender or
exchange offer or (iii) any securities of the Company or its Affiliates
issued as a dividend or other distribution with respect to, or in exchange for
or in conversion, exercise or replacement of or offered wholly or partly in any
tender or exchange offer in consideration of any Registrable Securities
described in (B)(i) or (B)(ii), (C) Warrants acquired or held by an
Initial Investor on or after the date hereof and (D) any Registrable
Securities described in (A), (B) or (C) above acquired or held by a Person, for which rights
and obligations have been assigned pursuant to clause (iii) of Section 3(e) and
in accordance with the terms of Section 3(e) hereof; provided,
that as to any particular Registrable Securities, such securities shall cease
to be Registrable Securities (i) when a Registration Statement with
respect to such securities has been declared effective under the Securities Act
and such securities have been disposed of pursuant to such Registration
Statement,


 


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(ii) after
such securities have been sold in accordance with Rule 144 (but not Rule 144A),
(iii) after such securities shall have otherwise been transferred and new
securities not subject to transfer restrictions under any federal securities
laws and not bearing any legend restricting further transfer shall have been
delivered by the Company, all applicable holding periods shall have expired,
and no other applicable and legally binding restriction on transfer by the
holder thereof shall exist, (iv) when such securities are eligible for
sale pursuant to Rule 144 under the Securities Act without limitation
thereunder on volume or manner of sale, or (v) when such securities cease
to be outstanding;


 


Registration Expenses:  shall mean (a) any and all expenses
incurred by the Company and its Subsidiaries in effecting any Registration
pursuant to this Agreement, including, without limitation, all (i) Registration
and filing fees, and all other fees and expenses payable in connection with the
listing of securities on any securities exchange or automated interdealer
quotation system, (ii) fees and expenses of compliance with any securities
or “blue sky” laws (including fees and disbursements of counsel in connection
with “blue sky” qualifications of the securities registered), (iii) expenses
in connection with the preparation, printing, mailing and delivery of any
Registration Statements, Prospectuses, Issuer Free Writing Prospectus and
other documents in connection therewith and any amendments or supplements thereto,
(iv) security engraving and printing expenses, (v) internal expenses
of the Company (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), (vi) fees
and disbursements of counsel for the Company and fees and expenses for
independent certified public accountants retained by the Company (including the
expenses associated with the delivery by independent certified public
accountants of any comfort letters requested pursuant to the terms hereof), (vii) fees
and expenses of any special experts retained by the Company in connection with
such Registration, (viii) fees and expenses in connection with any review
by FINRA of any underwriting arrangements or other terms of the offering, and all
reasonable fees and expenses of any “qualified independent underwriter”, (ix) reasonable
fees and disbursements of underwriters customarily paid by issuers or sellers
of securities, but excluding any underwriting fees, discounts and commissions
attributable to the sale of Registrable Securities and fees and expenses of
counsel, (x) costs of printing and producing any agreements among
underwriters, underwriting agreements, any “blue sky” or legal investment
memoranda and any selling agreements and other documents in connection with the
offering, sale or delivery of the Registrable Securities, (xi) transfer
agents’ and registrars’ fees and expenses and the fees and expenses of any
other agent or trustee appointed in connection with such offering and (xii) expenses
relating to any analyst or investor presentations or any “road shows”
undertaken in connection with the Registration, marketing or selling of the
Registrable Securities and (b) reasonable and documented fees and expenses
of one counsel for all of the Participating Holders, which counsel shall be
selected by the Participating Holder holding the largest number of the
Registrable Securities to be sold in the applicable Registration.  Registration Expenses shall not include any
out-of-pocket expenses of the Participating Holders;


 


Registration Statement:  shall mean any registration statement of the
Company that covers Registrable Securities pursuant to the provisions of this
Agreement filed with, or to be filed with, the Commission under the rules and
regulations promulgated under the Securities Act, including the related
Prospectus, amendments and supplements to such registration statement,
including pre- and post-effective amendments, and all exhibits, financial
information and all material incorporated by reference in such registration
statement;


 


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Required Shelf Registration Statement: shall have the meaning set
forth in Section 2(c);


 


Rule 144; Rule 144A:  shall mean Rule 144 and Rule 144A,
respectively, under the Securities Act (or any successor provisions then in
force);


 


S-1 Registration Statement: shall mean a registration
statement of the Company on Form S-1 (or any comparable or successor form)
filed with the Commission registering any Registrable Securities;


 


Scheduled Black-Out Period:  shall mean the period from and including the
last day of a fiscal quarter of the Company to and including the earliest of (i) the
Business Day after the day on which the Company publicly releases its earnings
information for such quarter or annual earnings information, as applicable, and
(ii) the day on which the executive officers and directors of the Company
are no longer prohibited by Company policies applicable with respect to such
quarterly earnings period from buying or selling equity securities of the
Company;


 


security, securities:  shall have the meaning set forth in Section 2(a)(1) of
the Securities Act;


 


Securities Act: 
shall mean the Securities Act of 1933, as amended (or any successor
statute thereto), and the rules and regulations promulgated thereunder;


 


Selling Expenses: 
shall mean all underwriting discounts, selling commissions and stock
transfer taxes applicable to the sale of Registrable Securities and all fees
and disbursements of counsel for each of the Holders, other than the fees and
expenses of one counsel for all of the Holders, which shall be paid for by the
Company in accordance with the terms set forth in clause (b) of the
definition of “Registration Expenses” set forth herein;


 


Shelf Registration Statement:  shall mean a “shelf” registration statement
of the Company that covers all the Registrable Securities (and may cover other
securities of the Company) on Form S-3 and under Rule 415 or, if the
Company is not then eligible to file on Form S-3, on Form S-1 under
the Securities Act, or any successor rule that may be adopted by the
Commission, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and any document incorporated by
reference therein;


 


Stock Purchase Agreement:  shall have the meaning set forth in the
Recitals hereto; and


 


Warrants:  shall mean
the warrants issued by the Company from time to time pursuant to that certain
Warrant Agreement, dated as of November       ,
2010, by and between the Company and Mellon Investor Services LLC.


 


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SECTION 2.  REGISTRATION RIGHTS


 


(a)           Demand Registration.


 


(i)            Request for Registration.  Subject to the limitations and conditions of Section 2(a)(ii),
if the Company shall receive from an Initiating Holder(s) a written demand
(the “Demand Notice”) that the Company effect any Registration with
respect to all or a part of the Registrable Securities owned by such Initiating
Holder(s) having an estimated aggregate fair market value of at least $75
million, the Company shall:


 


(1)           promptly give written notice of the proposed Registration
to all other Holders in accordance with the terms of Section 2(b);


 


(2)           use its reasonable best
efforts to file a Registration Statement with the Commission in
accordance with the request of the Initiating Holder(s), including without
limitation the method of disposition specified therein and
covering resales of the Registrable Securities requested to be
registered, as promptly as reasonably
practicable but no later than (x) in the case of a Registration Statement
other than an S-1 Registration Statement, within 30 days of
receipt of the Demand Notice or (y) in the case of an S-1 Registration
Statement, within 60 days of
receipt of the Demand Notice;


 


(3)           use reasonable best
efforts to cause such Registration Statement to be declared or become
effective as promptly as practicable, but in no event later than 60 days after the date of initial filing of a Registration Statement
pursuant to Section 2(a)(i)(2); and


 


(4)           use reasonable best efforts to keep such Registration Statement continuously effective and
in compliance with the Securities Act and usable for resale of such Registrable
Securities for the period as requested in
writing by the Initiating Holder(s) or such longer period as may be
requested in writing by any Holder participating in such registration (which
periods shall be extended to the extent of any suspensions of sales pursuant to
Sections 2(a)(ii)(3) or (4));


 


provided, however,
that the Company shall be permitted, with the consent of the Initiating Holder(s) not
to be unreasonably withheld, to file a post-effective amendment or prospectus
supplement to any currently effective Shelf Registration Statement (including,
without limitation, any resale registration statement filed pursuant to the
terms of the Stock Purchase Agreement) in lieu of an additional registration
statement pursuant to Section 2(a)(i) to the extent the Company
reasonably determines that the Registrable Securities of the Initiating Holder(s) may
be sold thereunder by such Initiating Holder(s) pursuant to their intended
plan of distribution (in which case such post-effective amendment or prospectus
supplement shall not be counted against the limited number of demand
registrations).  It shall not be
unreasonable if, following the recommendation of an underwriter, the Initiating
Holder(s) do not consent to the Company filing a post-effective amendment
or prospectus supplement to a Shelf Registration Statement in lieu of an
additional registration statement requested by the Initiating Holder(s).


 


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(ii)           Notwithstanding anything to the contrary contained herein,
the Company shall not be obligated to effect, or take any action to effect, any
such Registration pursuant to this Section 2(a):


 


(1)           In any particular jurisdiction in which the Company would
be required to execute a general consent to service of process or qualify to do
business in effecting such Registration, qualification or compliance, unless
the Company is already subject to service in such jurisdiction and except as
may be required by the Securities Act or applicable rules or regulations
thereunder;


 


(2)           With respect to securities that are not Registrable
Securities;


 


(3)           If the Company has notified the Holders that in the good
faith judgment of the Company, it would be materially detrimental to the
Company or its security holders for such registration to be effected at such
time, in which event the Company shall have the right to defer such
registration for a period of not more than 60 days; provided, that such
right to delay a registration pursuant to clause (3) shall be exercised by
the Company only if the Company has generally exercised (or is concurrently
exercising) similar black-out rights against holders of similar securities that
have registration rights, if any; or


 


(4)           Solely with respect to any
Affiliate of the Company, during any Scheduled Black-Out Period;


 


provided, that the
total number of days that any such suspension, deferral or delay in
registration pursuant to clauses (3) and (4) in the aggregate may be
in effect in any 180 day period shall not exceed 60 days.  The Company agrees to use its reasonable best
efforts to issue earnings releases as promptly as practicable following the end
of quarterly reporting periods and to otherwise minimize the duration of Scheduled
Black-Out Periods.


 


(iii)          The
Registration Statement filed pursuant to the request of the Initiating Holder
may, subject to the provisions of Section 2(a)(iv) below, include
shares of Common Stock which are held by Holders and Persons who, by virtue of
agreements with the Company (other than this Agreement), are entitled to
include their securities in any such Registration (such Persons, other than
Holders, “Other Stockholders”). 
In the event the Initiating Holder(s) request a Registration
pursuant to this Section 2(a) in connection with a distribution of
Registrable Securities to its partners or members or any other Holder elects to
participate in such Registration pursuant to Section 2(b) hereof in
connection with a distribution of Registrable Securities to its partners or
members, the Registration shall provide for the resale by such partners or
members, if requested by such Holder.


 


(iv)          Underwriting.  If the Initiating Holder(s) intend to
distribute the Registrable Securities covered by their request by means of an
underwriting, it shall so advise the Company as a part of the request made
pursuant to Section 2(a).  If Other
Stockholders or Holders, to the extent they have any registration rights under Section 2(b),
request inclusion of their shares of Common Stock in the underwriting, the
Initiating Holder(s) shall offer to include the shares of Common Stock of
such Holders and Other Stockholders in the underwriting and 


 


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may condition such offer on their acceptance of the
further applicable provisions of this Section 2.  The Holders whose Registrable Securities are
to be included in such Registration and the Company shall (together with all
Other Stockholders proposing to distribute their shares of Common Stock through
such underwriting) enter into an underwriting agreement in customary form for
secondary public offerings with the managing underwriter or underwriters
selected for such underwriting by a majority-in-interest of the Holders whose
Registrable Securities are to be included in such Registration subject to
approval by the Company not to be unreasonably withheld (which underwriters may
also include a non-bookrunning co-manager selected by the Company subject to
approval by a majority-in-interest of the Holders whose Registrable Securities
are to be included in such Registration); provided, however, that
such underwriting agreement shall not provide for indemnification or
contribution obligations on the part of any Holder or Other Stockholder greater
than the obligations of the Holders under Section (2)(f)(ii) or Section 2(f)(iv).  Notwithstanding any other provision of this Section 2(a),
if the managing underwriter or underwriters advises the Holders in writing that
marketing factors require a limitation on the number of shares to be
underwritten, some or all of the securities of the Company held by the Other
Stockholders (other than the Brookfield/Fairholme Holders) shall be excluded
from such Registration to the extent so required by such limitation.  If, after the exclusion of such shares held
by such Other Stockholders (other than the Brookfield/Fairholme Holders),
further reductions are still required due to the marketing limitation, the
number of Registrable Securities included in the Registration by each Holder
(including the Initiating Holder(s)) and the Brookfield/Fairholme Holders shall
be reduced on a pro rata basis (based on the number of Registrable Securities
requested to be included in such registration by such Holders and the
Brookfield/Fairholme Holders, as applicable), by such minimum number of shares
as is necessary to comply with such request. 
No Registrable Securities or any other securities excluded from the
underwriting by reason of the underwriter’s marketing limitation shall be
included in such Registration.  If any
Holder or Other Stockholder who has requested inclusion in such Registration as
provided above disapproves of the terms of the underwriting, such Person may
elect to withdraw therefrom by providing written notice to the Company, the
underwriter and the Initiating Holder(s). 
The securities so withdrawn shall also be withdrawn from
Registration.  If the underwriter has not
limited the number of Registrable Securities or other securities to be
underwritten, the Company and executive officers and directors of the Company
(whether or not such Persons have registration rights pursuant to Section 2(b) hereof)
may include its or their securities for its or their own account in such
Registration if the managing underwriter or underwriters and the Company so agree
and if the number of Registrable Securities and other securities which would
otherwise have been included in such Registration and underwriting will not
thereby be limited.


 


(v)           The
number of demand registrations that the Holders shall be entitled to request,
and that the Company shall be obligated to undertake, pursuant to this Section 2(a) shall
be unlimited; provided, that the Company shall not be obligated to
undertake more than three underwritten offerings pursuant to this Section 2
during the term of this Agreement, provided, further that in
no event shall the Company be required to effect more than one underwritten
offering in any twelve-month period pursuant to this Section 2.


 


(vi)          In the case of an underwritten offering under this Section 2(a),
the price, underwriting discount and other financial terms for the Registrable
Securities shall be determined by the Initiating Holder(s).


 


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(b)           Piggyback
Registration.


 


(i)            If
the Company shall determine to register any of its
capital stock (including any warrants) either (x) for its own
account, (y) for the account of the Holders listed in Section 2(a) pursuant to
the terms thereof, or (z) for the account of Other Stockholders (other than (A)
a Registration relating solely to Qualifying Employee Stock, (B) a Registration
relating solely to a Rule 145 transaction under the Securities Act or (C) a
Registration on any Registration form which does not permit secondary sales or
does not include substantially the same information as would be required to be
included in a Registration Statement), the Company will, subject to the
conditions set forth in this Section 2(b):


 


(1)           promptly give to each of the Holders a written notice
thereof (which shall include a list of the jurisdictions in which the Company
intends to attempt to qualify such securities under the applicable blue sky or
other state securities laws); and


 


(2)           subject to Section 2(b)(ii) below and any transfer
restrictions any Holder may be a party to, include in such Registration (and
any related qualification under blue sky laws or other compliance), and in any
underwriting involved therein, all the Registrable Securities specified in a written
request or requests, made by the Holders. 
Such written request may specify all or a part of the Holders’
Registrable Securities and shall be received by the Company within ten (10)
days after written notice from the Company is given under Section 2(b)(i)(1)
above.  In the event any Holder requests
inclusion in a Registration pursuant to this Section 2(b) in connection with a
distribution of Registrable Securities to its partners or members, the
Registration shall provide for the resale by such partners or members, if
requested by such Holder.


 


(ii)           Underwriting.  If the Registration of which the Company
gives notice is for a Registered public offering involving an underwriting, the
Company shall so advise each of the Holders as a part of the written notice
given pursuant to Section 2(b)(i)(1) above. 
In such event, the right of each of the Holders to Registration pursuant
to this Section 2(b) shall be conditioned upon such Holders’ participation in
such underwriting and the inclusion of such Holders’ Registrable Securities in
the underwriting to the extent provided herein. 
The Holders whose Registrable Securities are to be included in such
Registration shall (together with the Company and the Other Stockholders distributing
their securities through such underwriting) enter into an underwriting
agreement in customary form for secondary public offerings with the managing
underwriter or underwriters selected for underwriting by the Company (and if
the Registration was initiated by a Holder pursuant to Section 2(a), such
underwriters must be selected by the Initiating Holder(s) and reasonably
acceptable to the Company); provided, however, that such
underwriting agreement shall not provide for indemnification or contribution
obligations on the part of any Holder or Other Stockholder greater than the
obligations of the Holders under Section 2(f)(ii) or Section 2(f)(iv).  Notwithstanding any other provision of this
Section 2(b), if any Registration in respect of which any Holder is exercising
its rights under this Section 2(b) involves an underwritten public offering
(other than a demand Registration pursuant to Section 2(a), in which case the
provisions with respect to priority of inclusion in such Registration set forth
in Section 2(a) shall apply) and the managing underwriter or underwriters 


 


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advises the Company that in its view marketing
factors require a limitation on the number of securities to be underwritten,
then there shall be included in such underwritten offering the number or dollar
amount of securities of the Company that in the opinion of the managing
underwriter or underwriters can be sold without adversely affecting such
offering, and such number of securities of the Company shall be allocated for
inclusion as follows: (1) first all securities of the Company being sold by the
Company for its own account or by any Person (other than a Holder or a
Brookfield/Fairholme Holder) exercising a contractual right to demand
registration; (2) second, all Registrable Securities requested to be included
by the Holders, all Registrable Securities to be included by the Brookfield/Fairholme Holders and securities of the
Company being sold by any Person (other than a Holder or a Brookfield/Fairholme
Holder) with similar piggyback registration rights, pro rata, based on the
number of shares requested to be included in such registration by such Holders,
the Brookfield/Fairholme Holders and such
Persons; and (3) third, among any other holders of securities of the Company
requesting such registration, pro rata, based on the number of securities
requested to be included in such registration by each such holder.  For the avoidance of doubt, in the event any
Brookfield/Fairholme Holder exercises demand registration rights, such
registration is an underwritten public offering and the managing underwriter
advises that marketing factors require a limitation on the number of securities
to be so underwritten, Registrable Securities of any Holders exercising
piggyback rights under this Section 2(b) in connection with such offering and
any securities to be included in such offering by the Brookfield/Fairholme
Holders shall be included in such offering in the same priority and allocated
on a pro rata basis, as set forth in clause (2) above.  If any of the Holders or any officer,
director or Other Stockholder disapproves of the terms of any such
underwriting, he, she or it may elect to withdraw therefrom by providing
written notice to the Company, the underwriter and the Initiating Holder(s).  Any Registrable Securities or other
securities excluded or withdrawn from such underwriting shall be withdrawn from
such Registration.


 


(c)           Required
Shelf Registration Statement.  From
and after the declaration of effectiveness by the Commission of the Shelf
Registration Statement contemplated by Section 7.1(l) of the Stock Purchase
Agreement (the “Required Shelf Registration Statement”), the Company
shall use reasonable best efforts to cause such Required Shelf Registration
Statement to be continuously effective so long as there are any Registrable
Securities outstanding.  In connection
with the Required Shelf Registration Statement, the Company will, subject to
the terms and limitations of this Section 2, as promptly as reasonably
practicable upon notice from any Holder requesting Registration in accordance
with the terms of this Section 2(c), cooperate in any shelf take-down by
amending or supplementing the Prospectus related to such Registration as may be
reasonably requested by such Holder or as otherwise required to reflect the
number of Registrable Securities to be sold thereunder.


 


(d)           Expenses
of Registration.  All Registration
Expenses incurred in connection with any Registration, qualification or
compliance pursuant to this Section 2 shall be borne by the Company, and all
Selling Expenses shall be borne by the Holders of the securities so registered
pro rata on the basis of the number of their shares so registered (or, in the
case of fees and disbursements of counsel and advisors to any Holders that do
not constitute Registration Expenses, by the Holders as incurred).


 


11

















 


(e)           Registration
Procedures.  In the case of each
Registration effected by the Company pursuant to this Section 2, the Company
will keep the Participating Holders advised in writing as to the initiation of
each Registration and as to the completion thereof.  At its expense, the Company will:


 


(i)            as
promptly as practicable, prepare and file with the Commission such pre- and post-effective
amendments to such Registration Statement, supplements to the Prospectus and
such amendments or supplements to any Issuer Free Writing Prospectus as may be
(1) reasonably requested by the Initiating Holder(s) (if any),
(2) reasonably requested by any other Participating Holder (to the extent
such request relates to information relating to such Participating Holder), or
(3) necessary to keep such Registration effective for the period of time
required by this Agreement, and comply with provisions of the applicable
securities laws with respect to the sale or other disposition of all securities
covered by such Registration Statement during such period in accordance with
the intended method or methods of disposition by the sellers thereof set forth
in such Registration Statement;


 


(ii)           notify
the Participating Holders and the managing underwriter or underwriters, if any,
and (if requested) confirm such advice in writing and provide copies of the
relevant documents, as promptly as practicable after notice thereof is received
by the Company (1) when the applicable Registration Statement or any
amendment thereto has been filed or becomes effective, and when the applicable
Prospectus or Issuer Free Writing Prospectus or any amendment or supplement
thereto has been filed, (2) to the extent any of the following relates to
the Participating Holders or information supplied by the Participating Holders,
of any written comments by the Commission or any request by the Commission or
any other federal or state governmental authority for amendments or supplements
to such Registration Statement, Prospectus or Issuer Free Writing Prospectus or
for additional information, (3) of the issuance by the Commission of any
stop order suspending the effectiveness of such Registration Statement or any
order by the Commission or any other regulatory authority preventing or
suspending the use of any Prospectus or any Issuer Free Writing Prospectus or
the initiation or threatening of any proceedings for such purposes, (4) if,
at any time, the representations and warranties of the Company in any
applicable underwriting agreement cease to be true and correct in all material
respects, and (5) of the receipt by the Company or its legal counsel of
any notification with respect to the suspension of the qualification of the
Registrable Securities for offering or sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose;


 


(iii)          promptly
notify the Participating Holders and the managing underwriter or underwriters,
if any, when the Company becomes aware of the happening of any event as a
result of which the applicable Registration Statement, the Prospectus included
in such Registration Statement (as then in effect) or any Issuer Free Writing
Prospectus contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary in order to make the
statements therein (in the case of such Prospectus or any Issuer Free Writing
Prospectus, in light of the circumstances under which they were made) not
misleading, and when any Issuer Free Writing Prospectus includes information
that may conflict with the information contained in the Registration Statement,
or, if for any other reason it shall be necessary during such time period to
amend or supplement such Registration Statement, Prospectus or Issuer Free
Writing Prospectus in order to comply with the Securities Act and, in either
case as promptly as reasonably practicable thereafter, prepare and file with
the Commission, and furnish without 


 


12

















 


charge
to the Participating Holders and the managing underwriter or underwriters, if
any, an amendment or supplement to such Registration Statement, Prospectus or
Issuer Free Writing Prospectus which shall correct such misstatement or
omission or effect such compliance;


 


(iv)          use
its reasonable best efforts to prevent, or obtain the withdrawal of, any stop
order or other order suspending the use of any Prospectus or any Issuer Free
Writing Prospectus;


 


(v)           deliver
to each Participating Holder and each underwriter, if any, without charge, as
many copies of the applicable Prospectus (including each preliminary
Prospectus), any Issuer Free Writing Prospectus and any amendment or supplement
thereto as such Participating Holder or underwriter may reasonably request (it
being understood that the Company consents to the use of such Prospectus, any
Issuer Free Writing Prospectus and any amendment or supplement thereto by such
Holder and the underwriters, if any, in connection with the offering and sale
of the Registrable Securities thereby) and such other documents as such
Participating Holder or underwriter may reasonably request in order to
facilitate the disposition of the Registrable Securities by such Participating
Holder or underwriter;


 


(vi)          subject
to the terms set forth in Section 2(a)(ii)(1) and Section 2(c) hereof, on or
prior to the date on which the applicable Registration Statement is declared
effective, use its reasonable best efforts to register or qualify the
Registrable Securities covered by such Registration Statement under such other
securities or “blue sky” laws of such jurisdictions in the United States as any
Participating Holder reasonably (in light of such Participating Holder’s
intended plan of distribution) requests and do any and all other acts and
things that may be reasonably necessary or advisable to enable such
Participating Holder to consummate the disposition of the Registrable
Securities owned by such Participating Holder pursuant to such Registration
Statement;


 


(vii)         make
such representations and warranties to the Participating Holders and the
underwriters or agents, if any, in form, substance and scope as are customarily
made by issuers in underwritten public offerings;


 


(viii)        enter
into such customary agreements (including underwriting and indemnification
agreements) and take such other actions as the Initiating Holder(s) or the
managing underwriter, if any, reasonably requests in order to expedite or facilitate
the Registration and disposition of such Registrable Securities;


 


(ix)           use
its reasonable best efforts to obtain for delivery to the managing underwriter,
if any, an opinion or opinions from counsel for the Company dated the effective
date of the Registration Statement or, in the event of an underwritten
offering, the date of the closing under the underwriting agreement, in form and
substance as is customarily given to underwriters in an underwritten secondary
public offering;


 


(x)            in
the case of an underwritten offering, use reasonable best efforts to obtain for
delivery to the Company and the managing underwriter, if any, a “ comfort”
letter from the Company’s independent certified public accountants in form and
substance as is 


 


13

















 


customarily
given by independent certified public accountants in an underwritten secondary
public offering;


 


(xi)           cooperate
with each Participating Holder and the underwriters, if any, of such
Registrable Securities and their respective counsel in connection with any
filings required to be made with FINRA;


 


(xii)          use
its reasonable best efforts to cause all Registrable Securities covered by the
applicable Registration Statement to be listed or quoted on a national
securities exchange or trading system and each securities exchange and trading
system (if any) on which similar securities issued by the Company are then
listed;


 


(xiii)         cooperate
with the Participating Holders and the underwriters, if any, to facilitate the
timely preparation and delivery of certificates, with requisite CUSIP numbers,
representing Registrable Securities to be sold and not bearing any restrictive
legends;


 


(xiv)        in
the case of an underwritten offering, make reasonably available the senior
executive officers of the Company to participate in the customary “road show”
presentations that may be reasonably requested by the managing underwriter in
any such underwritten offering and otherwise to facilitate, cooperate with, and
participate in each proposed offering contemplated herein and customary selling
efforts related thereto;


 


(xv)         use
its reasonable best efforts to procure the cooperation of the Company’s
transfer agent in settling any offering or sale of Registrable Securities,
including with respect to the transfer of physical security instruments into
book-entry form in accordance with any procedures reasonably requested by the
Holders or any managing underwriter(s);


 


(xvi)        use
its reasonable best efforts to take such actions as are under its control to
become or remain a well-known seasoned issuer (as such term in defined in Rule
405 under the Securities Act) and not become an illegible issuer (as such term
is defined in Rule 405 under the Securities Act) during the period when such
Registration Statement remains in effect; and


 


(xvii)       make
available for inspection by a representative of Participating Holders that are
selling at least five percent (5%) of the Registrable Securities included in
such Registration (and who is named in the applicable prospectus supplement as
a Person who may be deemed to be an underwriter with respect to an offering and
sale of Registrable Securities), the managing underwriter(s), if any, and any
attorneys or accountants retained by such Holders or the managing underwriters(s),
at the offices where normally kept, during reasonable business hours, financial
and other records and pertinent corporate documents of the Company, and cause
the officers, directors and employees of the Company to supply all information
in each case reasonably requested by any such representative, managing
underwriter, attorney or accountant in connection with such Registration
Statement; provided, that if any such information is identified by the
Company as being confidential or proprietary, each Person receiving such
information shall take such actions as are reasonably necessary to protect the
confidentiality of such information and shall sign customary confidentiality
agreements reasonably requested by the Company prior to the receipt of such
information.


 


14

















 


(f)            Indemnification.


 


(i)            Indemnification
by the Company.  With respect to each
Registration which has been effected pursuant to this Section 2, the Company
agrees to indemnify and hold harmless, to the fullest extent permitted by law,
(1) each of the Participating Holders and each of its officers, directors,
limited or general partners and members thereof, (2) each member, limited or
general partner of each such member, limited or general partner, (3) each of
their respective Affiliates, officers, directors, shareholders, employees,
advisors, and agents and each Person who controls (within the meaning of the
Securities Act or the Exchange Act) such Persons and each underwriter, if any,
and each person who controls (within the meaning of the Securities Act or the
Exchange Act) any underwriter, against any and all claims, losses, damages,
penalties, judgments, suits, costs, liabilities and expenses (or actions in
respect thereof) (collectively, the “Losses”) arising out of or based on
(A) any untrue statement (or alleged untrue statement) of a material fact
contained in any Registration Statement (including any Prospectus or Issuer
Free Writing Prospectus) or any other document incident to any such Registration,
qualification or compliance, (B) any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading (in the case of any Prospectus or Issuer Free
Writing Prospectus, in light of the circumstances under which they were made
not misleading), or (C) any violation by the Company of the Securities Act or
the Exchange Act applicable to the Company and relating to action or inaction
required of the Company in connection with any such Registration, qualification
or compliance, and will reimburse each of the Persons listed above, for any
reasonable and documented legal and any other expenses reasonably incurred in
connection with investigating and defending any such Losses, provided,
that the Company will not be liable in any such case to the extent that any
such Losses arise out of or are based on any untrue statement or omission based
upon written information furnished to the Company by the Participating Holders
or underwriter and stated to be specifically for use therein.


 


(ii)           Indemnification
by the Participating Holders.  Each
of the Participating Holders agrees (severally and not jointly) to indemnify
and hold harmless, to the fullest extent permitted by law, the Company, each of
its directors and officers and each underwriter, if any, of the Company’s
securities covered by such a Registration Statement, each Person who controls
the Company (within the meaning of the Securities Act or the Exchange Act) or
such underwriter, each other Participating Holder and each of their respective
officers, directors, partners and members, and each Person controlling such
Participating Holder (within the meaning of the Securities Act or the Exchange
Act) against any and all Losses arising out of or based on (A) any untrue
statement (or alleged untrue statement) of a material fact contained in any
Registration Statement (including any Prospectus or Issuer Free Writing
Prospectus) or any other document incident to any such Registration,
qualification or compliance (including any notification or the like) made by
such Participating Holder in writing or (B) any omission (or alleged omission)
to state therein a material fact required to be stated therein or necessary to
make the statements by such Participating Holder therein not misleading (in the
case of any Prospectus or Issuer Free Writing Prospectus, in light of the
circumstances under which they were made not misleading) and will reimburse the
Persons listed above for any reasonable and documented legal or any other
expenses reasonably incurred in connection with investigating or defending any
such Losses, in each case to the extent, but only to the extent, that such
untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in reliance 


 


15

















 


upon and in conformity with written information
furnished to the Company by such Participating Holder and stated to be
specifically for use therein; provided, however, that the
obligations of each of the Participating Holders hereunder shall be limited to
an amount equal to the net proceeds (after giving effect to any underwriters
discounts and commissions) such Participating Holder receives in such
Registration.


 


(iii)          Conduct
of the Indemnification Proceedings. 
Each party entitled to indemnification under this Section 2(f) (the “Indemnified
Party”) shall give notice to the party required to provide indemnification
(the “Indemnifying Party”) promptly after such Indemnified Party has
actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided, that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not unreasonably be withheld) and the Indemnified Party
may participate in such defense at such party’s expense (unless the Indemnified
Party shall have reasonably concluded that there may be a conflict of interest
between the Indemnifying Party and the Indemnified Party in such action, in
which case the fees and expenses of counsel shall be at the expense of the Indemnifying
Party), and provided, further, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 2(f) unless the
Indemnifying Party is prejudiced thereby. 
It is understood and agreed that the Indemnifying Party shall not, in
connection with any proceeding or related proceeding in the same jurisdiction,
be liable for the fees and expenses of more than one separate legal counsel for
all Indemnified Parties; provided, however, that where the
failure to be provided separate legal counsel could potentially result in a
conflict of interest on the part of such legal counsel for all Indemnified
Parties, separate counsel shall be appointed for Indemnified Parties to the extent
needed to alleviate such potential conflict of interest.  No Indemnifying Party, in the defense of any
such claim or litigation shall, except with the prior written consent of each
Indemnified Party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation.  Each Indemnified Party shall furnish such
information regarding itself or the claim in question as an Indemnifying Party
may reasonably request in writing and as shall be reasonably required in
connection with the defense of such claim and litigation resulting therefrom.


 


(iv)          If
the indemnification provided for in this Section 2(f) is held by a court of
competent jurisdiction to be unavailable to an Indemnified Party with respect
to any Losses, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party hereunder, shall contribute to the amount paid or payable by
such Indemnified Party as a result of such Losses in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on the one
hand and of the Indemnified Party on the other in connection with the statements
or omissions (or alleged statements or omissions) which resulted in such
Losses, as well as any other relevant equitable considerations.  The relative fault of the Indemnifying Party
and of the Indemnified Party shall be determined by reference to, among other
things, whether the untrue (or alleged untrue) statement of a material fact or
the omission (or alleged omission) to state a material fact relates to
information supplied by the Indemnifying Party or by the Indemnified Party and
the parties’ relative intent, knowledge, access to information and opportunity
to correct or prevent 


 


16

















 


such statement or omission; provided, however,
that the obligations of each of the Participating Holders hereunder shall be
several and not joint and shall be limited to an amount equal to the net
proceeds (after giving effect to any underwriters discounts and commissions)
such Participating Holder receives in such Registration and, provided, further,
that no Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.  For purposes of this Section 2(f)(iv), each
Person, if any, who controls an underwriter or agent within the meaning of
Section 15 of the Securities Act shall have the same rights to contribution as
such underwriter or agent and each director of the Company, each officer of the
Company who signed a Registration Statement, and each Person, if any, who
controls the Company or a selling Holder within the meaning of Section 15 of
the Securities Act shall have the same rights to contribution as the Company or
such selling Holder, as the case may be.


 


(v)           Subject
to the limitations on the Holders’ liability set forth in Section 2(f)(ii) and
Section 2(f)(iv), the remedies provided for in this Section 2(f) are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any Indemnified Party at law or equity.  The remedies shall remain in full force and
effect regardless of any investigation made by or on behalf of such Holder or
any Indemnified Party and survive the transfer of such securities by such
Holder.


 


(vi)          The obligations of
the Company and of the Participating Holders hereunder to indemnify any
underwriter or agent who participates in an offering (or any Person, if any
controlling such underwriter or agent within the meaning of Section 15 of the
Securities Act) shall be conditioned upon the underwriting or agency agreement
with such underwriter or agent containing an agreement by such underwriter or
agent to indemnify and hold harmless the Company, each of its directors and
officers, each other Participating Holder, and each Person who controls the
Company (within the meaning of the Securities Act or the Exchange Act) or such
Participating Holder against all Losses, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such underwriter or agent expressly for use in such filings
described in this sentence.


 


(g)           Participating
Holders.


 


(i)            Each of the Participating Holders shall furnish to the
Company such information regarding such Participating Holder and its partners
and members, and the distribution proposed by such Holder as the Company may
reasonably request in writing and as shall be reasonably requested in
connection with any Registration, qualification or compliance referred to in
this Section 2.


 


(ii)           In the event that, either immediately prior to or
subsequent to the effectiveness of any Registration Statement, any
Participating Holder shall distribute Registrable Securities to its partners or
members, such Participating Holder shall so advise the Company and 


 


17

















 


provide such information as shall be necessary to
permit an amendment to such Registration Statement to provide information with
respect to such partners or members, as selling security holders.  As soon as is reasonably practicable following
receipt of such information, the Company shall file an appropriate amendment to
such Registration Statement reflecting the information so provided.  Any incremental expense to the Company
resulting from such amendment shall be borne by such Participating Holder.


 


(iii)          Each Holder agrees that at the time that such Holder is a
Participating Holder, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 2(e)(iii), such Holder
shall forthwith discontinue disposition of Registrable Securities pursuant to
the Registration Statement covering such Registrable Securities until such
Holder’s receipt of the copies of a supplemented or amended Prospectus or
Issuer Free Writing Prospectus or until such Holder is advised in writing by
the Company that the use of the Prospectus or Issuer Free Writing Prospectus,
as the case may be, may be resumed, and, if so directed by the Company, such
Holder shall deliver to the Company all copies, other than any permanent file copies
then in such Holder’s possession, of the most recent Prospectus or any Issuer
Free Writing Prospectus covering such Registrable Securities at the time of
receipt of such notice.  If the Company
shall give such notice, the Company shall extend the period during which such
Registration Statement shall be maintained effective by the number of days
during the period from and including the date of the giving of notice pursuant
to Section 2(e)(iii) to the date when the Company shall make available to such Holder
a copy of the supplement or amended Prospectus or Issuer Free Writing
Prospectus or is advised in writing that the use of the Prospectus or Issuer
Free Writing Prospectus may be resumed.


 


(h)           Rule
144.  With a view to making available
the benefits of certain rules and regulations of the Commission which may
permit the sale of restricted securities to the public without Registration,
the Company agrees to use its reasonable best efforts to file with the
Commission in a timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act at any time after it has
become subject to such reporting requirements (or, if the Company is not
required to file such reports, it will, upon the reasonable request of the Holders
holding a majority of the then outstanding Registrable Securities, make
publicly available such necessary information for so long as necessary to
permit sales pursuant to Rules 144 under the Securities Act).


 


(i)            Termination.  The registration rights set forth in this
Section 2 shall terminate and cease to be available as to any securities held
by an Investor at such time as such Investor (after owning) first ceases to own any Registrable Securities.


 


(j)            Lock-Up
Agreements.


 


(i)            The
Company agrees that, if requested by the managing underwriter in any
underwritten public offering contemplated by this Agreement, it will enter into
a customary “lock-up” agreement providing that it will not, directly or
indirectly, sell, offer to sell, grant any option for the sale of, or otherwise
dispose of any Common Stock or securities convertible into or exchangeable or
exercisable for Common Stock (subject to customary exceptions), other than any
such sale or distribution of Common Stock upon exercise of the Company’s
Warrants, for a 


 


18

















 


period of 60 days from the effective date of the
Registration Statement pertaining to such Common Stock; provided, however,
that any such lock-up agreement shall not prohibit the Company from directly or
indirectly (i) selling, offering to sell, granting any option for the sale of,
or otherwise disposing of any Qualifying Employee Stock (or otherwise
maintaining its employee benefits plans in the ordinary course of business) or
(ii) issuing Common Stock or securities convertible into or exchangeable for
Common Stock upon exercise or conversion of any warrant (including any other
Warrant), option, right or convertible or exchangeable security issued in
connection with the plan of reorganization. 
Each Holder shall coordinate with other Holders and the Brookfield
Holders and the Fairholme Holders such that the total number of days that the
Company will be subject to such restrictions (including similar restrictions
pursuant to any registration rights agreements with the Brookfield Holders and
the Fairholme Holders) as may be in effect in any 365-day period shall not
exceed 120 days.


 


(ii)           In
the event that any Holder is an Affiliate of the Company, if requested by the
managing underwriter in any underwritten public offering permitted by this
Agreement, such Holder will enter into a customary “lock-up” agreement
providing that it will not sell, grant any option for the sale of, or otherwise
dispose of any Common Stock outside of such public offering (subject to
customary exceptions) for a period of 60 days from the effective date of the
Registration Statement pertaining to such Common Stock.


 


(k)           Notwithstanding
any provision of this Agreement to the contrary, in order for a Registration to
be included as a Registration for purposes of this Section 2, the Registration
Statement in connection therewith shall have been continually effective in
compliance with the Securities Act and usable for resale for the full period
established with respect to such Registration (except in the case of any
suspension of sales pursuant to (A) a Scheduled Black-Out Period, or (B)
Section 2(e)(iii) hereof, in which case such period shall be extended to the
extent of such suspension).


 


(l)            Notwithstanding
any provision of this Agreement to the contrary, if the Company is required to
file a post-effective amendment to a Registration Statement to incorporate the
Company’s quarterly and annual reports and related financial statements on Form
10-Q and Form 10-K, the Company shall use its reasonable best efforts to
promptly file such post-effective amendment and may postpone or suspend
effectiveness of such Registration Statement for a period not to exceed thirty
(30) consecutive days to the extent the Company determines necessary to comply
with applicable securities laws; provided, that the period by which the
Company postpones or suspends the effectiveness of a shelf Registration
Statement pursuant to this Section 2(l) plus any suspension, deferral or delay
pursuant to Section 2(e)(iii) shall not exceed 60 days in the aggregate in any
twelve-month period.


 


SECTION 3.  MISCELLANEOUS


 


(a)           Governing
Law.  This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed entirely within such State
without regard to conflicts of law principles.


 


(b)           Section
Headings.  The headings of the
sections and subsections of this Agreement are inserted for convenience only
and shall not be deemed to constitute a part thereof.


 


19














 


(c)           Notices.


 


(i)            All communications under
this Agreement shall be in writing and shall be delivered by hand or facsimile
or mailed by overnight courier:


 


(1)           if to the Company, to:


 


General Growth Properties, Inc.


110 N. Wacker Drive


Chicago IL 60606


Attention:              Ronald L. Gern, Esq.,
General Counsel


Fax: (312) 960-5485


 


with a copy (which shall not constitute notice) to:


 


Weil, Gotshal & Manges LLP


767 Fifth Avenue


New York, NY 10153


Attention:              Malcolm E.
Landau, Esq.


Matthew D. Bloch, Esq.


Facsimile: (212) 310-8007


 


(2)           if to the Holders, at the
address or facsimile number listed on Schedule I hereto, or at such other
address or facsimile number as may have been furnished to the Company in
writing.


 


(ii)           Any notice so addressed
shall be deemed to be given: if delivered by hand or facsimile, on the date of
such delivery; and if mailed by overnight courier, on the first business day
following the date of such mailing.


 


(d)           Reproduction of Documents.  This Agreement and all documents relating
thereto, including, without limitation, any consents, waivers and modifications
which may hereafter be executed may be reproduced by the Holders by any
photographic, photostatic, microfilm, microcard, miniature photographic or
other similar process and the Holders may destroy any original document so
reproduced.  The parties hereto agree and
stipulate that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding (whether or not
the original is in existence and whether or not such reproduction was made by
the Holders in the regular course of business) and that any enlargement,
facsimile or further reproduction of such reproduction shall likewise be
admissible in evidence.


 


(e)           Successors and Assigns.  Neither this Agreement nor any right or
obligation hereunder may be assigned in whole or in part by any party without
the prior written consent of the other parties hereto and any purported
assignment in violation of this provision shall be void; provided, however,
that the rights and obligations hereunder of any Investor may 


 


20

















 


be assigned, in whole or in part, to any Person who
acquires such Registrable Securities that (i) is a member of the Purchaser
Group, (ii) is an Affiliate of any Initial Investor or (iii) is
unable to immediately sell, without limitations (including, but not limited to,
any limitation on volume or manner of sale) or restrictions under Rule 144,
all Registrable Securities and other shares of Common Stock held by such Person
(provided, that for this clause (iii), any such rights and obligations
may be assigned solely with respect to such Registrable Securities) (each such
Person described in clauses (i), (ii) or (iii), a “Permitted Assignee”).  Any assignment pursuant to this Section 3(e) shall
be effective and any Person shall become a Permitted Assignee only upon receipt
by the Company of (1) a written notice from the transferring Holder
stating the name and address of the transferee and identifying the number of
shares of Registrable Securities with respect to which the rights under this
Agreement are being transferred and, if fewer than all of the rights
attributable to a Holder hereunder are to be so transferred, the nature of the
rights so transferred and (2) a written instrument by which the transferee
agrees to be bound by all of the terms and conditions applicable to a Holder of
such Registrable Securities.  Subject to
the foregoing, this Agreement shall inure to the benefit of and be binding upon
the successors and permitted assigns of each of the parties.


 


(f)            Several Nature of Commitments.  The obligations of each Holder hereunder are
several and not joint and several, and relate only to the Registrable
Securities held by such Holder from time to time.  No Holder shall bear responsibility to the
Company for breach of this Agreement or any information provided by any other
Holder.


 


(g)           Additional Investors.  The parties hereto acknowledge that certain
Persons may become stockholders of the Company and the Company may wish to
grant such Persons registration rights with respect to the shares of Common
Stock issued to such Persons.  The
Company may do so in its discretion so long as such registration rights are not
inconsistent with the registration rights granted to the Holders hereunder and,
if any registrations rights granted are more favorable than those provided to
Holders of Common Stock hereunder, conforming changes reasonably acceptable to
the Purchasers are made to this Agreement to provide Holders hereunder with
substantially similar rights.  For the
avoidance of doubt, notwithstanding anything to the contrary set forth herein,
Blackstone and its Permitted Assignees shall not be entitled to demand
registration rights (pursuant to Section 2(a) hereof).


 


(h)           Entire Agreement; Amendment and Waiver.  This Agreement constitutes the entire
understanding of the parties hereto relating to the subject matter hereof and
supersedes all prior understandings among such parties.  This Agreement may be amended with (and only
with) the written consent of the Company and the Holders holding a majority of
the then outstanding Registrable Securities and any such amendment shall apply
to all Holders and all of their Registrable Securities; provided, however,
that, notwithstanding the foregoing, no amendment to this Agreement may
adversely affect the rights of a Holder hereunder without the prior written
consent of such Holder; provided, further, that,
notwithstanding the foregoing, additional Holders may become party hereto upon
an assignment of rights and obligations hereunder pursuant to Section 3(e);
provided further, however, that other than as
set forth in Section 3(e), the Company may not add additional parties
hereto without the consent of Holders holding a majority of the then
outstanding Registrable Securities.  The
observance of any term of this Agreement may be waived by the party or parties
waiving any rights hereunder; provided, 


 


21

















 


that any such waiver shall apply to all Holders and
all of their Registrable Securities only if made by Holders holding a majority
of then-outstanding Registrable Securities.


 


(i)            Injunctive Relief.  It is hereby agreed and acknowledged that it
will be impossible to measure in money the damage that would be suffered if the
parties fail to comply with any of the obligations herein imposed on them and
that in the event of any such failure, an aggrieved Person will be irreparably
damaged and will not have an adequate remedy at law.  Any such Person shall, therefore, be entitled
(in addition to any other remedy to which it may be entitled in law or in
equity) to injunctive relief, including specific performance, to enforce such
obligations, and if any action should be brought in equity to enforce any of
the provisions of this Agreement, none of the parties hereto shall raise the
defense that there is an adequate remedy at law.


 


(j)            WAIVER OF JURY
TRIAL.  EACH PARTY ACKNOWLEDGES AND
AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY
TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY ACTIONS, SUITS, DEMAND LETTERS, JUDICIAL, ADMINISTRATIVE
OR REGULATORY PROCEEDINGS, OR HEARINGS, NOTICES OF VIOLATION OR INVESTIGATIONS
ARISING OUT OF OR RELATING TO THIS AGREEMENT. 
EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) SUCH
PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER AND (B) SUCH PARTY
MAKES THIS WAIVER VOLUNTARILY.


 


(k)           No Inconsistent Agreements.  The Company is not currently a party to any
agreement which is, or could be inconsistent with, the rights granted to the
Holders by this Agreement.


 


(l)            Severability.  In the event that any part or parts of this
Agreement shall be held illegal or unenforceable by any court or administrative
body of competent jurisdiction, such determination shall not affect the
remaining provisions of this Agreement which shall remain in full force and
effect.


 


(m)          Counterparts.  This Agreement may be executed in two or more
counterparts (including by email or facsimile signature), each of which shall
be deemed an original and all of which together shall be considered one and the
same agreement.


 


(n)           Interpretation of this Agreement.  Where any provision in this Agreement refers
to action to be taken by any Person, or which such Person is prohibited from
taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.


 


[Remainder of Page Intentionally Left Blank]


 


22

















 


IN WITNESS WHEREOF, the undersigned have executed this Registration
Rights Agreement as of the date first set forth above.


 


	
   

  	
  GENERAL GROWTH PROPERTIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


PERSHING SQUARE CAPITAL MANAGEMENT, L.P.


On behalf of each of the Purchasers


By: PS Management GP, LLC


Its: General Partner


 


 


	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  



 


 


BLACKSTONE REAL ESTATE PARTNERS VI L.P.


By:  Blackstone Real Estate
Associates VI L.P., its General Partner


By:  BREA VI L.L.C., its General
Partner


 


	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  



 


 


BLACKSTONE REAL ESTATE PARTNERS (AIV) VI L.P.

By:  Blackstone Real Estate
Associates VI L.P., its General Partner


By:  BREA VI L.L.C., its General
Partner


 


	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  



 


[signature page to
Pershing/Blackstone Registration Rights Agreement]


 

















 


BLACKSTONE REAL ESTATE PARTNERS VI.F L.P.

By:  Blackstone Real Estate Associates VI
L.P., its General Partner


By:  BREA VI L.L.C., its General
Partner


 


	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  



 


 


BLACKSTONE REAL ESTATE PARTNERS VI.TE.1 L.P.

By:  Blackstone Real Estate Associates VI
L.P., its General Partner


By:  BREA VI L.L.C., its General
Partner


 


	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  



 


BLACKSTONE REAL ESTATE PARTNERS VI.TE.2 L.P.

By:   Blackstone Real Estate
Associates VI L.P., its General Partner


By:  BREA VI L.L.C., its General
Partner


 


	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  



 


 


BLACKSTONE REAL ESTATE HOLDINGS VI L.P.

By:  BREP VI Side-by-Side GP L.L.C., its
General Partner


 


	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  



 


 


BLACKSTONE GGP PRINCIPAL TRANSACTION PARTNERS L.P.

By:  Blackstone Real Estate Associates VI
L.P., its General Partner


By:  BREA VI L.L.C., its General
Partner


	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  



 


[signature page to
Pershing/Blackstone Registration Rights Agreement]


 

















 


Schedule I


 


Pershing
Square, L.P., a Delaware limited partnership


Pershing
Square II, L.P., a Delaware limited partnership


Pershing
Square International, Ltd. a Cayman Islands exempted company


Pershing
Square International V, Ltd., a Cayman Islands exempted company


 


Notice
to any Purchaser set forth above (which shall constitute notice to each
Purchaser set forth above) shall be made to:


 


Pershing
Square Capital Management, L.P.


888
Seventh Avenue, 42nd Floor


New
York, NY 10019


Attention:              William A. Ackman


Roy J. Katzovicz


Facsimile:               (212) 286-1133


 

















 


Schedule II


 


Blackstone
Real Estate Partners VI L.P., a Delaware limited partnership


Blackstone
Real Estate Partners (AIV) VI L.P., a Delaware limited partnership


Blackstone
Real Estate Partners VI.F L.P., a Delaware limited partnership


Blackstone
Real Estate Partners VI.TE.1 L.P., a Delaware limited partnership


Blackstone
Real Estate Partners VI.TE.2 L.P., a Delaware limited partnership


Blackstone
Real Estate Holdings VI L.P., a Delaware limited partnership


Blackstone
GGP Principal Transaction Partners L.P., a Delaware limited partnership


 


Notice
to any Blackstone entity set forth above (which shall constitute notice to each
Blackstone entity set forth above) shall be made to:


 


Blackstone
Real Estate Partners VI L.P.


345
Park Avenue


New
York, New York 10154


Attention:         
A.J. Agarwal


Facsimile:        
(212) 583-5725


 


with
a copy (which shall not constitute notice) to:


 


Simpson
Thacher & Bartlett LLP


425
Lexington Avenue


New
York, New York 10017


Attention:
         Brian M. Stadler, Esq.


Facsimile:
        (212) 455-2502